Forest Carbon Tenure in Asia-Pacific. A comparative analysis of legal trends to define carbon rights in Asia-Pacific
The complexities of the United Nations Framework Convention on Climate Change (UNFCCC) negotiations and Kyoto Protocol, highlighted several issues concerning the approaches to be adopted to use, promote and regulate the use of forests as carbon sinks, reservoirs, service providers and source of renewable energy.
Recently, inside and outside the UNFCCC negotiations, a series of efforts have begun to develop mechanisms for “Reducing Emissions from Deforestation and forest Degradation” (REDD+). The UNFCCC in Cancun (Mexico), held in December 2010, identified several areas where a balanced “package” of outcomes could be agreed. These issues include reducing emissions from deforestation and forest degradation in developing countries, including conservation, sustainable management of forests and enhancement of forest carbon sinks (REDD+). Those developments pose dilemma for decision-makers and legislators to establish how climate change mitigation and adaptation initiatives will have to address forest tenure issues in order to foresee, plan and distribute risks and benefits derived from carbon sequestration activities.
Most Asia-Pacific countries do not specify ownership of sequestered carbon. Presumably, ownership, or substantive use rights of forests should be the first step for determining the entity most likely to have rights to carbon sequestered by forests. This is particularly true in Asia-Pacific, considering that many forest-dependent communities reject the notion that carbon can be divided and sold separately from other forestry rights. Therefore, a clear understanding of forest tenure and ownership in Asia-Pacific should be the first step to determine who owns carbon (I). Carbon rights have been defined in different ways by international experts, and a comparative analysis of advanced legal frameworks in integrating specific provisions on carbon rights highlights the latest developments in this respect (II). As the majority of Asia-Pacific countries have not yet adopted specific definitions on carbon rights, identifying institutional responsibilities and instruments endorsed by Asian-Pacific countries with respect to forest carbon is a key element to articulate rights on carbon. (III). An in-depth analysis of the forest tenure legislation follows, focusing on the implications related to ownership or usufruct rights in carbon and benefit sharing mechanisms (IV). Finally, conclusive thoughts focused on national legislations and final recommendations pave the way for upcoming considerations to define carbon rights in Asia-Pacific (V).