Climate consciousness and the reimagining of forest ecosystems within the rule of law

Image: Photo by Ed van duijn on Unsplash

Land use and land use change combined amount to 23% of total greenhouse gas emissions globally. Between 2001 to 2020, there was a 10% decrease in tree cover globally. Conversion of forests for agro-industrial crops is a significant driver of deforestation, especially in Latin America and Southeast Asia. Between 2001-2015 soy, mainly for livestock feed, replaced 8.2 million hectares of forest globally. South America alone, primarily in the Amazon region, converted 7.9 million hectares of forest. Forest fires, many directly attributed to climate change impacts such as droughts, are destroying vital biodiversity and habitats while releasing huge amounts of carbon dioxide. In Australia over 45 million acres in 2019-2020 were lost due to forest fires. The 2015 Paris Agreement 2050 global net zero target will not be met without tackling the causes of deforestation, and that includes the embedded values within the rule of law that continue to legalise destruction of forest ecosystems.

For centuries the rule of law, through legislation, regulations, concessions, contracts, penalties, and courts, has legitimised and upheld unsustainable land use management practices. Society, and its institutions including the rule of law, has viewed forests as an unlimited collection of commodities – timber, biodiversity, land, genetics and now carbon – to be extracted and traded. Both in colonial and post-colonial times, such ecological plundering has displaced, often violently, local communities, indigenous peoples, and biodiversity habitat resulting in reduced forest ecosystem resilience. As Fisher notes in her excellent blog for this series, climate change requires change, a necessary part of which is legal transformation. The legal reasoning that informs new laws and interprets existing laws, from trade to human rights, needs to be informed by a more climate conscious reasoning. But climate conscious legal change must not be restricted to the technicalities of greenhouse gas management and accounting. It must be expansive, inclusive and recognise the systemic legal challenges climate change poses to all areas of law. If it does not, climate conscious laws will undermine fundamental rights and perpetuate deep-rooted injustice - including against non-human species. Although it is early days, there is encouraging evidence that such expansive climate conscious reasoning is increasingly informing law and policy strategies on forests and land use around the world.

The UN Framework Convention on Climate Change (UNFCCC, 1992) initially demonstrated a narrow imagination when it came to forests. The Convention included forests on the basis that they could both increase greenhouse gas emissions causing climate change but could also sequester carbon, helping to mitigate climate change. The UNFCCC’s technical binary perspective helped to rationalise and legitimise the initial legal design of the REDD (reduce emissions from deforestation and degradation) forest carbon trading mechanism in 2007, part of the UNFCCC Bali Action Plan. REDD lawyers did not include in their legal imagination the non-carbon related benefits and priorities of forests. Forests are not just carbon, they are dynamic living ecosystems providing provisioning services especially to those most reliant on them - indigenous peoples, forest communities, and biodiversity as recognised in the UN Convention on Biological Diversity (1992). Campaigning by indigenous peoples’ organisations, civil society and climate justice NGOs at UNFCCC negotiations fought to get human and indigenous peoples’ rights and ecosystem integrity referred to in subsequent key REDD related COP decisions, and the Paris Agreement. This was a win for those who recognised the need for forests related law to be reimagined in an expansive and inclusive way as part of the effort to mitigate climate change.

The opportunity to adopt similar expansive integrated approaches to forests and climate change law, regulation and policy came with the Paris Agreement. Forests represented a quarter of all planned emission reductions by 2030 in the Nationally Determined Contributions (NDCs) submitted under the Paris Agreement. To spur momentum amongst the Paris Agreement parties at COP 26 in November 2022, the Glasgow Leaders’ Declaration on Forests and Land Use - which aims to ‘halt and reverse’ deforestation by 2030 - was released. The Glasgow Declaration identifies forest biodiversity protection, agricultural commodity trade and sustainable development, finance (public and private) and indigenous peoples and local communities’ rights (in accordance with relevant national legislation and international instruments) as interconnected legal fields that ‘will require transformative further action’ if there is any chance of meeting the Paris Agreement target of 1.50C. The Declaration follows on the heels of the unsuccessful 2014 New York Declaration on Forests that first set a deadline to end deforestation globally by 2030. To achieve zero deforestation, signatories to the Glasgow Declaration would need to reduce annual forest loss by at least 3.1 million hectares a year. Many NGOs and indigenous peoples’ organisations are sceptical that voluntary political agreements like the Glasgow Declaration can seriously challenge the dominant legal imagination that perpetuates forest ecosystem destruction around the world, especially in tropical forest countries. But others believe the latest Declaration can further legitimise other ongoing efforts to transform the legal imagination towards forests. Proposals such as deforestation commodity trading laws in the EU and UK, banning burning wood from primary forests for large scale energy generation, and investing in nature-based climate solutions are all areas where substantive legal changes are being advocated for.

Beyond the efforts within economic, trade and investment law, creative use of a rights-based approach is increasingly being used to reimagine laws' relationship to protect forest ecosystems and non-indigenous people in the climate crisis. Firstly, the 2018 the Escazú Agreement on Access to Information, Public Participation and Justice in Environmental Matters (Article 9) included commitments for parties to recognise and protect human rights defenders. The Latin America and the Caribbean regional agreement parties include biodiversity in rich tropical forest countries where environmental defenders have for decades experienced the highest rates of intimidation, violence and death in the world. Secondly, a new wave of litigation is making clear the numerous linkages between protecting the forests, protecting the climate, and protecting fundamental human rights. For example, the Institute of Amazonian Studies (IEA) v. Brazil law suit filed in October 2020 seeks not only an order to compel the federal government to comply with national climate law, but also the recognition of a fundamental right to a stable climate, for present and future generations, under the Brazilian Constitution. Finally, going beyond a solely anthropocentric legal rights focus, some lawyers are exploring how the rights of nature, frequently already in many indigenous peoples’ legal cosmovision, can help to reimagine priorities within the rule of law to protect forests ecosystems to exist and flourish. In December 2021, seven justices of the Ecuadorian Constitutional Court ruled that mining activities pursued by a state mining company and its Canadian partner threatened a protected region of the Ecuadorian rainforest and would violate the rights of nature under Article 71 of the country’s 2008 Constitution.

Making forest ecosystem destruction an environmental crime, and prosecuting those responsible, is another legal route being pursued by expansive climate conscious lawyers to prevent further devastation. Colombia in its 2021 environmental crime law made the act of deforestation, as well as its financing, illegal. Human rights lawyers are nevertheless concerned that law enforcers could target small scale farmers and indigenous peoples rather than multinational agro-forestry enterprises and illegal cartels thereby perpetuating historic injustices against marginalised peoples. Meanwhile in an unprecedented move, an Austrian environmental group, AllRise, filed a suit in October 2021 against the President of Brazil, Jair Bolsonaro, at the International Criminal Court, asking it to investigate whether his environmental policies and those of the administration constituted ecological crimes against humanity: commonly termed ecocide.

The need to reimagine how the rule of law values forests is clearly necessary if the world’s biodiverse and carbon rich ecosystems are to survive the anthropogenic planetary ecological crisis. The current rates of deforestation and degradation, especially in tropical forest regions, largely driven by unsustainable consumption, continues to exacerbate climate change, biodiversity loss and ecosystem degradation. So called climate change solutions like burning biomass for energy as a substitute for fossil fuels will only exacerbate the problem. Positive initiatives to reform investment, extraction, and trade rules, constitutionalise climate, environmental and nature rights as well as making participating in deforestation an environmental crime demonstrate there is a groundswell challenging the orthodox vision of forest ecosystem within the rule of law. Without doubt if the Paris Agreement targets are to be met, or at least any overshoot minimised, changes across multiple interconnecting legal fields impacting forest ecosystems and land use change need to be adopted much more rapidly than is currently the case. What can be celebrated, and a reason for cautious optimism, is that there are encouraging real world examples of an expansive changing climate consciousness driving the reimagining of forest ecosystems within the rule of law.