Master Thesis
Deforestation in the Brazilian Amazon: What are the shortcomings of the international forest regime and how can the international regulation on forests be improved?
Student: Saskia Tdlohreg
Student number: 10754059
E-mail: saskia.93@live.nl
Master track: Public International Law (International and European Law)
Supervisor: Mr. dr. den Heijer
Abstract
This thesis focuses on the international regulation regarding the conservation and sustainable management of the Brazilian rainforest. It assesses the effectiveness of the current international forest regime in regulating deforestation. It also identifies shortcoming and improvements of the international forest regime, by reviewing the Brazilian national law and international forest regime.
Underlying root causes are discussed to provide an explanation for the current state of the international forest regime. Afterwards the three main shortcomings of the international forest regime are considered. These shortcomings are that the international forest regime is fragmented, that there is insufficient coordination between regulations regarding forests and that the UNFF is has proven to be inadequate in its policy making. Three suggestions to improve the international forest regime and negate the shortcomings are made. These suggestions are as follows, the creation of a forest convention, providing in forest protocols and amending existing treaties. Of these three suggestions a global forest convention would provide in the comprehensive solution. However this thesis concludes that the more practical way forward is to add forest protocols to existing treaties or amend existing conventions with a view to prevent deforestation of the Brazilian Amazon.
Contents
i. Introduction 5
i. The scope 5
ii. Reading guide 6
ii. Current national law and politics in Brazil 8
iii. The international forest regime 10
i. Introduction 10
ii. Background 10
iii. Piecemeal approach 11
1. Introduction 11
2. Most relevant treaties regarding regulating deforestation in the Brazilian Amazon 11
3. Analysis of the piecemeal approach 16
iii. The International Arrangement on Forests 17
1. Introduction 18
2. United Nations Forum on Forests 18
3. Analysis of the International Arrangement on Forests 20
iv. The shortcomings of the international forest regime 22
v. Underlying causes of the fragmented international forest regime 23
1. Lack of consensus concerning which functions of forests should be protected through
a global forest convention 23
2. Identifying stakeholders 23
3. Time and expense concern 23
4. The reality of the market economy 23
5. Multifaceted problem 24
6. No reciprocal advantage 24
iv. Suggestions for international law improvements 26
i. Suggestion 1: Move towards new global forest convention 26
1. Introduction & background 26
2. Proposed content and requirements of convention 26
3. Discussion 27
1. Introduction 28
2. Proposed protocols 29
iii. Suggestion 3: Amending existing conventions with a view to deforestation of the
Amazon 30
1. Introduction 30
2. Proposed amendments 30
3. Discussion 30
v. Concluding remarks 32
i. Conclusion & Discussion 32
i. Introduction
The Amazonian rainforest is a very important natural region for multiple reasons. Also called the ‘lungs of the world’ the Amazon absorbs carbon dioxide out of the air and stores it, which aids in regulating the worlds temperature. The Amazon also produces oxygen.1 Furthermore, the
Amazon is home to 10% of all the wildlife species and important genetic resources despite the fact that the Amazon covers only around 1% of the planet’s surface.2
Additionally, people depend on the Amazon for their livelihood.3 And lastly, studies seem to show that trees play an important role in regulating the global water cycle, due to trees absorbing water from the soil through their roots and releasing the water vapor in the atmosphere through their leaves.4
But in spite of its crucial functions, deforestation in the Amazon is again on the rise.5 Forests are renewable ecosystems, if they are sustainably managed. Deforestation threatens the capacity of forests to function as fertile and resilient ecosystems.6 Due to rapid population growth, the global demand for forest products and the consumption of them will continue to increase, which will put more pressure on forests. Increased forest protection is thus required to better conserve and sustainably manage forest for present and future generations.7
This thesis will focus on the question of how effective the international forest regime is in regulating deforestation and how it can be improved to better regulate the conservation and sustainable management of the Brazilian Amazon rainforest. The main question is divided into the following sub-questions. What is the current state of national law and politics in Brazil with regards to the preservation of the Amazon? What is the current international forest regime that is relevant for preservation of the Amazon? What are the shortcomings of the international forest regime? What are the underlying causes for the current state of the international forest regime? And how can the international law be improved to negate the shortcomings?
i.
The scope
1
Article 5 Paris Agreement; Eli Kintisch, ‘Amazon rainforest ability to soak up carbon dioxide is falling’, (2015) AAAS <https://www.sciencemag.org/news/2015/03/amazon-rainforest-ability-soak-carbon-dioxide-falling> accessed on 12 August 2020.
2
FAO and UNEP, ‘The State of the World’s Forests Forests, biodiversity and people’ FAO and UNEP (2020) < http://www.fao.org/3/ca8642en/ca8642en.pdf> accessed on 12 August 2020.
3
Convention on Biological Diversity, ‘Forests are much more than trees’, (2018) CBD <https://www.cbd.int/article/biodiversityforpovertyreduction> accessed on 12 August 2020.
4
Drake JE et al, ‘Trees tolerate an extreme heatwave via sustained transpirational cooling and increased leaf thermal tolerance’ (2018) Global Chang Biology 2018 volume 24, Issue 6
<https://onlinelibrary.wiley.com/doi/abs/10.1111/gcb.14037 > accessed on 12 August 2020.
5
Ernesto Londoño and Letícia Casado, ‘Amazon Deforestation in Brazil Rose Sharply on Bolsonaro’s Watch’, (2019) The New York Times <
https://www.nytimes.com/2019/11/18/world/americas/brazil-amazon-deforestation.html> accessed on 12 August 2020.
6
ECOSOC Resolution E/RES/2017/4, United Nations strategic plan for forests, 2017-2030 (2017).
7
The scope for this thesis research is to assess the effectiveness of the current international forest regime in regulating deforestation in the Brazilian Amazon, the root causes for the current state of the international forest regime and shortcomings and improvement points and to provide in three improvement suggestions that will be derived from the assessment. It will also evaluate legally binding and non-binding instruments and institutions of which the global forest regime consists. Furthermore, this thesis will only focus on the shortcomings with the largest impact of the current international forest regime. The underlying causes for the current status of the international forest regime will be described to provide more insight into the complexities of the current regulatory framework, the shortcomings and the future improvement possibilities for a global forest convention.
The three improvement suggestions are the following: the development of a global forest convention, the development of protocols to the three main treaties related to forest or the
amendment of the three main treaties related to forest. These main treaties are the United Nations Framework Convention on Climate Change, the Kyoto Protocol to the UNFCCC and the Paris Agreement under the UNFCCC, the Convention on Biological Diversity and the Convention on Combating Desertification.8 These treaties are assessed because they are most relevant for the Brazilian deforestation problem and they offer the most opportunities for improvement.
Furthermore, the International Arrangement on Forest will be assessed, because it provides in the present soft law forest policy system.
The aim of this research is not to provide an exhaustive list of suggestions for
international law improvements. Other suggestions which do not measure to the criteria are not considered for this research but can be used a potential future research topics.
Additionally, other international instruments that also address deforestation, but do not fall into the scope of this thesis are: the Ramsar Convention on Wetlands, the World Heritage Convention, the Convention on International Trade in Endangered Species, the International Tropical Timber Agreement and the World Trade Organization.9
ii.
Reading guide
In chapter II the current national law and politics in Brazil will be discussed, this is done to set the context of the problem.
In chapter III the international forest regime will be assessed. The first part of the chapter will focus on the legally binding treaty regulations regarding forests, also known as the
piecemeal approach. This part will spotlight the United Nations Framework Convention on Climate Change, its Kyoto protocol and its Paris Agreement, the Convention on Biological Diversity and the Convention on Combating Desertification. The first part ends with an analysis of the piecemeal approach. The second part of the chapter will set out the soft law International
8
The UNFCCC, the CBD and the UNCCD.
9
B M G S Ruis, ‘No forest convention but ten tree treaties’, (2000) FAO
<http://www.fao.org/3/y1237e/y1237e03.htm> accessed on 12 August 2020; Peter Glück, et al, ‘Core components of the international forest regime complex’, (2010) 37-52.
Arrangement on Forests. This part ends in an analysis of the International Arrangement on Forests. At the end of chapter the shortcomings and points of improvements for the international forest regime will be described. Finally root causes for the current state of the international forest regime will be given.
In chapter IV three suggestions for international law improvements will be made.
Specifically the development of a new global convention on forests, the possibility of amending of existing conventions with a view to improve regulation on deforestation in the Brazilian Amazon and the option of adding protocols to the convention will be considered.
Chapter V will provide some concluding remarks, reflection of the research and recommendations for future research.
ii. Current national law and politics in Brazil
Brazil has committed to cutting 37 percent of its carbon emissions by 2025, and 43 percent by 2030, under the 2015 Paris Climate Agreement.10 However in recent years, Brazil’s legal, economic and political forces seem to be working in favor of deforestation.
Brazil needs a government committed to upholding the rule of law in the Amazon. This could to put an end to illegal deforestation and assure Brazil fulfills its obligations under the Paris Agreement in order to curb the deforestation of the Brazilian Amazon. But since president Bolsonaro came to power his administration has moved aggressively to curtail the country’s capacity to enforce its environmental laws.11 The Brazilian government has made clear that it views its forests as a national resource that falls under its sovereignty. Brazil is a poor country and the Brazilian government feels no incentive to internationalize the Amazon Rainforest.12 Bolsonaro has repeatedly criticized the existence of protected lands in the Amazon. He has furthermore purged major parts of Brazil’s environmental ministry.13
The Brazilian foreign minister opposes international efforts to tackle climate change. He has called it ‘globalist tactic to scare and gain power’. Conjointly, the Brazilian Environment Minister rejects global warming as a matter of secondary importance. Both ministers have
eliminated climate change subdivisions within their respective ministries. Moreover environment minister has cut the budget for implementing the National Climate Change Policy by 95
percent.14
It has been stated that the Amazon has lost more than 1,330 square miles of forest since Bolsonaro came into office in January 2018.15 That marks a 39 percent increase from the same period last year. This is according data from Brazil’s National Space Research Institute, the government bureau tasked with tracking deforestation in the Brazilian Amazon.16 Bolsonaro has contested the institute’s data. In a press conference, he claimed that the numbers were released
10
Federative Republic of Brazil Intended Nationally Determined Contribution, towards achieving the objective of the United Nations Framework Convention of Climate Change (2015)
<https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Brazil%20First/BRAZIL%20iNDC%20english%20 FINAL.pdf> accessed on 12 August 2020.
11
Special Rapporteur on human rights and the environment, ‘Rainforest mafias how violence and impunity fuel deforestation in Brazil’s Amazon’, (2019) HRW pp 112-131
<https://www.hrw.org/sites/default/files/report_pdf/brazil0919_web.pdf > accessed on 12 August 2020.
12
Ernesto Londoño et al, ‘Amazon Deforestation in Brazil Rose Sharply on Bolsonaro’s Watch’, (2019) The New York Times < https://www.nytimes.com/2019/11/18/world/americas/brazil-amazon-deforestation.html> accessed on 12 August 2020.
13
Special Rapporteur on human rights and the environment (n 11).
14
Ibid.
15
Ernesto Londoño et al ‘Amazon Protection Slashed and Forests Fall’, (2019) The New York Times <
https://www.nytimes.com/2019/07/28/world/americas/brazil-deforestation-amazon-bolsonaro.html> accessed on 12 August 2020.
16
L Weiss, ‘Deforestation is spiking under Bolsonaro, with environmental costs beyond Brazil’ (16 Augustus 2019) WPR < https://www.worldpoliticsreview.com/trend-lines/28131/deforestation-is-spiking-under-bolsonaro-with-environmental-costs-beyond-brazil> accessed on 12 August 2020; Otherwise known as INPE.
“with the objective of harming the name of Brazil and its government.”17
He continued on to
declare that the institute was in service of NGO’s, which he claimed is very common. After the head of the Brazilian space agency INPE, Ricardo Galvao, responded that Bolsonaro’s
statements reflected a “vile, cowardly attitude.” Bolsonaro proceeded to fire Galvao.18
To conclude the national environment policy is becoming progressively and intentionally restrained.19 It appears that the national efforts to regulate deforestation are failing due to
pressures of Brazil’s new policy. There seems to be a lack of valuation of environmental services, a lack of comprehensive effective governance and a lack of enforcement in Brazil.20
17
Ernesto Londoño, ‘Bolsonaro Fires Head of Agency Tracking Amazon Deforestation in Brazil’ (2 Augustus 2019) New York Times <https://www.nytimes.com/2019/08/02/world/americas/bolsonaro-amazon-deforestation-galvao.html> accessed on 12 August 2020.
18
Ibid.
19
Jenny Gonzales, ‘Brazil dismantles environmental laws via huge surge in executive acts: Study’ (5 August 2020) Mongabay < https://news.mongabay.com/2020/08/brazil-end-runs-environmental-laws-via-huge-surge-in-executive-acts-study/> accessed on 12 August 2020.
20
C P Mackenzie, ‘Future prospects for international forest law’, [2012] The International Forestry Review, Vol. 14, No. 2, pp 249-257 < https://www.jstor.org/stable/pdf/24310684.pdf> accessed on 12 August 2020.
iii. The international forest regime
i. Introduction
This chapter is about the international forest regime and an assessment of its capabilities in regulating the problem of deforestation of the Brazilian Amazon. The current international forest regime has been developed in a variety of fora.21 It includes both hard and soft law regarding forests. First the background of the current international forest regime will be explored, after that the treaties that are most relevant to the regulating the deforestation in the Brazilian Amazon will be discussed and its effectiveness will be analyzed. Afterwards the soft law International
Arrangement on Forest will be described and analyzed on effectiveness.22
The hard law regarding forests that has been dispersed over multiple treaties, is also known as the piecemeal approach and the international soft law policy regarding forests, is known as the International Arrangement on Forests.
ii. Background
Forests have been a debated topic of international law ever since the United Nations Conference on Environment and Development in 1992.23 During the Conference it was
attempted to conclude a global forest treaty.24 Developing states demanded increased foreign aid to conserve their forests. The developed states opposed those demands and the result was a non-binding agreement on forests, also known as the Forest Principles.25 The Forest Principles are based on the principle of sovereignty of states. They provide in guiding principles for states in the conservation and sustainable management of their forests.26 But the Forests Principles have proven to be ineffective in their aim.27
From 1992 till 1995 the UN focused of the development of coordinated policies
regarding forests and on promoting management, conservation and sustainable development of forests. International consensus regarding the subject grew and in 1995 the UN Economic and Social Counsel established the ad-hoc Intergovernmental Panel on Forests.28 In 1997, the Intergovernmental Forum of Forests replaced the IPF.29 This was superseded in 2000 by the
21
ECOSOC Resolution E/2000/35 (18 October 2000); UNCED; Ruis (n 21).
22
ECOSOC Resolution E/2000/35 Para 1 (18 October 2000); IAF.
23
UNCED.
24
Ruis, (no 21).
25
Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests.
26 Preamble of the Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the
Management, Conservation and Sustainable Development of all Types of Forests.
27 Glück, et al (n 9) 37-52. 28 EOSOC; IPF. 29 IPF.
United Nations Forum on Forests which has continued the work of the IFF.30 The UNFF has a mandate to promote the implementation of international agreements on forests at national, regional and global levels.31
iii. Piecemeal approach
1. Introduction
As of date there is no single global framework on forests, instead there are many different treaties that all relate to one of more functions of forests in different ways.32 There are also differences in the degree of implementation and enforcement between the various treaties. This has resulted in gaps and overlaps in the international forest regime. Consequently, the hard law international forest regime is fragmented.
Over the years attempts have been made to harmonize the international forest regime. An effort has been made to solve the gaps and overlaps through synergistic interaction.33 This means that it is attempted to harmonize the international forest regime by focusing on the synergies between treaties. This is done with the aim to incorporate under-regulated forest issues under existing treaty regulations to produce a greater effect on the conservation of forests and the sustainable management of forests.34
There are a multitude of international multilateral treaties and agreements which directly address forests, but there are three specific treaties that seem most relevant to the regulation of the deforestation in the Brazilian Amazon and that have the most potential to further incorporate deforestation regulation. These are the United Nations Framework Convention on Climate Change, its Kyoto agreement and its Paris Agreement, the Convention on Biological Diversity and the Convention on Combating Desertification. 35 These treaties are subsequently discussed in section ii. There are other treaties that also contain provisions that regard forests, but these fall outside the scope of this thesis.36
2. Most relevant treaties regarding regulating deforestation in the
Brazilian Amazon
30
UNFF.
31
ECOSOC Resolution E/2000/35 Para 1 (18 October 2000).
32
Otherwise known as the piecemeal approach; Ruis, (no 21).
33
Ruis, (no 21).
34
Lexico, dictionary <https://www.lexico.com/en/definition/synergistic> accessed on 12 August 2020.
35
The UNFCCC; the CBD; the UNCCD.
36
The Ramsar Convention on Wetlands, the World Heritage Convention, the Convention on International Trade in Endangered Species, the International Tropical Timber Agreement, the World Trade Organization; Ruis, (no 21) table 2; Glück, et al (n 9) 37-52.
Deforestation under the United Nations Framework Convention of Climate Change37
The UNFCCC is a multilateral framework treaty on the reduction of global gas house
emissions.38 The UNFCCC sets non-binding limits on greenhouse gas emissions for individual states. The objective of the UNFCCC is to aim to stabilize greenhouse gases in the atmosphere.39 It does not contain enforcement mechanisms.40 This treaty protects forests for its climate-related functions, such as its carbon sequestration.”41
The UNFCCC was adopted due to the worldwide concern over global warming in 1992.42
The Kyoto Protocol to the United Nations Framework Convention on Climate Change43
The in 1997 COP-19 adopted Kyoto Protocol is a treaty that sets legally binding emission reduction targets and methods.44 However, the Kyoto Protocol does not provide in regulation on how the targets are to be achieved or how the measures that states have taken are to be measured and assessed.45
The Kyoto Protocol provides in more explicit provision than the UNFCCC and elaborates on forest where the UNFCCC did not. It obliges parties to “implement and/or further elaborate
policies and measures….such as the….Protection and enhancement of sinks and reservoirs of greenhouse gases….taking into account its commitments under relevant international
environmental agreements; promotion of sustainable forest management practices, afforestation and reforestation;”46
The above mentioned provision allows states to carry out human-induced activities that remove greenhouses from the atmosphere to of sett their emission targets. If states allow human-induced activities that deplete carbon sinks, such as deforestation, it will be subtracted from the amount of permitted emissions.47
37 UNFCCC. 38 Article 2 UNFCCC. 39
Article 2 UNFCCC; preamble UNFCCC.
40
The Kyoto Protocol to the United Nations Framework Convention on Climate Change.
41
Ruis, (no 21) table 2.
42
Preamble UNFCCC.
43
Otherwise known as the Kyoto Protocol.
44
Article 2-27 and Annex B Kyoto Protocol.
45
Ibid.
46
Article 2 Kyoto Protocol.
47
The Paris Agreement under the United Nations Framework Convention on Climate Change48
The Kyoto Protocol was superseded by the Paris Agreement on Climate Change in 2015. 49 The Paris Agreement is a universal, legally binding global climate change agreement. It contains new policies related to forests and it has legally established the importance of forests in mitigating greenhouse gas emissions.50
Where the Kyoto Protocol, excluded provision about forest conservation in developing countries over efficiency concerns, the Paris Agreement has recognized that REDD+ is an important component of the new climate objective to achieve net-zero emissions in the second half of this century.51
Paris Agreement on Climate Change 2015
Reducing Emissions from forest Deforestation and Degradation52
The Bali action plan that was agreed upon during COP 13 of the UNFCCC proposed new policy tool, REDD+.53 REDD+ is a voluntary mechanism that attributes financial value to the carbon that is stored in trees to create an incentive for developing countries to conserve and sustainably
48
Otherwise known as the Paris Agreement.
49
The Paris Agreement under the United Nations Framework Convention on Climate Change.
50
United Nations Climate Change, ‘Paris Agreement: essential elements’ (2015) < https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement> accessed on 12 August 2020.
51
Article 5 Paris Agreement; Mario Boccucci, ‘Implementing Article 5 of the Paris Agreement and achieving climate neutrality through forests: From COFO24 to COP24’, Food and Agriculture Organization of the United Nations (23 July 2018) < http://www.fao.org/redd/news/detail/en/c/1146132/> accessed on 12 August 2020.
52
REDD+.
53
manage their forests.54 It has the objective to reduce emissions and mitigate climate change.55 REDD+ has been developed by the member states to the UNFCCC. The idea behind it is to make the conservation of forest more valuable than alternative land uses in order to discourage
deforestation and forest degradation.Developing states that are participating in REDD+ can receive payments for verified or certified emission reductions.56
United Nations Program on Reducing Emissions from Deforestation and Forest Degradation57
The UN-REDD is a program that assist states in developing the capacities that are needed to meet the REDD+ requirements, so that they meet the qualifications and can take part in the mechanism.58 It furthermore supports the implementation of REDD+ nationally.59
Convention of Biological Diversity60
The CBD is a multilateral treaty. The objective of the CBD is the conservation of biological diversity, sustainable use of its components and fair and equitable sharing of benefits arising out of genetic resources.61 It aims to reconcile the development aspirations of developing countries with the interests of developed countries in accessing and conserving biological diversity.62 The CBD is built on the principle of sovereignty of states over their natural resources.63
The CBD protects two functions of forests, specifically the conservation of biological diversity through habitat protection and the natural heritage, cultural and spiritual values of forests.64 Forests are estimated to contain about 70 percent of the world's plant and animal
species.65 Hence forests fall under the protection of the CBD as habitats for biological diversity. The CBD does not contain any specific prohibitions on forests, the issue of deforestation has instead been incorporated trough the CBD’s Conference of the Parties.66
54
Food and Agriculture Organization of the United Nations, ‘REDD+ Reducing Emissions from Deforestation and Forest Degradation’ (2015) < http://www.fao.org/redd/initiatives/un-redd/en/> accessed on 12 August 2020.
55
Ibid.
56
Ibid.
57
Otherwise known as the UN-REDD programme.
58
UN-REDD programme, ‘Our work’ (2019) <https://www.un-redd.org/how-we-work-1> accessed on 12 August 2020. 59 Ibid. 60 CBD. 61 Article 1 CBD. 62
Désirée M McGraw, ‘The CBD – Key Characteristics and Implications for Implementation’ (2002) Reciel 11(1) <https://www.cbd.int/doc/articles/2002-/A-00317.pdf> accessed on 12 August 2020.
63
Article 15 CBD.
64
Article 1 CBD.
65
WWF, ‘Overview’ < https://www.worldwildlife.org/habitats/forest-habitat> accessed on 12 August 2020.
66
United Nation Convention to Combat Desertification67
The UNCCD is a multilateral treaty. The objective of the UNCCD is combating desertification, mitigating the effects of drought and contributing to sustainable development.68 The UNCCD recognizes the role of forests in preventing desertification and drought.69 It incorporates multiple functions of forest such as, their function as human settlements, habitat for people and rural livelihoods”, their production of commercial industrial wood and wood products, their production of non-wood forest products, their production of woodfuels, their watershed protection and water cycle regulation and their soil conservation function.70
Forests are an important part of the battle against deforestation since they help stabilize the soil. Deforestation also accelerates desertification. For these reasons any strategies that are implemented to deal with desertification will also alleviate deforestation. Therefore the UNCCD has included a view to the protection of forests.71 The UNCCD is the only treaty that contains provisions that directly addresses forests.72
67 UNCCD. 68 Article 2 UNCCD. 69
Constance L McDermott et al, ‘International Forest Policy– the instruments, agreements and processes that shape it’, Department of Economic and Social Affairs United Nations Forum on Forests Secretariat (2007) <
https://www.un.org/esa/forests/wp-content/uploads/2015/06/Intl_Forest_Policy_instruments_agreements.pdf> accessed on 12 August 2020.
70
Ruis, (no 21) table 2.
71United Nations Convention to Combat Desertification, ‘Forests and Trees, at the heart of degradation neutrality’
<https://www.unccd.int/sites/default/files/documents/2019-08/Forest%20brochure%20-%20web.pdf> accessed on 12 August 2020.
72
3. Analysis of the piecemeal approach
There are some specific treaty related shortcomings that prevent the piecemeal approach from being effective in preventing deforestation. The main shortcoming of the UNFCCC is that it is limited in focus since it considers forests mainly as carbon sinks.73 Therefore it does not pay attention to regulation of other forest functions.
Furthermore there is no agreement on the rules of procedure, particularly on voting rules on the implementation of the UNFCCC.74 It should also be noted that under the Paris agreement states are required to submit Nationally Determined Contributions, in which they state their set targets. The required NDCs have significantly less authority than the mutually agreed
quantitative emission reductions that were part of the Kyoto Protocol did since they are voluntary.75 Moreover negotiation is the default for conflict resolution for the treaty.76
The main shortcomings of the CBD are that it does not incorporate forest conservation in its main body.77 Instead its incorporation forests protection has been expended through COPs.78 The CBD does not contain obligations to protect and conserve biodiversity, though forests are protected in the CBD as part of the ecosystem. Instead the CBD requires parties to adopt national strategies, plans and programs, aimed at conserving biodiversity.79 The forests programmes that have been adopted under the CBD all amount to soft law.80 Furthermore the CBD uses qualified language which limits its effectiveness.81 Moreover the CBD also suffers lack of implementation in many states.82 Finally, negotiation is the default dispute settlement resolution of the CBD.83
The UNCCD is limited to addressing drought and desertification. Because of this it does not apply to all the forested areas in the world. Furthermore it struggles with a lack of
implementation and compliance.84 And the default dispute settlement of the UNCCD is, again, negotiation.
The UNCCD, the UNFCCC and the CBD are all dealing with implementation struggles in particularly developing states due to a lack of resources of these states.Though all three treaties
73
Article 2 UNFCCC.
74
Report United Nations Framework Convention on Climate Change Secretariat, ‘2019 stocktake on pre-2020 implementation and ambition’ (2020) <https://unfccc.int/sites/default/files/resource/cp2020_02E.pdf> accessed on 12 August 2020.
75
Article 3 Paris Agreement; NDCs.
76
Art 14 UNFCCC.
77
Ruis (no 21) table 2.
78
COP 8 Decision VIII/19 CBD.
79
Article 6 CBD.
80
Convention on Biological Diversity, ‘Forest biodiversity, Programme of work’ <https://www.cbd.int/forest/pow.shtml> accessed on 12 August 2020.
81
See for example the uses of the phrases ‘as far as possible and as appropriate’ in articles 5, 7, 8, 9, 10 and 11.
82
Convention on Biological Diversity, ‘What is the problem?’ Impact assessment (18 May 2007) <https://www.cbd.int/impact/problem.shtml> accessed on 12 August 2020.; Mackenzie (n 20) 249-257.
83
Art 27 Settlement of disputes CBD.
84
deal with the implications of global warming on forests, they do not have the ability to request Member States to monitor the impacts of global warming. 85 This perpetuates the lack of knowledge regarding the causes and effects of deforestation, which further complicates the development of a more structured approach.
Yet the treaties are increasingly working together on their objectives. The UNFCCC and the CBD contain similar types of obligations that come together in REDD+.
REDD+ is a voluntary program that has a broad support base, it has not lived up to the expectations.86 There are still many controversies concerning REDD+. One of the main issues is that there remains uncertainty on how reduced emissions should be monitored on a large scale since states all have different environmental laws and policies.87 Furthermore it is still unclear
how exactly deforestation should be measured, how the rights of vulnerable people who depend on forests should be safeguarded and how and by whom the developing states would be financed and compensated.88 Additionally REDD+ contains few specific rules to indicate how it should be implemented at the national level. The UNFCCC seems to only be able to provide guidelines for implementation.89 The lack of implementation of REDD+ causes gaps in data, what makes it difficult to assess the progress of REDD+. Moreover, there is no system of governance in place to look over REDD+ activities.90 These abovementioned issues should be solved before full scale implementation of REDD+ can ensue. Further international development of REDD+ depends on the capabilities and political will of developing states to implement the REDD+ regime and to provide in the institutions that are required for effective implementation.
The shortcomings of the piecemeal approach overall are based on the fact that it leaves many uncertainties. Due to the fragmentation it is difficult to coordinate the rules applicable to the specific problem of deforestation of the Brazilian Amazon. Moreover, because the focus lies on synergies in the interaction between treaties that only regulate specific functions of forests; other important functions of forests that cannot be covered by existing treaties are left
unregulated.
To conclude, the piecemeal approach in its current state is not sufficient to protect the Amazon rainforest. Since none of the treaties have forests as their primary concern this system of treaties does not provide for a comprehensive framework on the conservation of forests.
85 McDermott (n 69) 4. 86 Glück (n 9) 48-49. 87 Ibid. 88
Astrid Angelsen, ‘How do we set the reference levels for REDD payments?’ (2008)
<https://www.researchgate.net/publication/284033838_How_do_we_set_the_reference_levels_for_REDD_payment s> accessed on 12 August 2020, Chapter 6; F Stolle et al,‘Warsaw Climate meeting makes progress on forests, REDD+’(2013) <https://www.wri.org/blog/2013/12/warsaw-climate-meeting-makes-progress-forests-redd> accessed on 12 August 2020.
89
Glück (n 9) 48-49.
90
A Gupta, ‘Governance of REDD+’, Wageningen University & research < https://www.wur.nl/en/Value-Creation-Cooperation/REDD-research-network-for-science-policy-and-services/Expertise/Governance-of-REDD.htm> accessed on 12 Augustus 2020.
iii.
The International Arrangement on Forests
Main components of the IAF.
1. Introduction
The IAF consists of the United Nations Forum on Forests, the Secretariat of the Forum, the Collaborative Partnership on Forests, the Global Forest Financing Facilitation Network and the Trust fund for the United Nations strategic plan for forests, 2017-2030.91 For the purpose of staying within the scope of this thesis only the UNFF, the Forest Instrument and the Strategic plan will be assessed. The other policy instruments under the UNFF do not fall within the scope of this research.
2. United Nations Forum on Forests
92
91
ECOSOC Resolution E/RES/2017/4, ‘United Nations strategic plan for forests, 2017-2030’ (2017) paragraph 17.
92
The UNFF is a global intergovernmental body on all types of forests and a functional commission of the United Nations Economic and Social Counsel.93 It reports to the United Nations Economic and Social Council. The UNFF has universal membership. All the UN
member states and permanent observers of the United Nations are party to it.94 Its main objective is to promote the sustainable management, the conservation and sustainable development of all forests and to strengthen political commitment to this end.95 Additionally it supports the
implementation of agreements related to forests and it aims to promote a common understanding on sustainable forest management.
It aims to pursue these objectives with a view to complement existing international legally binding instruments that are relevant to forests”96
The Non-legally Binding Instrument on All Types of Forests97
The Forest Instrument is non-binding. The focus of the United Nations Forest Instrument is to strengthen the political commitment to implementing sustainable forest management, achieve the Global Objectives on Forests and to provide a framework for national action and international cooperation.98 The Forest Instrument advocates the use of National Forests Programs to achieve the Global Objectives on Forests on the national level.99 NFPs strive to render politics on forest more rational, more oriented on the long term and better coordinated.100 However since the NLBI is soft law, there is no obligation for states take any action in this regard. The NLBI thus
strengthens the principle of national sovereignty by assigning the responsibility for achieving global forests objectives to member states.
The United Nations Strategic Plan for Forests 2017- 2030101
The UNSPF is also non-binding. It provides in a global framework for action at all levels to sustainably manage all types of forests and to halt deforestation and forest degradation. The UNFF established the UNSPF in 2017.102 It makes an effort to involve states through
93
ECOSOC Resolution E/RES/2017/4; ECOSOC.
94
United Nations Department for Economic and Social Affairs Forests, ‘Background’ <https://www.un.org/esa/forests/forum/about-unff/index.html> accessed on 12 August 2020.
95
Ibid.
96
ECOSOC Resolution E/2000/35 (18 October 2000).
97
Otherwise known as the Forest Instrument.
98
I. purpose Forest Instrument.
99
V. National policies and measures 6(a) and (l) Forest Instrument.
100
Peter Glück et al, ‘What makes NFPs work? Interim Report on COST Action E19 “National Forest Programmes in a European Context”’ (2003)
<https://www.researchgate.net/publication/237254050_What_makes_NFPs_work_Interim_Report_on_COST_Actio n_E19_National_Forest_Programmes_in_a_European_Context> accessed on 12 August 2020.
101
UNSPF.
102
United Nations Department of Economic and Social Affairs, ’ United Nations Strategic
Plan for Forests 2030’ (10-12 June 2019) <https://www.cbd.int/doc/c/3889/f119/5796afcb5f8668aa6a979a7c/unff-post-2020-en.pdf> accessed on 12 August 2020.
communication and awareness-raising.103 It contains six voluntary global forests goals and twenty-six associated targets to be achieved in 2030.104 Implementation relies on Voluntary National Contributions.105 Thus Member States can determine their contribution to the
achievement of the global forest goals and objectives on a voluntary basis. 106 The UNFF is the responsible intergovernmental body for reviewing the implementation.107 There will be a mid-term review of the plan in 2024 and a final review in 2030.108
3. Analysis of the International Arrangement on Forests
The International Arrangement on Forests’ UNFF provides a forum for continued policy
development on forests and for discourse between governments, international organizations and other stakeholders.109 It views forests holistically as more than the sum of its functions and it has universal membership.110 It provides states the opportunity to raise awareness about the
importance of all types of forests in order to strengthen political commitment to the conservation and sustainable management of forests.111 It has furthermore adopted the Non-Legally Binding Instrument on all Types of Forests. However the Forest Instrument seems to mainly repeat already existing forest commitments.112
A lack of implementation is amongst the issues of the International Arrangement on Forests.113 Furthermore, the international Arrangement on forests is fragmented, even though attempts have been made to close the gaps.114 To ensure coherence and coordination within the work of the IAF the strategic plan for 2017-2030 has been established to serve as a framework. The Strategic plan relies on Voluntary National Contributions.115 During the 13th session of United Nations Forum on Forests many states announced their VNCs to meet the goals
103
ECOSOC Resolution E/RES/2017/4, ‘United Nations strategic plan for forests’, 2017-2030 (2017), IV Review Framework, V Communication and outreach strategy.
104
ECOSOC Resolution E/RES/2017/4, II. Global forest goals and targets.
105
VNCs.
106
ECOSOC Resolution E/RES/2017/4, III Implementation Framework, I Member States, 29.
107
ECOSOC Resolution E/RES/2017/4, III Implementation Framework, I Member States, 33.
108
ECOSOC Resolution E/RES/2017/4, IV Review Framework.
109
United Nations Department for Economic and Social Affairs Forests, ‘Background’ <https://www.un.org/esa/forests/forum/about-unff/index.html> accessed on 12 August 2020.
110 Ibid. 111 Ibid. 112 Mackenzie (n 20) 251. 113
United Nations Department of Economic and Social Affairs Forests, ‘UNFI Implementation’
<https://www.un.org/esa/forests/forum/capacity-development/unfi-implementation/index.html> accessed on 12 August 2020.
114
Economic and Social Council ‘United Nations Forum of Forests, Report on the eleventh session’ (19 April 2013 and 4 to 15 May 2015) <https://www.undocs.org/E/CN.18/2015/14> accessed on 12 August 2020.
115
established under the non-binding instrument.116 However most of these VNCs focus on the development of plans and national policies without describing concrete actions.117
Furthermore notwithstanding the soft-law developments that the UNFF has provided over the years, the work of UNFF appears to be inadequate in regulating deforestation. The agenda of the UNFF seems over-ambitious and unfocused.118
Some critics have argued that the UNFF has been specifically designed by all the Member States to not provide in policy output.119 It has been suggested that states created the
UNFF not for substantive purposes but rather as an alternative to the zero-policy option. The supposed reason for this is that governments wanted to be able to show that they are “doing something” about deforestation, because “no government can get away with looking like they are
doing nothing.”120
Whether this holds true or not, it appears evident that throughout the years the work of UNFF has been inadequate in preventing deforestation. To conclude International Arrangement on forests consists of voluntary participation and vague commitments, it does not hold enough capacity to curb the problem of deforestation in the Brazilian Amazon.
116
UNFF Secretariat, ‘13th session of United Nations Forum on Forests (UNFF13)’ (May 7 2018 to May 11 2018) <https://www.un.org/esa/forests/wp-content/uploads/2017/12/UNFF13_Provisional_Agenda.pdf> accessed on 12 August 2020.
117
Economic and Social Council ‘United Nations Forum of Forests, Voluntary National Contributions (VNCs)’ <https://www.un.org/esa/forests/documents/un-strategic-plan-for-forests-2030/vncs/index.html> accessed on 12 August 2020; Raul Silva Telles do Valle, ‘Forests Specialist Group Reports on Outcomes of the 13th session of the UN Forum on Forests’ (2018) <https://www.iucn.org/news/world-commission-environmental-law/201807/forests-specialist-group-reports-outcomes-13th-session-un-forum-forests> accessed on 12 August 2020.
118
R Persson, ‘Where is the United Nations Forum on Forests going?’ (2005) The International Forestry Review, Vol 7, No 4 (December 2005) < https://www.jstor.org/stable/44404393?seq=1#metadata_info_tab_contents > accessed on 12 August 2020, pp 349 ‘What is needed at the global level?’.
119
Dimitrov (n 107) 17, 18 and 19.
120
iv.
The shortcomings of the international forest regime
Global deforestation rates have been decreasing in recent years. However the deforestation rates in Brazil are still high and on the increase.121 It is therefore necessary to urgently provide in an appropriate and effective legal and institutional framework. It is important to tackle the drivers that cause deforestation, but this has proven to be difficult due to their multifaceted character. There are three main shortcomings of the current international forest regime to be identified.
The first shortcoming is that the forest regime is very fragmented. The international law regarding forest is a mixed assemblage of hard, soft and private law. The International
Arrangement on Forrest attempts to provide in soft law policy regulation that regard forests holistically, while treaties protect different functions of forests. Forests are thus protected through various legal resources. This leads to conflicts and gaps within the international forest regime.
Secondly, there is a lack of coordination in international forest regime. The international forest regime suffers inconsistencies that are seemingly enhanced by forest institutions pursuing their objectives through a varying regulatory policy instruments. Even though Sustainable Forest Management is the common aim of all the forest institutions, it is difficult to achieve that
through the ambiguity, overlap and gaps of the current international forest regime. It leaves deforestation globally and particularly in Brazil under regulated.
A suggestion to counter these first two shortcomings would be to either develop a global forest convention, to amend existing conventions or provide in protocols to some existing treaties. This will be discussed further in the next chapter.
The third shortcoming to be identified is the ineffectiveness of the UNFF. The UNFF seems to be a way to preclude the need to seriously consider the development of a global forest convention because there is a forum that already provides in soft law regulation and a policy regarding deforestation. But the UNFF requires voluntary participation and is entirely at the mercy of states’ willingness to safeguard their forests. It seems to do just enough to give the impression that something is happening, but it does not provide in a clear overhauling legal regime regarding forests.122
A suggestion to counter this shortcoming would be to provide the UNFF with the tools to make authoritative, binding policy decisions, or to dismantle it all together. It does not, however, fall in the scope of this thesis to go into the substance of this suggestion.
121
Rhett A Butler, ‘14 straight months of rising Amazon deforestation in Brazil’ (12 June 2020) Mongabay <https://news.mongabay.com/2020/06/14-straight-months-of-rising-amazon-deforestation-in-brazil/> accessed on 12 August 2020.
122
v.
Underlying causes of the fragmented international forest regime
To sum up the forest regime is currently very fragmented. The purpose of this paragraph is to provide more context to why the current regime is so fragmented and what the main arguments are against the development of a more comprehensive regime under a global forest convention. This is important in order to provide more insight in the future prospect of a potential global forest convention.1. Lack of consensus concerning which functions of forests should be
protected through a global forest convention
There seems to be a lack of consensus on which functions of forests should be protected through a global forest convention. During the UNCED Conference the lack of consensus resulted in the non-binding Forest Principles.The current fragmented system shows that forests are regarded and protected according to their different functions. 123
2. Identifying stakeholders
It is difficult to legally identify the stakeholders. Forests have a wide range of functions which means that there are also many different kinds of stakeholders.124 The main actors that are recognized in international law are states but there are other stakeholders, like, for example, indigenous people, to consider.125 These stakeholders do not have the ability to become parties to a global convention. This could have as a result that a potential global forest convention would not include important functions of forests that do not directly impact states. This could in turn lead to continued abuse of forest resources.126
3. Time and expense concern
The negotiations on, and the subsequential implementation of, a global forest convention will most likely be time consuming and expensive. Seeing as deforestation is an accelerating problem that also fuels global warming it requires an effective strategy to combat it quickly before more irreversible damage is done to the environment. Moreover, taking into account how expensive it is to negotiate on new conventions and to implement them, developing countries like Brazil may feel little incentive to take part in new negotiations.
4. The reality of the market economy
The current international forest regime seems to forego the reality of the market economy due to a discrepancy between theory and practice. International law focuses on states as the main actors. Accordingly the belief that governments have the capacity to set and enforce rules and
123
Mackenzie (n 20) 252.
124
Multinational companies, international organizations, NGO’s and individuals
125
Mackenzie (n 20) 252.
126
regulations to sustainably manage their forests is inherent to the design of international law. The current international forest regime is premised on this conception. Therefore it foregoes the reality of the market economy and it leaves open to debate if creating a global convention based on the same scheme will make a real difference. 127
5. Multifaceted problem
The fact that the UNFF as well as other UN forests bodies have in the past made grand
statements regarding the development of more comprehensive regulation on forests, but have not been able to follow through seems to point to the problem might be to multifaceted for one solution.128
6. Political will
There may not be enough political will in general. There have been efforts to negotiate a treaty since with the UNCED conference which resulted in the non-binding forest principle, which has not made much of an impact on the conservation of forests. Afterwards negotiations by
subsequently the IPF, IFF and the UNFF have failed to produce a global forest convention. It does not seem that much has changed on the political level. And thus it seems unlikely that there is enough political support for setting up a global forest convention.
7. No reciprocal advantage
There is no reciprocal advantage for developing states in developing a global forest
convention.129 Developing states will need a financial incentive to not make use of their natural resources, since there is otherwise no benefit for them in refraining from doing so.
To illustrate, Brazil is a very poor country and the government of Brazil wants to make use of its natural resources, in this case the Amazon rain forest. There is no reason for the
government and people of Brazil not to make use of their national resources if there is nothing in return for them. A financial incentive could be that stimulus.
To sum up, developing states like Brazil will need more benefits to outweigh the cost of the conservation of their forests to encourage them to consider taking part in a global forest convention.
8. Insufficient knowledge
There seems to be insufficient knowledge about the negative implications of deforestation and potential value of forests outside the timber trade.130 Also, there is also no consensus on the
127 Mackenzie (n 20) 253. 128 Mackenzie (n 20) 251. 129
UNCED, ‘Statement by His Excellency Prime Minister Dr Mahathir Mohamad of Malaysia at the United Nations Conference on Environment and Development Rio de Janeiro, 13 June 1992’, (1992) Asean Economic Bulletin, Vol 9, No 1 < https://www.jstor.org/stable/pdf/25770405.pdf> accessed on 12 August 2020.
130
extent to which deforestation and forest degradation causes transboundary harm.131
As a consequence, states find it difficult to make a value versus cost analysis of the protection of forests in their territory. Often this leads to states to favor economic win over forests protection.
131
iv. Suggestions for international law improvements
Reading guide
Three suggestions are made to improve the forest regime to allow it to have more capacity to regulate the deforestation issue that is transpiring in the Brazilian Amazon. These are a potential forest convention, providing in forest protocols and amending existing treaties. These
suggestions focus on the three treaties regarding forest that have previously been discussed, namely the United Nations Framework Convention on Climate Change, the Convention on Biological Diversity and the Convention on Combating Desertification.132
i.
Suggestion 1: Move towards new global forest convention
1. Introduction & background
Negotiations on the possibility of a global forest convention started during United Nations Conference on Environment and Development in 1992.133 During those negotiations the US together with other states were proponents of a global forest convention. In the end however the negotiations failed. Instead of a convention the non-binding Forest Principles emerged from the deliberations.134 This can be explained due to the standpoint of some developing states, which was that they have a sovereign right to exploit their own resources which was expressed during UNCED.135
2. Proposed content and requirements of convention
The new convention should be a framework convention since that would allow states to set up regional agreements. This is important because forests have a wide range of uses that differ according to, geographical location, economy and culture. Deforestation in the Brazilian Amazon possibly requires different handling than deforestation elsewhere.
Furthermore an authoritative global forest convention it must include certain aspects. The first aspect is that developed countries must be willing to compensate developing countries for their efforts; because the developing states will need an incentive to not make use of their natural resources.
Secondly, since deforestation is fueled by companies of which many reside in the US, the US must support the development of a global forest convention. The third requirement is that it is essential that the states with the highest deforestation rates support the Convention too.
132
The UNFCCC, the CBD and the UNCCD.
133
UNCED.
134
Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests 1992.
135
Report of the United Nations Conference on Environment and Development, ‘Volume I Resolutions Adopted by the Conference.’ (1992) <https://www.un.org/esa/dsd/agenda21/Agenda%2021.pdf> accessed on 12 August 2020.
3. Discussion
There are a couple of arguments in favor of creating a global forest convention. The first and main argument is that a global convention could replace the fragmented international regime and provide instead in a comprehensive international forest regime. This could potentially resolve a lot of the ambiguity that exists in today’s regime. Any overlap of a global forest convention with other treaties could be resolved on the basis of the Vienna Convention on the Law of Treaties.136
The second argument is that a global forest convention can incorporate all different views on forests and interests in forests. This would allow for a more systematic approach to curbing deforestation to be taken. The current approach relies on focusing on the synergies between treaties, national forest management and voluntary compliance with soft law instruments. It seems likely that focusing on synergies between treaties will leave gaps. The treaties will probably still be relatively limited in scope, which renders them less effective and
comprehensive than a global convention on the subject. 137
The third argument for a global forest convention is that it would demonstrate the
commitment of states to combating deforestation and forest degradation, making forest more of a priority and possibly leading to more research on the global importance of forest and potential harmful transboundary effects of deforestation and forest degradation. 138
Fourthly, a global convention could support in clarifying the underlying issues that cause deforestation and forest degradation. This is because a global convention has the ability to address forests holistically, incorporating all the varying aspects of forest. This could in turn enhance conversation, investment and solution thinking with regard to deforestation.139
Fifthly, a global convention could lead to better enforcement since international courts and tribunals would be able to rely on a new clearly identifiable source of law.140
The underlying causes for the fragmented policy are similar to the arguments against the development of a new treaty and are therefore be readdressed below. First, the Forest Instrument could be used as the basis for a potential convention. That could solve the lack of consensus on the objectives it should contain.141 Also since a global forest convention can incorporate all different views on forests and interests in forests, it has the capacity to coordinate the different functions of forests in a more comprehensive and harmonized way than the piecemeal approach can.
Secondly, there is the argument that it is difficult to identify the stakeholders. Only sovereign states can be party to a treaty but there are many other interested parties. This is however very often the case. A global forest treaty will in any case be more comprehensive than the current international forest regime.
136
Article 30 VCLT.
137
David Humphreys, ‘Forests Routledge Handbook of Global Environmental Politics’ (Logjam 2013).
138 Ibid. 139 Ibid 140 Mackenzie (n 20) 251. 141
The third argument is that, there is a time and expense concern regarding the negotiation and implementation of a potential convention. This concern is legitimate, however since there is already a system in place the time concern does not hold up. The monetary concerns could be solved by empowering REDD+ by connecting the mechanism to the potential global forest convention as an incentive for cooperation. This could in turn provide REDD+ with governance and clear rules on implementation.
Fourthly, the reality of the market economy does not seem to merge with the theory behind international law. The question arises if a global forest treaty that addresses states only will be capable of making a real difference. In this regard, attention should be paid to the amendment of trade treaties like the GATT and the ITTA and the creation of more trade schemes. This however lies outside the scope of this thesis, but is a relevant subject matter for future research.
The fifth argument is that the problem of deforestation is too multifaceted to curb through a global forest convention. Deforestation and forest degradation relate to many different other issues that also require attention, such as biodiversity, global warming, the culture of impunity of corporations and global poverty. But the development of a global forest convention could
opening up the conversation on these other issues that relate to deforestation. Also a global forest convention consisting of hard enforceable law could be a step forward in better addressing related problems. Especially if a mechanism to finance developing countries in their efforts is incorporated, like REDD+.142
The sixth argument is that there may not be enough political will in general. This is an important opposing argument. Political will is indispensable for even taking the development of a global forest convention into consideration.
It does not seem that much has changed on the political level. And thus it seems unlikely that there is enough political support for setting up a global forest convention.
With regard to the seventh argument, REDD+ could also help in providing a reciprocal advantage for developing states. This would also provide a solution to the seventh argument. Because a financial incentive could encourage more political will towards negotiating a global forest convention.
Lastly, constructing a global forest convention could lead the way to gaining more
knowledge about the negative implications of deforestation and comprehensive view of the value of forests.
ii.
Suggestion 2: Forest protocols to existing treaties
1. Introduction
Another option is to add forest protocols to existing treaties. Since the UNFCCC, CBD and the UNCCD aim to protect different functions of forests, forests protocols should be added to all of
142
those treaties. To negotiate protocols to various treaties will be time consuming but it is possible.
If protocols to the United Nations Framework Convention on Climate, the Biodiversity Convention the United Nations Convention to Combat Desertification are set up it will
necessarily result in fragmented regulations that will likely overlap with each other. This would be challenging and have the same disadvantages as the current piecemeal approach. But a considerable benefit of this construction is that it would provide in more hard law that directly relates to forest. It is another step in an effort to synergize the international forests regime.
2. Proposed protocols
A protocol to the CBD, a protocol to the UNFCCC and a protocol to the UNCCD should be established that specifically addresses forests in relation to the respective treaties. They should provide in regulations that aim to sustainably manage forests in order to fulfill the aims of the respective treaties. The aims of the CBD and the UNFCCC must be taken in careful
consideration when drawing up the protocols since they may result into conflict. Soft law agreements could support the process by providing in policies to implement the protocols nationally with a view towards each other. Moreover before the conclusion of the protocols an inquiry procedure could uncover how to best go about formulation the protocols to optimize their ability to contribute to harmonizing the piecemeal approach.
3. Discussion
There are some advantages to providing in protocols over developing a global forest convention. The negotiation process is likely to be less time consuming since negotiations build on the framework that the original treaty provides.143
However, protocols could emphasize the significant inconsistencies that already exist within the current piecemeal approach. For example the CBD and the UNFCCC together with its Kyoto Protocol both have as a goal the reduce deforestation and forest degradation. But they have different perspectives which may conflict. Be that as it may, protocols have the capacity to be more forceful than their parent instrument as long as they adhere to the same objective and purpose of the original treaty.Practice has showed that some protocols have even amended the original treaty.144 A protocol can thus sharpen the interpretation on the original treaty and redirect the focus of it more towards forests.
However, the outcome of establishing new protocols would likely still be fragmented and not comprehensive. But the piecemeal approach is already fragmented and protocols could establish more binding, hard law on forests. Besides a protocol may be more approachable than a global forest convention. Parties may be more inclined to agree to a protocol on forests, since they have already agreed to the original treaty to which the protocol would be applied.
143
A Aust ‘Modern treaty law and practice’ (2nd edition, Cambridge University Press 2007)
144
The 1973 International Convention for the Prevention of Pollution from ships (or MARPOL) was, for example, amended by its 1978 Protocol <
iii.
Suggestion 3: Amending existing conventions with a view to regulating
deforestation in the Brazilian Amazon
1. Introduction
There are many treaties that are relevant to deforestation. However, the text will focus on amendments of the UNFCCC, the CBD, the UNCCD an REDD+.
2. Proposed amendments
The UNFCCC, the CBD and the UNCCD could be amended to include a broader range of forest issues. They should also be amended with a view to each other’s objectives. Also REDD+ could potentially be amended to incorporate more of the aim of the CBD next to the objective of the UNFCCC.145The amendments should incorporate mechanisms relating to trade. Because forests and trade are inextricably linked.146 Finally, to make these Conventions more authoritative they should be amended to include more room for reporting, reviewing and verification the measures that are being taken to prevent deforestation within the territory of parties. To go into the
substantive amendments that could be made to these treaties lies outside the scope of this thesis, but provides an interesting subject for future research.
3. Discussion
As previously mentioned both the UNFCCC and the CBD have showed a tendency towards increasingly incorporating forests through COPS. And both Conventions have the potential to incorporate forest issues further. But these Conventions contain provisions that are broad and vague in nature which dilutes to obligations that they provide in.147
Also monetary support should be ensured for states that require it to implement their obligations under the Conventions.This is already in progress through the establishment of REDD+.
Amending treaties would be less intensive than the construction of a new global forest treaty. However, since amendments build on existing treaties gaps that already exist may not be closed by amendments alone. It is also important to note that since none of the treaties that regard forests do that in a comprehensive manner any amendments to further regulate forests issues could deviate from the original objective. If the amendment is too significant it could adjust the treaty to the extent that it would be unrecognizable. This could lead to diminished support for the original treaty.148
Another drawback is that that the focus of a convention is very difficult to change. For example, UNFCCC will always consider forest carbon reservoirs.149 As a result, some aspects of
145
Food and Agriculture Organization of the United Nations, ‘REDD+ Reducing Emissions from Deforestation and Forest Degradation’ < http://www.fao.org/redd/en/> accessed on 12 August 2020.
146
C. Mersmann, ‘Links between trade and sustainable forest management: an overview’ FAO <http://www.fao.org/3/y5918e/y5918e02.htm> accessed on 12 August 2020.
147
Examples are articles 5, 7, 8, 9, 10 and 11 in which is often used ‘as far as possible and as appropriate’.
148
Mackenzie (n 20) 254.
149
forests under this new regime will be given more attention than others. Because this is not a holistic approach, it will be difficult to weigh the full value of forests, taking into account all their functions, against the economic value.
Furthermore, the process of amending a treaty is a slow, difficult and expensive process. Generally amendments require all of the parties to agree to it.150 However, because amending is a gradual process, states can go on their own speeds with adoption obligations. Instead of an all or nothing approach, groups of states could lead the way.
What is more is that amending protocols could aid in synergizing the international forest regime because the existing treaties would be amended with a view to each other.
Also an amendment can improve the effectiveness of a treaty if it is already working well. However if a treaty is already ineffective, due to implementation issues or qualifying language, amending the treaty is not likely to produce a big change in that regard.151 For example the provisions of the CBD that use qualified language will not be easily converted into enforceable obligations.
To conclude amendments can help in synergizing the international forest regime but like protocols they cannot provide in the same holistic view of forests as a global forest convention can.
150
Article 14(3) UNFCCC; Article 29(3) CBD; Article 30(3) UNCCD.
151
