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The Role of REDD in the Harmonisation of Overlapping International Obligations

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Climate Change and the Law

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 21))

Abstract

Since 2007, Parties to the United Nations Framework Convention on Climate Change (UNFCCC) have been negotiating “policy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries,” commonly referred to with the acronym REDD+. Albeit the negotiations on REDD+ remain in fieri at the time of writing, this article discusses its potential to complement international conventions and agreements dealing with biodiversity protection and human rights. The choice of these two areas relates both to their links with the subject matter of REDD+, and to the fact that Parties to the UNFCCC and international bureaucracies dealing with these matters have already taken some steps to address potential overlaps. Far from being merely a theoretical question, therefore, the issues discussed in this article have attracted ample attention as negotiations progress. This article gives an account of this ongoing debate, providing a snapshot of its evolution, as well as some predictions on its outcome.

Annalisa Savaresi is Researcher at the International Centre for Climate Governance, Venice, Italy and Ph.D. Candidate at the Faculty of Law, University of Copenhagen, Denmark.

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Notes

  1. 1.

    Whereas the term has not yet been defined for the purposes of REDD+, under the Kyoto Protocol “deforestation” means “direct human-induced conversion of forested land to non-forested land.” Decision 16/CMP.1, Land Use, Land-use Change and Forestry, UN Doc. FCCC/KP/CMP/8/Add.3, 30 March 2006, annex, para. 1(d).

  2. 2.

    Whereas the term has not yet been defined for the purposes of REDD+, the Intergovernmental Panel on Climate Change (IPCC) has suggested defining forest degradation as “direct human-induced long-term loss (persisting for X years or more) of at least Y per cent of forest carbon stocks (and forest values) since time (T) and not qualifying as deforestation.” IPCC, Definitions and methodological options to inventory emissions from direct human-induced degradation of forests and devegetation of other vegetation types (Kanagawa, Japan: Institute for Global Environmental Strategies, 2003), at 16.

  3. 3.

    According to the IPCC Fourth Assessment Report, forestry accounts for around 17% of global carbon emissions. See, Rajendra K. Pachauri and Andy Reisinger (eds.), Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007), at 36. According to more recent estimates, this number may be closer to 15%, taking into account emissions from peat lands (excluded from the IPCC estimate) as well as increased fossil fuel emissions and updated deforestation data, see Guido R. van der Werf et al., “CO2 Emissions from Forest Loss”, 2 Nature Geoscience (2009), 737, at 737.

  4. 4.

    See, for example, Kenneth M. Chomitz, At loggerheads? Agricultural expansion, poverty reduction, and environment in the tropical forests (Washington DC: The International Bank for Reconstruction and Development / The World Bank, 2007), at 1; and Gabrielle Kissinger, Linking forests and food production in the REDD+ context (Copenhagen: CGIAR Research Program on Climate Change, Agriculture and Food Security, 2011), at 12.

  5. 5.

    UN Food and Agriculture Organization (FAO), Global Forest Resources Assessment (Rome: FAO, 2010), at 4.

  6. 6.

    For an analysis see, among others, David Humphreys, “The Elusive Quest for a Global Forests Convention”, 14 Review of European Community and International Environmental Law (2005), 1; Ronnie D. Lipschutz, “Why Is There No International Forestry Law? An Examination of International Forestry Regulation, Both Public and Private”, 19 University of California Los Angeles Journal of Environmental Law and Policy (2001), 153; Radoslav S. Dimitrov, “Hostage to Norms: States, Institutions and Global Forest Politics”, 5 Global Environmental Politics (2005), 1; Jeremy Rayner, Alexander Buck and Pia Katila, Embracing complexity: Meeting the challenges of international forest governance: A global assessment report prepared by the Global Forest Expert Panel on the International Forest Regime (Vienna: International Union of Forest Research Organizations, 2010).

  7. 7.

    See, Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (Forest Principles), Rio de Janeiro, 14 June 1992, UN Doc. A/CONF.151/26 Vol. III, 14 August 1992, Principle 1(a). The Principle provides that: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies and have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” This principle recalls Principle 21 of the Stockholm Declaration on the Human Environment, Stockholm, 16 June 1972, UN Doc. A/CONF.48/14/Rev.1; and Principle 2 of the Rio Declaration, Rio de Janeiro, 14 June 1992, UN Doc. A/CONF.151/26 Vol. I. Principle 21 of the Stockholm Declaration may be regarded as a statement of customary international law, which appears also in Article 3 of the Convention on Biological Diversity and in the preamble of the United Nations Framework Convention on Climate Change. For an assessment on the status of the principle in international law, see Pierre M. Dupuy, “Soft Law and the International Law of the Environment”, 12 Michigan Journal of International Law (1990–1991), 420, at 422.

  8. 8.

    The most salient outcome of these processes was the adoption by the United Nations General Assembly of the Non-Legally Binding Instrument on Sustainable Forest Management of All Types of Forests, UNGA/Res/62/98, 17 December 2007. For a review, see for example Katharina Kunzmann, “The Non-legally Binding Instrument on Sustainable Management of all Types of Forests – Towards a Legal Regime for Sustainable Forest Management?”, 9 German Law Journal (2008), 981.

  9. 9.

    United Nations Framework Convention on Climate Change, New York, 9 May 1992, in force 21 March 1994, 31 International Legal Materials (1992), 849.

  10. 10.

    Ibid., Art. 4.1 (c, d).

  11. 11.

    Ibid., Art. 3.3.

  12. 12.

    Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto, 10 December 1997, in force 16 February 2005, 37 International Legal Materials (1998), 22.

  13. 13.

    For an overview, see David Humphreys, “The Politics of Avoided Deforestation: Historical Context and Contemporary Issues”, 10 The International Forestry Review (2008), 433; and Patrick Graichen, “Can Forestry Gain from Emissions Trading? Rules Governing Sinks Projects Under the UNFCCC and the EU Emissions Trading System”, 14 Review of European Community and International Environmental Law (2005), 11.

  14. 14.

    UNFCCC, Reducing emissions from deforestation in developing countries. Approaches to stimulate action: Submission from Parties, UN Doc. FCCC/CP/2005/MISC.1, 6 December 2005.

  15. 15.

    Ibid., para. 8.

  16. 16.

    For an overview of arguments, see, for example, Nicholas Stern, The Economics of Climate Change: The Stern Review (Cambridge et al.: Cambridge University Press, 2006), at 26. See also the comprehensive review in: Johan Eliasch, Climate Change: Financing Global Forests. The Eliasch Review (Oxford: Earthscan, 2008).

  17. 17.

    Decision 1/CP.13, The Bali Action Plan, UN Doc. FCCC/CP/6/Add.1, 14 March 2008, para 1(b)(ii).

  18. 18.

    Ibid., para. 1(b)(iii).

  19. 19.

    For an analysis, see Kathleen Lawlor et al., Expanding the Scope of International Terrestrial Carbon Options: Implications of REDD+ and Beyond (Durham: Nicholas Institute for Environmental Policy Solutions, Duke University, 2010).

  20. 20.

    For a review, see Charlie Parker et al., The Little REDD+ Book: a guide to governmental and non-governmental proposals for reducing emissions from deforestation and degradation (Oxford: Global Canopy Programme, 2009).

  21. 21.

    Decision 2/CP.15, Copenhagen Accord, UN Doc. FCCC/CP/2009/11/Add.1, 30 March 2010, para. 6.

  22. 22.

    Bruce Cabarle, head of WWF’s Climate and Forests initiative, as quoted in Yana Marull, “Little headway in Durban on deforestation”, 15 December 2011, available at: http://www.iol.co.za/scitech/science/environment/little-headway-on-deforestation-experts-1.1199192?showComments=true (last accessed on 10 March 2012).

  23. 23.

    Decision 2/CP.13, Reducing Emissions from Deforestation in Developing Countries: Approaches to Stimulate Action, UN Doc. FCCC/CP/6/Add.1, 14 March 2008; Decision 4/CP.15, Methodological Guidance for Activities Relating to Reducing Emissions from Deforestation and Forest Degradation and the Role of Conservation, Sustainable Management of Forests and Enhancement of Forest Carbon Stocks in Developing Countries, UN. Doc. FCCC/CP/2009/11/Add.1, 30 March 2010; Decision 2/CP.15, supra, note 22; Decision 1/CP.16, Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, UN Doc. FCCC/CP/7/Add.1, 15 March 2011; Decision 12/CP.17, Guidance on systems for providing information on how safeguards are addressed and respected and modalities relating to forest reference emission levels and forest reference levels as referred to in decision 1/CP.16, UN Doc. FCCC/CP/2011/9/Add.2, 15 March 2012, Appendix I; and Decision 2/CP.17, Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, UN Doc. FCCC/CP/2011/9/Add.1, 15 March 2012.

  24. 24.

    Decision 1/CP.16, supra, note 24, paras. 68–79.

  25. 25.

    Ibid, para. 71.

  26. 26.

    Decision 2/CP.13, supra, note 24, Annex, para. 2 encouraged Parties to “explore a range of actions, identify options and undertake efforts, including demonstration activities, to address the drivers of deforestation relevant to their national circumstances, with a view to reducing emissions from deforestation and forest degradation and thus enhancing forest carbon stocks due to sustainable management of forests.”

  27. 27.

    For an overview see The Voluntary REDD+ Database provided by the REDD+ Partnership at: http://reddplusdatabase.org (last accessed on 07 March 2012). The most well-known bilateral activities undertaken to date are those between Norway and Brazil, Indonesia, Guyana and Mexico respectively. More detailed information see Norwegian Ministry of the Environment, The Government of Norway’s International Climate and Forest Initiative at: http://www.regjeringen.no/en/dep/md/Selected-topics/climate/the-government-of-norways-international-.html?id=548491 (last accessed on 30 April 2012). For a review, see NORAD, Real-Time Evaluation of Norway’s International Climate and Forest Initiative Contributions to a Global REDD+ Regime 2007–2010 (Oslo: Norwegian Agency for Development Cooperation, 2011).

  28. 28.

    In this connection, see for example Benoit Bosquet and Andre Rodrigues Aquino, “Forest Carbon Partnership Facility: Demonstrating Activities that Reduce Emissions from Deforestation and Forest Degradation”, 2010, available at: http://www.forestcarbonpartnership.org/fcp/sites/forestcarbonpartnership.org/files/Documents/PDF/English_54462_WorldBank_FCPF_Brochure.pdf (last accessed on 07 March 2012), at 17; and the UN Food and Agriculture Organization (FAO), “UNDP and UNEP, UN Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (UN-REDD) Framework Document”, 2008, available at: www.unredd.net/index.php?option=com_docman&task=doc_download&gid=4&Itemid=53 (last accessed on 7 March 2012), at 7.

  29. 29.

    World Bank, “Charter establishing the Forest Carbon Partnership Facility”, 2010, available at: http://www.forestcarbonpartnership.org/fcp/sites/forestcarbonpartnership.org/files/Documents/PDF/Sep2010/ FCPF_Charter-August_2010_clean.pdf (last accessed on 07 March 2012), at 10.

  30. 30.

    Decision 1/CP.16, supra, note 24, Appendix I, para. 2 (a,e).

  31. 31.

    For the use of this terminology, see for example UN-REDD Programme, “Multiple Benefits-Issues and Options for REDD”, 2009, available at: http://www.unredd.net/index.php?option=com_docman&task=doc_download&gid=472&Itemid=53 (last accessed on 7 March 2012).

  32. 32.

    For an review of arguments, see for example Jaboury Ghazoul et al., “REDD: a reckoning of environment and development implications”, 25 Trends in Ecology and Evolution (2010), 396; Oliver Springate-Baginski and Eva Wollenberg (eds), REDD, forest governance and rural livelihoods (Bogor: CIFOR, 2010); and Thomas Sikor et al., “REDD-plus, Forest People’s Rights and Nested Climate Governance”, 20 Global Environmental Change (2010), 423.

  33. 33.

    See, for example, Christof Arens, Hanna Wang-Helmreich and Timon Wehnert “Mitigation Versus Sustainable Development? Why NAMAs Shouldn’t repeat the CDM’s Mistakes”, 17 Joint Implementation Quarterly (2011), 6.

  34. 34.

    For an overview, see, for example, Frieds of the Earth (FOE), REDD Myths: A Critical Review of Proposed Mechanisms to Reduce Emissions from Deforestation and Degradation in Developing Countries (Amsterdam: FOE, 2008); Larry Lohmann, Chronicle of a Disaster Foretold REDD-with-Carbon-Trading (Sturminster Newton, UK: The Corner House, 2008); Tom Griffiths and Francesco Martone, Seeing REDD? Forests, Climate Change Mitigation and the Rights of Indigenous Peoples and Local Communities (Moreton in Marsh: Forest Peoples Programme, 2009); Francesco Martone, The emergence of the REDD Hydra (Washington DC: Rights and Resources Initiative, 2010); Terence Sunderland, “‘Win-win’ is too simplistic a description for REDD+ – and possibly wrong”, 20 April 2011, available at: http://blog.cifor.org/2585/win-win-is-too-simplistic-a-description-for-redd-%E2%80%93-and-possibly-wrong/ (last accessed on 17 February 2012).

  35. 35.

    See for example Christina Voigt, “Is the Clean Development Mechanism Sustainable?”, 8 Sustainable Development Law and Policy (2007–2008), 15, at 18; Diana Liverman and Emily Boyd, “The CDM, ethics and development”, in Karen Holm Jensen and Jørgen Fenhann (eds), A reformed CDM – including new mechanisms for sustainable development (Roskilde: UNEP Risø Center, 2008), 47, at 55; and Gary Cox, “The Clean Development Mechanism as a Vehicle for Technology Transfer and Sustainable Development – Myth or Reality?”, 179 Law, Environment and Development Journal (2010), 179, at 194.

  36. 36.

    See for example, Lena Ruthner et al., Study on the Integrity of the Clean Development Mechanism (CDM) (London: AEA, 2011), at 16, available at: http://ec.europa.eu/clima/policies/ets/linking/docs/final_report_en.pdf.

  37. 37.

    Aaron Cosbey et al., Realizing the Development Dividend: Making the CDM Work for Developing Countries (Phase I Report) (London: International Institute for Sustainable Development, 2005), at 43.

  38. 38.

    Ibid.

  39. 39.

    Tanguy du Monceau and Arnaud Brohé, Sustainable Development and Social Equity, Study on the Integrity of the Clean Development Mechanism (London: AEA, 2011), at 19, available at http://ec.europa.eu/clima/policies/ets/linking/docs/sustainable_development_en.pdf

  40. 40.

    Micheal Gillenwater and Stephen Seres, The Clean Development Mechanism. A Review of the First International Offset Program (Arlington: Pew Center on Global Climate Change, 2011), at 30.

  41. 41.

    Decision 16/CMP.1, supra, note 2, para. 1(e).

  42. 42.

    For a discussion, see for example Cox, “The Clean Development Mechanism as a Vehicle for Technology Transfer and Sustainable Development ”, supra, note 36, at 193.

  43. 43.

    Decision 2/CP.13, Preamble.

  44. 44.

    For an overview, see Annalisa Savaresi, “Reducing emissions from deforestation in developing countries under the UNFCCC. Caveats and opportunities for biodiversity”, 21 Yearbook of International Environmental Law (2011). Advance access edition: http://yielaw.oxfordjournals.org/content/early/2011/11/10/yiel.yvr004.extract (last accessed on 9 March 2012).

  45. 45.

    Simon West, “‘Command Without Control’: Are Market Mechanisms Capable of Delivering Ecological Integrity to REDD?”, 6 Law, Environment and Development Journal (2010), 298, at 301.

  46. 46.

    For this definition, see Deborah Murphy, Safeguards and Multiple Benefits in a REDD+ Mechanism (Winnipeg, CA: IISD, 2011), at 1.

  47. 47.

    For an overview, see for example Harro van Asselt, Francesco Sindico and Michael A. Mehling, “Global Climate Change and the Fragmentation of International Law”, 30 Law & Policy (2008), 423, at 424; and Cinnamon Pinon Carlarne, “Global Climate Governance: Only a Fragmented System of International Law Away?”, 30 Law & Policy (2008), 450, at 450.

  48. 48.

    Carlarne, “Global Climate Governance”, supra, note 48, at 452.

  49. 49.

    International Law Commission (ILC), Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682, 13 April 2006, at 13.

  50. 50.

    Decision 1/CP.16, supra, note 24, Appendix I, para. 2(a).

  51. 51.

    Harro van Asselt, “Managing the Fragmentation of International Environmental Law: Forests at the Intersection of the Climate and Biodiversity Regimes”, New York University Journal of International Law and Politics (2012, forthcoming), at 27. On the notion of conflict clause, see ILC, supra, note 50, paras. 268–271.

  52. 52.

    For an analysis, see for example Robin R. Churchill and Geir Ulfstein, “Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law”, 94 The American Journal of International Law (2000), 623; Jutta Brunnée, “COPing with Consent: Lawmaking Under Multilateral Environmental Agreements”, 15 Leiden Journal of International Law (2002), 1; Annecoos Wiersema, “The New International Law-Makers? Conferences of the Parties to Multilateral Environmental Agreements”, 31 Michigan Journal of International Law (2009), 231.

  53. 53.

    Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Oxford: Oxford University Press, 2009), at 11.

  54. 54.

    See ILC, Fragmentation of International Law, supra, note 50, Appendix, at 250. The Vienna Convention codifies rules applicable to treaties concluded after its entry into force. The Convention’s articles on interpretation (Arts. 31–3) are regarded as customary international law and have been deployed as an aid to interpret all treaties. Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, in force 27 January 1980, 8 International Legal Materials (1969), 679.

  55. 55.

    In this sense, see Van Asselt, “Managing the Fragmentation of International Environmental Law”, supra, note 52, at 32–33.

  56. 56.

    See Wiersema, “The New International Law-Makers?”, supra, note 52, at 245; and Birnie, Boyle and Redgwell, International law and the environment, supra, note 53, at 19.

  57. 57.

    International Law Commission, supra, note 50, at 37 and 120.

  58. 58.

    See van Asselt, “Managing the Fragmentation of International Environmental Law”, supra, note 52, at 33; van Asselt, Sindico and Mehling, “Global Climate Change and the Fragmentation of International Law”, supra, note 48, at 430.

  59. 59.

    On systemic integration see ILC, Fragmentation of International Law, supra, note 50, paras. 37–43 and 410–480.

  60. 60.

    UNFCCC, supra, note 10, Art. 7.2. See also ibid., Art. 10.2, where the COP is described as the “supreme body” of the Convention.

  61. 61.

    See van Asselt, “Managing the Fragmentation of International Environmental Law”, supra, note 52, at 33.

  62. 62.

    Decision 12/CP.17, supra, note 24, para 4.

  63. 63.

    Ibid., para 5.

  64. 64.

    FCPF, “Information Memorandum”, 2008, available at: http://www.forestcarbonpartnership.org/fcp/sites/forestcarbonpartnership.org/files/Documents/PDF/FCPF_Info_Memo_06-13-08.pdf (last accessed on 7 March 2012), at 3.

  65. 65.

    For an overview, see Secretariat of the Convention on Biological Diversity, Connecting Biodiversity and Climate Change Mitigation and Adaptation: Report of the Second Ad Hoc Technical Expert Group on Biodiversity and Climate Change. Technical Series No. 41 (Montreal: CBD Technical Series, 2009).

  66. 66.

    For an overview, see e.g. Erik Nelson et al., “Efficiency of incentives to jointly increase carbon sequestration and species conservation on a landscape”, 105 Proceedings of the National Academy of Sciences (2008), 9471.

  67. 67.

    See, among others, Till Pistorius et al., Greening REDD+. Challenges and opportunities for forest biodiversity conservation (Freiburg, Germany: University of Freiburg,2010); Celia A. Harvey, Barney Dickson and Cyril Kormos, “Opportunities for achieving biodiversity conservation through REDD”, 3 Conservation Letters (2010), 53; Jonah Busch et al., “Biodiversity Co-benefits of Reducing Emissions from Deforestation Under Alternative Reference Levels and Levels of Finance”, 4 Conservation Letters (2011), 101; Barney Dickson and Matea Osti, What are the ecosystem-derived benefits of REDD+ and why do they matter? Multiple Benefits Series 1. Prepared on behalf of the UN-REDD Programme (Cambridge: United Nations Environment Programme World Conservation Monitoring Centre, 2010); Lera Miles, Emily Dunning and Nathalie Doswald, Safeguarding and enhancing the ecosystem derived benefits of REDD+. Multiple Benefits Series 2. Prepared on behalf of the UN-REDD Programme (Cambridge: United Nations Environment Programme World Conservation Monitoring Centre, 2010); and Cordula Epple, Nathalie Doswald, Barney Dickson, Potential links between monitoring for multiple benefits of REDD+ and the monitoring requirements of the Rio Conventions. Multiple Benefits Series 9. Prepared on behalf of the UN-REDD Programme. (Cambridge: United Nations Environment Programme World Conservation Monitoring Centre, 2010).

  68. 68.

    For a discussion, see for example Cox, “The Clean Development Mechanism as a Vehicle for Technology Transfer and Sustainable Development”, supra, note 36, at 193.

  69. 69.

    Convention on Biological Diversity (CBD), Rio de Janeiro, 2 June 1992, in force 29 December 1993, 79 United Nations Treaty Series (1992), 1760.

  70. 70.

    VCLT, supra, note 54, Art. 26.

  71. 71.

    CBD, supra, note 68, Art. 34; UNFCCC, supra, note 10, Art. 24.

  72. 72.

    See Concetta M. Pontecorvo, “Interdependence Between Global Environmental Regimes: The Kyoto Protocol on Climate Change and Forest Protection”, 59 Heidelberg Journal of International Law (1999), 705, at 742; and Frédéric Jacquemont and Alejandro Caparrós, “The Convention on Biological Diversity and the Climate Change Convention 10 Years After Rio: Towards a Synergy of the Two Regimes?”, 11 Review of European Community and International Environmental Law (2002), 169, at 178.

  73. 73.

    The Joint Liaison Group was established to enhance co-ordination between the three conventions, including the exchange of relevant information, and to explore options for further co-operation between the conventions, including the possibility of a joint work plan and/or a workshop. See Report of the Subsidiary Body for Scientific and Technological Advice on its Fourteenth Session Bonn, UN Doc. FCCC/SBSTA/2001/2, 18 September 2001. The establishment of the group was later endorsed by Decision 13/CP.8, Cooperation with Other Conventions, UN Doc. FCCC/CP/2002/7/Add.1, 28 March 2003. Since then, co-operation with the CBD has been discussed under the UNFCCC under the agenda item “cooperation with relevant international organizations.”

  74. 74.

    van Asselt, “Managing the Fragmentation of International Environmental Law”, supra, note 52, at 4.

  75. 75.

    Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (UNCCD), Paris, 17 June 1994, in force 24 June 1998, 33 International Legal Materials (1994), 1016.

  76. 76.

    Decision 2/CP.13, supra, note 24 Annex, para. 8.

  77. 77.

    The preamble of Decision 2/CP.15, supra, note 25, for example, merely recognizes the importance of promoting sustainable management of forests and co-benefits that may complement the aims and objectives of national forest programmes and relevant international conventions and agreements.

  78. 78.

    Decision 1/CP.16, supra, note 25, Appendix I, para. 2(e).

  79. 79.

    Ibid., para. 71(d).

  80. 80.

    Decision 4/CP.15, supra, note 25, para. 4.

  81. 81.

    UNFCCC, Views on methodological guidance for activities relating to reducing emissions from deforestation and forest degradation and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries. Submissions from Parties, UN Doc. FCCC/SBSTA/2011/MISC.7, 19 October 2011, Paper no. 1: Australia, at 6.

  82. 82.

    Ibid. Paper no. 8: Poland and the European Commission on behalf of the European Union and its member States, supported by Albania, Croatia, Iceland, the Former Yugoslav Republic of Macedonia, Montenegro and Serbia, at 59.

  83. 83.

    Ibid. Paper no. 7B: El Salvador on behalf of Dominican Republic, El Salvador, Honduras and Panama, at 38–42.

  84. 84.

    Ibid. Paper no. 12: Japan, at 82.

  85. 85.

    Decision 12/CP.17, supra, note 25, preamble.

  86. 86.

    Michelle Kovacevic, “Durban talks both good and bad for REDD+”, 14 December 2011, available at: http://blog.cifor.org/6507/durban-talks-both-good-and-bad-for-redd-says-expert/ (last accessed on 17 February 2012).

  87. 87.

    See Miles, Dunning and Doswald, Safeguarding and enhancing the ecosystem derived benefits of REDD+, supra, note 66, at 7.

  88. 88.

    Ibid., at 2 and 11.

  89. 89.

    Kate Dooley et al., Smoke and mirrors. A critical assessment of the Forest Carbon Partnership Facility (Brussels and Moreton in Marsh: FERN not an acronym and Forest Peoples Programme, 2011). Compare also the ample coverage provided by the NGOs REDD Monitor, 2012, available at: http://www.redd-monitor.org/tag/forest-carbon-partnership-facility/ (last accessed on 17 February 2012) and by the Forest Peoples Programme, 2012, available at: http://www.forestpeoples.org/topics/climate-forests (last accessed on 17 February 2012).

  90. 90.

    Baastel and NORDECO, First Program Evaluation for the Forest Carbon Partnership Facility (FCPF) Evaluation Report (Gatineau and Copenhagen: Baastel and Nordeco, 2011), at 49.

  91. 91.

    CBD COP Decision IX/5, Forest biodiversity, UN Doc. UNEP/CBD/COP/9/29, 9 October 2008, para. 2a.

  92. 92.

    CBD COP Decision X/33, Biodiversity and climate change, UN Doc. UNEP/CBD/COP/DEC/X/33, 29 October 2010, para. 8.

  93. 93.

    For a comprehensive review of the decisions adopted at CBD COP10, see Elisa Morgera, “Faraway, So Close: A Legal Analysis of the Increasing Interactions between the Convention on Biological Diversity and Climate Change Law”, 2 Climate Law (2011), 85.

  94. 94.

    CDB COP Decision X/33, supra, note 91, paras. 9–10.

  95. 95.

    Decision 4/CP.15, supra, note 25, para. 4.

  96. 96.

    The workshops were organised pursuant to CBD COP Decision IX/16, Biodiversity and climate change, UNEP/CBD/COP/DEC/IX/16, 9 October 2008; CBD COP Decision IX/5, supra, note 90; and CBD COP Decision X/33, supra, note 91.

  97. 97.

    CBD COP Decision VI/22 on Forest Biological Diversity, UN Doc. UNEP/CBD/COP/6/22, 22 May 2002.

  98. 98.

    CBD, Asia-Pacific Regional Consultation and Capacity-Building Workshop on Reducing Emissions From Deforestation And Forest Degradation in Developing Countries (REDD-Plus), Including on Relevant Biodiversity Safeguards, UN Doc. UNEP/CBD/WS/CB/REDD/APAC/1/2, 18 March 2011, para. 8(c).

  99. 99.

    CBD, Africa Regional Consultation and Capacity-Building Workshop on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (REDD-Plus), Including on Relevant Biodiversity Safeguards, UN Doc. UNEP/CBD/WS/CB/REDD/AFR/1/2, 23 September 2011, at 19. For a similar assessment, see also CBD, Latin America – Caribbean Regional Consultation and Capacity-Building Workshop on Reducing Emissions From Deforestation And Forest Degradation in Developing Countries (REDD-Plus), Including on Relevant Biodiversity Safeguards, I. Co-Chairs Summary UNEP/CBD/WS/CB/REDD/LAC/1/2, 8 July 2011, para. 29.

  100. 100.

    Ibid., para. 46.

  101. 101.

    van Asselt, “Managing the Fragmentation of International Environmental Law”, supra, note 51, at 14.

  102. 102.

    Morgera, “Faraway, So Close”, supra, note 92, at 95.

  103. 103.

    For analysis, see ibid., at 91–92.

  104. 104.

    See Decision 13/CP.8 Cooperation with Other Conventions, UN Doc. FCCC/CP/2002/7/Add.1, 28 March 2003, preamble.

  105. 105.

    See van Asselt, “Managing the Fragmentation of International Environmental Law”, supra, note 51, at 41, quoting UNFCCC, Views on the Paper on Options for Enhanced Cooperation among the Three Rio Conventions, Submissions from Parties, UN Doc. FCCC/SBSTA/MISC.4 16, 23 March 2006, submission by Australia, para. 5.

  106. 106.

    See supra note 74.

  107. 107.

    For an overview on co-operative action so far, see UNFCCC, Summary of Cooperative Activities with United Nations Entities and Intergovernmental Organizations to Contribute to the Work under the Convention, UN Doc. FCCC/SBSTA/INF.3, 11 May 2011.

  108. 108.

    CBD, “Proposed Terms of Reference and Modus Operandi for the Joint Liaison Group between the Three Rio Conventions”, 2011, available at: http://www.cbd.int/cooperation/doc/jlg-modus-operandi-en.pdf (last accessed on 20 March 2012).

  109. 109.

    Ibid., Principle 1.

  110. 110.

    Ibid.

  111. 111.

    Ibid., Appendix I, para. 2(a).

  112. 112.

    Kovacevic, “Durban talks both good and bad for REDD+”, supra, note 83.

  113. 113.

    For an overview of the numerous implications that REDD+ may have in this connection, see, for example: Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, UN Doc. A/HRC/10/61, 15 January 2009, para. 94; Simone Lovera, The Hottest REDD Issues: Rights, Equity, Development, Deforestation and Governance by Indigenous Peoples and Local Communities (Gland: IUCN, 2008); David Humphreys, Climate Change and Human Rights: A Rough Guide (Versoix: International Council on Human Rights Policy, 2008), at 33; and David J. Kelly, “The Case for Social Safeguards in a Post-2012 Agreement on REDD”, 6 Law, Environment and Development Journal (2010), 61.

  114. 114.

    Decision 1/CP.16, supra, note 25, section IIIc and Annex I.

  115. 115.

    For this use of the term, see Thomas Buergenthal, “Human Rights”, in Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2007), at 2.

  116. 116.

    International Covenant on Civil and Political Rights, New York, 16 December 1966, in force 23 March 1976, 999 United Nations Treaty Series (1983), 171. As of 17 March 2012, the convention had 167 Parties.

  117. 117.

    International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, in force 3 January 1976, 993 United Nations Treaty Series (1983), 3. As of 17 March 2012, the convention had 160 Parties.

  118. 118.

    Client Earth and World Resources Institute, “Lessons from International and Regional Instruments. A Submission to SBSTA”, 2011, available at: http://www.clientearth.org/climate-and-forests/climate-forests-publications/reddsafeguards-sbsta-submission-1549 (last accessed on 9 March 2012), at 24–25.

  119. 119.

    In this connection, see for example International Law Association, The Hague Conference, The legal principles relating to climate change, 2010, at 35.

  120. 120.

    So far the most salient attempt to argue that this is the case has been the so–called Inuit Petition before the Inter-American Commission on Human Rights. See: Organization of American States, “Inter-American Commission on Human Rights, Petition Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States”, 2005, available at: http://www.inuitcircumpolar.com/files/up- loads/icc-files/FINALPetitionICC.pdf (last accessed on 20 March 2012). For a review see for example Joanna Harrington, “Climate Change, Human Rights and the Right to Be Cold”, 18 Fordham Environmental Law Review (2007), 513; Amy Sinden, “Climate Change and Human Rights”, 27 Journal of Land Resources and Environmental Law (2007), 255; Hari M. Osofsky, “The Inuit Petition as a Bridge? Beyond the Dialectics of Climate Change and Indigenous Peoples’ Rights”, 31 American Indian Law Review (2007), 675.

  121. 121.

    Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, UN Doc. A/HRC/10/61, 15 January 2009, at 70: “Qualifying the effects of climate change as human rights violations poses a series of difficulties. First, it is virtually impossible to disentangle the complex causal relationships linking historical greenhouse gas emissions of a particular country with a specific climate change-related effect, let alone with the range of direct and indirect implications for human rights. Second, global warming is often one of several contributing factors to climate change related effects, such as hurricanes, environmental degradation and water stress. Accordingly, it is often impossible to establish the extent to which a concrete climate change-related event with implications for human rights is attributable to global warming. Third, adverse effects of global warming are often projections about future impacts, whereas human rights violations are normally established after the harm has occurred.” For a review of the report, see for example Marilyn Averill, “Linking Climate Litigation and Human Rights”, 18 Review of European Community and International Environmental Law (2009), 139; Ron Dudai, “Climate Change and Human Rights Practice. Observations on and around the Report of the Office of the High Commissioner for Human Rights on the Relationship Between Climate Change and Human Rights”, 1 Journal of Human Rights Practice (2009), 294; and Marc Limon, “Human Rights Obligations and Accountability in the Face of Climate Change”, 38 Georgia Journal of International and Comparative Law (2009–2010), 543.

  122. 122.

    Several non-governmental organizations have addressed the issue. See, for example, Oxfam, Climate Wrongs and Human Rights: Putting People at the Heart of Climate-Change Policy. Oxfam Briefing Paper 117 (Oxford: Oxfam, 2009); Greenpeace, Human Rights and the Climate Crisis: Acting Today to Prevent Tragedy Tomorrow (Amsterdam: Greenpeace, 2009); Earthjustice and Center for International Environmental Law (CIEL), Global Warming and Human Rights (Washinghton DC: Earthjustice and CIEL, 2009); and CIEL, Climate Change and Human Rights: Practical Steps for Implementation (Washinghton DC: CIEL, 2009).

  123. 123.

    See Decision 1/CP.16, supra, note 24, para. 8.

  124. 124.

    Ibid., Preamble, para. 7.

  125. 125.

    In this connection, UN Human Rights Council Resolution 10/4 notes that: “climate change-related impacts have a range of implications, both direct and indirect, for the effective enjoyment of human rights including, inter alia, the right to life, the right to adequate food, the right to the highest attainable standard of health, the right to adequate housing, the right to self-determination and human rights obligations related to access to safe drinking water and sanitation, and recalling that in no case may a people be deprived of its own means of subsistence.” UN Human Rights Council, Resolution 10/4, 41st meeting, UN Doc. A/HRC/10/L., 25 March 2009, preamble.

  126. 126.

    Ibid., para. 3. In 2011 the Human Rights Council adopted another resolution, requesting the Office of the High Commissioner for Human Rights to convene a seminar “on addressing the adverse impacts of climate change on the full enjoyment of human rights, with a view to (…) forging stronger interface and cooperation between the human rights and climate change communities.” Resolution A/HRC/18/L.26/Rev1 on Human Rights and Climate Change, 30 September 2011, para. 2.

  127. 127.

    Decision 12/CP.17, supra, note 25, Appendix I, para. 2.

  128. 128.

    For an overview, see, for example, Griffiths and Martone, Seeing REDD?, supra, note 36.

  129. 129.

    This argument is made by David Takacs, “Forest Carbon Offsets and International Law: A Deep Equity Legal Analysis”, 22 Georgetown International Environmental Law Review (2010), 521, at 572–573.

  130. 130.

    For this opinion, see for example Daniel Zarin et al., Reducing Emissions from Deforestation and Degradation (REDD): An options assessment. Report prepared for the Government of Norway (Washington DC: Meridian Institute, 2009), at 25.

  131. 131.

    Decision 1/CP.16, supra, note 25, para. 8.

  132. 132.

    Ibid., para. 7.

  133. 133.

    Ibid., para. 72.

  134. 134.

    Ibid., Appendix I, para. 2(a).

  135. 135.

    Ibid., Appendix I, para. 2(c,d). Emphasis added.

  136. 136.

    Decision 12/CP.17, supra, note 25, Appendix I, paras. 3–4.

  137. 137.

    Ibid., para. 2(b).

  138. 138.

    See for example Client Earth and World Resources Institute, Lessons from International and Regional Instruments, supra, note 117, at 2.

  139. 139.

    Ibid., at 8–13.

  140. 140.

    Ibid., at 7–20.

  141. 141.

    The existence of customary international law concerning human rights is contentious. It may be argued that the practice of a state in relation to its own citizens is a matter of domestic jurisdiction, which is in principle without significance for the establishment of a customary rule. See for example Hugh Thirlway, “The Sources of International Law,” in Malcolm D. Evans (ed.), International Law (Oxford University Press, 2010), 95, at 104. However, the argument has also been made that general opinio iuris as well as consuetudo exist to maintain that at least some human rights ‘are today crystallized in the realm of customary international law’. See, for example, International Law Association, The Hague Conference Report, Rights of Indigenous Peoples (International Law Association, 2010), found at http://www.ila-hq.org/en/committees/index.cfm/cid/1024, at 43.

  142. 142.

    In the submission by Switzerland, for example, it is suggested that “information systems for safeguards embody and reinforce the guidance and rules of existing environmental and human rights treaties, particularly UNDRIP and FLEGT, when relevant.” UNFCCC, Submissions from Parties: Switzerland, supra, note 79, para 100. For a synopsis of submissions, see Gaia Larsen, Daniela Rey, and Florence Daviet, “Map of SBSTA Submissions: REDD+ Safeguard Information System” (World Resource Institute, Washington, 2012).

  143. 143.

    Decision 12/CP.17, supra note 25.

  144. 144.

    In this connection, at the World Bank website specifies that: “The World Bank needs to undertake analytic work to examine how human rights fit within the constitutional framework and what positive contribution they could make to the development process.” The World Bank, “Human Rights”, 2011, available at: http://go.worldbank.org/72L95K8TN0 (last accessed on 17 February 2012).

  145. 145.

    The mainstreaming of human rights within the UN system has been at the centre of a series of UN reform efforts since 1997, when the former Secretary-General designated human rights as a crosscutting theme to the work of the Organization. At the request of the Secretary-General, an interagency plan of action on strengthening human rights related UN action at country level has been developed and adopted. See the dedicated portal: http://hrbaportal.org/?page_id=929 (last accessed on 17 February 2012).

  146. 146.

    UN-REDD Programme, “Social and Environmental Principles and Criteria. Version 1”, 2011, available at: http://www.un-redd.org/Multiple_Benefits/SEPC_BeRT/tabid/991/Default.aspx (last accessed on 08 March 2012), para 2.

  147. 147.

    Ibid. This approach is outlined in the UN Common Understanding on the Human Rights-Based Approach to Development Cooperation, 2003, according to which “all programmes of development co-operation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments”, available at: http://www.undg.org/archive_docs/6959-The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_Understanding_among_UN.pdf (last accessed on 17 February 2012).

  148. 148.

    UN-REDD Programme, “Guidelines on Free, Prior and Informed Consent Draft for Comment”, 2011, available at: http://www.unredd.net/index.php?option=com_docman&task=doc_download&gid=6369&Itemid=53 (last accessed on 8 March 2012).

  149. 149.

    Ibid., para. 4.

  150. 150.

    Ibid., para. 17.

  151. 151.

    World Bank, “Operational Policy 4.10 – Indigenous Peoples”, 2 May 2011, available at: www.worldbank.org/safeguards (last accessed on 17 February 2012).

  152. 152.

    Ibid., at 1.

  153. 153.

    Ibid., para 1. Emphasis added.

  154. 154.

    IFC, Performance Standard 7, Indigenous Peoples (World Bank, 2012), at 11–12, available at http://www1.ifc.org/wps/wcm/connect/1ee7038049a79139b845faa8c6a8312a/PS7_English_2012.pdf?MOD=AJPERES.

  155. 155.

    Ibid.

  156. 156.

    See United Nations Permanent Forum on Indigenous Issues Report on the Seventh Session, UN Doc. E/2008/43. E/C.19/2008/13, 21 April 2008, para. 7.

  157. 157.

    Dooley et al., Smoke and Mirrors, supra, note 88, at 7 and 12.

  158. 158.

    At the time of writing, while 37 countries have adhered to the FCPF, only 14 receive direct support from the UN-REDD Programme. Only eight countries currently receive funds from both, although this number is likely to grow, as the number of REDD+ Partner countries increases.

  159. 159.

    Decision 2/CP.17, supra, note 25, para. 63.

  160. 160.

    Zarin et al., Reducing Emissions from Deforestation and Degradation (REDD): An options assessment, supra, note 129, at 25.

  161. 161.

    Kate Dooley and Kate Horner, “FW Special Report. Durban aimed to save the market not the climate”, 2012, available at: http://www.fern.org/node/5106 (last accessed on 13 March 2012), at 1.

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    Annalisa Savaresi

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Savaresi, A. (2013). The Role of REDD in the Harmonisation of Overlapping International Obligations. In: Hollo, E., Kulovesi, K., Mehling, M. (eds) Climate Change and the Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 21. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5440-9_15

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