I. Green governmentality

Michel Foucault coined the neologism ‘governmentality’ as shorthand for mentalities of governance that link knowledge and power to government and rationality. Foucault analysed the ways by which neoliberal governmentality becomes a pervasive way of thinking (Foucault, Reference Foucault2008, p. 219), but warned that neoliberalism should ‘not be identified with laissez-faire, but rather with permanent vigilance, activity and intervention’ (p. 132). Foucault argues that neoliberal economists are fully aware that ‘free’ markets require extensive state intervention and regulation – the ‘rules of the game’ (p. 174). Extensive governance is indispensable for market rule and best achieved through ‘a minimum of economic interventionism, and maximum legal interventionism’ (p. 167).

The growing literature on green governmentality uses Foucault's insights to analyse the significance of neoliberal rationalities and discourses in climate and environmental governance.Footnote ² One example is the highly contested concept of sustainable development, which suggests that it is possible to achieve endless economic growth and social justice while protecting the environment.Footnote ³ Holmgren (Reference Holmgren2013, p. 370) regards sustainable development as a discourse characterised by a managerial notion of regulation. Wolfgang Sachs (Reference Sachs1999) justifiably described the notion as an oxymoron, but such criticism did not deter delegates at the 2012 Rio+20 conference from reincarnating the concept as ‘green economy in the context of sustainable development and poverty reduction’.Footnote ⁴

Green governmentality frames climate change as a technical problem that can be solved by science-driven forms of governmentality associated with the nation state, multilateral institutions such as the UN Framework Convention on Climate Change (UNFCCC) and the IPCC, and transnational capital (Bäckstrand and Lövbrand, Reference Bäckstrand, Lövbrand and Pettenger2007, pp. 126–131; Oels, Reference Oels2005). Luke (Reference Luke1997) describes the intensified governmentalisation of nature through market mechanisms and legal measures that extend neoliberalism into international regulatory systems. This is based on a particular conception of nature bounded within the techniques and rationalities of green governmentality that legitimises governmental interventions as the responsible stewardship of nature:

In a similar vein, Rutherford (Reference Rutherford2007, p. 295) argues that environmental discourses emerge through the production of ‘truths’ about nature that require and justify its regulation, management and governance.

For Holmgren, global climate governance is a compromise between ecological modernisation and green governmentality, the dominant discourses of forest governance that have shaped neoliberal environmental policies. Ecological modernisation promotes ‘market based solutions, good governance, flexibility and cost efficiency’, whereas green governmentality is based on centralised multilateral regimes to administer the climate, such as the Kyoto Protocol (Holmgren, Reference Holmgren2013, p. 370). Oels argues that advanced liberal government in the West leads to the framing of climate change primarily as an economic problem susceptible to governance under legal frameworks like the UNFCCC and the Kyoto Protocol, which are predicated on the effectiveness of market mechanisms and technological solutions. Climate change is thus perceived not as ‘a moral issue but instead a matter of cost-benefit analysis. If the costs of destruction caused by climate change exceed the costs of preventing it, taking action is legitimate’ (Oels, Reference Oels2005, p. 201). States are still important because they are necessary to facilitate market mechanisms, but they operate alongside a growing number of non-state actors to induce or discipline individuals into behaviour that conforms with market rationality (Paterson and Stripple, Reference Paterson and Stripple2010).Footnote ⁵ Humphreys (Reference Humphreys2006, p. 215) argues that in many respects the state is now as much a taker as a maker of standards in governance regimes increasingly characterised by market rationalities and ‘voluntary alternatives to state regulation and intergovernmental regimes’ (p. 223).

Stephan describes the emergence of new subjects like the carbon forester, who combines forestry skills, carbon accounting expertise, and knowledge of biochemistry and remote sensing technologies (Stephan, Reference Stephan, Methmann, Rothe and Stephan2013, pp. 165–66). The UNFCCC and the Kyoto Protocol comprise a centralised global bureaucracy that purports to manage the climate regime through an extensive framework of laws and rules within which technology is used to measure emissions and deforestation in order to generate the information required by complex accounting systems, the operation of carbon markets, and a global bureaucracy that monitors and audits compliance.

Ambrose-Oji, Allmark, Buckley, Clements and Woodgate (Reference Ambrose-Oji, Allmark, Buckley, Clements, Woodgate, Mol and Buttel2002, p. 159) demonstrate how the encouragement of communal forest management and concepts like ‘conservation-through-participation’ disguise the surveillance, disciplining and control of forest dwellers for raisons d'etat and the interests of market actors.Footnote ⁶ The environmental state utilises the discourse of participation to extend its gaze over its forests and natural resources and ‘into the life world of forest and forest margin communities’ (p. 158).

Surveillance and measurement technologies such as computer modelling and remote sensing by satellite make it possible to collect data on deforestation in the Amazon basin and elsewhere. These technologies underpin the measurement, reporting and verification (MRV) systems that are essential to subject forests to climate governance (Boyd, Reference Boyd2010a; Stephan, Reference Stephan2012). Along with land use, land-use change, and forestry (LULUCF) regimes, MRV systems are techno-rationalities that are fundamental to national mitigation programmes and the operation of carbon markets. They ‘enable governments to expand monitoring and surveillance of forested lands that remained outside the purview and control of the state. Expanded surveillance power permits bureaucracies to pursue regulatory enforcement and judicial approaches to controlling illegal land-use and forest loss’ (Boer, Reference Boer2013, p. 133).

II. REDD and REDD+

The REDD mechanism for reducing emissions from deforestation and forest degradation has been under negotiation by the parties to the UNFCC since 2005 (Lyster, Reference Lyster, Lyster, MacKenzie and McDermott2013).Footnote ⁷ Forest degradation was included in the Bali Road Map at the thirteenth conference of the parties (COP) in 2007, which framed deforestation primarily as a problem of climate governance.Footnote ⁸

The ‘Warsaw Framework on REDD+’ was adopted at COP 19 in December 2013, with the aim of ‘reducing emissions from deforestation and forest degradation in developing countries, and the role of conservation, sustainable management of forests, and enhancement of forest carbon stocks in developing countries’.Footnote ⁹ The plus element of REDD+ goes beyond reducing deforestation and forest degradation to include conservation, sustainable management of forests, reforestation, and sequestering GHGs through a variety of forest management techniques such as replanting degraded or deforested areas, enrichment planting, and natural regeneration. REDD+ is based on results-based finance from the Green Climate Fund, which will be forthcoming if host countries comply with a range of MRV mechanisms that include collecting information on the drivers of deforestation, national forest monitoring methods, and providing information on safeguards.Footnote ¹⁰

REDD+ is the centrepiece in a complex array of institutions and technologies currently under construction with the aim of bringing forests under a regime of marketised carbon governmentality based on two political technologies: treating deforestation as a result of the misallocation of capital and the absence of adequate financial incentives. Forests are viewed as sites of ecosystem services and natural capital that have been incorrectly valued and must therefore be priced to reflect the carbon stored in them and to enable compensation to be paid to those who forego the right to cut them down. REDD+ is designed to turn forests into fungible, tradable carbon storage services through an elaborate system of incentives for developing countries to reduce emissions by protecting and managing their forest resources more appropriately (Corbera and Schroeder, Reference Corbera and Schroeder2011) through property rights over carbon and laws to clarify tenure (Doherty and Schroeder, Reference Doherty and Schroeder2011). The dominant mindset is reflected in the UN Environment Programme's insistence that ‘unless people have clear rights over a resource, they will lack the incentive to manage it well’ (UNEP, 2011a, pp. 564–565). Forests are a foundation of the green economy and ‘a fundamental part of the earth's ecological infrastructure and forest goods and services are important components of a green economy’ (UNEP, 2011b, p. 156). Consistent with this discourse, a multilevel system of payments for environmental services (PES) is being constructed locally, nationally and globally (FERN, 2011, p. 3). ‘Many REDD+ projects plan to sell credits into voluntary carbon markets, and subject to international agreement, to global and regional compliance markets’ (Boer, Reference Boer2013, p. 124). It is not anticipated that forest carbon offsets will be included in the EU's Emission Trading Scheme before 2020, but REDD+-generated credits are being sold in voluntary carbon markets and may become more significant after COP 21 in Paris in December 2015. Like other mechanisms in the UNFCCC and the Kyoto Protocol designed to reduce emissions, the integration of REDD+ into carbon markets may prove to be of minimal efficacy by enabling companies with compliance obligations to buy credits generated by REDD+ projects in the global South to offset their failure to reduce emissions. Cabello and Gilbertson (Reference Cabello and Gilbertson2012, p. 167) note that ‘[a]lthough not yet explicitly connected to UN-backed carbon markets, even those REDD+ initiatives currently being supported by public money are generally designed to help jump-start forest carbon markets’.

Proponents of REDD+ describe it as a solution to deforestation that combines cost efficiency, effective mitigation, and sustainable development while protecting biodiversity and the livelihoods of indigenous forest dwellers. It is promoted as a win–win framework that enables developing countries to be rewarded for reducing deforestation and emissions with financing and investment from industrialised countries which can offset their own emissions (without necessarily reducing them) (Stephan, Rothe and Methmann, Reference Stephan, Rothe, Methmann, Stripple and Bulkeley2013).

In contrast, Pokorny, Scholz and De Jong (Reference Pokorny, Scholz and De Jong2013) are sceptical about the prospects of reducing deforestation in the Amazon basin because indecision about the scope and implementation of the funding scheme ‘makes it highly uncertain that Amazonian countries will adopt the policies proposed by the REDD+ model to achieve their ambitious mitigation goal by reducing 60% of their emissions from deforestation and other land-uses … Even if they did, our analysis suggests that such policies would primarily benefit market-integrated economic actors with secure land titles not smallholders’. There are also fears that REDD+ may be undermined by corruption, land grabbing, insecure land tenure rights, fraud in monitoring, evaluation and reporting, elite capture of REDD+ revenues, and leakage.

In Boyd's view, attempts since the early 1990s to construct ‘a comprehensive international legal instrument on forests has been a spectacular failure, foundering on the fundamental conflict between the conception of tropical forests as the “common heritage of mankind” and forests as sovereign national resources, as well as the perennial inadequacy of donor country financing’. These have resulted in ‘repeated failures and false starts, with few notable success stories’ (Boyd, Reference Boyd2010b, p. 865). Boyd is doubtful that framing deforestation as a problem of climate governance will succeed because:

III. Green governmentality and international environmental law

Environmental and climate governance regimes reflect the continued pre-eminence of sovereignty in the international legal system that enables states to block the creation of structures and institutions to regulate natural resources in the collective interests of humanity. Camilleri and Falk (Reference Camilleri and Falk1992, p. 192) argue that the Westphalian system is poorly equipped to embody ecological principles and to deal with environmental challenges because ‘[i]ts approach to the ecological dilemma is confounded by its institutional interests, instrumental role and domain of authority, which are at odds with ecological principles and global ethos required for planetary management’. Solving transboundary problems like deforestation and climate change requires an approach that transcends the centrality of states in an international system seemingly incapable of producing coherent legal and institutional architectures.Footnote ¹¹ Climate change is a quintessential transboundary problem, but sovereignty resists calls for solutions that embody principles of cosmopolitan justice.Footnote ¹² This tension has led Shue (Reference Shue2014,p. 150) to argue for binding limits on the right of states to pursue domestic economic goals through measures akin to the jus cogens prohibition against torture, regardless of their willingness to accept such constraints.

Sands (Reference Sands2003) identifies seven broadly supported principles of international environmental law. These are: sovereignty over natural resources accompanied by the responsibility not to cause transboundary environmental damage; preventive action; the principle of co-operation; sustainable development; the precautionary principle; the polluter-pays principle; and common but differentiated responsibility. To this might be added the well-established principle on the common heritage of mankind. It is difficult to establish which principle takes precedence because there is no clear hierarchy in an area of law that lacks adequate enforcement mechanisms. Sands (p. 231) notes that in ‘the absence of judicial authority and in view of the conflicting interpretations under state practice, it is frequently difficult to establish the parameters or the precise international legal status of each general principle or rule’. As Bosselmann (Reference Bosselmann2010, p. 2424) wryly observes: ‘environmental laws and policies have saved some “trees”, but the “forest” is being lost as critical global issues including climate change, biodiversity loss, and our ecological footprint continue to worsen.’

The presence of conflicting principles is common in documents such as the UNFCCC, whose Preamble notes ‘that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’, and reaffirms ‘the principle of sovereignty of States in international cooperation to address climate change’.Footnote ¹³ It is illogical to endorse the right of states to exploit their forests and expect them not to damage the environment of other states. Likewise, the sovereign prerogative to emit greenhouse gases is not compatible with the injunction not to cause harm to the environment, the principle of co-operation, sustainable development or the precautionary principle.

The principle of permanent sovereignty over natural resources originated in the 1950s as a supplement to complement of the right to self-determination. Developing countries were concerned that transnational corporations were the main beneficiaries of the natural resources, which they regarded as their national patrimony.Footnote ¹⁴ In 1966, the UN General Assembly recognised ‘the inalienable right of all countries to exercise permanent sovereignty over their natural resources in the interest of their national development’.Footnote ¹⁵

In his dissenting opinion, Justice Weeramantry argued in the ICJ Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons that ‘[t]he doctrine that the sovereign is free to do whatever statute does not expressly prohibit is a long-exploded doctrine’, but it is doubtful whether this view may be considered to have the standing of customary international law.Footnote ¹⁶

IV. Green governmentality, sovereignty and REDD+

In the light of the detrimental effects of soil degradation and erosion, the destruction of natural habitats and species extinction, deforestation would appear to contravene the injunction to do no harm and the requirement for states to co-operate to protect the environment. The declining capacity of forests to function as carbon sinks due to deforestation seems like a prima facie case of damage by countries with jurisdiction over them to the environment of all other states. This suggests that a legal regime that treats forests as collective global goods would facilitate a more appropriate form of governance. As Takacs observes: ‘Once intact forests are deemed essential to mitigating GHG buildup, they inch closer to an international resource that states no longer control’ (Takacs, Reference Takacs2013, p. 704). For this reason mechanisms like REDD+ prompt ‘debates over sovereignty, whether or not they're framed in those terms. They are debates between Northern nations with traditional hegemonic power imposing conditions on nations with less power, and those nations in turn resisting and making counter demands, based on their growing clout as guardians of the world's increasingly valuable forests’ (p. 700). Developing countries in which forests are located fear that calls to treat forests as the common heritage of humanity, as global commons, or to regulate them under an international climate regime ‘will increase the pressure for a de facto internationalisation of tropical forests given their role in the global carbon cycle and their importance to climate protection efforts’.Footnote ¹⁷ The desire of Amazonian states to exploit their natural resources in pursuit of economic development cannot be reconciled with the imperative to protect the forests unless ways can be found to compensate these states for foregoing this right.

The international environmental law principle that provides for natural resources to be designated as the common heritage of humankind limits sovereignty by imposing a duty on states to protect common resources within their territorial jurisdiction even if this conflicts with their economic and development policies. Under international law, Antarctica, the high seas, deep-seabed minerals, the atmosphere and space are global commons to which all nations have equal access; tropical forests are not. Despite this, the concept has found little purchase beyond the Law of the Sea convention and the Moon Treaty (Brunnée, Reference Brunnée, Bodansky, Brunnée and Hey2007, p. 563).Footnote ¹⁸ Hooker (Reference Hooker1994) and Tarlock (Reference Tarlock1997) argue that the function of forests in mitigating climate change dictates that they be governed as global commons, but the principle is not universally accepted, and is belied by state practice. The Preamble to the UNFCCC recognises the sovereign right of states to exploit their natural resources even as it acknowledges that ‘change in the Earth's climate and its adverse effects are a common concern of humankind’. Similarly, the concept of ‘common concern’ is included in the Preamble to the Convention on Biological Diversity, which recognises ‘that States have sovereign rights over their own biological resources’ which must be used and conserved ‘in a sustainable manner’ and without harm to other states.Footnote ¹⁹ The incompatibility of these principles leads Nico Schrijver to suggest that the heritage of mankind regime can only start at the point at which the permanent sovereignty principle ends (Schrijver, Reference Schrijver1997, p. 229).Footnote ²⁰

These conflicting principles reflect the ineluctable contradiction that sovereign power creates the conditions that destabilise itself. The nihilistic assertion of an unconstrained right to emit GHGs may increase short-term economic growth in a particular state even as it undermines the material basis for long-term development in that country and around the world. Paradoxically, permanent sovereignty over natural resources is contingent upon the reproduction of those resources. This leads to the conclusion, as Takacs puts it, that ‘sovereignty over natural resources is not “permanent” – or even temporary – if forests degrade or disappear due to changing ecological conditions’ (Takacs, Reference Takacs2013, p. 710). Tarlock calls for a modified conception of sovereignty reflected in:

Scholtz (Reference Scholtz2008) argues in favour of a form of custodial sovereignty that respects the right of states to exploit their natural resources but which also creates the expectation that these resources will be protected on behalf of humanity. Crucially, other states would be obliged to assist the custodian state to fulfil its obligations consistent with the principle of common but differentiated responsibility (CBDR).Footnote ²¹

The CBDR principle acknowledges the historical structural inequalities between developed and developing countries, and the special needs and responsibilities of the latter consistent with the principle of equity in international law. The UNFCCC places the primary responsibility to reduce emissions and to provide the resources for adaptation and mitigation on industrialised countries. The Kyoto Protocol created a framework which permitted developing states to pursue fossil-fuelled industrialisation in order to reduce poverty, while urging a transition to renewable energy with the financial assistance of developed countries, who retain primary responsibility for mechanisms like REDD+. A post-Kyoto regime in which developing countries accept a common obligation to reduce emissions may depend on the willingness of developed states to accept differentiated responsibilities to provide adequate resources for REDD+ and compensation under a nascent loss and damage mechanism which less developed countries are likely to insist upon at COP 21.

V. Alternatives forms of governance

The scale and urgency of climate change have highlighted the inadequacies of international environmental law and climate governance and prompted calls for alternative approaches. All forms of law at all levels are failing to reduce emissions, biodiversity loss and environmental degradation. The supposed naturalness of economic growth, credit and interest are ideas that are deeply entrenched in areas of law ranging from company law to tort law, and militate against attempts to limit global warming and ecological destruction. Advocates of earth jurisprudence such as Cormac Cullinan argue that environmental destruction stems from the disjunction between contemporary legal systems that perpetuate human domination of nature and modes of governance that foster mutually beneficial relationships between humans beings, other organisms and the earth itself (Cullinan, Reference Cullinan2011). Earth jurisprudence is an ecocentric approach that defends the rights of nature against the pervasive anthropocentrism of Western law and the pre-eminent role it assigns contract and property rights in determining which natural resources may be exploited or protected. Cullinan is part of movement promoting a rule of law for nature designed to ensure that ‘nature and natural values are protected by law from encroachments, deterioration and destruction in fundamentally the same way as citizens are protected by law’.Footnote ²²