With the decisions taken in December 2003 (COP-9) on the rules and modalities concerning forestry in the CDM, the basic questions in the international context have been resolved. In many cases, parties will want to adopt national legislation in support of these rules and modalities, or at least will want to review existing laws to assure consistency.
The lack of clarity before COP-9 slowed the development of forest GHG mitigation efforts. Some nations and individuals acted, but most decided to watch and wait.
Now the time to prepare for GHG mitigation is short. The Kyoto Protocol compliance period will begin in 2008 if the Protocol is ratified. Nations are supposed to be able to demonstrate progress by 2005. Given the time it takes to enact legislation, and the time it takes to grow trees or restore forests, national efforts to create procedural and institutional capacity must proceed without delay.
The time for legislators to act is now. Having a legal foundation for forest GHG mitigation projects will enable forests to play a positive role in UNFCCC compliance.
On the role of forests, the texts of the UNFCCC and the Kyoto Protocol are at best ambiguous and at worst contradictory. Besides the texts, drafters need to be familiar with the issues that the Parties have addressed and how the COPs have resolved disagreements about the role of forests.
Drafters need to analyse critically the legal responses of other nations. The self-serving descriptions of national responses produced by the Parties can distract readers from key questions. How much of this response represents true legal innovation? Are these innovations making a difference in people’s behaviour? In other words, what is new, and what works?
Drafters will need a basic understanding of the technical issues concerning forest mitigation. For example, how can carbon sequestration be measured and verified? Which carbon pools in a forest are important: just the trees, or also the litter, dead wood and soils?
Drafters need to be familiar with existing forest laws. Much of the legal response will build on existing law. The response may include programmes to protect forests from degradation or land-use change, reforestation and afforestation efforts, extension-style outreach, forest inventories and social forestry.
Some of the response may involve new areas, particularly if countries try to set up markets in tradable offsets or create new property interests. Issues may arise concerning insurance, liability or property transfer. Drafters may want to seek outside assistance when dealing with unfamiliar areas. Responding nationally to the nascent international climate change regime related to forests will require a major and integrated effort.
In the drafting of legislation, policy, politics, science and law sometimes all collide. The process is seldom simple. In the area of climate change and forests, the issues are particularly complex. But through forest law, nations have opportunities for creatively addressing one of the highest-profile environmental issues of our time. Innovative approaches could bring great rewards.