Climate change, forests, and international law: REDD's descent into irrelevance.

• Author: Wiersema, Annecoos
• Position: Reducing Emissions from Deforestation and Degradation - Abstract through III. The True Story of REDD's Negotiation: 2005-2012 B. From RED to REDD+, p. 1-35

ABSTRACT

Forestry activities account for over 17 percent of human-caused, greenhouse gas emissions. Since 2005, parties to the United Nations Framework Convention on Climate Change have been negotiating a mechanism known as REDD--Reducing Emissions from Deforestation and Degradation--to provide an incentive for developing countries to reduce carbon emissions and limit deforestation at the same time. When REDD was first proposed, many commentators argued this mechanism would not only mitigate climate change but also provide biodiversity and forests with the hard international law regime that had so far been missing. These commentators appeared to hope REDD would develop into this kind of hard international law regime. Their hope is unlikely to be fulfilled.

This Article focuses on two aspects of REDD negotiations between 2005 and 2012--the changing scope of the REDD mechanism and the parties' decisions about the level of international oversight--and situates these developments within an overall international legal framework. Placing the negotiations in the context of REDD's international legal framework exposes their significance. The true story of REDD demonstrates that REDD is developing into a country-driven, voluntary mechanism with limited international oversight and with a scope that makes it extremely difficult to implement. In that sense, REDD has far more in common with the international legal regime that currently governs forests and biodiversity than with the hard law of the international legal regime that governs climate change.

This Article concludes by pointing out two problems that result from not paying attention to the overall effect of the REDD negotiations. The first problem is misdirected focus. If the international community does not pay attention to the real story of REDD, it is likely to focus its energies on design questions at the international level and miss critically important aspects of REDD's implementation at the national and subnational level involving both private and public initiatives. The second problem is misdirected accountability. REDD's current scope makes it extremely difficult to administer and maintains an institutional infrastructure that lacks standardized and supranational oversight. Mechanisms for accountability for REDD's success or failure are lacking.

Many commentators have warned that the biggest threat to climate change mitigation and biodiversity would be failure to implement REDD. This Article counters that the biggest threat to climate change mitigation and biodiversity is for REDD to go forward as it is currently being negotiated. If the international community does not pay attention to the real story of REDD, it will likely become nothing more than a cover for limited emissions reduction, weak forest protection, infringement of indigenous and local peoples' rights, and harm to biodiversity.

TABLE OF CONTENTS I. INTRODUCTION II. LINKING CLIMATE CHANGE, BIODIVERSITY, AND FORESTS A. The Impulse to Link Climate Change and Forests B. The Promise of Hard Law C. The Assumption Behind the Hopes for REDD III. THE TRUE STORY OF REDD'S NEGOTIATION: 2005-2012 A. The Beginning B. From RED to REDD+: Adding Complexity 1. 2005-2006: Starting with Deforestation 2. 2007: Adding Degradation 3. 2008-2009: Sustainable Management of Forests, Enhancement of Carbon Stocks, and Forest Conservation Make it REDD+. C. Limiting International Oversight 1. The Negotiation Context 2. 2006-2007: Situating REDD as a Voluntary Scheme with International Oversight 3. 2007: Beginning the Slide Away from International Oversight 4. 2008-2009: National Control over Baselines and Reference Levels 5. 2010-2012: Limiting International Oversight over Safeguards Implementation D. Conclusion IV. IMPLICATIONS OF THE TRUE STORY OF REDD A. The Consequences of REDD's Shifts B. Misdirected Focus and Misdirected Accountability V. CONCLUSION I. INTRODUCTION

Forestry activities account for over 17 percent of human-caused greenhouse gas emissions. (1) Climate change and forests are therefore inextricably linked. Any comprehensive, worldwide strategy to mitigate the pressing problem of climate change by limiting emissions should, it appears, take deforestation into account. Deforestation also exacerbates poverty, contributes to water pollution, and harms biological diversity. (2) If countries could make gains in efforts to combat climate change and address other critical issues at the same time by tackling deforestation, why not incorporate deforestation within the international legal regime for climate change?

The mechanism known as REDD, Reducing Emissions from Deforestation and Degradation, is intended to do exactly that. (3) Simply put, a REDD mechanism would reward countries or private parties for limiting deforestation and, potentially, protecting forests by providing direct funding, issuing emissions credits that could be traded on a market, or combining both in a hybrid system. In doing so, REDD would provide incentives for countries to reduce carbon emissions and limit deforestation at the same time. However, this Article argues that, as it is currently being negotiated, REDD is unlikely to fulfill this promise.

Despite some dissenting voices, a broad international consensus has supported REDD, and as such, commentators have generally focused on questions of design of REDD at the international level. (4) This Article challenges the central assumption that lies behind this typical focus on design questions at the international level. The focus implicitly assumes that REDD will be a mechanism embedded within hard international law instruments with international institutional oversight and infrastructure. As such, commentators presume REDD will be largely effective. This assumption is particularly strong for commentators concerned about biodiversity and deforestation because the international legal regime for biodiversity and forest protection has historically been made up of weaker international law, with fewer binding provisions than the international legal regime for climate change. For these commentators in particular, REDD offers the promise of a harder system of international laws and with it, they hope, improved forest and biodiversity protection.

This Article demonstrates that this hope for REDD is unlikely to be satisfied. As REDD has been negotiated by parties to the United Nations Framework Convention on Climate Change (UNFCCC) (5) since 2005, it has developed into a country-driven, voluntary mechanism with limited international oversight. Its scope has expanded so much that it is increasingly difficult to determine how to administer it. Not only is participation voluntary, but the manner of implementation is being made increasingly flexible and ad hoc.

In short, parties at the international level are negotiating a soft-law mechanism with severe implementation difficulties. In that sense, REDD has far more in common with the international legal regime that currently governs forests and biodiversity than with the hard law of the international legal regime that governs climate change. The consequences of these developments in REDD's negotiation are significant because the technical expertise and international oversight necessary to ensure that REDD will be effective will now be harder to achieve.

By placing the negotiations surrounding REDD within the context of its international legal framework, this Article presents a picture of REDD that differs from many standard and more optimistic narratives. Aspects of the story in this Article are already known to many working in the field. The story of REDD's changing scope is clear from its changing name. (6) Further, commentators and negotiators within the climate change regime are rarely so naive as to believe that strong international law is an inevitable outcome of international negotiations or the only thing required for an effective REDD mechanism. Yet, the implications of the true story of REDD are not being fully addressed in the literature. To date, the standard narrative of the development of REDD has not focused on the real implications of the contrast between the hopes for REDD in its earliest days and the reality of what it is becoming.

This Article identifies two significant problems that result from reliance on the standard story of REDD: misdirected focus and misdirected accountability. I term the first problem misdirected focus. If the international community assumes that a REDD mechanism being created within the UNFCCC will include strong international oversight and hard-law principles, commentators will likely spend energy advocating specific design reforms at the international level while possibilities for improvement at the domestic level may go unnoticed. This is not to suggest that commentators should disregard the international level completely. Nevertheless, the international community should not ignore the importance of national and even subnational level activity.

The second problem is misdirected accountability. Assuming that REDD is being developed at an international level and will involve international oversight could lead commentators and negotiators to believe that accountability for its success or failure lies with the UNFCCC and related international bodies. Instead, accountability lies more heavily with national implementation bodies, private participants in the REDD mechanism, and subnational actors. Yet, mechanisms for holding these groups to account are so far largely missing.

These two problems result from reliance on any narrative of REDD that fails to view the arc of its negotiation in the context of its international legal framework. If the international community fails to understand the true story of REDD, these problems could undermine REDD's ability to achieve the goals set out for it--climate change mitigation and the protection of biodiversity and forests. Failing to understand the true...