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November 23, 2013
This essay discusses the question of the complex relationship between international environmental governance, sometimes referred to as “earth system governance”, and indigenous rights (section I). The two sets of norms, instruments and institutions are theoretically envisioned as complementary since they both incorporate the notion of the importance of protection of the environment and its natural resources. Emphasis has been progressively put on the natural symbiosis and correlation between sustainable development purposes and indigenous self-determination and preservation of their identities. Forests peoples’ specific connections with their lands and thorough knowledge of their natural environment are undoubtedly acknowledged and highlighted.
It has been chosen to focus on the interplay of indigenous rights and climate change governance embodied in the UNFCCC (United Nations Framework Convention on Climate Change) and its corollary the REDD+ mechanism (Reducing Emissions from Deforestation and Forest Degradation) and the potential opportunity and/or harm it represent for indigenous communities and their rights (section II); before attempting to reach some conclusion (section III).
I. Indigenous rights and global environmental governance
This link between indigenous rights and environmental governance is notably the result of growing visibility of indigenous peoples in the international arena and their participation over more than three decades in activities of human rights bodies within the United Nations apparatus (Strydom, 2013). Indigenous rights have been increasingly recognized, giving birth to successive declarations and conventions, as an expression of an international consensus on the importance of taking into consideration their issues.
The attention given by international community to indigenous peoples’ issues shifted from an integrative approach embodied in the first International Labor Organization Convention (ILO No. 107) half a century ago, to recognition of their right to self-determination notably highlighted and consolidated within the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007. But the linkage between indigenous rights and the natural environment is probably the most obvious in the Convention on Biological Diversity (CBD) -opened for signature in 1992-: this emphasis on indigenous peoples is made notably through Art. 10 (c) which “obliges” (if possible and appropriate) contracting parties to “[p]rotect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements” and through Art. 8 (j) which calls on states to “preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity [...]”.
Global environmental governance itself, embodied in international environmental law, is a relatively new field of international law which expanded and crystallized into a multiplicity of binding and non-binding instruments. Designed to protect the environment and regulate the use of natural resources, notably through minimizing the impact of human activity, it also overlaps questions related to human rights, trade and intellectual property. However, lack of structure and fragmentation are often some of the features that characterize this domain of law, especially when compared with other branches of international law, including international humanitarian law (Anderson, 2012).
International environmental law is often seen as soft law and criticized for its lack of enforceability and efficiency. Therefore, one might legitimately wonder how such a fragmented body of law can further enhance or help indigenous enforcing their rights, in particular those related to land, traditional knowledge and culture. Truth is that implementation of some of the existing environmental governance instruments are already affecting -whether in positive or negative way- many indigenous communities.
Moreover, when it comes to implementation on the ground, environmental governance instruments are often pointed out as attempts to impose top-down approaches and to neglect role of local communities or indigenous peoples (Boyd, 2011).
On the other hand, the recognition and protection of indigenous rights by the international community is somehow “bound to raise the issue of [indigenous’] responsibilities to use and inhabit their biospheres in a sustainable manner. [The acknowledgment of their needs] cannot evolve without equal emphasis on the specific obligations they owe with respect to the objects of international environmental law” (Strydom, 2013, p.6). However, in order to ensure that fact, indigenous peoples’ participation in policy making and sustainable development planning should first be made real and effective. Although principle of participation is now theoretically well established in international bodies and treaties (though to a much lesser extent on domestic level), it remains to materialize on the ground.
Hence, indigenous rights and global environmental governance are undoubtedly and closely tied. Rallying points exist on paper, but on the ground conflicts of interests between stakeholders do exist and not always to the benefit of indigenous communities and forest peoples in general. While land rights -including land tenure and land use-, climate change mitigation and sustainable development (although the concept of “development” itself is debatable here) are at stake, indigenous groups should be at the forefront and at all scales of the discussions. To what extent indigenous peoples do have agency to influence behavior is therefore an essential question. Schroeder, H., who examined the question of indigenous groups’ agency stresses that “[t]he prevailing norms and practices of participation for indigenous peoples vary across multilateral environmental agreements, shaping the varied channels of influence at their disposal” (2010, p.320).
II. Focus : indigenous rights and REDD+
REDD+ mechanism aims at reducing emissions via forests conservation, since deforestation and forest degradation are responsible for 20% of greenhouse gas release in the atmosphere. Considered as one of the most promising international initiatives with respect to climate change mitigation, it is nevertheless also a controversial instrument. The principle is relatively simple: developed countries paying developing countries (through market-based mechanisms and/or through international funds) for keeping the forests intact. The idea is to “create financial value for the carbon stored in forests [...]. ‘REDD+’ goes beyond deforestation and forest degradation, and includes the role of conservation, sustainable management of forests and enhancement of forest carbon stocks” (cf. UN-REDD website).
REDD+ is a mechanism that is regularly under negotiation at the Conference of the Parties (COP) of United Nations Framework Convention on Climate Change (UNFCCC). “The objective of REDD is to support activities that enable reductions in CO2 emissions [...] [,] strengthen and expand the role of forests as carbon pools. This can be achieved by supporting the conservation of forests, the sustainable management of forests and the enhancement of forest carbon stocks. REDD+ can be a relatively cost-effective climate change mitigation strategy that with the right attention to the social and environmental functions of forest countries will be able to create additional benefits for communities, people and biodiversity conservation” (cf. International Union for Conservation of Nature’s website).
Criticisms about REDD+ and its related initiatives like the UN-REDD and the World Bank Forest Carbon Partnership Facility (FCPF) are partly based on doubts on authenticity of their intention to lead to climate change mitigation. The fact that developed countries would pay less industrialized countries to maintain their forests, while the first continue to pollute through their industrial activity is seen as a lack of will to cut the emissions at the source and to bear a historical responsibility for being the major polluters. These discussions are notably encompassed in debates on what is known as environmental justice and environmental debt.
Beyond these global level controversies, impacts of REDD are already affecting in one way or another international forest governance and they are above all felt on local level, particularly by local and indigenous communities. Indigenous peoples’ territories often cover vast forests lands, which are their reason for living. Nevertheless territories owned by indigenous peoples is still only a small fraction -9% of total forests of the worlds- of what they claim for; most of the progress remains to be made in Asia and Africa (Van Dam, 2011). Constantly under the threat of intrusion by third parties for mining, agribusiness, illegal logging and other type of activities, indigenous peoples’ relation with REDD+ mechanism a priori seems to represent a win-win situation, where their rights and livelihoods would be protected while they would contribute to preserve the forests. Truth is however more complex than it seems.
As mentioned earlier, the extent to which REDD+ will represent an opportunity more than a threat will vary in accordance to the degree of agency and empowerment of indigenous representatives in negotiations at all levels, from local to international, and across the scales (Schroeder, 2010).
Since the launch of REDD under UNFCCC, indigenous peoples have debated it among themselves but also at transnational level. Soon, they pointed out the fact that REDD was missing consideration for “their long-lasting role as stewards of the world’s remaining forests [and neglected] consultation with them as rights holders with a special status in the context of REDD” (Stidsen, 2009, p.4).
What is the degree of agency of indigenous groups in the ongoing international climate change-related negotiations? How to define agency out of the public realm and the state sovereignty scheme? The extent to which a country will represent the voice of domestic stakeholders during international negotiations will notably depend on the prevailing level of transparency of its political system and on the degree of importance given to these issues on domestic level. “The state-centric, top-down architecture of the climate regime is more responsive to the vulnerability of entire states than to particular groups within states” (Schroeder, 2010, p.326). Moreover, agency at the negotiation table might even be almost inexistent when it comes to peoples whose land rights haven’t been recognized yet, as it is still the case for example for some indigenous groups in Latin America’s, or isolated populations outside the mainstream political and economic spheres (Van Dam, 2011; Sikor et al., 2010).
Governance issues within the communities themselves are also at stake. Indeed, since some indigenous communities have been grouped in clusters in order to be given territory titles, they might have lost sense of customary leadership and governance. Social dynamics, inequalities, power relations and different interests might exist between communities within their territories (Van Dam, 2011). This reality has therefore to be taken into account in design of REDD+ national programs and policies, in order to avoid an inadequate and even harmful implementation.
If all pitfalls were avoided notably through the inclusion of strong safeguards, REDD+ would then represent a source of opportunities and income rather than a threat for indigenous peoples. Indigenous and civil society organizations work on a better inclusion of safeguards in REDD initiatives, notably through UN-REDD Program Social and Environmental Principles and Criteria and UN-REDD Program Guidelines on Free Prior and Informed Consent (FPIC). When it comes to FPIC, importance is given to a better definition of “who gives consent”, “when is consent needed”, “how should consent process be conducted and verified for effectiveness and credibility”. It is stressed on the importance of FPIC process on local but also on national level. Advocacy organizations stress the fact that urgency for forests conservation should not shortcut FPIC and human rights approaches (cf. publication on Forest Peoples Program website).
Safeguards are protections supposed to ensure respect of internationally recognized indigenous rights and to look at all types of international obligations or consensuses such as UNDRIP as well as national characteristics when defining REDD+. It is eventually also seen an opportunity for donors to have a more accurate view on the use of funds transferred to REDD+ countries. “[Safeguards] [...] include democratic, decentralized and transparent forest governance structures and support mechanisms, rights and participation of indigenous peoples and local communities [...]. It is also proposed that indigenous and local communities could be compensated not only through financial payments for their conservation efforts but receive legal access rights to information, participation in decision-making and justice” (Schroeder, 2010, p.323).
Safeguards related to REDD+ represent a topic that is frequently debated, notably during COP’s of UNFCCC as it was the case at the 16th COP in 2010 in Cancun. However, a common ground for a better tuned definition and their translation into operational tools is faced by the challenge of the lack of capacity and/or willingness at national levels (Martone F., Griffiths T., 2013, in a publication on Forest Peoples Program website).
III. As a conclusion...
REDD+ mechanism can be beneficial to all parties, if certain conditions are met. It might help the indigenous communities preserving their traditional lifestyles while benefiting from a new type of income generation. It can secure indigenous people‘s exclusion rights over their territories, encouraging states to play a more proactive and protective role towards them. It would also reduce dependency of indigenous peoples on external funding – however financial dependency to REDD might also represent a potential issue (Van Dam, 2011).
However, we have seen that indigenous’ degree of agency and empowerment, although stronger at transnational level, is still overall weak, especially on domestic level where states do not always respect fundamental rights like the one of FPIC. Moreover, indigenous communities are wary about the carbon stocks being commoditized without consideration for their own needs and rights and without an equitable share of benefits. Given this new value placed on forests, communities whose lands are still in process to be recognized fear that the titling request is being postponed or even transferred to third parties.
REDD national strategies cannot be defined without the participation of indigenous communities. Decisions, notably the ones concerning monitoring of payment mechanisms, need to be decentralized and to be based on local practices and territorial institutions (Van Dam, 2011). For REDD+ to be an efficient tool of climate change mitigation, heterogeneity of indigenous territories and social systems has to be recognized, as well as indigenous communities historical role in forests and biodiversity conservation. Forest have other values then carbon reservoirs for indigenous peoples and this aspect also has to be acknowledged in the design of national REDD+ projects and programs. Full and effective respect of indigenous internationally recognized rights is a prerequisite, notably the right to give or not to give a free, prior and informed consent. Empowerment of indigenous peoples should not only be about giving their consent to projects, but should also incapacitate them to monitor the implementation processes as well as to manage the financial resources at stake in their territories. To avoid counterproductive effects, “REDD-plus requires nested governance extending from the global to the national and local scales. Only when transnational definitions, national law and local claims match to a sufficient degree will shared and robust understandings of rights emerge” (Sikor et al., 2010, p.4). Only appropriate REDD+ governance, embodied in multi-scales and cross-scales decision-making processes, will lead to better outcomes in both climate change mitigation and indigenous rights enforcement.
Hence, REDD and climate governance; and the earth system governance in general in its relation with indigenous (and human) rights would gain from a more constructive systemic approach. “The project of global environmental law, if it is ever going to be more than a catch- all for the varied and variable forms of transnational environmental governance taking shape in multiple domains, will need to engage with all of this in much more direct fashion, which means getting out and working in these diverse and complicated places, getting out and understanding how global projects are being worked out in concrete institutional settings all over the world” (Boyd, 2011, p.550).
Anderson, P. (2012). International environmental law: Status, problems, and reform prospects. Climate Law 3: 71–91.
Boyd, W. (2011). Climate Change, Fragmentation, and the Challenges of Global Environmental Law: Elements of a Post-Copenhagen Assemblage. University of Colorado Law School, Legal Studies Research Paper Series, Working Paper Number 11-01.
Martone F., Griffiths T. Safeguards in REDD+ financing schemes. Forest Peoples Program, 29 Apr. 2013. http://www.forestpeoples.org/topics/forest-carbon-partnership-facility-fcpf/news/2013/04/safeguards-redd-financing-schemes
Schroeder, H. (2010). Agency in international climate negotiations: the case of indigenous peoples and avoided deforestation. International Environmental Agreements 10(4):317-332.
Sikor, T., Stahl, J., Enters, T., Ribot, J., Singh, N., Sunderlin, W., Wollenberg, L. (2010). REDD-plus, forest people’s rights and nested climate governance. Global Environmental Change Vol. 20, No. 3.
Stidsen S. (2009). Editorial. REDD and Indigenous Peoples, Indigenous Affairs 1-2/2009 – International World Group for Indigenous Affairs (IWGIA).
Strydom, H. (2013). Environment and Indigenous Peoples. Max Planck Encyclopedia of Public International Law.
Van Dam, C. (2011). Indigenous Territories and REDD in Latin America: Opportunity or Threat? Forests 2011, 2, 394-414.
Update on recent UN-REDD Social and Environmental Principles and Criteria (SEPC) and Free, Prior and Informed Consent (FPIC) Workshops. Forest Peoples Program, 20 Feb. 2012.
Convention on Biological Diversity (with Annexes) concluded at Rio de Janeiro, June 5, 1992, 31 I.L.M. 822, 832 (1992).
International Union for Conservation of Nature (IUCN) http://www.iucn.org/
United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest
Degradation in Developing Countrie (UN-REDD) http://www.un-redd.org/
United Nations Framework Convention on Climate Change (UNFCCC) http://unfccc.int/2860.php
Inès Ayari holds an MA in International Relations (Université Libre de Bruxelles, Brussels) and is a Master's candidate in Sustainable Natural Resources Management at University for Peace (UPEACE, San Jose, Costa Rica). She is currently interning with a UK-based NGO that advocates for forest peoples and communities rights. Inès has a dual citizenship: Belgian and Tunisian.