1. INTRODUCTION
Despite decades of international efforts to address deforestation, forests in the developing world continue to disappear at an alarming rate.Footnote 1 Carbon dioxide (CO2) emissions from deforestation, forest degradation and agriculture represent a quarter of global greenhouse gas (GHG) emissions.Footnote 2 A significant amount of this comes from tropical forests located in developing countries.Footnote 3 This has motivated parties to the United Nations Framework Convention on Climate Change (UNFCCC)Footnote 4 to develop an international scheme for reducing emissions from deforestation and forest degradation in developing countries and the role of conservation, sustainable management of forests, and the enhancement of forest carbon stocks in developing countries. The scheme, known as REDD+,Footnote 5 aims to protect standing forests in the developing world. The objective is to provide developing countries with financial incentives to protect natural forests and make their protection more attractive than their conversion to other uses, such as agriculture and cattle ranches.
Several developing countries have launched activities to pilot and prepare for REDD+,Footnote 6 and unprecedented amounts of funding for forest protection were channelled worldwide.Footnote 7 REDD+has also become an experiment in global ‘governance’, involving ‘non-hierarchical forms of steering’ by both public and private actors.Footnote 8 Bilateral cooperation (led by developed countries’ aid agencies)Footnote 9 and multilateral cooperation (particularly through international and regional organizations) have played prominent roles. They have channelled almost 90% of REDD+and forest-related financing through official development aid (ODA).Footnote 10 Key actors, in this respect, are three REDD+funding initiatives: the Forest Carbon Partnership Facility (FCPF), the Forest Investment Programme (FIP) by the World Bank, and the UN-REDD Programme by three agencies of the United Nations (UN). The central argument here is that these financing initiatives play a notable role in rule making for REDD+.Footnote 11 Multifaceted interactions between international instrumentsFootnote 12 combined with policies applied across national boundaries and jurisdictions,Footnote 13 and the provision of financial and technical support, have built a set of common rules for REDD+projects.Footnote 14
This article compares the rule-making activities of the UNFCCC with those of the funding initiatives. It examines how traditional accounts of international formal lawmaking explain, or fail to address, such activities. Moreover, it explores the legal and practical effects of rules of the FCPF, the FIP, and UN-REDD during preparatory activities for REDD+implementation, based on a number of examples from Latin American countries. Approximately 25% of the world’s forests are located in this region.Footnote 15 Two-thirds of their GHG emissions originate from agriculture and changes in land use, including deforestation.Footnote 16 With many Latin American countries pioneering REDD+projectsFootnote 17 and receiving considerable sums of REDD+financial support (56% of multilateral financing in 2016 went to Latin America and the Caribbean),Footnote 18 they serve as a relevant case study. In fact, the UN-REDD ProgrammeFootnote 19 and the World Bank’s FCPF Readiness FundFootnote 20 have provided support to at least 15 of the 19 Latin American countries, while the FIP supports activities in six countries.Footnote 21 Cases drawn from Honduras, Panama and Peru that involved the participation of indigenous peoples in REDD+initiatives illustrate the relevant legal and practical effects of international rule making by these funding initiatives at the national level.
This article is organized as follows. The second section sketches the traditional picture of formal international lawmaking. The third section looks at UNFCCC rules for REDD+. The fourth section addresses the REDD+rule-making activities of the FCPF, the FIP and UN-REDD, exploring their legal and practical effects. Here, three levels of lawmaking are addressed: treaty making; decision making by the UNFCCC Conference of the Parties (COP); and rule making by the funding initiatives. The contribution aims to create better insights into how processes of interpretation and implementation of REDD+rules unfold at the transnational level. It shows that the initiatives, as hybrid approaches to rule making, result in the adoption of standards that are stricter in terms of environmental and governance expectations than those envisaged at the intergovernmental level. The emerging picture of international REDD+rule making can thus be read as either intergovernmental collaboration in rule making – where the international community allocates functions between the UNFCCC and the REDD+financing initiatives – or as competition for legal authority among them. Moreover, the cases explored in the Latin American region confirm that the rules of the financing initiatives may help to increase participation by indigenous peoples and forest dwellers affected by REDD+implementation.
2. THE TRADITIONAL PICTURE OF FORMAL INTERNATIONAL LAWMAKING
In the traditional picture of international law, states are the main actors. They are the primary subjects of international lawFootnote 22 and the main lawmakers.Footnote 23 Their willingness, or consent, to be bound by legal principles is a key characteristic in the making of legitimate formal international law.Footnote 24 Formal sources of international law include treaties between states, customary international law derived from the practice of states, and general principles of law recognized by civilized nations.Footnote 25
Despite states being the formal actors in international law,Footnote 26 non-state actors are now also assuming relevant roles in international lawmaking.Footnote 27 In particular, intergovernmental organizations and institutions – such as the UNFCCC, the World Bank and the UN agencies – play an increasingly prominent role in international lawmaking.Footnote 28 Despite being ‘creatures of state consent’,Footnote 29 they are not state actors.Footnote 30 At the same time, as ‘state-empowered bodies’,Footnote 31 these institutions differ from other non-state actors, such as non-governmental organizations and corporations, because their mandate and powers come from their founding treaties,Footnote 32 as agreed by member states.Footnote 33 Moreover, these intergovernmental organizations and institutions are recognized as subjects of international law,Footnote 34 with their own rights and duties.Footnote 35 This means that they can exist with relative autonomy in the international legal sphere.Footnote 36 Nevertheless, the operation of these institutions may still be subject to continuous member state oversight and consent.Footnote 37
There may be tensions between the powers conferred by member states to institutions and the autonomy of institutions to fulfil their functions. Klabbers argues that this reflects the impossible conciliation of the sovereignty interests of states and the objectives of the institution or international community.Footnote 38 Giving institutions more autonomy through implied powers to fulfil their objectivesFootnote 39 eventually moves institutions away from state consent and control.Footnote 40 Although international law embodies a formalistic and narrow view of how lawmaking could take place in intergovernmental organizations, this analysis will show that such descriptions do not explain much of the rule-making activity that is taking place on REDD+around the world.
In a nutshell, the traditional picture of international lawmaking is based on state consent, as expressed through the formal sources of law. These are created by formal actors (states), represented by central government authorities, and through formal intergovernmental procedures.Footnote 41 By contrast, informal international lawmaking circumvents some of these formalities.Footnote 42 The analysis will show that rules for implementing REDD+do not fit in the traditional picture. Indeed, my argument here is that they can be seen as an informal type of international lawmaking. I will address three levels of lawmaking: treaty making; COP decision making in the context of the UNFCCC; and rule making by the REDD+financing initiatives.
3. UNFCCC RULE MAKING ON REDD+
REDD+was initially devised as a mechanism under the UNFCCC. In this section I describe how the rule-making activity of the UNFCCC has resulted in rules that do not fit neatly within the traditional picture of international law. Informal lawmaking through the UNFCCC COP allowed REDD+to develop. UNFCCC parties had intended to agree upon a formal international treaty that addressed forest protection in developing countries.Footnote 43 Yet, years of negotiations have produced merely a dozen COP decisions containing REDD+rules,Footnote 44 such as the Warsaw Framework for REDD+.Footnote 45 Remarkably, the UNFCCC rules also differed from the traditional picture of law in recognizing roles for other actors in rule implementation and interpretation. For example, REDD+host countries have to ensure the participation of indigenous peoples and forest dwellers during REDD+policy development. Interestingly, financing entities are also invited to support REDD+preparation, and are given an explicit role in rule interpretation and implementation.Footnote 46 The impressive progress in preparing for REDD+across Latin American countries demonstrates that the UNFCCC informal lawmaking activities have relevant legal and practical effects on the ground.
The UNFCCC parties adopted the Paris AgreementFootnote 47 in December 2015. This treaty affirms that parties ‘should take action’ to promote and enhance forests.Footnote 48 It explicitly ‘encourages’ countries to implement and support REDD+,Footnote 49 with reference to ‘the existing framework as set out in related guidance and decisions already agreed under the [UNFCCC]’,Footnote 50 although it does not incorporate agreed REDD+rules in its text.
COP decisions are not considered to be formal international law because of the absence of formal expression of state consent – such as ratification – and their inability to fit neatly within the traditional categories of international law.Footnote 51 However, a caveat should be made. The legal nature of COP decisions is contested,Footnote 52 and their exclusion from formal international law can be questioned. COP decisions can be seen as subsequent agreements or interpretations of the original treaties.Footnote 53 If the UNFCCC COP is seen as a treaty body, the decisions of which are the direct result of the will of states, then COP decisions can also be regarded as an expression of state consent.Footnote 54 However, this view hinges on the lawmaking powers conferred by states on the COP in the underlying treaty.Footnote 55 It is to be noted that, in the context of REDD+, these powers are limited.Footnote 56 Additionally, provisions in COP decisions can enshrine international principles of international law or rules of customary international law, or even lead to the generation of a new rule of customary international law.Footnote 57
COP decision making is not only a frequent occurrence in the climate change regime, but also across international regimes, such as those relating to the protection of biodiversity.Footnote 58 Hence, simply dismissing COP decisions as not representing formal international law means neglecting an increasingly common practice in international rule making. Moving away from traditional international law offers an escape from its formalities, so as to enable more efficient rule making.Footnote 59 COP decisions, for example, were more suitable for developing REDD+rules by providing a satisfactory means for negotiating issues of a technical nature.Footnote 60 In addition, COP decisions have enabled the progressive evolution of REDD+rules, building on prior agreements among parties.Footnote 61 Finally, COP decisions address gaps in the UNFCCC provisions.Footnote 62
The use of COP decisions in REDD+has become de facto more convenient for states than formal treaty making. Although informal lawmaking has been associated frequently with arbitrariness,Footnote 63 and with the risk of allowing ‘the exercise of naked political power by the powers that be’,Footnote 64 UNFCCC COP decisions are based on formally transparent and internationally agreed procedures. These formalities – particularly the consensus requirement – do make COP rule making less efficacious compared with the even more informal REDD+financing initiatives discussed in Section 4. For example, some of the UNFCCC REDD+rules are vague or fail to delegate authority to a UNFCCC body to review their implementation or interpretation.Footnote 65 Such gaps can be found in the formulation of requirements for the receipt of REDD+payments. Firstly, the requirements for REDD+host countries to develop a national strategy or planFootnote 66 provide little information on its substantive content or procedures.Footnote 67 Additionally, they do not provide for the UNFCCC to offer input or suggest revisions to the strategy. Another relevant area where gaps can be identified is in the requirement that REDD+activities be consistent with social and environmental safeguards.Footnote 68 REDD+host countries must report on how safeguards are followed.Footnote 69 They are intended to avoid risks inherent in implementing REDD+, such as those that jeopardize the livelihoods of forest dwellers. However, the safeguardsFootnote 70 are too broadly defined.Footnote 71 Moreover, while emphasizing the gathering and presenting of information, the rules do not prioritize compliance.Footnote 72 Similarly, the UNFCCC is not expected to review the information submitted on safeguards.Footnote 73 Compared with REDD+requirements to report on GHG emissions reductions,Footnote 74 rules on both strategy development and safeguards are more vague. As both issues are specific to national circumstances, this may reflect a lack of agreement among countries or, perhaps, a manifestation of countries’ willingness to tolerate divergence in these areas.
UNFCCC REDD+rules have relevant legal and practical effectsFootnote 75 in that they incentivize states to develop requirements and adopt national norms and policies. Since the UNFCCC has supported ‘demonstration’ activities, such as pilot projects and broader national preparatory processes,Footnote 76 many REDD+host countries have embarked on national policy preparation (readiness), and the initial implementation of policies, supported by international financial initiatives.Footnote 77 Once the national preparation process has been completed, UNFCCC rules do not impose binding commitments to achieve mitigation results.Footnote 78 They do, however, provide a framework for the delivery of financial incentives to REDD+host countries that demonstrate emissions reductions.Footnote 79 In other words, if countries decide to participate in REDD+they are expected to follow a pre-determined format,Footnote 80 the fulfilment of which is necessary for the receipt of payments.Footnote 81
The practical effects of the UNFCCC rules at the national level can be seen in case studies from the Latin American region. Here, REDD+rules are increasingly translated into national and regional policies and laws.Footnote 82 Also, many Latin American countries submitted to the UNFCCC the information to track their emissions reductions with REDD+implementation,Footnote 83 and at least three have already presented their first results.Footnote 84 There seems to be a trend in the region to develop national REDD+strategies with nationwide participatory procedures, including the involvement of indigenous peoples and civil society.Footnote 85 With regard to safeguards, at least two countries have presented summary reports.Footnote 86 Overall, examples from the Latin American region suggest that UNFCCC rules have successfully motivated countries to adopt national legal and policy developments, as well as to prepare for REDD+implementation.
The impact of UNFCCC rules can also be seen with regard to international actors who have responded to the UNFCCC’s call to support REDD+financially.Footnote 87 These actors play an increasingly relevant role in interpreting and filling in the gaps in UNFCCC rules to respond swiftly to implementation needs.Footnote 88 In particular, the influence of the UNFCCC rules can be discerned in their moves to involve indigenous peoples and a growing emphasis on participatory decision making, which have provided a basis on which other REDD+implementing actors can build. Consequently, through reliance on informal lawmaking and the integration of diverse actors into the implementation of its rules, REDD+under UNFCCC rules is shifting the traditional picture of international lawmaking from an activity based only on state consent to rule-making approaches more open to the involvement of non-state actors.
4. THE FCPF, FIP AND UN-REDD: THEIR RULE-MAKING ROLE FOR REDD+
The UNFCCC REDD+framework permits host countries to use funding from a variety of sources. Here, the focus is on three multilateral financing initiatives that support REDD+implementation in several host countries. The FCPF Readiness Fund (hosted by the World Bank) and the UN-REDD Programme (hosted by three UN agencies) support countries in ‘reach[ing] a capacity level at which [they] will be ready’ to participate in REDD+.Footnote 89 The FIP (hosted by the World Bank) supports pilot programmes and investments that focus on initial implementation.Footnote 90 The three initiatives share some common traits that are the focus of this analysis.Footnote 91
My aim here is to show that while the FCPF Readiness Fund, the UN-REDD Programme, and the FIP help countries to implement REDD+, they also make a notable contribution to REDD+rule making. This is interesting as most of their rule-making activities do not fully fit into the traditional picture of international lawmaking and differ from REDD+rule making under the UNFCCC. Notably, their rule-making activities generate more prescriptive rules than those agreed on a consensus basis under the UNFCCC. This ultimately subjects REDD+host countries to a higher standard. In the case of Latin America, where national legislation on forest-related issues has traditionally been highly divergent, the influence of REDD+initiatives is visible and results in surprisingly similar national REDD+policies. Also remarkable is that, as a result of the initiatives’ governance and decision-making structures described below, the financing initiatives place more emphasis on the preferences of REDD+donor countries than does consensus-based decision making under the UNFCCC.
4.1. The Legal Design of the REDD+Financing Initiatives
Describing the legal status of financial initiatives for REDD+implementation is necessary to understand their rule-making activity. Distinct from the traditional picture of international law, where states define the functions of intergovernmental institutions, the three REDD+financing initiatives were established by decisions taken by their host institutions.Footnote 92 Compared with international lawmaking, where state consent plays a key role, there is a less direct link between these initiatives and the member states of the parent institutions.Footnote 93 In practice, this has allowed broader participation from civil society and other non-state actors in their governing bodies and decision making. For example, in establishing the FIP and the FCPF, the World Bank organized ad hoc participatory processes with states, civil society, and indigenous peoples.Footnote 94 Moves towards greater participation by indigenous peoples and local communities also resonate in the establishment of a dedicated fund under the FIP for such purposes.Footnote 95 Compared with the UNFCCC and its hosting institutions, the financing initiatives seem to integrate non-state actors more openly in different stages of decision making and implementation of the funds.
All three initiatives examined here are based on trust funds.Footnote 96 This legal structure allows donor countries to contribute financially to thematic programmes through flexible arrangements. Parent institutions, such as the World Bank, maintain control of the funds, and at the same time create specific procedures and governing structures adjusted to the types of activity to support. Thus, the initiatives function according to their own rules, but the host institutions’ rules also apply for the provision of support.Footnote 97 For example, the World Bank’s rules apply to FIPFootnote 98 and FCPF funds, and the ‘regulations, rules, directives and procedures’ of each of the three UN organizations apply to UN-REDD funds;Footnote 99 this includes each organization’s internal policies, such as the UN Development Programme’s Social and Environmental Standards.Footnote 100 Another example of the strong link between the initiatives and their host institutions is that, formally, it is not the funding initiatives themselves that enter into direct legal agreements with recipient and donor countries but generally it is the host institutions.Footnote 101
The governing structure of all three initiatives has a tripartite composition.Footnote 102 Firstly, administrative functions, secretariat services and technical advisory support are generally provided by a secretariat, such as the UN-REDD Secretariat, or staff located in the host institution, such as the World Bank’s Facility Management Team for the FCPF.Footnote 103 Secondly, all three have a body with advisory functions, which enjoys broad member state participation, such as the UN-REDD’s Assembly.Footnote 104 Representatives from civil society and indigenous peoples also participate in these collegiate bodies. Thirdly, all three initiatives have a governing body, such as the UN-REDD’s Executive Board. In these decision-making bodies, donor countries and those selected as REDD+host countries are represented by government authorities.Footnote 105
For the governing bodies the rules of procedure of each initiative require donor and recipient constituencies to select an equal number of representatives.Footnote 106 The UN-REDD Programme’s Executive Board, for example, is composed of three representatives each of donor and REDD+host countries.Footnote 107 As members with voting power, consensus or majority agreement of country representatives is required for decision making. Observers from indigenous peoples and civil society also participate in governing bodies.Footnote 108 For each initiative, the governing body has the power to make decisions on a range of issues necessary for overseeing implementation, including determining the eligibility criteria for funding, approving project proposals, and issuing operational guidance.Footnote 109 Powers of the governing body also include the adoption and interpretation of rules and decisions on non-compliance.Footnote 110 In some cases their activities involve the provision of ‘advice’ in the ‘absence of relevant UNFCCC guidance’Footnote 111 and the provision of ‘guiding principles on the key methodological framework on REDD+’.Footnote 112 The advice approved by each initiative’s governing body can offer significant rule-based guidance on the implementation of REDD+for host countries.
Compared with the consensus-based decision making under the UNFCCC, the initiatives’ voting rules typically give more prominent roles in decision making to donor countries than to REDD+host countries.Footnote 113 While perhaps more efficient than rule making under the UNFCCC, rule making under the financing initiatives can therefore be perceived as less representative of the interests of REDD+host countries. It may be possible in some cases for donor countries to earmark funds, which can allow them to avoid subjecting the allocation of their funds to the decisions of the governing body.Footnote 114 The distribution of voting power, coupled with the possibility of earmarking funds, may mean that donors can significantly influence the determination of priorities for the provision of funding in these initiatives.Footnote 115
4.2. Rule-making Activities
The rule-making activities of these initiatives must be explored in the context of the role that they play based on their unique technical expertise. Generally, the initiatives’ staff provide technical support before and during the implementation of the REDD+funds. They also assist governing bodies in decision making. Their technical support roles extend to developing and updating technical guidance through ad hoc participatory processes.Footnote 116 Such flexibility in procedures stems from the fact that the guidance and standards are primarily voluntary and addressed to the initiatives’ internal bodies and employees.Footnote 117 Thus, they are generally considered to be ‘non-legally binding’,Footnote 118 merely a ‘guiding framework’.Footnote 119 Only in some cases are the guidelines endorsed by the initiatives’ governing body.Footnote 120 However, despite their voluntary and informal nature, these guidelines are intended to instruct the formulation and review of the project proposals of REDD+host countries, as well as monitoring implementation.Footnote 121
An interesting example of how the financing initiatives undertake their rule-making activities can be seen in the participation of indigenous peoples in REDD+. Tropical forests are often portrayed as an ‘uneven playing field’,Footnote 122 and forest protection initiatives have notoriously dispossessed, excluded and marginalized indigenous peoples in the past.Footnote 123 It is generally acknowledged that REDD+can increase the risks to forest dwellers and indigenous peoples and that their participation is necessary to mitigate such risks.Footnote 124 Under the UNFCCC, the inclusion of the participation of indigenous peoples and other stakeholders in REDD+was controversial.Footnote 125 As a result of consensus-based decision making, the UNFCCC rules provide little guidance on participation and stakeholder engagement. In particular, UNFCCC rules recognize only the need for ‘ensuring the full and effective participation of relevant stakeholders, inter alia, indigenous peoples and local communities’ in the elaboration of the REDD+national strategyFootnote 126 without further explanation of how ‘full and effective’ stakeholder participation should be fulfilled. UNFCCC REDD+safeguards also briefly mention consideration of the rights of indigenous peoples and local communities, ‘noting’ the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).Footnote 127 UNDRIP recognizes the rights of indigenous peoples to ‘free, prior and informed consent’ (FPIC) to activities affecting the land and resources on which they depend, such as REDD+.Footnote 128 However, the reference to UNDRIP in the UNFCCC rules is insubstantial.
In contrast, shortly after the UNFCCC rules were adopted, the FCPF and UN-REDD released harmonized joint guidelines on stakeholder involvement,Footnote 129 drawing from their own internal guidance.Footnote 130 Compared with the UNFCCC, the guidelines provide more detailed requirements. They demand that consultations with stakeholders take place prior to the design of any REDD+project or programme.Footnote 131 It is for the REDD+host countries to identify when consultations will be required, at what level, and with whom.Footnote 132 Participatory structures need to be created for this purpose, such as national REDD+committees to include representatives from relevant stakeholder groups (such as indigenous peoples and civil society).Footnote 133 In addition, participatory fora need to be established at the local level to ensure the active engagement of local stakeholders.Footnote 134
The guidelines call for ensuring representation of diverse opinions, including those of indigenous peoples and the organizations that claim to represent them.Footnote 135 The rules also contain special requirements for obtaining indigenous peoples’ consent. UN-REDD has developed ‘Guidelines on Free, Prior and Informed Consent’, requiring REDD+host countries to apply FPIC, which is understood as the right of indigenous peoples to refuse consent to a REDD+project.Footnote 136 More recently, the World Bank’s rules – which are relevant for FCPF and FIP funds – have incorporated an FPIC requirement, although with a proviso that FPIC can also take place when ‘some individuals or groups object to project activities’.Footnote 137 This shows that there are diverse standards among the initiatives in respect of participation by indigenous peoples. In any event, they are more detailed than the UNFCCC rules.
The initiatives have developed technical guidance to ‘assist countries’ in implementing REDD+,Footnote 138 and their actions are linked, more generally, to the UNFCCC rules.Footnote 139 This shows that UNFCCC rules inform and guide the initiatives’ rule-making activities. At the same time, this is just one example of the initiatives’ more detailed and stringent approach to rule-making activities than the approach adopted for UNFCCC rules.Footnote 140 The initiatives’ ‘guidance/requirements’ have a ‘degree of prescriptiveness not seen in the REDD+decisions agreed under the UNFCCC’.Footnote 141 This suggests that, in practice, UNFCCC rules work as a minimum standard.
More stringent standards can be good for ensuring better implementation of REDD+. At the same time, they may conflict with existing national laws. It remains unclear how the conflict should be addressed in those cases. Should a country apply FPIC, as upheld by UN-REDD or FCPF, when national laws are in contradiction with the initiatives’ standards? For example, the Peruvian law on participation in implementation of the International Labour Organization (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169)Footnote 142 provides that, in some cases, the state can make a final decision on the legal or administrative measures consulted. This is inconsistent with UN-REDD’s interpretation of FPIC.Footnote 143 In such cases, how far can, or should, the rules elaborated by REDD+financing initiatives influence national laws and policies?
The practical consequence of the rules and standards developed by the REDD+initiatives is that host countries desiring support for REDD+implementation from one of the initiatives must accept, internalize and implement them. In the process of securing funding, the REDD+host country plays the role of a candidate or applicant ‘which must act subject to external rules’,Footnote 144 and follow thorough processes using standardized templates to submit the funding application.Footnote 145 The templates used during the process are based on the internal guidelines and rules of each initiative.Footnote 146 Research suggests that these templates play an important role in standardizing state practice: for example, regulations applicable to the forest sector are highly diverse in the Latin American region.Footnote 147 Nevertheless, Sanhueza and Antonissen have found that, as a result of the use of these templates, ‘the national REDD+strategies’ developed in Latin America, with support from UN-REDD and the FCPF, show remarkable similarities.Footnote 148
Following submission of the project proposal the government of the REDD+host country enters into an intense dialogue with the initiatives’ technical staff and governing body to make the proposal conform to the initiative’s requirements. Since this process requires considerable time and effortFootnote 149 it increases pressure on national governments to approve REDD+grants and accept the conditions imposed. Thus, while there is no formal obligation for candidate host countries to accept them,Footnote 150 the approval of an application depends on its conformity with the rules and standards of the relevant REDD+initiatives.
To finalize the process, REDD+host countries must sign a grant agreement in order to receive the funds. This agreement has legal and practical effects to ensure the monitoring of the funds. National teams are appointed,Footnote 151 and the financing initiatives delegate powers to their staff to review and monitor implementation. In the event of non-compliance with the terms of the agreement, applicable measures include sanctions, the duty to enter into dialogue, termination or suspension of payment, and repayment of the support received.Footnote 152 Shaming actions are also possible.Footnote 153 Although it has not been yet used for REDD+, the World Bank Inspection Panel can investigate alleged violations of the Bank’s policies and procedures, such as those pertaining to FCPF and FIP funds.Footnote 154
It has been argued that, through the grant agreement, the rules and standards developed by REDD+initiatives become formalized and legally binding upon REDD+host countries.Footnote 155
Therefore, rules and standards that emanate from informal lawmaking end up ‘affect[ing] a wide range of countries, companies and people, without being considered sources of international law’.Footnote 156 When guidelines acquire the effect of law through grant agreements, they ultimately subject REDD+host countries to more stringent rules than those agreed under the UNFCCC. These rules can play a significant role, particularly in countries that lack national laws for implementing REDD+, or in those whose norms do not comply with the minimum standards. The rules become ‘a normative stream’, feeding into the national regulatory landscape.Footnote 157 They can also be effective even without national implementing legislation, or before such legislation is in place.Footnote 158
Overall, there is tension between these rule-making activities and their imposition on REDD+host countries on the one hand, and UNFCCC rules based on consensus decision making on the other. However, some factors might alleviate such tension. Firstly, REDD+host country governments are engaged during the entire process of developing the funding proposals and during implementation. In addition, there is constant dialogue between in-country teams and national authorities. Secondly, once a REDD+host country ‘joins’ a REDD+financing initiative, it can also participate in its decision-making bodies. Thirdly, the involvement of civil society and indigenous peoples in the preparation of REDD+proposals contributes to legitimizing the financing initiatives’ requirements, as the Latin American case studies show. Nevertheless, the interaction between the initiatives’ rule-making activities and the UNFCCC rules implies that the initiatives will ultimately implement tighter standards than those contained in the UNFCCC rules and have substantive practical effects on the ground, both before and after their ‘formalization’ in a grant agreement.
4.3. Indigenous Peoples and their Involvement in Latin American REDD+Implementation
Indigenous peoples in Latin America – many of whom live in, or adjacent to, primary forests – face potential risks arising from REDD+projects.Footnote 159 Yet, few countries in the region acknowledge the rights of indigenous peoples in their national legal frameworks,Footnote 160 or have regulations on consultation and participation,Footnote 161 including those relating to the implementation of REDD+.Footnote 162 Consequently, the first project proposals submitted to the REDD+financing initiatives were criticized for insufficient participation by indigenous peoples.Footnote 163
The financing initiatives’ rules on stakeholder engagement have demonstrated relevant practical effects on national governments’ compliance with participation requirements during the preparation of a project proposal as a condition for future funding. This has facilitated the involvement of indigenous peoples in the development of REDD+proposals in some Latin American countries. In Peru – after long negotiations and preparatory work for a project proposal to the FCPF – an indigenous associationFootnote 164 submitted a complaint, arguing that the government had not adequately consulted indigenous peoples during the preparatory process.Footnote 165 According to groups representing the indigenous peoples, the complaint was made before the FCPF governing body’s assessment of the Peruvian proposal,Footnote 166 when the government needed ‘to ensure (its) approval’.Footnote 167 This arguably provided the adequate environment for an ‘intense’ and ‘unprecedented’ dialogue between indigenous peoples and the government. As a result, both agreed to create REDD+indigenous roundtables (Mesas Indígenas) at the national and regional levels.Footnote 168 This achievement has not only ensured that participatory mechanisms are in place but also that they are translated into subnational law.Footnote 169 Other claims presented before the FIP by indigenous peoples have also helped to ensure that their representative groups consent to REDD+projects before governing body approval.Footnote 170
The possibility that REDD+financial initiatives will reject a project proposal seems to make national governments more open to negotiating the conditions for implementing REDD+projects with indigenous peoples and other stakeholders. In some cases this has resulted in new legal arrangements,Footnote 171 as exemplified in a project proposal submitted by the government of Honduras to the FCPF.Footnote 172 Following a complaint by a Honduran indigenous peoples’ association that they had not been given adequate opportunities to be involved in the preparation of the project proposal, the FCPF put the application process on hold. The process continued only after the government and the indigenous groups signed an agreement to create a national roundtable for the participation of indigenous peoples in the REDD+process (Mesa Nacional Indígena y Afrohondureña de Cambio Climático).Footnote 173 During the negotiations the government agreed to address long-standing land tenure claims. It also promised to cooperate to develop a law on the FPIC, even if the FPIC had not yet been considered in the national legal framework.Footnote 174
The practical effects of the financing initiatives’ rules also become manifest after the signing of the grant agreement, as illustrated in the implementation of REDD+funds in Panama.Footnote 175 Indigenous peoples and the government had concluded an agreement on a project funded by the UN-REDD Programme, which contained 19 conditions for the implementation of REDD+. The conditions included integration of the traditional ‘Balu Wala’ participatory methodology,Footnote 176 recognition of land title to indigenous peoples in forested areas, and a commitment to reconsider ratification of ILO Convention 169.Footnote 177 During implementation, however, differences arose regarding the modalities and budget for participation by indigenous peoples, who threatened to withdraw from the REDD+process, alleging that the conditions agreed during the preparation of the project had not been fulfilled.Footnote 178
The UN-REDD Programme temporarily suspended implementation of the project and commissioned an independent review, which found no infringement of rights.Footnote 179 The financing initiative subsequently instigated an intense participatory process, and activities recommenced following the signature of a new agreement between the government and the leaders of each indigenous group,Footnote 180 which, inter alia, restated the 19 original conditions.Footnote 181 The authority of UN-REDD to monitor implementation of the project agreement played a key role. However, the case also leaves a question mark over the sustainability of agreements between indigenous peoples and governments on longer-term issues than those relating to the implementation of funded REDD+ projects.
These cases demonstrate that the higher standards and requirements elaborated by the financing initiatives have served the interests of indigenous peoples since the early stages of REDD+implementation, perhaps more effectively than the UNFCCC rules have done.
5. RULE MAKING IN REDD+IMPLEMENTATION
This article started with a discussion of the traditional image of international formal lawmaking, with state consent expressed in formal legal instruments at its centre. It then explained how the UNFCCC regime has relied largely on COP decisions to develop the regulatory and governance framework for REDD+, and argued that, despite their informal legal nature, UNFCCC rules have practical legal effects, which include supporting international institutions in implementing REDD+projects.
Governance structures were then explored, including what is characterized as the largely informal rule making by the REDD+financing initiatives. The article then explained how the financing initiatives play a relevant role in the regulatory landscape for REDD+implementation at the transnational level, and demonstrated that, in contrast to the REDD+rules developed under the UNFCCC, rules and standards developed by the REDD+financial initiatives become legally binding through their inclusion in grant agreements with REDD+host countries. The practical effects of the rules are experienced both before and after their inclusion in formal grant agreements to implement REDD+ funds.
Looking at the international regulatory landscape for REDD+, an interesting picture emerges. The UNFCCC and the REDD+financing initiatives can be seen as two parallel and coexisting sources of authority for REDD+regulation.Footnote 182 The study illustrates how the international community allocates functions between them. Given that it operates under consensus-based decision making, the ability of the UNFCCC COP to keep pace with the needs of REDD+implementation is precarious. Considerable space to fill the rule-making void, therefore, is left to other actors. The FCPF, the FIP and UN-REDD have proved themselves able to address divisive issues with greater flexibility, efficacy and speed than the UNFCCC. Thus, rules developed under the UNFCCC have become international minimum standards for REDD+, while the REDD+financial initiatives develop stricter and more specific standards, and interpret the meaning of UNFCCC rules.Footnote 183 Hence, the international community turns to more flexible mechanisms of decision making, and the financing initiatives ‘complement and supplement’ the UNFCCC rules,Footnote 184 taking advantage of each initiative’s technical expertise.
Compliance with these more precise REDD+norms developed by the three financial initiatives tends to be high. This is, firstly, because they are incorporated in grant agreements with REDD+host countries and backed by financial, technical and implementation support. Secondly, the REDD+initiatives’ interpretation and development of REDD+requirements are legitimized in multiple ways. These include through state participation in their governance structure, the involvement of indigenous peoples and civil society in the preparation and implementation of REDD+projects, and through technical support in the form of workshops, technical briefs and so on.
Yet, it is possible to view the REDD+regulatory landscape less optimistically. Arguably, power has shifted from consensus-based rule making under the UNFCCC to the financial initiatives involved in REDD+implementation. Rule making by the COP, the only international body with specific competences regarding the interpretation and further development of the UNFCCC rules,Footnote 185 is outpaced by the activity of the REDD+financing initiatives. Their decision making is more rapid because it requires the agreement of fewer like-minded donor countries, and of fewer developing countries. Notably, the allocation of power in the initiatives’ governing structure allows donors more weight in decision making than is allowed under the UNFCCC legal framework.
From this perspective, a shift in decision-making power from developing (REDD+host) countries to developed (donor) countries is accentuated in the way in which rules are imposed de facto on REDD+host countries as mandatory preconditions for financial support to implement REDD+. This, then, arguably leads to a legitimacy deficit in the rules, because they are imposed on states that have not participated in their elaboration.Footnote 186 The picture of the REDD+regulatory landscape can, therefore, be seen either as one of intergovernmental cooperation and parallel rule making – taking advantage of institutional collaboration – or one of competition, which results in power shifts from developing to developed countries. Which of these represents reality lies in the eye of the beholder; or, perhaps, they are merely two sides of the same coin.
At the same time, the study has shown that states play a more nuanced role in the REDD+financing initiatives for a number of reasons. Firstly, states have a less direct role in the creation of the initiatives. Secondly, their technical workers have the powers and influence to develop informal guidance, lead consultation processes, and guide the decision-making activities of the governing bodies. Thirdly, non-state actors have an increasingly relevant role in the initiatives’ governing, technical and implementation activities. In contrast to the UNFCCC, where decision making remains largely state-based, these initiatives have swiftly adapted to incorporate stakeholders – including tribal and indigenous peoples – as a means to strengthen their accountability and legitimacy.Footnote 187 As a result, these hybrid approaches to rule making have yielded stricter social and environmental standards. Moreover, the cases explored in the Latin American regional context confirm that the effects of their rules, if correctly implemented, may help to raise the voice of those who could be most directly affected by, or benefit from REDD+implementation.
6. CONCLUSION
This article explored how the implementing rule-making processes developed by the REDD+financing initiatives operate at the transnational level and examined the way in which they are changing the regulatory landscape for REDD+implementation. It confirmed that fund-based hybrid approaches to REDD+rule making result in the adoption of standards that are stricter in terms of environmental and governance expectations than those envisaged at the intergovernmental level. A challenge ahead, beyond their extensive incorporation into national laws and policies in developing countries, is ensuring that these standards are respected even after the funded projects are completed.
