Nov 2018. Climate Law and Policy.
It has been eight years since Parties to the United Nations Framework Convention on Climate Change [UNFCCC] adopted a set of seven safeguards to ensure Reducing Emissions from Deforestation and Forest Degradation [REDD], and conservation, sustainable management of forests and enhancement of forest carbon stock [+] should, as a minimum, ‘do no harm’, and where possible go beyond this to ‘do good’ and achieve multiple [carbon and non-carbon] benefits. Given the potential environmental risks and benefits of REDD+ implementation, Parties to the UNFCCC recognised the need to ensure that the rules and guidance for REDD+ include measures to protect those potentially at risk, particularly indigenous peoples, local communities and biodiversity.
Rather than defining a detailed set of safeguards provisions for REDD+, Parties to the UNFCCC agreed to a set of seven broad safeguards that are expected to be applied in accordance with national circumstances. Consequently, REDD+ countries are expected to ‘clarity/interpret’ what the Cancun safeguards mean in their country, and the ‘interpretation’ of the Cancun safeguards can be expected to vary significantly from country to country. In the final series of decisions on REDD+, agreed in Paris at COP 21, Parties to the UNFCCC developed some further guidance “on ensuring transparency, consistency, comprehensiveness and effectiveness when informing on how all the safeguards referred to in decision 1/CP.16, appendix I, are being addressed and respected.”1 As part of this guidance, the COP “strongly encourages” developing country Parties, when providing the summary of information on how the Cancun Safeguards are being addressed and respected, to include, inter alia: “A description of each safeguard in accordance with national circumstances.”2
Six countries have submitted their summaries of information to the UNFCCC information hub, which includes their ‘interpretation’ of the Cancun safeguards. From our analysis of these documents and drawing on our experience supporting several countries on this matter, we want to share the following insights:
•The purpose of the interpretation is to contextualize the general principles outlined in the Cancun safeguards into specific rights and obligations the country commits to fulfilling in the context of the implementation of the REDD+ actions. We must note that these specific rights and obligations are largely determined and informed by the existing legal obligations of the country.
•The interpretation of the Cancun safeguards varies from country to country according to country’s relevant national and international legal obligations, but there is a general shared understand of the main elements that Cancun Safeguards encompass.
•Utilising the country's legal framework [i.e. Policies, Laws and Regulations] is key for ensuring that the ‘interpretation’ of the Cancun Safeguards reflects the country’s particular national context and for managing stakeholder’s expectations. Many Countries’ legal frameworks may already recognise the rights and obligations embodied in the Cancun safeguards, but may articulate them differently in their domestic context. For instance, Cancun safeguard (c) requires that countries respect “the knowledge and rights of indigenous peoples and members of local communities”, and while some countries have important populations of indigenous peoples, and therefore recognise their rights and knowledge through domestic laws, others may not recognise the term in their legal frameworks, instead referring to and protecting the rights of ‘vulnerable groups’ or ‘ethnic minorities’
•The interpretation itself does not determine how to ensure the REDD+ activities are carried out in consistency with the safeguards. Instead, the determination of how to ensure that REDD+ activities are carried out consistently with the safeguards will be done in the preparation of the Environmental and Social Management Framework [ESMF] or through equivalent process and document.
•The interpretation is central to the preparation of the summary of information, as it helps to determine the information that should be provided to the UNFCCC to demonstrate how the safeguards are being addressed and respected. In particular it is important to emphasise that the interpretation is the main input for determining the information needs of the country’s Safeguard Information System [i.e. the information that is to provided to demonstrate that each safeguard has been addressed and respected], without which, the identification and assessment of existing and relevant information systems and sources that form the basis for the SIS is usually undertaken.
1 UNFCCC Decision 17/CP.21
2 Ibid, paragraph 5(b)