Andrew Williamson International & European Law: Public International Law Ms. Antoinette Hildering Date: 09/07/2018
The UN-REDD Programme and the relationship with Indigenous and Forest-Dependent Communities under International Law
i
Abstract
Deforestation and forest degradation are one of the key drivers of climate change and pose detrimental consequences to a range of stakeholders notably indigenous and forest-dependent communities (indigenous/FDC). As such, the reduction of emissions from deforestation has been increasingly at the forefront of the international communities’ endeavours to create a global and comprehensive forest governance mechanism that serves to impact and improve national, regional and local forestry management and policy. This thesis will provide an in-depth examination of the implications of UN-REDD on indigenous/FDC with an intention of revealing the various international legal dimensions of the programme including the extent it adheres to its international obligations under both international environmental law and international human rights law. In support of this examination will be a comprehensive overview of the inclusion and overall participation of indigenous/FDC in all facets of UN-REDD including the practical implications and the corresponding international rights attached to the programme. Throughout the thesis, the concept of Indigenous Rights (IR) will be explained and expanded to the extent that these rights ought to be embedded in UN-REDD and connect international legal principles to environmental programmes aimed at stemming deforestation. This thesis will conclude by asserting that the complex relationship between indigenous/FDC and environmental programmes such as UN-REDD has an abundance of potential. Nevertheless, a number of legal and ethical drawbacks will continue to hinder the progression of this relationship unless they are addressed by the stakeholders concerned. Thus, mutually beneficial aspects of UN-REDD as well as participatory incentives of indigenous/FDC through knowledge and expertise in combination with the envisaged benefits this entails, justify the continuation of the programme in an attempt to stem the negative impacts of deforestation for all stakeholders concerned.
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Table of Contents
Introduction ... 1
Chapter 2 – Indigenous Rights ... 5
2.1 Indigenous Peoples Under International Law ... 5
2.2 Indigenous Peoples as Subjects of International Law ... 7
2.3 Indigenous Rights from the Perspective of International Human Rights... 9
2.4 Indigenous Rights and their Relationship with International Environmental Law ... 11
2.4.1 Vulnerability from Climate Change ... 11
2.4.2 International Environmental Law and Indigenous Rights ... 13
Chapter 3 The UN-REDD Programme ...16
3.1 Connection to Indigenous Rights ... 16
3.2 Synergies, Issues and Cooperative Methods of UN-REDD on a National Level ... 17
3.3 Conflicting issues of UN-REDD and National Systems ... 18
Chapter 4 – To what extent does the UN-REDD Programme adhere to its obligations under International Law? ...22
4.1 Environmental Democracy ... 22
4.1.1 FPIC ... 23
4.1.2 Effective Participation and Consultation ... 24
4.2 Possible Breaches of Indigenous Rights ... 26
4.2.1 Environmental democracy ... 27
4.2.2 Participation ... 29
4.2.3 Redress for Indigenous/FDC ... 31
4.3 Indigenous Customary Rights ... 31
4.4 Closing Remarks ... 33 Conclusion ...35 References ...38 Table of Cases ... 38 Table of Legislation ... 38 Books ... 38 Journal Articles ... 40 Official Publications ... 43 Online Sources ... 44
1
Introduction
The factors linking the forceful eviction of the Ogiek People from Mau Forest and the displacement of the Sengwer People from the Cherangany Hills in Kenya, are representative of not only the motives of governmental authorities to pursue environmental agendas under forest governance programmes but perhaps more importantly the interplay global environmental initiatives have with the livelihoods and rights of indigenous/FDC.1
The implications of deforestation and forest degradation whether originating from timber harvesting to evolving cultivation patterns are representative of the ‘largest and most variable single contributor’ to global emissions.2 Collectively, these changes to the landscape which
encompasses deforestation, agricultural activities and other forms of land use account for approximately one quarter of anthropogenic greenhouse gas (GHG) emissions.3 Of relevance
is the fundamental necessity of forests for addressing the prolonged effects of climate change as a direct result of this land change. This was stressed in the United Nations Framework Convention on Climate Change (UNFCCC) as all “Parties should collectively aim to slow, halt and reverse forest cover and carbon loss.’
Once envisaged as being of complementary in nature due to the varying forms of forest governance which highlight the fundamental notions of environmental and natural resource protection. The significance of the natural correlation between the concept of sustainable development and indigenous self-determination and indigeneity through environmental stewardship has been increasingly highlighted as a more suitable form of forest conservation to undertake. This is in part due to the specific connections Indigenous Peoples (IP) and Forest Dependent Communities (FDC) have with their natural surroundings, the knowledge of which is of the upmost importance in resource protection and conservation. However, these connections represent a more vital and pertinent issue that must be considered throughout this thesis. Whilst acknowledging the climatic knowledge of indigenous/FDP, the extent to which this knowledge is utilised in a mutually supportive manner is particularly questionable. This leads to questioning global environmental initiatives such as United Nations Programme on
1 Sarmiento Barletti, Anne Larson, ‘Rights abuse allegations in the context of REDD+ readiness and
implementation’ (2017) CIFOR No. 190/2017 < http://www.cifor.org/publications/pdf_files/infobrief/6630-infobrief.pdf> accessed 18 April 2018.
2 Shuzo Nishioka, Enabling Asia to Stabilise the Climate (1st edn, Springer Publishing 2015).
3 Demetrius Kweka, ‘REDD+ politics in the media: A case study from Tanzania’ (2013) CIFOR No. 119/2013 <
2 Reducing Emissions from Deforestation and Forest Degradation (UN-REDD) and the possible impact they have on the rights of these peoples.
Through discussing the complexities involved in the relationship between international environmental governance and IR, this thesis will focus on the interaction and implications of IR and climate change governance through the context of UN-REDD. Yet, in consideration of the factual incorporation of these rights into the programme framework and given the considerable number of rights and norms in question, the scope of this thesis will focus on the applicability and relevance of international legal instruments derived from the UN-REDD programme in particular elements of environmental democracy rights which encompasses free prior informed consent (FPIC) participation and redress as well as issues related to customary rights.
Therefore, this thesis will map such issues to identify the possible detrimental socio-economic impacts UN-REDD undertakings have on Indigenous/FDC from an International Law (IL) standpoint. Additionally, the question will be raised whether such a programme is currently desirable to safeguard and protect the rights of indigenous/FDC or if it has instead accelerated the marginalisation of these communities. In effect, the UN-REDD programme will be ‘tested’ against international legal principles. In order to make a critical assessment of the UN-REDD programme and the obligations emerging from its implementation, this thesis will aim to make a determination and seek to answer the implications of the UN-REDD programme on the rights of indigenous/FDC. In support of this assessment, several other propositions will be raised which includes an opening sub-question connected to the applicability and adherence of Indigenous Rights (IR) under the UN-REDD programme. In addition, the extent to which international human and environmental rights are accounted for and give rise to legal obligations within the overall framework of UN-REDD will be examined. Lastly, international legal features of a number of different partner countries to UN-REDD will be highlighted throughout the thesis and assist in clarifying the relevance and applicability of principles of IL.
The opening chapter will highlight the international legal frameworks of interest which address international environmental law (IEL) and international human rights law (IHR) and their corresponding relevance to IR. This will contribute to discourse concerning the overall relevance of IL within this context. A further examination will explore to what extent these communities are ‘subjects’ of IL. From this, particular rights that will be the primary focal
3 points of discussion, concern, land rights, participation of indigenous/FDC and exploring the different means and methods of redress for communities. Furthermore, in discussing IR under IL, this thesis will explore the implications of a specific linkage and possible infringements between IHR and the UN-REDD programme. The final component of chapter two aims to reveal the context and importance of international climate change frameworks to safeguard and protect the rights and livelihoods of indigenous/FDC as well as the corresponding binding and non-binding international obligations that arise for states. Moreover, there will be a brief discussion of the implications of climate change on indigenous/FDC as well as discussing indigeneity of environmental stewardship in support of formulating a connection between these communities and the global forum that dictates the course of climate change policy.
Discussion will then turn to examining the UN-REDD programme in greater detail with initial attention focusing on the background and development of the programme and how this equates to a connection with IR. In doing so, a number of partner countries that are representative of distinct geographical regions alongside being involved in the implementation of UN-REDD will be examined. The following component of chapter 3 will discuss synergies, issues and cooperative methods of UN-REDD and national systems. In addition, chapter 3 will examine specific right concerns which deserve more attention and areas of the framework that could be improved. This will be analysed in light of the numerous policy recommendations that will be highlighted throughout the thesis. Thus, questions will be posed about the feasibility of such recommendations and the possible legal and policy benefits and drawbacks pertaining to future changes.
In the final substantive section of this thesis there will be an examination of the principal rights concerns associated with UN-REDD and the possibility that elements of the programme are particularly problematic from an IEL/IHR perspective. Ultimately, the specific problematic aspects of the programme will be examined and whether the programme is in conformity with international legal principles. Finally, the thesis will be drawn to a conclusion based upon the possible establishment of a causal link between the UN-REDD programme and problematic issues relating to the safeguarding and protection of IR.
The methodological approach of the thesis revolves around the legal analysis of literature and jurisprudence as well as other primary sources which address IR under IL as well as the
4 inclusion of such rights in international environmental programmes. Both literature and jurisprudence that will be analysed highlight key thematic elements of IL and serve as a sound basis to establish the implications of international environmental programmes on IR. Thus, the results from this research will allow for a critical analysis of the problematic areas of the UN-REDD programme from the perspective of international legal principles. Thus, the critical analysis will encompass evaluating UN-REDD and determining its impact on indigenous/FDC. The potential limitations of this approach are the vast array of material that is highly opinionated on the matter without acknowledging differing opinions as well as the continual changes in the UN-REDD landscape.
An important distinction to clarify is the difference between the terms UN-REDD and REDD+ (reducing emissions from deforestation and forest degradation + the conservation of forest carbon stocks, sustainable management of forests and the enhancement of forest carbon stocks). Whereas the UN-REDD programme supports nationally led REDD+ initiatives and processes in 64 developing countries. REDD+ is a nationally led framework which offers a financial incentive for developing countries for reducing their emissions from forested areas and instead pursue lower carbon alternatives. Overall emphasis will be placed on the UN-REDD programme in the subsequent chapters of this thesis.4
The problematic rights issues derived from certain global environmental initiatives have converged to ultimately reveal the difficulties in safeguarding indigenous/FDC rights through international legal machinery. As such, the predominant concern of this thesis focuses on the premise that irrespective of the programme advocating a rights-based approach of forest governance, the programme may be contrary to that of traditional land management and practices of indigenous/FDC. Likewise, the adverse impact of the UN-REDD programme through excluding indigenous/FDC as well as expelling them from their land must be considered in conjunction with the possible beneficial aspects of a greater level of disciplinary inclusion of indigenous and forest peoples into what is widely considered to be the ‘green economy’. Consequently, a balance must be struck between the recognition of rights ‘from below’ but also mechanisms of responsibility ‘from above’ that are inadvertently required for the adherence of rights obligations from concerned stakeholders to the UN-REDD programme.
4 Emmanuel O Nuesiri, Global Forest Governance and Climate Change: Interrogating (1st edn, Palgrave
5
Chapter 2 – Indigenous Rights
In this chapter, the international legal frameworks encompassing both human and environmental rights will be discussed from the perspective and potential benefit of IR. Thus, the status of IP under IL will be examined as well as assessing the role and capacity of the two internationally recognized systems have in safeguarding such rights.
2.1 Indigenous Peoples Under International Law
IR have gained traction in IL with their positions and cause being propelled into the global arena since the latter part of the 20th century. The original positions advanced by
indigenous/FDC was one of self-determination or acquiring an official form of ‘sovereignty’ which reflected the predominantly heterogeneous nature of indigenous societies. However, this position has shifted towards a model focused more on IHR which reflect their cultural identities and undertakings to pursue internal self-determination.5 The later approach traces its
legal basis to the Universal Declaration of Human Rights which was the first international legislation acknowledging the urgent need to ensure indigenous groups are protected from environmental and economic changes. Advocates such as James Anaya the former UN Special Rapporteur on the rights of IP, state that this approach is indeed a more pragmatic and realistic route to achieving and safeguarding IR.6 Furthermore, the common traits of indigenous
communities such as socio-economic marginalization and experiencing cultural and racial discrimination would be addressed from a less contentious perspective of human rights and not self-determination.7
The progression of IR within the previous four decades predominantly by securing standard setting and significant progress in institutional-building, has resulted in IP contributing to the establishment of multiple soft-law international instruments. This is in combination with renewed success in the fields of international advocacy before relevant institutional bodies that are empowered with norm-generation. More specifically, these communities have utilized the channels before the UN institutional bodies, human rights treaty compliance bodies, human
5 Lillian Miranda, ‘IP as IL makers’ (2010) 32 (1) U. Pa. J. Int’l L. 214-222. HR 226, HR Norm building 227-235
IR established 243-245.
6 James Anaya, ‘International Human rights and IP: The Move Towards the Multicultural State’ 21 (1) Arizona
Journal of International & Comparative Law.
7 Siegfried Wiessner, ‘The Cultural Rights of IP: Achievements and Continuing Challenges’ (2011) 22 (1) EJIL,
6 rights commissions and courts. Such advocacy was intended to draw attention to the marginalization of these communities and the desire for core normative precepts to gain formal recognition and future compliance by states as a representation of these community’s distinctiveness.8 However, it was not until 2007 when the United Nations General Assembly
(UNGA) adopted the United Nations Declaration on the Rights of IP (UNDRIP) and provided an extensive enunciation of the contours of indigenous/FDC rights and a criteria for examining the rights encompassed in UN-REDD.9 The declaration signified an important moment in
IL-making through a universal proclamation of a legal corpus specifically tailored for IR. It also represents the legislative finalization of decades of indigenous lobbying and advocacy. Yet, an important factor that must be stressed is the non-binding nature of the declaration which is representative of a number of other international legal texts. Although lacking in binding force, UNDRIP has a significant impact and authority on the interpretation and views of other rights and provides a defined legal basis for an extensive amount of IR.10 Additionally, certain
provisions of the text are widely regarded as customary IL and as James Anaya asserts an expression of “a commitment on the part of the United Nations and Member States to its provisions”.11 Thus, UNDRIP can be seen as a ‘holistic reflection’ of indigenous livelihoods
that has the influence to dictate our perceptions of IR and legal positions. Amongst other more practical aspects, the influential strength of texts such as UNDRIP is particularly relevant for the purpose of exploring pre-existing legal texts that provide the basis for the rights embedded in UN-REDD.12
The adoption of UNDRIP embodies the large body of legal developments that precedes the declarations adoption. This includes, the UN Human Rights Council's Expert Mechanism on the Rights of IP (EMRIP) and the UN Special Rapporteur on the rights of IP. However, the most evident drawback of the mechanism and reports compiled by Special Rapporteurs is the absence of a ‘binding force’ attached to their final conclusions which raises issues pertaining to obligations and their binding force.13 Despite this, the mechanism entails strong political
8 Megan Davis, ‘Indigenous struggles in standard setting: UNDRIP’ (2008) 9 (2) Melbourne Journal of IL,
439-440.
9 Declaration on the Rights of IP (adopted 13 September 2007) UNGA Res 61/295.
10 Elizabeth Warner, ‘Indigenous adaptation in the face of climate change’ (2015) 21 (1) Journal of Environmental
and Sustainability Law, 137-140.
11 Supra note 6.
12 Jackie Hartley, Paul Joffe, Jennifer Preston, Realising UNDRIP: triumph, hope and action (1st edn, Purich
Publishing 2010).
13 Tom Antowiak, ‘Rights, Resources and Rhetoric: IP and the Inter-American Court’ (2013) 35 (1) U. PA. J.
7 commitment due to its subsidiary nature as a body of the Human Rights Council which is directly under the UN General Assembly.14 Moreover, Article 42 of UNDRIP goes further to
state that EMRIP has the indirect mandate of ‘promoting and respecting UNDRIP’.15 Likewise,
the significant role of UN Special Rapporteurs in constituting a key component in the emergence and wider acceptance of IHR has been widely acknowledged.16 Thus, the UNDRIP
as an international legal instrument entails and substantiates a willingness by the international community to address the matters covered in the treaty.
The establishment of UNDRIP, has resulted in a proliferation of international and regional jurisprudence through monitoring human rights compliance as well as a stark increase in scholarly interest in the subject. In the UN-REDD context, IL provides indigenous/FDC the necessary legislative machinery and criteria to realise and progress their rights whilst remaining within the articulated legislative authority of forested areas and not constituting an attempt to manifestly alter the overall authority over the forested areas themselves.17
2.2 Indigenous Peoples as Subjects of International Law
The ability of communities who have traditionally been marginalized by the wider society to strategically accomplish an identity on the international plane and achieve a substantive rejuvenation of their respective rights, is a unique phenomenon. Indigenous/FDC participation in IL making has primarily been through the lens of human rights instruments. Through, a social movement of participation in such processes intertwined with political considerations, indigenous/FDC have contributed to the creation of a distinct legal identity that entails a derivative framework of human rights, the qualification of such is the legal category of IP and the consequential IR that are derived from the body of international norms, ‘IR’.18
Determining who the ‘subject’ of rights accorded on the basis of indigeneity has up until recently been a particularly vexed and unsettled question under IL. The difficulties that arose establishing such a definition of what individuals or entities can be regarded as ‘IP’ (extending to forest peoples and other minority groups) have been resolved through the common
14 Mattia Ahren, ‘International human rights law relevant to natural resource extraction in indigenous territories –
an overview’ (2014) 20 (1) Nordic Environmental Law journal, 21.
15 Supra note 9, Art. 42.
16 Henry Minde, IP Self-determination knowledge, indigeneity (1st edn, Eburon 2008).
17 Elvira Pulitano, IR in the age of the UN declaration (1st edn, Cambridge University Press 2012).
18 Jerry Firestone, Jonathan Lily, Isabele Noronha, ‘Cultural Diversity, Human Rights and the emergence of IP in
8 understanding that no precise universal definition exists nor is necessary.19 Yet this is
particularly problematic for establishing the legal boundaries of who is indigenous, and the consequential rights or knowledge that entitles a community to actively participate in a project. Consequently, it has been common practice for legal practitioners and policy makers to adopt and make use of practical rather than fixed/binding definitions on the matter usually on a case-by-case basis by ascertaining functional determinations.20 Nevertheless, one of the leading
definitions of IP was formulated by then Special Rapporteur for the sub-commission, José Martinez Cobo. Martinez stressed the importance of the concepts of historical continuity with pre-invasion and pre-colonial societies, who intend to preserve and develop their ancestral territories and ethnic identity.21 Likewise, the IL Associations 2012 report formulated several
indicators that ‘should be used in order to ascertain whether or not a given community may be considered as IP. These indicia are: self-identification, historical continuity, special relationship with ancestral lands, distinctions, non-dominance and perpetuation (or a desire to maintain and reproduce a distinct way of life).22 The 1989 ILO Convention No. 169 details a
number of objective and subjective criteria that can be used to determine these groups making use of the terms ‘indigenous’ and ‘tribal peoples’ whilst affording both peoples parallel rights. Furthermore, the convention exhibits both a practical and inclusive approach for identifying IP that encompasses self-identification as a key criterion. Contrary to several other IL texts, the convention is legally binding. This is of importance when detailing the rights formulated in the convention some of which will be discussed in subsequent chapters of this thesis.23
Therefore, UNDRIP does not explicitly account for provisions that define the principal subject matter, nonetheless the concept of self-identification is to a certain degree implied in the declarations provisions which relate to community and membership.24 The flexible approach
of the subject of IR has found support from Erica-Irene Daes the former chairperson of the UN Working Group on Indigenous Populations who echoed the sentiments of the representatives
19 Irene Watson, IP as Subjects of IL (1st edn Routledge 2018).
20 Anna Meijknecht, ‘Towards international personality: The position of minorities and IP in IL (2003) 14 (1)
EJIL 387-401.
21 UNCHR (Sub-Commission), ‘Report of the Special Rapporteur on the Problem of Discrimination Against
Indigenous Populations’ (1986) UN Doc E/CN.4/Sub.2/1986/7/Add. 1-4.
22 IL Association, ‘Sofa Conference: Rights of IP’ (ILA, 2012) <
http://ilareporter.org.au/wp-content/uploads/2015/07/Source-1-Baselines-Final-Report-Sofia-2012.pdf> accessed 19 April 2018.
23 Mattias Ahren, Indigenous people’s status in the international legal system (1st edn Oxford University Press
2016); Jeremie Gilbert, IP land rights under international from victims to actors: second revised edition (2nd edn,
Martinus Nijhoff 2016).
24 Report of the working group established in accordance with Commission on Human Rights resolution 1995/32,
9 by stating that a universal definition was not feasible under the current circumstances.25
Similarly, and of importance in determining who has protection under IL, the UN Special Rapporteur on the rights of IP expressed that although the majority of the population are indigenous to the specific region, segments of society distinguish themselves from the rest of society and can concern themselves with indigenous safeguards under the ambit of IL.26 The
translation of IP engagement within the context of IHR/IEL deserves further attention due to the important legal basis that has to a certain degree enabled the development and creation of IR.27 Through establishing the subjects of IR and the consequential rights accorded to
indigenous/FDC the pivotal role that the international legal frameworks concerning human and environmental rights will now be examined.28
2.3 Indigenous Rights from the Perspective of International Human Rights
Indigenous/FDC have used IHR platform and apparatus to ‘translate’ their claims into recognizable rights. These claims vary in manner and purpose but predominantly concern, increased protection for their cultural practices, more control over their ancestral lands and resources and the inherent right of self-determination.29 Through identifying and placing
emphasis on distinctive attributes, indigenous/FDC have advanced their claims upon the premise that IHR, should and can be interpreted to account for these distinctive attributes. Connecting these environmental claims to IHR was in part illustrated by the Cancun Agreements whereby it was asserted that ‘Parties should, in all climate change related actions, fully respect human rights.’30
Despite the historical indigenous/FDC underrepresentation in IL, indigenous/FDC have a tendency to ground their claims on human rights articulated in declarations and treaties.31 This
is perhaps best exemplified by the incorporation and invocation of a number of fundamental IHR that represent the distinctive considerations of indigenous/FDC including, political, associational, religious and cultural perspectives.32 Consequently, the IHR provisions denote a
25 Supra note 23. 26 Supra note 13. 27 Supra note 5, 224.
28 Chidi Oguamanam, ‘IP and IL: The making of a regime’ (2004) 30 (1) Queens L.J. 348-355.
29 Hari Osofsky, ‘Learning from environmental justice” A new model for environmental rights’ (2005) 24 (1)
Stanford Environmental Law Journal, 12.
30 Supra note 14, 23. 31 Supra note 5. 32 Ibid.
10 constraint on states to preserve indigenous/FDC traditional way of life and effective control over their ancestral lands and resources. For instance, a number of human rights bodies have heard claims from indigenous/FDC relating to issues of substantive human rights within an environmental context. Similarly, key principles of IHR law such as non-discrimination continue to be interpreted in a manner which protects indigenous/FDC assertions of comprising a particular indigenous identity and culture.33 In addition, aspects of IHR such as cultural
integrity, and property rights, have in many instances been interpreted to protect and affirm indigenous/FDC of a unique religious and cultural connection to their ancestral lands. Thus, IHR has multiple implications on the safeguarding and further protection of indigenous/FDC.34
Claims set forth by indigenous/FDC extend to those of minorities, self-determination by colonized groups and historical sovereignty claims originating from first peoples. Although they merit further exploration, due to the exhaustive nature of many of these claims which go further than the purpose of this thesis, elements such as self-determination will not be analysed. Nevertheless, while the nature of the claims may vary in substance matter, the vast majority of the claims have been pursued through the machinery of IHR law.35
Whilst a notable number of scholars, indigenous/FDC and state representatives have voiced their support for the utilisation of the human rights frameworks, opponents have expressed that the human rights discourse is fundamentally flawed. Stemming from the reasoning that the ‘equal rights rhetoric’ found in IHR discourse as well as its implementation and enforcement flaws ultimately hinder the progression of indigenous claims. Furthermore, decisions rendered by human rights bodies are in many instances not legally binding which enables states to retain considerable freedom in the form and measures it takes to satisfy its human rights obligations. That being said, with a current momentum of legal policy and increased representation, the blame-and-shame effect linked to human rights treaties does exert some influential sway over the increased adherence of these obligations.36 Moreover, blatant disregard of IHR law could
be detrimental to a state’s relationship with the UN. In summary, proponents of
33 Kristen Carpenter, ‘IP and the Jurisgenerative Moment in Human Rights’ (2014) 102 (1) California Law
Review, 173-200.
34 Susann Skogvang, ‘Legal questions regarding mineral exploration and exploitation in indigenous areas’ (2013)
22 (1) Michigan State IL Review, 330-333.
35 D. Kapua ‘ala Sproat, ‘An Indigenous People’s Right to Environmental Self-Determination: Native Hawaiians
and the Struggle Against Climate Change Devastation’ (2016) 35 (2) Stanford Environmental Law Journal, 163-166.
36 Jennifer Hendry, Melissa Tatum, ‘Human Rights, IP, and the pursuit of justice’ (2016) 34 (2) Yale Law &
11 indigenous/FDC rights on the international legal plane may rely upon the IHR platform whilst accepting that some measure of reform may be necessary as well as considering whether a reformed HR programme could sufficiently address IP concerns. Further questions worthy of examination include the merits supporting the establishment of a distinct category of IP rights co-existing with other IHR programmes and international legal structures.37
From a broader perspective the UNDRIP serves as an important example of a relevant international text that has combined the development of these human rights precepts with respect to indigenous claims and reflected a more inclusive translation of IP claims into a form of recognizable rights. Moreover, and in light of the non-binding nature of these instruments, human rights can be utilised for setting a customary benchmark of justifiable and acceptable outcomes based upon uniformly accepted principles and a defined legal structure. Notwithstanding the importance of the human rights framework, the rights of indigenous/FDC from an environmental law perspective will now be discussed.38
2.4 Indigenous Rights and their Relationship with International Environmental Law
Indigenous/FDC are perhaps some of the best environmental ‘stewards’ there are. Due in part to their livelihoods and cultural dependence on forested areas, clean water and numerous other natural resources, there is undoubtedly a personal incentive in the preservation and protection of their lands.39 The Intergovernmental Panel on Climate Change (IPCC) asserted in its Fifth
Assessment Report on Climate Change that ‘Indigenous forms of knowledge are a major resource for adapting to climate change... natural resource dependent communities, including IP, have a long history of adapting to highly variable and changing social and ecological conditions.’40
2.4.1 Vulnerability from Climate Change
The IPCC has stressed the plight of people who are socio-economically, culturally, politically and institutionally marginalized are more susceptible to climate change and the adaptation and
37 Supra note 33, 173-200; Patrick Thornberry, IP and human rights (1st edn, Juris Publishing 2002).
38 Sylvanus Barnabus, ‘The legal status of UNDRIP (2007) in contemporary international human rights law’
(2017) 6 (2) International Human Rights Law Review 242-250.
39 Maria Ormaza, ‘Re-thinking the role of IP in IL: new developments in international environmental law and
development cooperation’ (2012) 4 (1) GoJIl, 281.
12 mitigation responses taken in that regard.41 Of interest is the problematic areas that are
connected to the rights of indigenous/FDC and how climate change lays bare the possibility of these rights not being safeguarded. These include, various components of environmental democracy.42 Combined, these threats which originate from the impacts of climate change
entail the unique situation of indigenous/FDC and their corresponding vulnerability to climate change.43
The risks that climate change poses for indigenous/FDC diverge from the risks that it poses to other groups of society. This assumption stems from key characteristics that combined together are not risks to any other societal group. First and foremost, indigenous/FDC are among some of the poorest segments of society which coincides with socio-economic and environmental vulnerability.44 Approximately 15% of the world’s poorest people are indigenous despite IP
only constituting 5% of the global population. Secondly, indigenous/FDC are highly dependent on natural resources which are at risk of increased climate variability and extremes which could be detrimental to their economic activities and overall livelihoods. In 2012 a case study was conducted of indigenous farmers in the Bolivian highlands to determine the impact of environmental and social stressors derived from climate change on the wider economic and social livelihood of the community. It was concluded that the farmers social and economic wellbeing was increasingly likely to be imperilled because of such stressors. Thirdly, indigenous/FDC usually inhabit geo-graphical regions and ecosystems that are especially sensitive to climate variability alongside sharing a complex socio-economic relationship with such ecosystems. Consequently, and comprising the fourth point is that these higher levels of exposure to a certain degree necessitate the need for these communities to migrate which does not serve as a suitable nor desirable solution. As previously highlighted, gender inequality within indigenous/FDC is aggravated by climate change and results in the continued deprivation suffered by indigenous women. Lastly, the vast majority of indigenous community’s participation in decision making processes remains one of exclusion and
41 Supra note 38.
42 Ameyali Ramos-Castilla, Edwin Castellanos, Kirsty Mclean, ‘IP, local communities and climate change
mitigation’ (2017) 140 (1) Climatic Change Springer Journal 1-4.
43 Shree Maharjan, Keshav Maharjan, ‘IP, indigenous knowledge and their issues on climate change, particularly
on REDD, in developing countries’ (2017) 5 (3) Int. J. Appl. Sci. Biotechnol. 2763-283.
44 Alexandra Tomaselli, ‘IP in Europe and their international protection vis-à-vis the threat of climate change’
13 undermines the abilities of these peoples to mitigate and adapt to climate change.45
2.4.2 International Environmental Law and Indigenous Rights
Due to the significance of indigenous involvement in environmental governance as well as the increased adoption of legislative measures and policies, a number of scholars have maintained a ‘mutually supportive’ or ‘presumptive connection’ between IR and environmental rights as well as an increased interrelationship between environmental justice and IR. Hence, the intersection between IEL and IR has gradually narrowed with the effect of producing agents of change on communities who could be regarded as ecological natives and thus environmental stewards.46
The growing body of legal jurisprudence directed at expressing the rights of indigenous/FDC is of the upmost importance in furthering these peoples claims. As Bradford Morse articulates “identifying how asserting the recognized unique rights of IP through international and domestic law forums can provide a foundation of environmental sustainability to be accepted as a paramount principle.’47 The preamble of the ILO Convention 169 asserts ‘the distinctive
contributions of indigenous and tribal peoples to the cultural diversity and social and ecological harmony of humankind.’ Additionally, the convention goes further to state that ‘rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded’, especially rights ‘to participate in the use, management and conservation of these resources.’48 The 1987 Brundtland Commission affirmed the position of IP as a ‘link’ with
humanity’s ‘ancient origins’ who are repositories of traditional knowledge’ and ‘traditional skills in sustainably managing very complex ecological systems.’49 Principle 22 of the Rio
Declaration echoes the same sentiment by commending the ‘vital role’ indigenous/FDC have
45 International Labour Office, ‘IP and climate change, from victims to change agents through decent work’
(International Labour Organisation, 2017) < http://www.ilo.org/global/topics/indigenous-tribal/WCMS_551189/lang--en/index.htm> accessed 21 April 2018.
46 R Schwartz, ‘Realizing IR in International Environmental Law’ (2016) CIGI Papers No. 109/2016 <
https://www.cigionline.org/sites/default/files/documents/cigi_paper_no.109_1.pdf> accessed 22 April 2018.
47 Bradford Morse, “IR as a Mechanism to Promote Environmental Sustainability” in Laura Westra, Klaus
Bosselmann & Richard Westra, eds., Reconciling Human Existence with Ecological Integrity: Science, Ethics, Economics and Law (Earthscan, 2008).
48 Convention (No. 169) concerning indigenous and tribal people in independent countries,
(adopted 27 June 1989, entered into force 5 September 1991) 1650 UNTS 383.
49 Report of the Secretary-General, ‘Development and International Co-operation: Environment’ (1987) UN Doc A/42/427,
14 on environmental management due to their ‘knowledge and traditional practices’ as well as their ‘identity, culture and interests.’50
While these legislative texts provide for a legal basis for indigenous/FDC to further their claims and safeguard their rights, tightening the alliance between environmental/indigenous matters, would likely disregard the underlying complexities and contradictions of each respective context. Furthermore, one must proceed with caution when characterizing indigenous and environmental rights as always being mutually supportive in nature. 51 Doing so could
instrumentalise IR to the extent that they are simply forms of rights, based on the premise of an effective strategy for the protection of the global environment. If this were to be the case, a ‘compromise agreement’ may emerge which would denote that certain communities that demonstrate certain particularities or differential features should have their knowledge and rights observed only when these rights are deemed to be crucial for conservation purposes.52
Additionally, indigenous/FDC representation in the IEL forum presupposes an ideal that only a minor segment of the global population of indigenous/FDC can actually realize. As Eagle states, the “concept of culture as territory’ through the auspices of IEL may in fact have detrimental implications on available recourse under IEL frameworks.53
What is perhaps more desirable and beneficial is a two-fold solution. Firstly, the adoption of inclusive mitigation measures aimed at reducing green-house-gas emissions. Secondly, inclusive adaptation measures with the purpose of reducing vulnerabilities to the impacts of climate change. Combined these solutions are vital for enabling indigenous/FDC to safeguard and invoke their rights alongside increasing global resilience to the issues arising from environmental degradation. Hence, international agreements such as the Paris Agreement on climate change, serve as concrete global initiatives to address climate change and the socio-economic implications on indigenous/FDC. As such, IEL can complement and advance the knowledge of indigenous/FDC whilst frequently providing binding state obligations to protect these communities.54
50 The Rio Declaration on Environment and Development (1992) (Rio Declaration) (U.N. Doc
A/Conf.151/5/Rev.1).
51 Laura Westra, Environmental justice & the rights of IP (1st edn, Earthscan 2008). 52 Cherie Metcalf, IR and the Environment: Evolving IL’ 35 (1) Ottawa Law Review 136. 53 Supra note 37.
54 David Takacs, ‘Environmental Democracy and Forest Carbon (REDD+)’ (2014) University of California
Hastings College of the Law Legal Studies Research Paper No. 103/2014 < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2424286> accessed 10May 2018.
15 To summarise, IP do not just simply qualify as ‘victims’ or ‘subjects of development of climate change. Indeed, they are crucial partners and essentially ‘agents of change’ for the achievement of effective climate action and pursuing sustainable development. Thus, the following chapter will examine the UN-REDD programmes connection to these inherent characteristics which aims to capitalize on a rights-based approach within the context of IL and indigenous/FDC.55
16
Chapter 3 The UN-REDD Programme
Launched in September 2008 following the UNFCCC COP-13, the UN-REDD programme formally endorsed the REDD+ initiative and was established in a joint decision by the Food Agricultural Organisation, United Nations Environment Programme and the United Nations Development Fund. Through utilising the competencies and expertise of the three respective agencies, the overall aim of the programme is the assessment of payment structures and their corresponding impact on emission reductions while maintaining and improving forest dependent ecosystems. By strengthening the institutional and technical capacities of developing countries the desired outcomes would be for forest-related emissions to decrease as well as the country achieving ‘REDD+ readiness’ standard.56
3.1 Connection to Indigenous Rights
The UN-REDD programme assists in changing global policy perceptions of the vital importance in conserving and protecting forests. Through placing forest governance in the spotlight of global and national policy agendas, the programme highlights the significance of forest ecosystems in climate change and the broader spectrum of sustainable development. By linking the programme to the existing developments of the UNFCCC negotiations, the UN-REDD programme has contributed to ensuring that the UN-REDD+ national agendas, continue to be a focal point for current and future climate change negotiations. This perspective has found support from a variety of respondents who have expressed the awareness of REDD+ to be one of the principal achievements of the UN-REDD programme. 57
The UN-REDD programme has strived to integrate a rights-based approach to programming as well as ‘democratising’ forest policy and climate change on a national and international level. A rights-based approach to development encompasses both the acceptance that development policies must not violate IHR, as well as the fulfilment of such rights being an instrumental means of achieving the desired development effectiveness. The UN prescribes to
56 UNEP, ‘External Evaluation of the United Nations Collaborative Programme on Reducing Emissions from
Deforestation and Forest Degradation in Developing Countries (the UN-REDD Programme)’ (UNEP, July 2014). <https://wedocs.unep.org/bitstream/handle/20.500.11822/191/External_evaluation_of_the_United_Nations_Coll aborative_Programme_on_REDD.pdf?sequence=1&isAllowed=y> accessed 23 April 2018.
57 UNDP, ‘UN-REDD Programme’ (UNDP, September 2009) <
http://www.undp.org/content/dam/aplaws/publication/en/publications/environment-energy/www-ee-library/climate-change/un-redd-programme-brochure/unredd.pdf?download> accessed 23 April 2018.
17 three main components of a rights-based approach to development programmes. “(1) be operationally directed toward fulfilling human rights; (2) identify rights holders and their entitlements and corresponding duty-bearers and their obligations, and work towards strengthening the capacities of rights holders to claim their rights and of duty-bearers to meet their obligations; and (3) be guided in all phases by standards derived from international human rights law.” All three participating agencies of UN-REDD have adopted this approach which is of significance when considering the manner in which these rights are respected.58
The intended and continued aim of the programme is to provide a platform for indigenous/FDC and civil society to express their unease, desires and perhaps more importantly, their rights affected by the implementation of climate adaption and mitigation activities. Thus, there is an apparent link between the adherence of IR and the overall framework of UN-REDD. Despite this, contentious issues have emerged between national systems and the UN-REDD programme. These issues as well as the synergies between the respective mechanism and policies will now be examined.59
3.2 Synergies, Issues and Cooperative Methods of UN-REDD on a National Level
Although the UN-REDD programme is primarily driven by the UN agencies which as one external reviewer openly stated “is where the UN imposes a multi- stakeholder approach, compared to country-driven strategies that are not, in fact, country-driven but driven by one set of bureaucrats in one or two relatively marginal government agencies.” Nonetheless, the programme remains in conformity with the needs and priorities of the developing country partners as exemplified in the forestry and environmental adaptation and mitigation policies and activities. Accordingly, national representatives have increasingly geared their policies towards incorporating the REDD+ agenda into sectoral policies and corresponding frameworks. For instance, the sentiment expressed by representatives from Vietnam was the requirement to undertake adequate and transversal measures for climate change mitigation, through the limitation of GHG emissions and of deforestation.60
58 Secretariat of the UNFPII, ‘IP and the UN-REDD Programme: An Overview’ (International Expert Group
Meeting on IP and Forests, 12-14 January 2011) <
www.un.org/esa/socdev/unpfii/documents/EGM_IPF_UNREDD.doc> accessed 23 April 2018.
59 UN-REDD Programme, ‘The UN-REDD Programme Strategy 2011-2015’ (UN-REDD, 5 November 2010) <
https://www.iisd.org/pdf/2011/redd_programme_strategy_2011_2015_en.pdf> accessed 23 April 2018.
18 However, critique has been raised across the board in relation to the UN-REDD programmes interaction with national and regional sectoral policies. Many partnering countries do not consider the programme to constitute a strict framework for developing national capacities to engage in a future results-based payment mechanism. Acknowledging the lengthy and often questionable amount of progress achieved at climate change negotiations, country representatives often hold the view that basing financial incentives on the achievement of a designated benchmark as an unintended ‘bonus’. Nonetheless, the majority of stakeholders hold the opinion that the crucial value of the programme is in fact the integration it provides for pursuing sustainable development outcomes.61
While the relevance of the UN-REDD programme is widely recognised, stakeholders such as civil society, programme staff and governmental officials from partnering countries have raised concerns over the reliability and validity of the process used to define the needs of the partnering countries.62 Respondents in the 2014 evaluation of the UN-REDD programme noted
a precise lack of clarity concerning the entities or individuals conduct to oversee the national needs assessments, nor how the reports are completed. Certain state observers went further to imply that the national “Programmes are largely disconnected from the realities in the field” as well as stating that “UN-REDD agencies are arrogant,” by imposing “their vision on countries” instead of the overarching aims of providing means of support for countries.63 In light of the
global UN-REDD and REDD+ agenda imposing requirements derived from multilateral or bilateral treaties instead of tailoring new conditions for participating countries, these views come as no real surprise. To that end, the UN-REDD programme in support of the REDD+ readiness strategies, countries must adopt a common set of institutional reforms, to prevent country driven agendas that diverge from the legal safeguards provided for in the UN-REDD framework.
3.3 Conflicting issues of UN-REDD and National Systems
One of the more pertinent issues of the UN-REDD programme is the involvement of national systems in the implementation stages of nationally led programmes derived from UN-REDD commitments. For instance, domestic legislation may not require the adherence to several IR obligations and due to the apprehension of empowering indigenous/FDC in resource policy
61 Ibid. 62 Ibid. 63 Ibid.
19 may directly discourage their adherence. Additionally, due to the strenuous link that frequently exists between national governments and indigenous/FDC, governments may seek to contravene IHR obligations such as FPIC and other human/environmental rights to avoid a similar scenario of empowerment. In support of this statement is national representative’s opposition of directly referring to UNDRIP in formal UNFCCC negotiations.64
Other problematic areas of UN-REDD extend to the grievance procedures for effective redress in national law which are often promised by governments but rarely established prior to gaining consent of indigenous/FDC.65 Furthermore, national governments who are in the process of
implementing nationally led programmes may have the belief that the right requirements set forth in environmental programmes infringe national sovereignty. This coincides with the issues that arise when one is under the presumption that local laws run parallel to national legislation. Doing so may undermine and contradict indigenous notions of property law which may diverge from the ‘global norths’ conceptions of property law which enable carbon trades. Likewise, the verification of carbon stocks, necessitates the formulation of project validators and verifiers, the use of terminology and formulas that require a comprehensive understanding of these processes and financial transactions that for some are a distant reality.66 Thus, trying
to ensure that indigenous/FDC are informed and consent to these aspects of UN-REDD requires a considerable length of time, resources and cultural and linguistic considerations. Since the majority of partner states to UN-REDD are developing countries these requirements of the programme are sometimes just not feasible. In addition, the mandate of government officials may be contrasting in that their mandates may conflict with the undemocratic laws and policies currently in force. For example, in Vietnam there is no freedom of information law. Moreover, a review of the freedom of information of the UN-REDD programme found that less than half of the participating countries actually had freedom of information laws. Countries where it did exist rarely utilised these platforms to engage with indigenous/FDC.67
This clearly demonstrates the legal issues that arise when considering UN-REDD and national legal systems.
64 Supra note 54.
65 Daphina Misiedjan, Joyeeta Gupta, ‘Indigenous Communities: Analysing their Right to Water under Different
International Legal Regimes’ (2014) 10 (2) Utrecht Law Review, 79-88.
66 Supra note 66.
20 Other potential flaws include IL primarily being geared towards the rights and duties of states. This is problematic when considering that a considerable portion of UN-REDD and REDD+ is undertaken by private actors. As a result, the legally binding obligations that apply to states may not extend to these private actors due the absence of a binding human/environmental rights instrument.68 In this manner, although the vast majority of states sign and ratify IHR and IEL
treaties, a number of states frequently obstruct the justiciable redress of these treaties by not formally implementing the legislation required for the enforcement of the rights in question. In addition, the domestic law might simply be absent with no proper incentives for enforcement.69
On a more practical note with respect to UN-REDD, the resources required for implementing the obligations set forth in the programme is a considerable burden for a number of partner countries.70 As the Centre for People and Forests note, “implementing a robust and verifiable
process to obtain the consent of a community to a proposed REDD+ project needs a significant investment in people, time, communication materials and strategies, capacity building activities, independent verification, and technical and legal advice.”71 Therefore, the cost
effectiveness of obtaining a socio-environmental assessment does not run parallel to the primary motives of private actors who seek efficient and beneficial financial returns on their investments. Likewise, support from stakeholders is intertwined with the quantifiable and verifiable reduction of CO2. In the context of international cooperation this is referred to as “results based”. Therefore, it could be argued that the standpoint of results-based is not the rights of IP but instead the desired project results. The attainment of these desired results requires complex projects, C02 measurements and the development of structural baselines.72
Thus, projects within the framework of the UN-REDD programme can only be established and realistically succeed with the consultation and processes of larger civil society organisations and other stakeholders. The outcome of this translates to an unfavourable level of dependence
68 Diana Contreras-Garduño, Sebastiaan Rombouts, ‘Collective Reparations for Indigenous Communities Before
the Inter-American Court of Human Rights’ (2010) 27 (72), Utrecht Journal of International and European Law, 4-17.
69 Supra note 36, 242-250.
70 Anthony Hall, Forests and Climate Change, The social dimensions of REDD strategies in Latin America, (1st
edn, Edward Elgar 2012).
71 Patrick Anderson, ‘FPIC in REDD+: Principles and approaches for policy and project development’ (Centre for peoples and forests February 2011) < http://www.recoftc.org/site/uploads/content/pdf/FPICinREDDManual_ 127.pdf. > accessed 12 May 2018.
72 Katoomba Group, ‘Payments for Ecosystem Services: Getting started a Primer’ (The Katoomba Group, UNEP,
May 2008) <
https://wedocs.unep.org/bitstream/handle/20.500.11822/9150/payment_ecosystem.pdf?sequence=1&isAllowed =y> accessed 12 May 2018.
21 of these stakeholders which results in communities essentially being susceptible to the agendas and policies of the stakeholders which may not align or reflect those of indigenous/FDC.73
Implementing international obligations on a national level raises a variety of weaknesses encompassing the secrecy surrounding the implementation processes, capacity deficiencies of governments and difficulties pertaining to sufficiently informing communities. For example, local communities may be both illiterate and innumerate and have no access to digital resources which are an ever-increasing form of communication. Additionally, indigenous/FDC may not have access to government representatives whereas project developers and private actors have considerable larger resources to gain such access. Consequently, indigenous/FDC are not properly informed of their rights which accompanies the international community’s tendency to not promote the implementation of legal obligations for access to information.74 Thus, the
unjust treatment and exploitation of indigenous/FDC is interlinked with weak governance structures and widespread corruption in developing countries. These are deep-rooted issues that nor the UN-REDD programme or REDD+ will be able to conjointly address. However, the programmes overall contribution could extend to proposing far-reaching institutional and policy reforms that endeavour to change forest and land national legislation. Nevertheless, these necessary reforms do not seem to be accounted for under the current UN-REDD framework.75 Accordingly, the following chapter will focus on the extent to which the
UN-REDD programme adheres to international obligations in areas of rights where UN-UN-REDD is particularly problematic in the fields of IEL/IHR.
73 David J. Kelly, ‘The Case for Social Safeguards in a Post-2012 Agreement on REDD’ (2010) 6 (1) L. ENV’T
& DEV. J, 68.
74 Supra note 73.
22
Chapter 4 – To what extent does the UN-REDD Programme adhere to its obligations under International Law?
The UN-REDD programmes contribution to safeguards, anti-corruption efforts and good governance has been acknowledged by partnering countries, civil society organisations and a number of IP organisations. By combining the three UN agencies who derive their mandates for engaging with indigenous/FDC from international instruments and UN policies, the framework of UN-REDD necessitates a rights-based approach and adherence to international treaties and national norms. Principles included in UN-REDD reflect UNDRIP and the ILO Convention No. 169. Moreover, the mandate of the programme bears reflection from the UN Development Group Guidelines on IP Issues which informs the UN-REDD engagement approach with indigenous/FDC. Informed by certain international IEL/IHR binding and non-obligations to uphold the rights of indigenous/FDC, UN-REDD developed specific guiding principles to facilitate the engagement with IP.76 Firstly, “All UN‐REDD Programme activities,
particularly those that may potentially impact IP and other FDC must follow a human rights-based approach and must adhere to the UDRIP, the UNDG Guidelines on IP’ Issues, and the ILO Convention No. 169. Secondly, FPIC must be adhered to, and is essential to ensuring the full and effective participation of IP/FDC in policy‐making and decision-making processes within UN‐REDD Programme activities. The UN‐REDD Programme must ensure that there is broad representation of IP and other FDC. This includes females and youth, at all stages of its activities ranging from policy development to oversight and monitoring mechanism.77
4.1 Environmental Democracy
Principle 10 of the 1992 Rio Declaration on Environment and Development illustrates three elements of environmental democracy,78 with the UN Economic Commission for Europe’s
Aarhus Convention codifying these principles in an attempt to further their implementation. Thus, the convention is perhaps the most significant expression of the three cornerstone principles of ED which has been demonstrated by the multiple complaints heard and
76 Mucahid Bayrak and Lawal Marafa, ‘Ten years of REDD+: A Critical Review of the Impact of REDD+ on
Forest-Dependent Communities’ (2016) 8 (7) MDPI Journal of Sustainability.
77 UN-REDD, ‘Guidelines on FPIC’ (UN-REDD January 2013) <
https://www.uncclearn.org/sites/default/files/inventory/un-redd05.pdf> accessed 14 May 2018.
23 cooperation with civil society and governmental organs.79 Accordingly, the environmental
democracy principles that provide for social safeguards are of paramount importance in ensuring UN-REDD promises and objectives. The importance of these ED rights is the procedural nature in which they operate in that they are necessary for the fulfilment of other substantive IEL/IHR rights. This coincides with their simultaneous role in enabling the successful completion of the UN-REDD programme. The formulation of ED rights is designed with the intention of accounting for and managing the drawbacks of indigenous/FDC deficiency in resources and overall capacities.80
4.1.1 FPIC
As illustrated by both treaty law and customary IL, there is widespread recognition and support of IR to effectively oversee their own environmental resources. For example, the Convention on the Elimination of All Forms of Racial Discrimination, has incorporated the requirement of FPIC upon the invocation of the substantive rights included in the text.81 Moreover, the CBD
states that ‘access to traditional knowledge, innovations and practices of indigenous and local communities should be subject to prior informed consent or prior informed approval from the holders of such knowledge, innovations and practices.’82
Accordingly, the UN-REDD programme has incorporated FPIC (with emphasis placed on consent and not consultation) essentially as the crux of any stakeholder engagement. Although the programme acknowledges there is no ‘single internationally agreed definition of FPIC’ nor is one form of FPC necessarily applicable to various forms of implementation, there is an explicit reference to its adherence.83 This awareness of consent is considerably more defined
than that of the World Banks FCPFs initiative.84 Therefore, UN-REDD is accredited with
assisting and developing a robust set of safeguards, which in turn confer crucial elements of a normative framework for REDD+ implementation strategies. Correspondingly, the strategic
79 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in
Environmental Matters (Aarhus Convention) (adopted 28 June 1998, entered into force 30 October 2001) 2161 UNTS 447.
80 Supra note 54.
81 International Convention on the elimination of all forms of racial discrimination (adopted 21 December 1965, entered into
force 4 January 1969) UNTS A/RES/34/180.
82 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS
79.
83 Supra note 58.
84 Kate Dooley, Smoke and mirrors: a critical assessment of the Forest Carbon Partnership Facility (2nd edn,
24 framework of UN-REDD entailed a challenge to properly define, standardise and codify the concept of FPIC in all of the partnering countries. In this manner, between 2010 and 2013, regional workshops were held in Asia and the Pacific, Latin America, the Caribbean and Africa to provide a representative forum for sharing the practical realities and lessons learned on FPIC. These forums comprised steps 1-3 of a four-step process tasked with developing guidelines on FPIC and recourse for the UN-REDD Programme. A wide variety of stakeholders were present at the forums, including governmental representatives, indigenous/FDC, civil society organisations and development agencies. The pilot projects in Vietnam and Ecuador which were running in parallel to the formation of FPIC development guidelines, illustrated the supporting capacity building of governmental representatives and centre their efforts on increased engagement with FPIC principles. The fourth stage in the process was the ‘public comment process’ which enabled a wider spectrum of stakeholder engagement. As expressed in the UN-REDD FPIC practice guidelines ‘inadequate mechanisms for effective participation of local communities in land use decisions could seriously compromise the delivery of both local and global benefits and the long-term sustainability of REDD+ investments’.85
The UN-REDD programme guidelines on FPIC have recourse to several IHR and guidance documents by emphasising ‘consent must be freely given, obtained prior to implementation of activities and be founded upon an understanding of the full range of issues implicated by the activity or decision in question’, and that the right to consent includes also the right to withhold consent.’ The concept of FPIC has consequently been adopted by partnering countries. For example, the governments of Vietnam and the Democratic Republic of Congo (DRC) have produced country-specific national and subnational FPIC guidelines.86 Therefore, the
UN-REDD programme is considered to a certain degree by partner countries and UN agencies as a leading instigator and advocate of FPIC in the implementation of REDD+. However, the operationalisation and adherence to FPIC remains challenging and highly questionable in many instances.
4.1.2 Effective Participation and Consultation
A significant facet of the UN-REDD programme and perhaps a prerequisite to the fulfilment of all other rights, is the right of full and effective participation of indigenous/FDC on decision-making processes. This concept is affirmed in Article 18 of UNDRIP whereby ‘IP have the
85 Supra note 56. 86 Supra note 57.
