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

AuthorWiersema, Annecoos
PositionReducing Emissions from Deforestation and Degradation - III. The True Story of REDD's Negotiation C. Limiting International Oversight through V. Conclusion, with footnotes, p. 35-66
  1. Limiting International Oversight

    1. The Negotiation Context

      REDD itself has been developed under the auspices of the UNFCCC, but no formal treaty or binding agreement has been negotiated to implement it. The context for the most formal decisions in the discussion that follows, then, is itself a context of documents and decisions that have a lesser status in international law than treaty provisions. I have argued elsewhere that CoP decisions that are closely connected to the original text of a treaty are in some sense indistinguishable from the original obligations of the parties. (150) These REDD-related CoP decisions have some normative effect and are not without influence. Nevertheless, they do not rise to the level of the hardest legal obligations in international law--agreements negotiated by the parties that are intended to have legal effect.

      This context is interesting. Over the course of the negotiations on REDD, the possibilities for what institutional mechanism would be used to support the mechanism shifted significantly. When discussions about REDD were first put on the table, parties discussed the appropriate forum for its implementation--either through a new protocol negotiated under the auspices of the UNFCCC or through the Kyoto Protocol. (151) Yet, to date, REDD has been developed entirely through CoP decisions. As REDD was developed in the years between 2005 and 2012, discussion about formal inclusion in a successor to the Kyoto Protocol waned, likely at least in part because general negotiations about a successor to the Kyoto Protocol were themselves stalling. Thus, the fact that REDD's negotiation took place within the context of, at their most formal, CoP decisions and, at their least formal, workshops and submissions of the parties, was, in some sense, a victory for REDD. It meant that REDD would not fail to get underway even if the parties could not agree to a successor agreement to the Kyoto Protocol.

      Yet, the negotiations reflect something more than a lack of faith in the parties' ability to negotiate a binding agreement for climate change generally. The discussions and negotiations suggest that the appetite for an international role in REDD was limited and became more so as the years progressed. To some extent, the desire for less binding international oversight tracks the timeline in the expansion of REDD's scope. Although my research does not sustain any conclusions on cause and effect, the timing is at least relevant as part of the story of REDD.

      The expansion in REDD's scope discussed above tracks with comments by States Party, particularly developing countries, to have REDD be driven by national priorities and activity and not become part of a binding emission reduction scheme. As these strong principles came to be written into the CoP decisions, and as discussions over REDD went into the more policy-oriented forum of the AWG-LCA concurrently with the methodologically-focused SBSTA, the preference for national priority setting became further entrenched. It was embodied in language that limited the role of international institutions--especially international treaties and any body or instrument with apparent binding authority. This section of the Article describes these developments from the beginning of REDD's introduction in 2005 to December 2012.

      The move to limit international oversight in REDD is a tricky one for developing countries because oversight by international bodies is usually a prerequisite for releasing funds or incorporating REDD into a market-based scheme. Given the financial incentives for international oversight, it is striking how little support there is for it. Part of the question of international oversight relates to accountability. Papua New Guinea and Costa Rica's first proposal stated that developing countries were prepared to stand accountable for their contributions provided they would have access to international markets. (152) However, as REDD has developed and increasing numbers of countries have favored fund-based approaches over market-based approaches, or a mix of both, (153) this kind of direct commitment has dissipated.

    2. 2006-2007: Situating REDD as a Voluntary Scheme with International Oversight

      Early on, developing countries made clear that REDD should not be used to reduce the international legal obligations of developed countries--Annex I countries under the UNFCCC--and that any REDD scheme should be entirely voluntary on the part of developing countries. (154) Thus, from the beginning, it was clear that REDD would not be part of an obligatory emissions-reduction scheme. Costa Rica, one of the original proponents of REDD, was clear in its 2006 submission to the SBSTA that developed countries should not be able to participate in the scheme, and it was not alone in that view. (155) By contrast, Switzerland stressed the need to tackle the issue of deforestation at the local, regional, and global levels. (156)

      Given the history of climate change negotiations at the international level, it is not surprising that developing countries would want a voluntary scheme unavailable to developed countries. It is also not surprising that some developed countries would seek greater commitments from developing countries.

      Nevertheless, in the early days, this voluntary REDD scheme was still situated within an international legal framework. In these early years, developing countries' submissions consistently referred to the need for REDD to be consistent with international law principles that included permanent sovereignty over natural resources, benefit sharing, capacity building and technology transfer, fairness and equity, and common but differentiated responsibilities. (157) Some also referred to consistency with other international agreements and activities, particularly in the realm of international action to address deforestation. (158)

      Early submissions show that even developing countries that emphasized the need for the mechanism to be voluntary and country driven were willing to tolerate international oversight. (159) Indeed, some of the impetus for supporting the scheme was precisely to bring efforts to combat deforestation within an international framework that would provide funding for activities that countries might be doing anyway. (160) As Indonesia noted in its 2006 submission to the SBSTA, actions taken by developing countries to reduce emissions from deforestation were not currently included in an international mechanism, while equivalent actions taken by developed countries were included in UNFCCC-mandated reports detailing how these developed countries were meeting their emissions targets. (161) Morocco stated that it wanted a framework that was strong, albeit flexible. (162) Switzerland, coming from a developed-country perspective, spent far more time discussing its desire for synergy with other international processes and advocated for a strategic role for the Climate Change Convention, which could "provide knowledge on climate issues and coordinate developing country action." (163)

      A recurring question in discussions is whether to address technical issues regarding REDD before tackling policy questions like sources of financing, to address them concurrently with policy questions, or to address them after resolving policy questions. Addressing technical questions first would be consistent with a strong role for international oversight, which is frequently coupled with a desire to move toward a market-based scheme rather than a fund-based scheme. By contrast, those parties who wish to promote technology transfer, capacity transfer, and funds in a system with high deference to the nation-state frequently prefer to resolve policy questions first, or at least concurrently, leaving the technical questions to be resolved by an international body facilitating implementation.

      It is somewhat significant, then, that in the first two years, discussions and negotiations about REDD took place within the setting of the UNFCCC's technically oriented committee, the SBSTA, with a heavy focus on methodological and technical concerns. In the initial negotiation period about REDD, the parties focused on methodological and technical issues, such as how to deal with measuring emissions from forestry activities and how to set baselines against which changes in emissions could be measured. Policy questions certainly crept into these discussions, for example, when countries argued about whether countries with a good record of forest protection could use historical baselines so that they would not be penalized for their recent good behavior. Nevertheless, when policy crept in like this, the policy discussions were still tightly connected to methodological and technical questions.

      In its background paper for the SBSTA's 2006 workshop, the United States noted that standard protocols would be needed for methodological questions like use of "the remote sensing data, tools, and analytical methods that suit the variety of national conditions but yet meet acceptable levels of accuracy." (164) At this early stage of discussion, deference to national conditions did not yet mean deference to national methodologies. At this point, the SBSTA also began to highlight the Intergovernmental Panel on Climate Change's (IPCC) guidelines for National Greenhouse Gas Inventories and the IPCC's Good Practice Guidance for Land Use, Land-Use Change and Forestry as good sources of methods for estimation of emissions from areas with measurable deforestation and degradation. (165) Indeed, the SBSTA's own background paper relied heavily on information from the Food and Agriculture Organization (FAO), demonstrating the significance of international sources of information at least for the SBSTA at this stage of the negotiations. (166)

    3. 2007: Beginning the Slide Away from International Oversight

      In 2007, this willingness to accept international oversight and technical...

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