FACULTY OF LAW, UNIVERSITY OF OSLO REDD Design and Implementation: Legal Challenges Dr. Christina Voigt University of Oslo, Norway, Faculty of Law REDD WORKSHOP, SOKOINE UNIVERSITY OF AGRICULTURE, MOROGORO, TANZANIA September 1st 2009

FACULTY OF LAW, UNIVERSITY OF OSLO A. International Challenges 1.Defining a ’forest’ –Tree height & crown cover –Degradation –Carbon richness –Old-growth vs plantations

FACULTY OF LAW, UNIVERSITY OF OSLO 2. Scope REDD or REDD plus? Other land-use categories? Agriculture Prevention of Leakage

FACULTY OF LAW, UNIVERSITY OF OSLO 2. MRV/NAMAs Monitoring Reporting Verification ….of what? –Forest activities –or also: policies, institutions, capacity building?

FACULTY OF LAW, UNIVERSITY OF OSLO 3. Indigenous Peoples Definition Rights/Obligations Access to information, participation in decision making (Aarhus Convention) Uncertainty around mechanisms for IP inclusion Little benefit from CDM Time pressure for implementation risks excluding IPs Uncertainty around benefit sharing arrangements

FACULTY OF LAW, UNIVERSITY OF OSLO 4. Funding Norwegian Proposal: ”Under the REDD-plus mechanism, developed country Parties commit to adequate, predictable and long-term sustainable funding of activities for reducing emissions by sources and increasing removals by sinks in the forestry sector and other selected land-use and land- use change sectors in developing countries.”

FACULTY OF LAW, UNIVERSITY OF OSLO 5. Legal Safeguards Environmental integrity Preventing the conversion of natural forests to forest plantations Taking precautionary measures to protect biological diversity

FACULTY OF LAW, UNIVERSITY OF OSLO 7. Reference Levels Global –Carbon leakage –Environmental Integrity National –Dynamic –Adjustable over time –Incentivize developing countries

FACULTY OF LAW, UNIVERSITY OF OSLO 5. Eligibility for Participation Phased approach Phase 1: all eligible that –Are Party to the UNFCCC –And… in compliance Phase 2: –Forest governance –Multi-stakeholder consultations (incl. indigenous peoples) –Safeguards (conversion, biological diversity)

FACULTY OF LAW, UNIVERSITY OF OSLO 5. Eligibility for Participation Phase 3: Compensation –In compliance with phase 1 and 2 criteria –Previous funding spent for agreed REDD purposes –Inventory in place –GHG Reductions (MRV, + additional)

FACULTY OF LAW, UNIVERSITY OF OSLO 6. Institutional Framework Designated National Authority (DNA) –Which resort? –Existing CDM DNA? –Competences? –Review

FACULTY OF LAW, UNIVERSITY OF OSLO 7. Phase out/ Sunset Clause Commitment to quantifiable GHG emission reductions Disincentive?

FACULTY OF LAW, UNIVERSITY OF OSLO B. National Challenges 1. Rights Rights to the Forest Rights in the Forest (use): trees, land, water, minerals, carbon… Land Tenure Other rights (laws, decisions, contracts, custom, international law)… and whose?

FACULTY OF LAW, UNIVERSITY OF OSLO 2. Regulation or Expropriation? Access through regulation –Problem: mass-logging Expropriation –Indirect, direct Compensation

FACULTY OF LAW, UNIVERSITY OF OSLO 3. Property Law and Compensation Economic Loss Alternative Value Maximum Value of Timber

FACULTY OF LAW, UNIVERSITY OF OSLO 4. Bilateral Investment Treaties (BITs) BITs and State contracts Stabilization clauses –Negotiation –Interpretation –Arbitration Compensation Legitimate expectations?

FACULTY OF LAW, UNIVERSITY OF OSLO 5. MRV-National

FACULTY OF LAW, UNIVERSITY OF OSLO 5. Participatory Rights Access to Justice Participatory rights –Indigenous peoples –Aarhus convention –Extra-territorial Application

FACULTY OF LAW, UNIVERSITY OF OSLO 5. Illegal Logging Which means to avoid? Forest Governance Transparency Accountability Import ban/WTO?

FACULTY OF LAW, UNIVERSITY OF OSLO 6. Legal Logging National laws on: –Forestry, forest use, agriculture –Balancing of ‘sustainable forest management’ versus conservation (REDD) –Contradiction?

FACULTY OF LAW, UNIVERSITY OF OSLO 8. Forest fires Unintentional: –Insurance, Prevention Intentional: –Motivation,laws, enforcement, governance, incrimination, fines, sanctions Forest owner’s obligations?

FACULTY OF LAW, UNIVERSITY OF OSLO 10. Corruption ?

FACULTY OF LAW, UNIVERSITY OF OSLO A lot of work ahead…. Thank you!

FACULTY OF LAW, UNIVERSITY OF OSLO