COP26 and the marketization of climate policies: Forest are not just Carbon Stocks – they have rights
Written by Jérémie Gilbert, Professor of Human Rights Law
From 1 – 12 November 2021, the UK is hosting the UN climate change conference, COP26, in Glasgow – during this summit, governments will have to set out national plans for meeting objectives defined in the 2015 Paris agreement. An important element of the current approach to address climate change is to focus on forest degradation, especially deforestation of tropical and subtropical forests. Forests are at the heart of our fight against climate change – the world is losing more than 7.3m hectares (18m acres) of primary forest every year, and the destruction of forests releases some six billion tonnes of carbon dioxide into the atmosphere each year. One of the main approaches to tackle such deforestation has been to put in place a market on forests and their potential for carbon offset.
Forest as Markets
The marketization of forests as carbon sequestration is not new and has been slowly brewing under different global policies over the last decades. COP 26 will follow up on already existing mechanisms that have put in place a market for forests. The Paris Agreement puts forward the idea that forests can operate as ‘carbon stocks’ calling on Parties to ‘take action to conserve and enhance . . . sinks and reservoirs of greenhouse gases . . . including forests.’ The logic of this approach rest on the idea of an ‘offset’ scheme that allows parties to purchase carbon credits arising from sequestration activities in the Global South to meet their international mitigation commitment
The Paris Agreement reinforced and accelerated the REDD process. In what has become a quite complex and mindboggling process, the Reducing Emissions from Deforestation and forest Degradation, or REDD+, encapsulate all sort of programs to foster conservation, sustainable management of forests and forest carbon stocks. Since its inception in 2005, REDD+ has become the main global initiative to pay countries to protect their forests in order to reduce emissions of greenhouse gases. It operates as a carbon ‘offset’ scheme whereby countries in the Global North provide financial resources to promote the reduction of deforestation and forest degradation in the Global South. These can then be transferred between countries to meet Paris Agreement Nationally Determined Contributions (NDCs).
One of the big points of discussion in Glasgow will be to determine if these can be sold as ‘carbon credits’ and counted towards the compliance obligations of the purchasing country. The idea is to catalyse significant reductions of greenhouse gas (GHG) emissions through a combination of forward purchase agreements and floor price commitments at USD 10 per tonne for at least 100 million metric tonnes of CO2. A system of emissions reductions (ERs) may be purchased by companies and organizations to voluntarily reduce emissions or could be approved for use by companies in regulated carbon markets.
Related to these mechanisms an endless list of carbon offsetting schemes is being developed creating a carbon market around forests. These schemes allow companies and individuals to balance their carbon footprint by buying carbon credits, with forest preservation and tree planting being one of the key approaches – basically turning forest into carbon credits. However, a recent critical examination of markets for forest carbon offsets in the United States suggests that “offset deals provide little if any true “additionality” that enhances rates of forest carbon sequestration, and that the majority of credits sold on those markets, particularly for credits based on unrealistic baselines, provide no real offset to greenhouse gas emissions at all.” Apart from these issues on whether these schemes even work, they are also some serious issues with this approach.
Problem 1: Human cost: financing violence and displacement
The idea is to reward countries for the protection of forests, which forms part of the equity and (re)distribution that should be central to climate change response, but one thing which is invisible is that this focus on measuring carbon and forest cover changes without adequate attention to governance and human rights issues. The model is wrongly based on the premise that state-owned protected forest areas have contributed enormously to forest survival. As demonstrated by research over the last few years such model “has been insufficiently successful to justify the mass dispossession of customary land-owning communities this has entailed.” In practice, these market based financial incentives are often feeding increased and accelerated process of violent and forced removal of indigenous peoples and local communities from their forests – with very little financial benefits reaching these communities. The human cost of these financial approaches to trees and forest is often translated into more forced displacement, increased violence and lack of trickle-down benefits reaching the most concerned communities living in the forests.
Although most of the world’s biodiversity is located on indigenous territories, indigenous peoples suffer from lack of recognition of their fundamental rights to their land and territories. The intergovernmental global assessment provides clear evidence that lands managed by indigenous peoples and local communities are performing better in terms of biodiversity. Hence, one of the first fundamental issues with the approach to forest being treated as a carbon market is that it ignores local and indigenous peoples rights over these forests. In practice, it means that countries which are openly violating indigenous and local communities’ rights are going to receive funds to forcibly dispossess them from their territories. Since Indigenous peoples and local communities are often not recognised as owners of forests by the State in national laws, therefore there is concern that they will not see equitable benefits from REDD+ projects and that forest and climate schemes risk driving a ‘global green land grab’.
Problem 2: Green marketization of Nature
This market and financial based approach to deforestation is also problematic as it feeds and thrives on a ‘green money laundering’ approach to Nature. The forest carbon market is just an example of the worrying trend of using market based approaches,, i.e money, to address climate change. It is part of the wider market and financial packages that are being offered to mitigate against climate change – often wrongly and mistakenly labelled as ‘nature-based solutions.’ It follows a dominant approach amongst politicians and in their policy responses to climate change to turn to the financialisaton of nature as a solution. The dominant international responses to climate change are coming under a marketized vision of a ‘green economy’ – a new promoted ‘green capitalism’ in which nature is valued in economic terms, commodified and financialised. This is part of the wider political discourse on the so-called transition to a ‘green economy’. For examples, China has developed a new metric called ‘Gross Ecosystem Product,’ to measure the value of ecosystem services and started to publish estimates of this metric. The EU and the UN have also been developing their own natural capital accounting frameworks for more than a decade, the UN Statistical Commission having just adopted natural capital accounting standards.
From a UK perspective, the dominant policies are also following this trend. For example, last February, Boris Johnson, the Prince of Wales and Sir David Attenborough launched the Dasgupta Review, a policy report on biodiversity promoting the financialization of Nature. The approach is based on maximising ‘inclusive wealth’, defined as the sum of produced capital, human capital and natural capital, adding another specific UK layer to the marketization of nature. As noted by commentators from the Green Finance Observatory: “Rather than challenging the current status quo and providing solutions to address critical biodiversity loss and the 6th mass extinction of species, this Review can be understood as providing the social licence for growth maximisation to continue, thanks to new natural & human capital side constraints.”
Changing the lens: Nature is not a market but it has rights
Under these dominant ‘green economics’ approaches, Nature is viewed as capital, and ecosystems are valued only for their benefits to Humans. One emerging discourse in legal scholarship is to recognise Nature as having inherent rights. The movement to recognise the rights of Nature is advocating for the recognition of Nature as a subject of rights – it is slowly but steadily finding ground with Ecuador including Rights of Nature provisions in its Constitution, new legislation and court cases recognising specific rights and legal personality to natural entities in Bolivia, New Zealand, India, Colombia, Canada, Australia, Bangladesh, Uganda, Mexico and at the local level in the USA. In terms of forest rights, a 2018 decision by the Supreme Court of Colombia declared that the Amazon River ecosystem is subject to rights of its own and may be a beneficiary of protection. This new legal approach recognising that forests and connected ecosystems (such as rivers) have inherent rights outside of the benefits they bring to humankind (usually measured in monetary terms) could offer a new revolutionary and effective strategy to fight the climate crisis and break the current dominant model of marketization of nature.
There is serious danger of catchy headlines about new green economies and economic solutions to address the climate crisis – which often downplay the real and profound risks and potentially devastating harms to ecosystems. Agendas promoting the so-called green transitions are not about protecting nature, but about putting financial systems in place to value nature, to eventually make more benefits on these resources. Rather than focusing disproportionate attention on market-based solutions to the climate and biodiversity crises, governments need to address the serious crisis in the global governance of nature. It is about time to acknowledge that the environmental legal frameworks that were designed in 1992 to address the biodiversity crisis have failed and proven inadequate. We are now reaching the 30 years’ mark after what was meant to provide a systemic change to environmental international law. It is clear that this has not worked and that we need to approach the legal protection of nature from a totally new lens. Starting by recognising that natural entities have fundamental rights to exist, thrive and maintain healthy life could offer a solid starting point. So far laws and policies have been guided by the benefits that nature brings to humans, either as resources to be exploited or to be protected, but never as entities having independent rights to exist outside of the benefits they bring to us. From this perspective, the growing movement advocating for the recognition of the rights of nature offers a new perspective to properly reform our derelict framework of targets and monetisation of nature. After all, maybe nature is not only a resource, and trees should not only be valued by the amount of resources they create for the market? There is little chance that such debates integrate the discussion in Glasgow, but it is important to keep in mind these issues of the cost of creating new carbon-forest markets when the headline of the COP26 will reach us. The reality is that humans and nature will bear the cost once again of these new mechanisms that will push even further the marketization of the forests.
 Paris Agreement, Article 5.1
 Charles D. Canham, “Rethinking Forest Carbon Offsets”: https://www.caryinstitute.org/news-insights/feature/rethinking-forest-carbon-offsets?s=03 ; see also:
Patrick Greenfield, “Carbon offsets used by major airlines based on flawed system, warn experts”: https://www.theguardian.com/environment/2021/may/04/carbon-offsets-used-by-major-airlines-based-on-flawed-system-warn-experts
 It is estimated that nearly a quarter of the Earth’s surface is managed by indigenous peoples, see C. Sobrevila, The Role of Indigenous Peoples in Biodiversity Conservation: The Natural but Often Forgotten Partners (World Bank, 2008)
 See OUP book: https://www.cambridge.org/gb/academic/subjects/law/environmental-law/impact-climate-change-mitigation-indigenous-and-forest-communities-international-national-and-local-law-perspectives-redd?format=PB&isbn=9781107424807
 Frederic Hache, Clive L. Spash, “Nature, life & relations – ‘optimised’: a policy brief on the Dasgupta Review”
Green Finance Observatory 2021, www.greenfinanceobservatory.org
 Dejusticia y otros v Presidencia de la República y otros. Colombian Supreme Court, ruling STC4360 of 4 May 2018. Full text in Spanish, available at https://cdn.dejusticia.org/wp-content/uploads/2018/01/Fallo-Corte-Suprema-de-Justicia-Litigio-Cambio-Clim%C3%A1tico.pdf ?x54537