Are More Prescriptive Laws Better? Transforming REDD+ Safeguards into National Legislation

ABSTRACT

International schemes for financing conservation and climate mitigation, such as Reducing Emissions from Deforestation and Degradation and forest enhancement (REDD+), have generated concerns about the effect of large influxes of money on good governance, the human rights of local land users, and biodiversity. While there is agreement on the need for safeguards to prevent negative effects, how prescriptive or flexible those safeguards should be is not well understood. We develop a framework for a multi-scale comparison of the prescriptiveness of measures to reduce carbon emissions with safeguards for community rights and biodiversity, and apply this framework to international REDD+ safeguards and their transformation into Mexican law. Our findings reveal significant differences across substantive and procedural safeguards with positive and negative impacts on community rights. We also find that not prescribing ownership over forest carbon and de-bundling property rights from rights to benefit from ecosystems stewardship, helped overcome political conflicts in Mexico and enhanced the potential for equity in REDD+ outcomes.

1. INTRODUCTION

There is widespread debate over the appropriate level of prescription to ensure effective implementation of international environmental agreements, while respecting country-driven processes and local people’s environmental decision-making.¹ This dilemma has been particularly evident in the development of legal frameworks for Reducing Emissions from Deforestation and Degradation and forest enhancement (REDD+), a climate mitigation mechanism under the UN Framework Convention on Climate Change² (UNFCCC). REDD+ is a highly complex mechanism, involving not only the balance of power across international, national and local scales, but also the management of trade-offs among its goals of reducing carbon emissions while also safeguarding biodiversity and local welfare. This article draws on a case study of Mexico, to examine how these trade-offs are negotiated in the transformation of REDD+ into national legislation, and with what implications for the relative prescriptiveness and prioritisation of carbon, biodiversity social welfare.

A growing and diverse body of literature is emerging on national legal frameworks for REDD+ under the UNFCCC, and its associated environmental and social ‘safeguards’.³ For example, international legal studies have examined whether REDD+ social safeguards generate obligations for State and non-Sate actors to protect human rights by exploring their overlap with international human rights law.⁴ At the national level, REDD+ legal research has ranged from examining the legal aspects of safeguarding natural forests and biodiversity,⁵ to exploring the legal implications of REDD+ ‘result-based payments’, ie payments to countries for reducing forest emissions.⁶

Yet to date, little scholarly attention has been given to the actual socio-legal processes through which REDD+, or international environmental agreements more generally,⁷ are translated into national legislation and the implications this holds for its substantive goals of carbon mitigation and the safeguarding of biodiversity and local-level rights.⁸ The UNFCCC REDD+ safeguards give states a wide margin for interpretation and for determining the level of legal prescription needed to address them. Yet in spite of the uncertainties concerning the legal nature of REDD+ safeguards and associated obligations, Mexico has taken significant steps to translate REDD+ safeguards into national legislation, and interesting socio-legal processes and property-related innovative interpretations are emerging. In this article, we unpack how and why Mexican legislation is responding specifically to REDD+, who is influential in that response, and what different stakeholders see as the implications of this legislative response.

Our primary concern is understanding how REDD+ has been deliberatively interpreted and enacted by the Mexican legislature and the views of different stakeholders of this legislative response. Hence, we do not attempt to provide a comprehensive analysis of the entire Mexican legal framework⁹ of relevance to REDD+.¹⁰ Rather, we draw on a combination of written documents, focus groups and in-depth stakeholder interviews to analyse the dynamic interactions between international decisions on REDD+ and several pieces of Mexican legislation that were developed in direct response to these decisions.

The three research questions guiding this article are (1) what were the socio-legal processes involved in transforming REDD+ safeguards into national legislation?, (2) how did these processes shape the relative levels of ‘prescriptiveness’ of REDD+ legal frameworks across the issues areas of carbon, biodiversity and community rights?, and (3) what are the implications this holds for community rights and benefits?

In order to address these questions, we first briefly describe the emergence of REDD+ and the international debates over REDD+ environmental and social safeguards. We then introduce our analytical framework for comparing the ‘prescriptiveness’ of REDD+ legal frameworks across scales and across the issues areas of carbon, biodiversity and community rights and welfare. Finally, we analyse a range of Mexican stakeholder perspectives, selected legal documents and the existing literature, to consider the implications of these levels of REDD+ prescriptiveness for local community rights and benefits.

2. A BRIEF OVERVIEW OF REDD+

REDD+ is a climate mitigation mechanism under the UNFCCC designed to pay developing countries for the carbon emissions avoided through a reduction in forest loss. Given that forest loss accounts for an estimated 12–20% of global anthropogenic greenhouse gas emissions,¹¹ it has been estimated that for REDD+  to play a significant role in reducing global emissions it must halve global forest loss by 2020 at an estimated cost of USD $18–$26 billion.¹² In other words, REDD+ proposes a rapid transfer of funds and the transformation of rural development in forested areas across the developing world.

In response to these ambitions, concerns have emerged about the effect of large influxes of REDD+ money on forest governance, the rights of local land users and biodiversity. These include fears that government and/or corporate interests will consolidate their control over land use decisions, engage in ‘land grabs’ that dispossess local communities and indigenous peoples and/or that natural forests will be converted to carbon plantations with negative effects on biodiversity.¹³ Various authors¹⁴ have highlighted the importance of taking into account national and local contexts when assessing the potential and actual impacts of REDD+  activities, and the implications of the associated legal frameworks for social equity.¹⁵ In response to such concerns, REDD+  ‘safeguards’ have been adopted under the UNFCCC with the aim to ensure broader positive environmental and social outcomes beyond forest carbon objectives.¹⁶

However, the question of who should define REDD+  safeguards, at what level, and with what degree of prescription or flexibility, is still very much under dispute. The seven international safeguards agreed in Cancun¹⁷ are quite broadly worded, addressing general principles such as consistency with existing agreements, good forest governance, respect of the knowledge and rights of indigenous peoples, stakeholder participation, the conservation of biological diversity and natural forests and enhancement of social benefits and actions to address the risks of reversals and reduce the displacement of emissions. Furthermore, in Cancun it was decided that safeguards should be ‘country-driven’, involving the development of ‘systems for providing information’ on how the safeguards will be addressed and respected. In contrast to these very generalised international safeguards under the UNFCC and guidelines for safeguards under the Convention for Biological Diversity (CBD)¹⁸, international rules for the monitoring, reporting and verification of forest-related carbon emissions under the UNFCCC have become relatively more detailed and precise.¹⁹

As the international legal framework for REDD+ continues to evolve, there have also been substantial and parallel efforts at the national level to operationalise national priorities for REDD+. This is certainly true in our case study country of Mexico, where significant efforts have been invested in developing legislation for REDD+ and its associated safeguards. However, the coherence of such legislation and how it should be implemented and verified is heavily contested. Furthermore, there is a long history of conflict and distrust among local and indigenous peoples towards governmental institutions and private international enterprises involved in Mexico’s governance of socio-ecological systems.²⁰ On the one hand, prescriptive safeguards might appear to protect the interests of these communities. But on the other, it is not clear if an escalation of purely prescriptive REDD+ safeguards will empower or constrain local actors in defining and operationalising their own social and environmental objectives. The following section introduces our analytical framework as a means to better inform these discussions by identifying multiple dimensions of prescriptiveness each of which may have different impacts on the relative empowerment of different actors at different scales.

3. THEORETICAL FRAMEWORK FOR ASSESSING PRESCRIPTIVENESS

Our assessment of prescriptiveness draws on the literatures on ‘legalization’ in international relations, ‘prescriptiveness’ in state and non-state forest governance, and legal literature on human rights. Firstly, our framework utilises Abbott and others system for classifying levels of ‘legalization’ associated with international agreements.²¹ This system identifies three dimensions of legalisation, consisting of obligation, precision and delegation.²²Obligation refers to the legally binding or non-binding nature of the policy; precision refers to the level of policy specificity along a range from vague principles to precise, highly elaborated rules; and delegation refers to measures to foster implementation ranging from diplomacy to enforcement via courts of law. All of these dimensions together determine the degree to which policies prescribe and enforce particular actions or allow flexibility in their interpretation and implementation.

Similarly to Cashore²³ and McDermott and others,²⁴ we prefer the term ‘prescriptiveness’ to that of ‘legalization’, because we find the former more universally applicable to mechanisms such as REDD+, which continue to be defined and enforced at multiple scales involving a wide range of state and non-state institutions with varying legal standing.²⁵ However, our definition of prescriptiveness differs in some ways. While we similarly distinguish between mandatory (or binding) rules and voluntary guidelines, our framework also incorporates the dimension of delegation. Furthermore, the Cashore²⁶ and McDermott and others²⁷ framework defines a distinction between ‘substantive’ rules involving precise environmental performance requirements and ‘procedural’ rules involving planning and other processes-based requirements, and classifies the former as more prescriptive than the latter. We argue that this approach is not appropriate for addressing issues of human rights and benefits. The specification of REDD+ related duties especially of the State, and the way associated rights of individuals and groups are recognised in law are important for understanding how REDD+ related legislation affects the possibilities of people to benefit from ecosystems and biodiversity.

Instead we then draw on the distinction between substantive and procedural law as defined in the literature on human rights. Based on this understanding, substantive safeguards define human rights and duties while procedural safeguards entail processes and means for making effective and enforcing those rights and duties. Consistent with Shelton,²⁸ Ebbesson and Hey,²⁹ and Ituarte-Lima and others³⁰ we view substantive and procedural dimensions of law as inherently interlinked.³¹ Moreover, they may conflict, for example Shelton³² notes that procedural guarantees of information and political participation which have been interpreted and extended specifically to cover environmental decisions, can only effectively protect the environment if coupled with substantive regulation. Thus in assessing the level of precision (the second dimension of the Abbott and others framework)³³ we assess precision regarding both substantive and procedural rights and duties. For example, substantive rules might address the allocation of legal rights to forest carbon, or define community land rights. A procedural rule, on the other hand, might require ‘free, prior and informed consent’ (FPIC) from indigenous and local people before implementing REDD+ activities that affect their rights.

The above set of conceptual distinctions together provide the framework for our classification of REDD+ legal provisions according to levels of prescription at the international and national levels, the latter applied to our case study in Mexico. Having thus identified levels of prescriptiveness, we draw on stakeholder perspectives and existing literature to examine positive and negative implications of the current adopted REDD+ safeguards reforms in Mexico for community rights and possible benefits and risks under REDD+.

4. METHODOLOGY AND CASE STUDY

Environmental law scholarship requires a process of critical reflection and applying a suitable framework for engaging with the actual socio-legal issues facing a legislature. This can require mapping distinct actors, norms and regimes involved, and analysing detailed information which may appear in novel forms and come from diverse sources.³⁴ In this study it included examination of legal documents emerging from international sources such as the UNFCCC Conference of the Parties Decisions relevant for the translation of REDD+ safeguards into national legislation, as well as relevant legal documents at the national level in Mexico. The legislature debates transcribed in the Legislative Gazette were also used to reveal the political processes and dilemmas faced in the Deputies Chamber when translating the Cancun safeguards into national law.³⁵ The policy documents coming from the executive, and in particular the Ministry of the Environment and the Forestry Commission, serve to examine the associated challenges in the implementing of the safeguards reform. We did not analyse court cases as there has not yet been any court case based on the analysed legal reform. Our mixed methods approach also includes a socio-legal analysis of the law-making processes and different stakeholders’ perceptions on the content of the law and the implications of its implementation. Most of the data collection for this study occurred between February–April 2013 and January–April 2014 and January–March 2015. This article forms part of two broader projects and we have included here a specific sub-set of the results.³⁶

The choice of Mexico as our national case study, as well as our selection of a subset of Mexican legislation on which to focus, are motivated by the following reasons. Firstly, 80% of Mexico’s forest area belongs to ejidos and indigenous communities who collectively manage the forest,³⁷ making the issue of the impacts of safeguard prescriptiveness on forest communities of central importance to REDD+ implementation. As specified by the Mexican Agrarian Law 1992 (last reform 2012) (see Article 22 and Article 10), ‘ejidos’ are groups of people who hold a combination of communal and individual land rights and participate in collective land and resource management systems through ejidos assemblies (Asambleas) and ‘internal regulations’ (reglamentos internos). The communal nature of this type of land property rights is a particular characteristic of Mexican agrarian law. Secondly, Mexico was the country host for the UNFCCC Conference of the Parties in which the Cancun REDD+ safeguards were agreed, and played an important role in their development.³⁸ And finally, Mexico has enacted a set of three legal reforms that can be directly linked to REDD+ and its associated safeguards. As identified by Carrillo and Velazco these three key laws ‘constitute the applicable legal framework for land use, forests and the REDD+ mechanism’.³⁹ They are the Ley General del Equilibrio Ecológico y Protección al Ambiente (hereafter referred to as the national general environmental law), Ley General de Desarrollo Forestal Sustentable (hereafter referred to as the national forest law) and Ley General de Cambio Climático (hereafter referred to as the national climate change law).

These three key pieces of legislation are of course not the only legal instruments of relevance to REDD+ implementation. For example, Rey and Rivera⁴⁰ refer to the need to consider the critical role of constitutional provisions referring to human rights (Article 1) and rights of indigenous peoples (Article 2). However, only the 2012 reforms to the national forest law (including Article 134 bis) and to the national general environmental law were adopted as a response to the REDD+ Cancun safeguards. Article 134 bis, a new article included in the national forest law, states that legal instruments and environmental policy regulating environmental services, must guarantee the respect of safeguards recognised by international law and also includes seven specific safeguards numbered in roman numerals; we will discuss some of these safeguards, including the respective roman numerals later in this article.

Echoing this point, Avila and Lira⁴¹ consider that the 2012 reforms to the national forest law were based on the safeguards recognised by international law, established in the Cancun Agreements (COP16), and serve as explicit mechanisms for the defence and respect of the rights of social groups involved in ecosystem services policies or projects which include REDD+.

For these reasons, our socio-legal analysis of the process of REDD+ safeguards development in Mexico focuses on the reform of the national forest law and national general environmental law. In addition, our assessment of prescriptiveness includes the national climate change law 2012, as the third key piece of REDD+ legislation.⁴² Our approach in analysing stakeholder perspectives was to use qualitative methods in order to gather a rich array of views on Mexico’s REDD+ legal reforms, and its implications for local forest communities. Specifically fieldwork consisted of 68 semi-structured interviews and 10 focus groups, as well as participant observation in national and subnational REDD+ related meetings in Mexico. Snowball sampling was used to identify interview and focus group participants from among the organisations and agencies involved in REDD+-related safeguarding activities in Mexico. We combined detailed legal analysis with information from in-depth interviews of two categories/layers of stakeholders: (1) key actors in drafting the safeguards reform resulting from the Cancun REDD+ safeguards; and (2) relevant stakeholders involved in the institutional arrangements being developed by the executive to operationalise the reform, and perspectives on the impact of levels of prescriptiveness on local communities. The selected interviewees included people from governmental organisations (legislature and executive) as well as civil society organisations (local, national and international). All the interviews and focus groups were conducted face-to face, and most were conducted in Spanish. The interview and focus groups data were then coded and responses compared across stakeholder groups.⁴³ All quotes have been translated from Spanish.

The combination of the above-mentioned methods with the application of our conceptual framework on levels of prescriptiveness (see Section 2) allowed us to examine the combination of the legalities and politics involved in the process of drafting and implementing national legislation aiming to translate international safeguards to national contexts.

5. THE DYNAMIC LEGAL STATUS OF REDD+ SAFEGUARDS

5.1 Levels of prescription in the international REDD+ mechanism

At the international level, REDD+ has continuously evolved, with the resulting degree of prescription varying considerably across the dimensions of legalisation identified by Abbott and others,⁴⁴ as well as between the treatment of carbon versus biodiversity and social safeguards. In general, the participation of developing countries in REDD+ is voluntary, and hence the level of obligation regarding carbon emissions reduction and associated safeguards is low. However, the precision of international rules governing forest carbon is high. Parties to the UNFCCC have agreed that reference levels and carbon budgets will be calculated at the national level and that national governments will have authority over the dispersal of financial compensation for reducing emissions, creating a relative high level of precision regarding the substantive carbon-related rights and responsibilities of national governments.⁴⁵ In regards to procedural rights, requirements for monitoring, reporting and verification (MRV) of emissions are even more precise. While important uncertainties remain, such as exactly how the reported emissions reductions will be linked to REDD+ payments, the overall level of prescriptiveness regarding carbon stands in strong contrast to that of social and biodiversity safeguards.⁴⁶

The Cancun REDD+ safeguards are generally quite vague in their requirements and legal consequences regarding biodiversity and social welfare.⁴⁷ Likewise other UNFCCC-COP Decisions do not provide very detailed guidance on REDD+ safeguards. For example, guidance is lacking on what evidence and details countries shall provide to prove compliance with safeguards and how such evidence should be gathered, verified or reported.⁴⁸ However, there are two partial exceptions to the vague requirements regarding social welfare. The first is the reference to the UN Declaration on the Rights of Indigenous Peoples 2007.⁴⁹ A core element of this declaration, and one that is often emphasised in the context of REDD+, is a relatively well-defined procedural requirement for Free, Prior and Informed Consent (FPIC) from indigenous peoples before conducting activities that impact indigenous peoples rights. In the context of the Cancun safeguards, these rights to FPIC are expanded to include both indigenous peoples and non-indigenous local communities. However the reference of the REDD+ safeguards to the Declaration is rendered less precise through use of the discretionary term ‘taking into account’.⁵⁰ A second exception is that the UNFCCC Cancun Agreements make a general reference to human rights (ie not specific to REDD+), stating that UNFCCC parties ‘should in all climate change related actions, fully respect human rights’.⁵¹

In regards to delegation, Abbott and others’s third dimension of legalisation, the UNFCCC Warsaw Framework⁵² agreed on a system of country self-reporting of emissions reduction combined with international technical assessment of country forest reference levels or reference emissions levels and of country self-reports.⁵³ In regards to the REDD+ safeguards, REDD+ countries applying for financial compensation for forest emissions reductions must simply report on how they are recognising and respecting the Cancun safeguards, and there is as yet no process for international assessment of this report.⁵⁴ Hence, the high delegation in terms of carbon emissions reduction involving international technical assessment of the respective country reference levels and reports, contrasts with the low delegation in terms of countries providing information on how they are addressing social and biodiversity safeguards.

Figure 1 below visualises the distinct elements of the conceptual framework that in combination determine the level of prescriptiveness while Table 1 below summarises the above-mentioned findings on the relative prescriptiveness of REDD+ carbon, biodiversity and social safeguards under the UNFCCC.

Table 1.

Relative prescriptiveness of REDD+ carbon, biodiversity and social safeguards at the international level under the UNFCCC

	Obligation	Precision		Delegation
		Substantive	Procedural
Carbon	Low (REDD+ is voluntary)	High (Specific authority granted to national governments to determine reference levels, carbon budgets, carbon rights)	High (Detailed monitoring, reporting and verification requirements)	High (International review process to verify emissions reductions)
Social	Low (REDD+ is voluntary)	Low (Generalised language on social benefits; general reference to human rights (i.e. not specific to REDD+)	Variable (Reference to the UNDRIP including free, prior and informed consent yet with discretionary term “taking into account”; general reference to human rights (i.e. not specific to REDD+))	Low (International review process unspecified)
Biodiversity	Low (REDD+ is voluntary)	Low (Generalised language on protection of biodiversity)	Low (No defined process for determining biodiversity impacts)	Low (International review process unspecified)

Figure 1.

Elements in assessing levels of prescriptiveness

Source: own elaboration.

4.2 Transforming REDD+ Safeguards into National Legislation in Mexico

The REDD+ legal framework in Mexico has developed within a highly dynamic policy environment, both internationally and nationally. It is within this evolving international context that Mexico has been developing its own legal interpretation of REDD+ and associated safeguards. Mexico has been a party to the UNFCCC since 1992 and has opted to participate in REDD+. As a step towards implementation of this decision, Mexico has developed a REDD+ Vision⁵⁵ and a Draft REDD+ Strategy (ENAREDD+) which is now under public consultation.⁵⁶

Meanwhile a confluence of events, including the location of the UNFCCC COP 16 in Cancun, Mexico, civil society organisations in Mexico highlighting the importance of safeguarding forest community rights in REDD+ such as ‘Las comunidades cuentan más’ (Communities count more);⁵⁷ and the REDD+ Consultative Technical Body,⁵⁸ created a momentum in the Mexican legislature to take the lead in transforming UNFCCC-COP Decisions relating to REDD+ into national law. As mentioned earlier, core strategies that they used to achieve this were to enact reforms to the national forest law in Mexico and the national environmental law in order to comply with REDD+ related commitments under the UNFCCC. Part of this strategy also include the enactment of the national climate change law.

An important step in building this momentum in the legislature, was the formalisation of the Global Legislators Organisation (GLOBE) Mexico. GLOBE is an international organisation which brings together politicians and lawmakers, across party lines, to advance practical action on sustainable development.⁵⁹ GLOBE Mexico is part of this organisation an consists of a collaborative network of 40 legislators from both Deputies and Senators Chambers and from all political parties which focused on developing Mexican strategy and legislation on REDD+.⁶⁰ The existence of GLOBE Mexico also facilitated civil society involvement, with members of the Mexican Centre of Environmental Law and forestry and rural organisations interacting with GLOBE Mexico in order to influence the REDD+ legal reforms.

The UNFCCC COP17 in Durban also appears to have helped catalyse support within the legislature. An interviewee participating in the drafting of the REDD+ safeguards reforms working for the Deputies Chamber, who is also part of an international legislators’ organisation, mentioned:

On 6^th December, 2011, when (UNFCCC) COP17 in Durban in South Africa was taking place, the Deputies Chamber votes the reforms and adopts them unanimously. That was great news for Durban because it was as if saying, while here (COP17) the topic is stagnated, the national congress of a relevant country in the field, such as Mexico, is showing that decisions can indeed be made, is showing the way. So that's why I say that it is through political means that, these things can be escalated, placed higher in the agenda.⁶¹

The high level of legislative commitment to REDD+ is mirrored in the following diary of legislative debates, which refers to commitments derived from REDD+ safeguards agreed at COP16, using the non-discretionary term ‘must’:

In Cancun, Mexico, during the COP 16, parties to the UNFCCC adopted the Cancun Agreements, which are decisions of the COP that States must follow. The Cancun Agreements promoted by the Government of Mexico… Subsection C on Long-term Cooperative Agreements Cancun, sets policy approaches and positive incentives on issues relating to REDD + … states that the implementation of the actions listed must be carried out taking into account the safeguards set out in paragraph 2 of Annex I of the document referred (emphasis added).⁶²

In addition to momentum from UNFCCC-COP negotiations, the legislature’s interest in incorporating safeguards could also be traced to their relevance to other priorities which preceded REDD+. The minutes of debates of the legislative, and interviews with members of the drafting group of the reform, also refer to the rationale of this law as a means of operationalising other binding legal provisions that were a priority of key legislators at the time; these included constitutional rights concerning local communities and indigenous peoples (Mexican Constitution 1917, Article 2) as well as natural resources and environmental provisions (Mexican Constitution 1917, Article 27).⁶³ The net result, was that the legislature succeeded in pushing through legal reforms for REDD+ and associated safeguards that contained a high degree of obligation, ie that were legally binding.

This high degree of obligation of the Mexican REDD+ legal reforms does not mean they had a high level of precision of carbon, biodiversity and social safeguards as we will see in the next section.⁶⁴ A member of the drafting group of the safeguards reform considered that the lack of regulatory detail or precision in certain areas responded to political timing together with legal considerations:

The safeguards reform (to the Forest Law) is very general, which is a double-edged sword … we thought of it in that way: it does not say, it does not bring much idea on how to implement the eight safeguards, it does not say how to distribute benefits, or how we will achieve gender equity, or how free, prior and informed consent will be implemented. But I think it would have been very risky and irresponsible in so little time trying to get into that level of detail, remember that we had to seize the moment … we (also) think that there are aspects that should be further developed by Agrarian Law, or by internal regulations of each ejido and community. So in that sense it remains short, or a little general or vague.⁶⁵

The responsible institutions for implementing REDD+ -the delegation dimension in the Abbott and others framework⁶⁶—may be distinct for carbon activities and social safeguards. For identifying the respective responsibilities of the Ministry of Environment and Natural Resources (Secretaría de Medio Ambiente y Recursos Naturales, SEMARNAT) and the National Commission on Forests (Comisión Nacional Forestal, CONAFOR) in particular, interviewees highlighted that it is important to consider both pre-existing responsibilities and new attributions derived from the legal reform.⁶⁷ The operationalisation of carbon MRV is delegated to SEMARNAT as head of sector and to CONAFOR for the specific natural resources regulated. Among the pre-existing responsibilities of SEMARNAT are to ‘formulate and conduct national policy regarding sustainable forest development and ensure consistency with national environmental and natural resource policy, as well as policy related to rural development … ’ (national forest law, Article 16 I) and of CONAFOR to design and operationalise economic instruments on forestry issues (national forest law, Article 22 IV) and the National Forest and Soils Inventory (national forest law, Article 22 VI). The reform prescribes to include the MRV System information in such Inventory. In the legal reform, national forest law, Article 45 IX and article transitory 2nd explicitly refer to MRV, and hence to the role of CONAFOR, in evaluating and systematising the reduction of emissions from preventing and combating deforestation and degradation of forest ecosystems. Finally, the national climate change law delegates the authority to SEMARNAT to develop the national registry of greenhouse emissions, into which the MRV registry is to be incorporated (Articles 87 and 90). The national climate change law also includes general provisions that the Federal Government, State Governments, and municipalities should collaborate in reducing emissions and sequestering carbon from agriculture, forests and other land uses, as well as in preserving ecosystems and biodiversity (Article 34.1).

In contrast to the above prescriptions concerning carbon, the delegation for the operationalisation of safeguards is not as clearly defined. The distinct topics mentioned in Article 134 bis, such as indigenous peoples’ rights, appear to open space for more public organisations and associated consultative councils being involved and being delegated some implementing authority.⁶⁸ In the Draft ENAREDD+, the Consultative Council of various institutions are mentioned including those of the National Commission for the Development of Indigenous Peoples and of the Natural Protected Areas. This could include contributing to the development of the National Safeguards System which contains the Safeguards Information System mentioned in the Draft ENAREDD+.⁶⁹

Various stakeholders in Mexico have highlighted that the Safeguards Information System (which is the REDD+ requirement under the UNFCCC) would be insufficient to ensure safeguards’ implementation and have called for the development of a National Safeguards System (NSS).⁷⁰ Yet, it is only recently that the government acknowledged that having a SIS is not itself sufficient, and has recognised the need of a national safeguard system. In the version of November 2014 of the Draft ENAREDD+, it is the first time that the ENAREDD+ includes the SNS, as the institutional arrangement delegated to guarantee compliance with the safeguards.⁷¹ CONAFOR has identified a legal framework, an institutional framework, and a compliance framework as the three main components to be part of the NSS.⁷² However, no specific governmental organisations are yet delegated to develop and implement such NSS.⁷³ The transformation of the UNFCCC requirement of a REDD+ Safeguards Information System into a NSS would be a country-specific institutional innovation catalysed by international and national dynamics as well as governmental and non-governmental interactions.

In sum, the REDD+ safeguards received strong support within Mexico’s legislature which resulted in their incorporation into legal reforms. Thus, according to the Abbott and others framework,⁷⁴ the overall approach to safeguards in the Mexican context involved high levels of obligation. Delegation of authority for operationalising REDD+ varies across carbon (MRV) and safeguards, the former being more clearly prescribed than the latter. As for the level of precision, as indicated by the quote directly above, it was limited in certain areas. In order to assess just how limited, and in what ways, the next section examines the legal reforms to national forest law and to national general environmental law and the national climate change law, to determine the relative precision of carbon, social and biodiversity provisions.

6. CLASSIFYING LEVELS OF PRECISION IN THE NATIONAL FOREST LAW AND NATIONAL GENERAL ENVIRONMENTAL LAW LEGAL REFORMS, AND SELECTED PROVISIONS FROM THE NATIONAL CLIMATE CHANGE LAW

Among the definitions of key terms under the national forest law reforms that are significant for REDD+ are: XII. Deforestation: Loss of forest vegetation, by natural or induced causes, to any other status; and XIII. Degradation: Process of decreased ability of forest ecosystems to provide environmental services and productive capacity. The national forest law definitions are less precise in terms of climate related issues and cause of degradation than the definition of ‘Degradation’ under the General Law of Climate Change 2012 under Article 3. The latter defines degradation as ‘the reduction of carbon in the natural vegetation [or reduction in] ecosystems services due to human intervention, in relation to the same vegetation, ecosystems or soil, [than would be present] if the intervention had not happened’.

The national general environmental law reforms also incorporate a new definition of ecosystem services, a concept of direct relevance to both carbon and biodiversity. The national general environmental law definition of environmental services can be interpreted to encompass climate and biodiversity benefits generated by ecosystems: ‘Environmental services: the tangible and intangible benefits generated by ecosystems, necessary for the survival of the natural and biological system as a whole, and to provide human benefits’ (Article 3 XXXVI.). This definition is similar to the pre-existing environmental services’ definition in the national forest law. The national general environmental law remains relatively more general and less precise than the national forest law definition;⁷⁵ while the national forest law explicitly acknowledges climate-related and biodiversity environmental services, this is implicit in the new national general environmental law definition.

While the definition of ecosystem services in the national general environmental law reform is not very precise, its Article 134 bis implies a high degree of legal obligation to respect international safeguards. Specifically, that article states that ‘Legal instruments and environmental policy for regulating and promoting the conservation and improvement of environmental services, must guarantee the respect of safeguards recognized by international law (emphasis added)’. The legal reforms also expressly define a set of social and biodiversity safeguards. These safeguards contain substantive and procedural dimensions that differ in their levels of precision across issue areas.

The social substantive safeguards included in the reforms have a medium level of precision. In terms of substantive provisions related to property rights, the safeguards reform does not refer explicitly to property over carbon, but to property rights over natural resources in general. It also de-bundles property rights by distinguishing between property rights for possession and access, respectively: ‘Certainty and respect for property rights and legitimate possession and access over natural resources’(Article 134 bis III) as well as the rights to receive benefits. Article 134 bis also specifies the right holders of the above mentioned rights: ‘owners and legitimate possessors of forest land’ as well as the corresponding responsibilities: ‘sustainable forest management’ and ‘maintain and/or improve environmental services’. Like social substantive safeguards, procedural social safeguards also have a medium level of prescription. Article 134 bis, recognises the right of FPIC. The holders of this right are specified as ‘ejidos, communities and indigenous peoples’. The responsibilities of FPIC right holders are not specified.

In contrast to the relatively imprecise approach to defining ecosystem services and the medium precision of social substantive and procedural safeguards, the reform is highly precise in terms of the procedural provision referring to REDD+  MRV for forest carbon. Indeed, the provision concerning information regarding MRV for REDD+ has the highest level of precision in the reform. Executive’s duty is expressed with no discretionary terms. The authorities within the Executive in this case are the Ministry of Environment and Natural Resources (Secretaría de Medio Ambiente y Recursos Naturales, SEMARNAT) and the National Commission on Forests because they are delegated authorities for the MRV for REDD+. Using the term ‘must’, the legal reform prescribes the Head of the Federal Executive’s power to implement a MRV system for REDD+. A temporal element for complying with such prescription is also clearly established in that in no more than three years after the national forest law reform has been published in the National Gazette, this MRV system needs to be implemented.⁷⁶ Article 45 of the national forest law prescribes (the term ‘must’ is also used) detailed information concerning forest degradation and deforestation must be included in the National Forest and Soils Inventory. This article was already highly precise by including also a temporal element, specifically that the Inventory should be updated at least every five years. The national climate change law also prescribes the inclusion of an MRV system in the National Emissions Registry in order to ensure precision, consistency and transparency (national climate change law Article 90). Further precision on MRV rules and procedures are established in the regulation (reglamento) of the national climate change law on the national registry of emissions⁷⁷ in line with the national climate change law (Articles 76 and 77). In addition, the national climate change law requires the establishment of a reference base line for each sector (Article 31).

Table 2 below summarises these varying levels of prescriptiveness. We categorise the levels of prescription in three distinct Columns: Column C contains the least precise level as it is only includes definition of key terms relevant for the regulation of ecosystem services, (ie what is being regulated). Column B is relatively more precise than Column C in that besides the definition of ecosystem services, also rights and/or duties and rights holders are specified. Column A has the highest level of precision as it includes definition of key terms, the specification of rights and/or duties; holders of rights and/or duties as Column B, and also specifies a timeline for action.

Table 2.

Levels of prescriptiveness of provisions in the 2012 reform to the general forest law (LGDFS) and to the national general environmental law (LGEEPA), and in the general climate change law (LGCC)

	A. Highest	B. Medium	C. Low
Level of obligation
	The reforms are legally binding.
Level of delegation
	Overall: The reforms are to be operationalised through the executive branch. Environmental Ministry and CONAFOR explicitly responsible to operationalise carbon MRV.	For safeguards: Level of delegation to Environmental Ministry and CONAFOR to operationalise safeguards not as clear as for carbon MRV. Other public authorities also implicitly delegated to implement safeguards.
Level of precision
Carbon
Substantive			‘Environmental services’ definition under LGEEPA does not explicitly refer to carbon sequestration (art XXXVI). ‘Degradation’ definition under the LGDFS does not explicitly refer to carbon sequestration (art 7). Rights to carbon undefined.
Procedural	Monitoring Reporting and Verification System with a precise timeline (art 45 LGDFS). MRV system part of the National Emissions Registry (LGCC art 90) and further precision will be established in the regulation (reglamento) for LGCC (LGCC arts 76 and 77)
Social safeguards
Substantive		Rights to Equitable distribution of benefits from environmental services to owners and legitimate possessors of forest land (art 133 and 134 BIS LGDFS).	‘Environmental services’ definition explicitly refers to benefits generated by ecosystems necessary “to provide human benefits” (LGEEPA, art 3 XXXVI).
Procedural		FPIC: Right of ejidos, communities and indigenous peoples to free, prior informed consent (art 134 BIS LGDFS).
Biodiversity safeguards
Substantive			‘Environmental services’ definition explicitly refers to benefits generated by ecosystems, ‘necessary for the survival of the natural and biological system as a whole’ (LGEEPA, art 3 XXXVI) Prioritisation of No new biodiversity rights/duties explicitly mentioned.
Procedural: No additional level of precision

7. IMPLICATIONS OF THE PRESCRIPTIVENESS LEVEL OF THE SAFEGUARDS LEGAL REFORM FOR LOCAL COMMUNITIES: PERSPECTIVES FROM DIFFERENT STAKEHOLDERS

The following section, analysing the relationships between levels of prescriptiveness and community rights and wellbeing, is divided into the distinct elements of prescriptiveness (ie obligation, delegation and precision)

7.1 Obligation

Interviewees from civil society were generally supportive of the incorporation of safeguards into Mexican national law, ie its level of legal obligation, because they saw it as guaranteeing the permanency and continuity of safeguards.⁷⁸ For example, it was argued that by incorporating the safeguards into legal reform they would no longer depend on the will of the government (executive) because now government has a legal mandate to consider safeguards. Yet, limitations of using the safeguards language in the legal reform were also highlighted. For example, there was concern that this would risk watering-down human rights recognised in the Constitution and international human rights treaties relevant for communities.⁷⁹ In a focus group and in some interviews, some participants questioned the value of making instruments such as REDD+ and associated safeguards more precise when there is still no social agreement on the root causes of socio-ecological problems. As evidence of this, they pointed to existing public policies supporting extractive industries including subsoil resources extraction that weaken the control of forest-dependent people over their territory.⁸⁰ Likewise, the absence of an explicit recognition of local values and definitions concerning socio-ecological systems, embedded in consuetudinary norms of local and indigenous peoples, was also identified as a limitation of the legal reform.⁸¹ Local interviewees revealed low recognition or awareness of REDD+ safeguards, per se.⁸² Furthermore, various interviewees highlighted the important challenges that will be faced in ensuring the proper implementation and enforcement, or ‘delegation’ in Abbott and others framework,⁸³ of the legal reforms.

7.2 Delegation

Stakeholder interviews also served to highlight how delegation, a dimension of prescription, operates in practice. For example, one interviewee argued that REDD+, as a mechanism, should be regulated by the executive and not prescribed by the legislature. Yet, this interviewee supported the REDD+ legal reform considering Mexico’s special political circumstances and dynamics between the legislative and executive public authorities, specifically because the legal reform mandates the executive to operationalise REDD+ (ie it is not up to the executive to decide whether or not to operationalise REDD+). The REDD+ draft strategy developed by the executive refers explicitly to Article 134 bis of the national forest law.⁸⁴

Among the delegated authorities from the executive to operationalise REDD+ is CONAFOR. The way this delegated authority is being operationalised as well as the process of consultation of ENAREDD is contested among certain actors. While the REDD+ draft strategy puts forward that REDD+ in Mexico should focus on sustainable rural development and the participation of a wealth of actors, some stakeholders consider that community participation in the ENAREDD+ has been limited.⁸⁵ In the preceding information meetings to the consultation of the ENAREDD+, some stakeholders considered that this was not what is happening in practice. In particular, they questioned whether CONFOR was the suitable delegated institution to conduct the consultation and argued that there were relatively few regional forestry organisations which were being asked to speak on behalf of the breadth of the potential local stakeholders affected by REDD+.⁸⁶

7.3 Precision

As outlined in Table 2 above, the Mexican REDD+ legislation varies significantly in its level of prescription for carbon and the social and environmental safeguards. Its treatment of carbon is highly non-prescriptive in regards to substantive rights, while much more prescriptive in regards to procedural obligations for MRV. The social safeguards are of medium prescriptiveness and the biodiversity safeguards are the least prescriptive. The following analysis of stakeholder perspectives suggests that understanding the implications of these differing levels of prescription requires considering how they interact as a whole.

7.3.1 Carbon rights

Firstly, and very importantly, some interviewees saw the lack of a substantive definition of carbon rights as having positive implications for local communities.⁸⁷ For example, one interviewee argued that this placed the national forest law legal reform at the forefront of REDD+ related legislation because it served to de-bundle the property over carbon from property rights over natural resources. Likewise, this interviewee identified a further ‘de-bundling’ present in the reform through the disaggregation of rights of property, possession, access over natural resources and rights to receive benefits associated with environmental services (134 bis, national forest law). The interviewee argued that having the rights over benefits can be even more important to having rights over land. In illustration of this point, the interviewee pointed to the example of the Natural Reserve in which ejidos may have the rights over land but cannot obtain the benefits from it. The interviewee mentioned:

If we had addressed the issue of property over carbon, the proposed reform would not have been approved…instead of trying to regulate the entire right over property we started regulating certain aspects in particular…any economic benefit from an ecosystem services project ought to go to the owner of the land…who are in majority ejidos, communities and/or indigenous peoples… it goes beyond who is the carbon owner, who is the property owner.⁸⁸

The decision to focus not on rights to carbon, but on rights to equitable benefit sharing as now articulated in Article 134 bis II, constitutes a merit based approach, where the level of economic benefits received are to be determined by the contribution of owners and legitimate possessors of forest land to maintaining and/or improving environmental services. The de-bundling of property rights thus technically guaranteed social benefits to land owners and people in legitimate possession of land who contribute to the provision of ecosystem services.⁸⁹

7.3.2 FPIC

The minutes of debates of the Deputies Chamber shows how some Deputies referred to the contribution of communities and indigenous people to forest ecosystem services and linked the discussion of the substantive safeguard on property rights to the procedural safeguard of FPIC which is now covered under Article 134 bis I:

We want to provide legal certainty to these mechanisms so they become in favour of the communities and indigenous peoples, owners of the countries’ forest land who have conserved them. But these mechanisms need to respect and strengthen their rights, the free, prior informed consent must be the basis for its inclusion.⁹⁰

Another interviewee noted the specific collective nature of the FPIC right.⁹¹ This right of FPIC is collectively held by indigenous peoples, local communities or ejidos. In this sense, it differs from the previous substantive right to receive benefits, which is not limited to these groups.

An interviewee highlighted how the safeguard on FPIC in Article 134 bis effectively expanded the right to FPIC from its original application to indigenous peoples in the Mexican Constitution to include local communities and ejidos.⁹² Interviewees and the interventions in legislative debates recognised that many ejidos and local communities include indigenous peoples. Nevertheless, extending the FPIC right to ejidos and local communities has, in the view of these interviewees, significant implications for operationalising FPIC. Although indigenous peoples have historically demanded to be recognised as subjects of law (eg see San Andres Accords),⁹³ the Constitution considers them a ‘subject of public interest’ differing from ejidos and local communities which are subjects of law and hence have legal personality.⁹⁴ Also differing from indigenous peoples, ejidos and local communities have a legally defined territorial polygon and members. As a result, these interviewees argued that the Article 134 bis expansion of FPIC beyond the category of ‘indigenous peoples’ would serve to strengthen the rights of indigenous peoples by recognising them as local peoples with a legal identity entitled to exercise the FPIC right. Furthermore, it would also empower other local people (campesinos) who do not identify themselves as indigenous by granting them the FPIC right and the possibility, in legal terms, of exercising it.

An interviewee noted that the right to FPIC is often conflated with more general participation rights mentioned under Article 134 bis V whose right holders can be other citizens not belonging to indigenous peoples, local communities, or ejidos. However, according to this interviewee, the specificity of FPIC laid out in Article 134 bis is that it applies to REDD+ programmes that impact certain lands or territories of indigenous peoples, local communities or ejidos and entails a power of veto.⁹⁵ Other interviewees did not agree with this distinction, and argued that the reform should not be interpreted as including the right of veto.⁹⁶

The legal reform process also drew attention to the socio-economic conditions of indigenous peoples, local communities and ejidos. For example, in the legislative debate it was acknowledged that forested areas in Mexico coincide with ejididatarios, communities, and ethnic groups that are characterised by high marginalisation and a high poverty index.⁹⁷ Within the contextual dimension of equity, the FPIC provision implicitly adopts an equal opportunity-based approach which aims to put ejidos, communities and indigenous people in a relatively equal position through affirmative action. Institutionalising REDD+ within the legal categories of ejido and community also has other equity implications: the legal categories of ‘ejido’ and ‘comunidades’ include certain economically disadvantaged groups with land titled rights and formal rights to receive forest benefits. Hence the FPIC safeguard (Article 134 bis I) is linked to the safeguard for equitable benefit sharing (Article 134 bis II) and the safeguard ‘Certainty and respect for property rights and legitimate possession and access to natural resources of owners and legitimate possessors of land’ (Article 134 bis III) and ‘Recognition and respect of internal organization forms’ (Article VII). Yet, the legal categories of ejidos and comunidades also exclude other members of the community. For example the ejido Assembly system is an organisational structure composed only of ejidatarios - those men and women with formal ejido rights- and does not provide guarantees of participation or decision-making for the local community members who are not ejidatarios. Therefore, men and women who are not ejidatarios cannot vote in the Assembly such as many avecindados⁹⁸ including many youth and women,⁹⁹ placing them in a vulnerable situation.¹⁰⁰ Likewise, the right of ejidatarios to FPIC would not solve conflicts of other people living in national (State) lands or so-called nacionaleros.¹⁰¹

Concerns were raised of possible tensions that could arise between distinct procedural safeguards and substantive safeguards. For instance if the procedural safeguard of the ‘Recognition and respect for internal organization forms’ (Article 134 bis VII), meaning the ejido organisational forms, this safeguard could sometimes be in tension with the substantive safeguard of equitable benefit sharing (Article 134 bis II), as the former could reinforce existing inequalities in the land and forest benefits distribution.¹⁰²

Raising operational concerns, an interviewee from a governmental organisation was critical of the fact that the legal reforms not only expanded ejido and local community rights to FPIC over their own lands, but also expanded FPIC rights to encompass legal and policy decisions. The interviewee argued:

FPIC for any policy is completely inoperable …if applicable to policy, CONAFOR would need to ask for consent from all ejidos in Mexico for operational rules, strategic forestry plans and annual programs…¹⁰³

7.3.3 MRV

The most prescriptive procedural provisions in the legal reform are those addressing monitoring, reporting and verifying reducing emissions from deforestation and forest degradation. A forestry expert who had worked in the federal government, believed that sometimes there is a disconnection between law makers and technical people involved in the operationalisation of systems such as MRV, and the National Forest and Soils Inventory. Furthermore, the interviewee considered that it was unfeasible to develop such a system in the time frame mentioned by the legal reform of three years.¹⁰⁴ The deadline for the implementation of the MRV established by the reform was reached on 24th April 2015 without a completed MRV system. The 2012 legal reform, enacted by the legislature, contrasts with the Draft ENAREDD+¹⁰⁵ developed by the executive. In the latter, a deadline for developing a MRV system is unspecified, acknowledging that the specific characteristics and particular difficulties of deforestation and degradation demand ‘… a careful revision of scale and methodologies available and viable to use in complex processes with distinct manifestations such as degradation. The design of the MRV will be done in as transparent and inclusive a way as possible so that it provides clarity and is trustworthy to participants in REDD+ actions’.¹⁰⁶

In the Yucatan, MRV community monitoring is included in the ‘REDD+ Early Action’ programme.¹⁰⁷ For example, this includes the development of an intensive monitoring site in a part of a community conserved area in the ejido Felipe Carrillo Puerto, which aims to generate information on carbon monitoring, including biomass, forest structure, species composition, carbon dioxide flux from the ground, among others.¹⁰⁸ CONAFOR also has a scheme to certify instructor communities which are then authorised to train other communities in carbon measurement and monitoring.¹⁰⁹

An MRV system focusing on deforestation and forest degradation can, under certain circumstances be useful for making effective the right to information and right to participation. For example, information on deforestation and forest degradation could provide inputs for indigenous peoples and local communities to participate meaningfully and make their decision to provide (or not) free prior informed consent in a REDD+ project. Yet, the relatively prescriptive approach of the REDD+ MRV also has risks. For example, a top-down approach to information-related safeguards risks framing them as a one way process in which the government collects and systematises the information it judges relevant, without considering different knowledge systems or providing opportunities for various actors to contribute to this process.¹¹⁰ While right holders can benefit from the governmental provision on REDD+ information, they can also contribute to identifying what information is needed and how it is collected, eg through community monitoring and information systems.¹¹¹

Hence, the relatively prescriptive REDD+ MRV provision risks crowding out the right to participation and the potential for generating carbon benefits more effectively with local participation. This point was well captured by an interviewee who expressed concern about the stated time period to develop the MRV system: ‘It does not say anything about a social consultation and that we will advance according to the consensus made. It is in three years, like an executive order.’¹¹² Certain stakeholders such as ejidos, communities and indigenous people may be particularly negatively affected by such an obligatory and precise timeline. An interviewee noted that the choice of Mexico to divide MRV concerning deforestation and forest degradation from social and biodiversity safeguards can limit the opportunities of policy integration, affecting the operationalisation of interlinked dimensions of climate law, forest law and community rights.¹¹³

These observations highlight how rights to information relate to rights to participation. Community monitoring in REDD+, can be seen as a procedural carbon-related safeguard as well as a means to make effective procedural social safeguards with affirmative action including the means and times that allow communities to participate meaningfully. Indigenous peoples and local communities can participate in climate/biodiversity activities in distinct ways such as in assessing and monitoring forests in their lands and the availability of plants and animals including for example those used for eating, or medicinal purposes. Moreover, the procedural safeguard of community MRV is linked to substantive social safeguards such as rights to food and rights to health.

7.3.4 Biodiversity and ecosystem services

Likewise, community monitoring in REDD+, could provide a means to implement biodiversity safeguards in forests and other ecosystems in terms of contributing to defining biodiversity values underpinning wellbeing (ie as a substantive safeguard). It could also help to identify measures (procedural safeguards) for its sustainable use, eg measures to reduce the displacement of biodiversity loss and carbon emissions that occur when resource exploitation is simply transferred to another locality. This concept of sustainable use is explicitly in line with the CBD guidelines for safeguards which call for recognising the underpinning value of biodiversity for providing ecosystem services that contribute to human wellbeing as well as for acknowledging the nexus between biodiversity law, climate law, and human rights.¹¹⁴

In regards to the definition of ‘ecosystem services’, the legal reform goes beyond the common anthropocentric focus on benefits only to people,¹¹⁵ to include ‘benefits generated by ecosystems, that are necessary for the survival of the natural and biological system as a whole’.¹¹⁶ This new definition of ecosystem services can potentially be positive for ejidos, communities and indigenous peoples as an additional legal means to foster stewardship of systems of life considering the intertwined people and nature relationships embedded in many indigenous peoples’ worldviews.¹¹⁷ Yet, it may be difficult for local communities to operationalise these views legally, which may require their proving how particular actions put at risk the survival of the natural and biological system as a whole. Alternatively, this broad interpretation of ecosystem services could lead other, more high capacity actors, to impose strict conservation measures for the presumed benefit of ecosystems at the expense of local resource use (Table 3).

Table 3.

A summary analysing stakeholder perspectives on obligation, delegation and precision

	Positive implications for community rights	Negative implications for community rights
Obligation High: legally binding provision	Guarantees continuity of safeguards, independence from will of government.	Could enshrine weak interpretations of Constitutional rights.
Delegation Higher in carbon related provisions than social safeguards	Potential to enhance enforcement of community rights by engaging in dialogue with environmental and forest institutions but also others with social-related mandates.	Government agencies may lack capacity/will to implement meaningfully.
Precision
Carbon
Substantive: Low prescriptiveness in defining property-related rights over carbon.	More comprehensive application of safeguards to environmental services financing mechanisms (e.g. biodiversity related, not only those carbon-related).	Property rights over carbon remain not legally specified and open to subsequent definition. Local values and definitions concerning ecosystems embedded in consuetudinary norms of local and indigenous peoples are not explicitly recognised.
Procedural: Highest prescriptiveness in MRV safeguard.	New information will be available to communities in a relatively short period of time for exercising their right to information on deforestation and forest degradation issues.	Timeline required by the law for MRV development may limit the possibilities of communities to exercise the right to participation in providing inputs for developing an appropriate MRV system that includes local values of forest ecosystems. This will also affect the quality of the information in the MRV system.
Social safeguards
Substantive: Medium prescriptiveness on benefit distribution safeguard	Positive for owners and legitimate possessors of forest land. In Mexico, most of them are ejidos and communities.	Negative for inhabitants or users of forest resources on land subject to ecosystem financing mechanisms schemes who lack legally recognised ownership or possession rights.
Procedural: Medium prescriptiveness in FPIC safeguard.	Positive for ejidos, communities and indigenous peoples as it strengthens their legal right to free, prior informed consent in projects that may affect their livelihoods.	Potential negative consequences if FPIC is used as a one-size-fits-all problem-solving tool e.g. for policies and legislation where broader democratic processes are needed.
Biodiversity safeguards
Substantive: Low precision in defining property-related rights over biodiversity.	New definition of ecosystem services positive for ejidos, communities and indigenous peoples for recognising the intertwined relationships between people and nature embedded in many indigenous peoples’ worldviews.	Difficult for local communities to legally prove that specific benefits generated by ecosystems are necessary for the survival of the natural and biological system as a whole. Potential escalation of strict conservation measures that run counter to local peoples’ use of natural resources by restrictive interpretation of the new ‘ecosystem services’ definition.
Procedural: No additional level of precision

8. DISCUSSION AND CONCLUSIONS

This article presents a socio-legal analysis that combines in-depth examination of stakeholder perspectives with the systematic classification of levels of prescriptiveness of REDD+ across international and national scales, and across the issue areas of carbon, biodiversity and social safeguards. Our classification framework builds on existing comparative frameworks in international and human rights law, and state and non-state policy, in order to enable a multi-scale comparison with sufficient nuance to capture differences in levels of obligation, precision and delegation, as well as between procedural and substantive requirements. Building on Abbott and others, who have focused on classifying degrees of ‘legalization’ at the international level, our development of an expanded framework to encompass the broader concept of ‘prescription’ has allowed us to assess the interactions between international and national law. This combination of systematic, multi-scale classification of REDD+ requirements with analysis of stakeholder perspectives enabled us to tease apart who is influencing the degree of prescription and at which levels and with what implications for REDD+ outcomes.

In terms of level of obligation, we find that the recent legislative reform to the national general environmental law (LGEEPA) and the national forest law (LGDFS) gave the REDD+ safeguards in Mexico a clear national scope and a binding character. The legal strength of the safeguard provisions was owed in part to a momentum that emerged within legislators, partly as a result of UNFCCC-COP16 commitments on safeguards adopted in Cancun. However, a detailed analysis of these provisions reveals significant differences in precision and delegation across the issue areas of carbon, biodiversity and social welfare, and across substantive and procedural dimensions. This in turn influences levels of prescriptiveness and the dynamics involved in the operationalisation of safeguards.

We find that divergences in law-making processes over levels of prescription. In particular, precision over property rights over carbon. These divergences opened opportunities for legal innovation with implications for community rights. In the absence of agreements on the substantive issue of carbon property rights, the legislature relied on a relatively less prescriptive approach, introducing flexibility in the interpretation of property rights. As a means to bridge divergences and to prevent a breakdown of negotiations, the legislature ‘de-bundled’ property rights over carbon from those associated with rights to receive benefits from environmental services. In particular, this less prescriptive approach to carbon rights lead to collateral legislative benefits in terms of broader social safeguards acknowledging the rights of land owners, which in Mexico are mostly local communities. Furthermore, it articulated community rights to receive economic benefits for contributing to the provision of ecosystem services in general, rather than only carbon sequestration. Hence, the new safeguards provisions to the national forest law are now applicable not only to climate/carbon related ecosystem services but to ecosystem services in general.

In other words, our results suggest that the social equity of REDD+ may be served by relatively general, rather than clearly defined and precise, rights over forest carbon. Instead, our findings argue for a ‘not too tight, not too loose approach’. That is, an approach that establishes enough precision regarding the State’s obligations to protect the human rights of vulnerable populations and the rights of those contributing to the maintenance of ecosystem services, while also leaving room for stakeholder dialogue and participation on how to operationalise these rights. Participation of relevant rights holders can foster country-specific institutional innovation such as the current development of a National Safeguards System in Mexico. This System was catalysed by the existing dynamics of civil society and governmental interactions within Mexico, as well as by the international requirement under the UNFCCC to produce a Safeguards Information System. There are also cases where dialogue on how to make more precise safeguards could benefit community rights. For instance, a more precise approach linking biodiversity and social safeguards could reduce the risk of strict conservation measures which do not necessarily support biological diversity and can affect negatively community rights. This highlights how dialogue can enable the development of shared meaning between actors about good stewardship over ecosystem services, including forest carbon sequestration and other services, and equitable allocation of different elements of property rights.

Our findings also help to unpack the relationship between substantive and procedural rights. While the implementation of procedural rights, and especially FPIC, has triggered much interest in REDD+ debates, we show that a focus on procedural rights alone is not sufficient, and that substantive rights are equally critical to the equitable governance of socio-ecological systems. Furthermore, dynamic interactions between substantive and procedural rights emerge in the transformation of the REDD+ safeguards to national legislation. Specifically, substantive safeguards, such as property rights over forests and land, are intertwined with procedural safeguards such as FPIC and the respect for communities’ internal forms of organisation. The examined Mexican legal reform spells out two new substantive rights-holders in regards to FPIC, namely the collectives of ejidos and communidades. Most stakeholders agree that ejidos and communities constitute key legal figures for fostering equity in mechanisms concerning environmental services in Mexico. There was less agreement, however, around the scope of the FPIC provision. The application of the FPIC provision to the development of REDD+ policies, and not just to on-the-ground REDD+ actions that directly impact land and resource rights, is viewed by some as key for operationalising the FPIC safeguard, but by others as a source of inoperability.

We likewise find limitations to using FPIC as a ‘one-size-fits-all’ strategy for addressing concerns associated with ecosystem service governance. Of equal importance is the synchronisation of rights to information and rights to participation in the development of climate-related policies, and measures for the inclusion of groups not holding property or possession land rights. Such rights are particularly critical, given the highly obligatory and prescriptive procedural requirements for monitoring, reporting and verifying carbon. Some stakeholders see this high level of prescriptiveness regarding carbon as conflicting with meaningful local participation in defining and participating in MRV. Instead, more flexible timelines and measures may be required to overcome the fragmentation of MRV between carbon and social and biodiversity safeguards. This in turn will enable more inclusive approaches to the generation and sharing of REDD+ information, and serve as a necessary complement to FPIC in the development of equitable laws regulating socio-ecological systems.

Meanwhile, the international legal landscape for REDD+ continues to evolve. The recent 2015 Paris Agreement under the UNFCCC,¹¹⁸ while rather general in its references to REDD+¹¹⁹, contains the first mention of human rights in a multilateral environmental agreement.¹²⁰ This reference raises new questions for REDD+ law-making processes at distinct scales because it may affect the way REDD+ is translated and implemented at the national level for example in terms of the strength of State’s obligations to fulfil the right to information and right to participation recognised as human rights. This article, by contributing to understanding the socio-legal processes of transformation of the international REDD+ safeguards into national legislation, provides important reference points for the complex interactions between substantive and procedural rights. Likewise, it provides a framework for continuing to assess the ongoing challenges and opportunities that emerge from the dynamic interactions between international climate law and legislative responses at national levels.

Footnotes

1

See eg Kenneth Abbott and others, ‘The  Concept  of  Legalization’ (2000) 54 International Organization 401; John Kirton and Michael Trebilcock, Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance (Routledge 2004); Claudia Ituarte-Lima and others, ‘Biodiversity Financing and Safeguards: Lessons Learned and Proposed Guidelines’ (SwedBio/Stockholm Resilience Centre at Stockholm University and Information Document for the 12th Conference of the Parties of the Convention on Biological Diversity (29 September 2014) UNEP/CBD/COP/12/INF/27).

2

UN Framework Convention on Climate Change 11771 UNTS 107 (1992) (UNFCCC).

3

Christina Voigt (ed), Research Handbook on REDD and International Law (Edward Elgar 2016) and Rosemary Lyster, Catherine MacKenzie and Constance McDermott (eds), Law, Tropical Forests and Carbon: The Case of REDD+ (CUP 2013).

4

Annalisa Savaresi, ‘REDD+ and Human Rights: Addressing Synergies Between International Regimes’ (2013) 18 Ecology and Society 5; Annalisa Savaresi, ‘The Legal Status and Role of REDD-Plus Safeguards’ in Christina Voigt (ed), Research Handbook on REDD and International Law (Edward Elgar 2016).

5

Blaise Bodin, Elina Väänänen, and Harro van Asselt, ‘Putting REDD+ Environmental Safeguards into Practice: Recommendations for Effective and Country-specific Implementation’ (2015) 9 Carbon & Climate L Rev 168.

6

Christina Voigt and Felipe Ferreira, ‘The Warsaw Framework for REDD+: Implications for National Implementation and Access to Results-based Finance’ (2015) 9 Carbon & Climate L Rev 113.

7

Elizabeth Fisher and others, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 JEL 242.

8

Relevant studies relevant for this new research line include Sophia Carodenuto and Kalame Fobissie, ‘Operationalizing Free, Prior and Informed Consent (FPIC) for REDD+: Insights from the National FPIC Guidelines of Cameroon’ (2015) 9 Carbon & Climate L Rev 156.

9

See Juan Carlos Carrillo and Anaid Velasco Ramírez, Estudio legal, Facultades y responsabilidades del manejo forestal y del suelo ante REDD+ en México (Occasional Document 150 CIFOR 2016) <http://www.cifor.org/publications/pdf_files/OccPapers/OP-150.pdf> accessed 8 May 2017; for more information on relevant Mexican laws for REDD+ 24-41 of this article and 3-15 for more information on the respective competent authorities. See also Francesca Feliciani-Robles and Leo Peskett, Carbon Rights in REDD+: The Case of Mexico (World Bank 2011) <http://theredddesk.org/sites/default/files/resources/pdf/2011/mexico_case_study_final.pdf> accessed 8 May 2017, and Andres Avila and Julieta Lira Estudio, de implementacion legislativa para el mecanismo REDD+ en Mexico (GLOBE Mexico 2014).

10

See an analysis of the Mexican relevant legal framework for REDD+ safeguards in Daniela Rey and Linda Rivera Análisis del marco legal relevante y aplicable a México en relación a las salvaguardas (Agencia de los Estados Unidos para el Desarrollo Internacional, Proyecto de Reducción de Emisiones por la Deforestación y la Degradación de Bosques de México, Alianza México-REDD+ 2013), <http://www.conafor.gob.mx:8080/documentos/docs/35/6350Marco%20Legal%20Salvaguardas%20Final%202014.pdf> accessed 8 May 2017.

11

Sir Nicolas Stern, Review on the Economics of Climate Change: Executive Summary (UK Department of Energy and Climate Change 2007); Guido van der Werf and others, ‘CO2 Emissions from Forest Loss’ (2009) 2 Nature Geoscience 2.

12

Johan Eliasch, Eliasch Review: Climate Change: Financing Global Forests (UK Office of Climate Change 2008).

13

Constance McDermott and others, ‘Operationalizing Social Safeguards in REDD+: Actors, Interests and Ideas’ (2012) 21 Environmental Science and Policy 63; Randall Abate and Elizabeth Ann Kronk (eds), Climate Change and Indigenous Peoples: the Search for Legal Remedies (Edward Elgar 2013).

14

Feliciani-Robles and Peskett (n 9); Johan Costenbader, REDD+ Benefit Sharing: A Comparative Assessment of Three National Policy Approaches (UNREDD Programme and the Forest Carbon Partnership Facility 2011); John Costenbader, Legal Frameworks for REDD: Design and Implementation at the National Level (Island Press 2009); Henry Scheyvens (eds), Developing National REDD+ Systems: Progress, Challenges and Ways Forward. Indonesia and Viet Nam Country Studies (Institute for Global Environmental Strategies 2010); Wilfredo Alangui, Grace Subido and Ruth Tinda-an (eds), Indigenous Peoples, Forests & REDD Plus: State of Forests, Policy Environment & Ways Forward (Tebtebba Foundation 2010).

15

Claudia Ituarte-Lima, Constance McDermott and Mary Mulany, ‘Assessing Equity in National Legal Frameworks for REDD+: the Case of Indonesia’ (2014) 44 Env Science and Policy 29; Claudia Ituarte-Lima and Suneetha Subramanian, ‘Retreading Negotiations on Equity in Environmental Governance: Case Studies Contrasting the Evolution of ABS and REDD+’ in Frank Maes and others (eds), Climate Change and Biodiversity: Linkages at International, National and Local Levels (Edward Elgar Publishing 2013).

16

Ashwini Chhatre and others, ‘Social Safeguards and Co-benefits in REDD+: A Review of the Adjacent Possible’ (2012) 4 Current Opinion in Environmental Sustainability 654.

17

The full text of the Cancun safeguards can be found at UNFCCC ‘The Cancun Agreements: Outcome of the work on the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention. Report of the Conference of the Parties on its sixteenth session’ (29 November–10 December 2010) (2011) FCCC/CP/2010/7/Add.1. See also UNFCCC ‘Guidance on systems for providing information on how safeguards are addressed and respected. Report of the Conference of the Parties on its seventeenth session’ (28 November to 11 December 2011) (2012) FCCC/CP/2011/9/Add.2.

18

CBD-COP12 Decision XII/3 and respective Annex III. CBD ‘Decision on resource mobilization by the twelfth meeting of the Conference of the Parties to the Convention on Biological Diversity’ (6–17 October 2014) UNEP/CBD/COP/DEC/XII/3.

19

For a summary of these requirements, see for example Climate Law and Policy, ‘Unpacking the UNFCCC Framework for REDD+: The requirements for implementing REDD+ under the United Nations Framework Convention on Climate Change’ (2015) <http://www.climatelawandpolicy.com/publications/92-unpacking-the-warsaw-framework-for-redd-requirements-for-implementing-redd-under-the-unfccc-2.html> accessed 8 May 2017.

20

For example, in a public statement, some organisations in Chiapas, Mexico claim that REDD+ is a mask to hide dispossession of indigenous communities to biodiversity and land (Chris Lang, ‘Statement from Chiapas, Mexico: REDD project is a climate mask “to cover up the dispossession of the biodiversity of the peoples”’ REDD Monitor (Chiapas, 7 September 2011) <http://bit.ly/pNsIjL> accessed 8 May 2017).

21

Abbott and others (n 1).

22

ibid.

23

Benjamin Cashore, Governing Forestry: Environmental Group Influence in British Columbia and the US Pacific Northwest (PhD Political Science University of Toronto 1997).

24

Constance McDermott, Benjamin Cashore and Peter Kanowski, Global Environmental Forest Policies: An International Comparison (Earthscan 2010).

25

See eg Constance McDermott, ‘REDDuced: From Sustainability to Legality to Units of Carbon—The Search for Common Interests in International Forest Governance’ (2014) 35 Environmental Science and Policy 12.

26

Cashore (n 23).

27

McDermott, Cashore and Kanowski (n 24).

28

Dinha Shelton, ‘Human Rights, Environmental Rights and the Rights to the Environment’ (1991) 28 Stanford J of Intl L 103.

29

Jonas Ebbesson and Ellen Hey, ‘Introduction: Where in Law is Social-Ecological Resilience?’ (2013) 18 Ecology and Society 25.

30

Ituarte-Lima and others (n 1).

31

Ebbesson and Hey (n 29) consider that equality before the law and non-discrimination should be fostered while aiming at socio-ecological resilience through, among other things, public participation.

32

Shelton (n 28).

33

Abbott and others (n 1).

34

ibid.

35

For the legislature debates in Mexico, see Deputies Chamber (2011) LXI LEGISLATURA, Diario de los Debates, México, DF, 6 de diciembre de 2011, Sesión No 35, <http://cronica.diputados.gob.mx/> accessed 10 May 2017 and for the Cancun safeguards, see (n 17).

36

See names of the research projects in acknowledgements. For analysis of the thematic interactions between the issue areas of biodiversity, climate and socio-ecological related human rights at the international level, see Ituarte-Lima and others (n 1). Find an assessment of the multiscale dynamics of safeguards, as they apply to a local case study of an ejido on the Yucatan Peninsula, Mexico in Constance McDermott and Claudia Ituarte-Lima, ‘Safeguarding What and For Whom? The Role of Institutional Fit in Shaping REDD+’ (2016) 21 Ecology and Society 9.

37

For further information on forest communities in Mexico, see eg Leticia Merino and Ana Eugenia Martínez Romero, A vuelo de pájaro. Las condiciones de las comunidades con bosques templados en México (Comisión Nacional para el Conocimiento y Uso de la Biodiversidad 2014).

38

Mexico Federal Legislature, Diario de los Debates (LXI Legislature, 6 December 2011, Session No 35).

39

Carrillo and Velazco (n 9) 3.

40

Rey and Rivera (n 10).

41

Avila and Lira (n 9) 83.

42

The above-mentioned laws can be found at < http://www.diputados.gob.mx/LeyesBiblio/ref/lgvs.htm> accessed 10 May 2017.

43

REDD+ related issues are controversial in Mexico because of the threats to indigenous peoples and local community rights and to biodiversity; as well as concerns that REDD+ will offer an easy way out for industrialised countries to reducing their own emissions. In order to respect the rights to privacy and protect research participants from potentially harmful effects of research, names of interviewees and people participating in the focus groups are not included. We mention the stakeholder group of each of the quotes mentioned in the paper in order to contextualise the information and show the broad range of contrasting perspectives by a variety of stakeholders. The views may or may not be representative of the entire stakeholder group.

44

Abbott and others (n 1).

45

Jenifer Hewson, Marc Steininger and Stelios Pesmajoglou (eds), REDD+ Measurement, Reporting and Verification (MRV) Manual, Version 2.0 (USAID-supported Forest Carbon, Markets and Communities Program 2014).

46

Maria Eugenia Recio, ‘The Warsaw Framework and the Future of REDD+’ (2014) 24 YIEL 37.

47

(n 17).

48

(n 4).

49

<http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf > accessed 16 July 2017. (2007) A/61/295.

50

See (n 17).

51

ibid.

52

Report of the Conference of the Parties on its nineteenth session, held in Warsaw from 11 to 23 November 2013, FCCC/CP/2013/10/Add.1, 31 January 2014.

53

Hewson, Steininger and Pesmajoglou (n 45).

54

UNFCCC, ‘Report of the Conference of the Parties on its nineteenth session’ (11–23 November 2013) (2014) UNFCCC/CP/2013/10/Add.1:43.

55

Mexico Federal Government, Visión de México sobre REDD+: Hacia una estrategia nacional (Comisión Intersecretarial de Cambio Climático 2010) <http://www.conafor.gob.mx/web/temas-forestales/bycc/redd-en-mexico/estrategia-nacional-redd-enaredd> accessed 10 May 2017.

56

Mexico Federal Government, Draft REDD+ Strategy (ENAREDD+), (CONAFOR 2014) <http://www.conafor.gob.mx/web/temas-forestales/bycc/redd-en-mexico/estrategia-nacional-redd-enaredd/> accessed 16 July 2017. For more information on the consultation process, see CONAFOR (Avances del proceso de consulta pública de la Estrategia Nacional REDD+ 2016) <http://www.enaredd.gob.mx/wp-content/uploads/2016/05/Avances_consulta_ENAREDD.pdf> accessed 16 July 2017.

57

Organisations part of this initiative include: Red Mexicana de Organizaciones Campesinas Forestales (Red MOCAF), Red Indígena de Turismo en México (RITA), Unión Nacional de Organizaciones Campesinas Coordinadora Nacional (UNORCA-CN), Consejo Nacional de Organizaciones Campesinas (CONOC), Organización de Ejidos Productores Forestales de la Zona Maya (OEPF-ZM), Frente Organizado de Campesinos e Indígenas (FOCIAC), SAKBE Comunicación y Defensa para el Cambio, Greenpeace México, y Centro Mexicano de Derecho Ambiental (CEMDA). See <http://novedadesera.blogspot.se/2011/09/las-comunidades-cuentan-mas-denuncia.html> accessed 10 May 2017.

58

CTC-REDD+ is composed mainly by civil society organisations and key governmental representatives working on REDD+ relevant related issues, see more in Carrillo and Velazco (n 9).

59

<http://www.globelegislators.org/about-globe/25-globe-international>, accessed 16 June 2017.

60

For more information on GLOBE Mexico, see <http://globelegislators.org/initiative-countries/mexico-programme> accessed 10 May 2017.

61

Quote from Interview 1 international organization (Mexico City, Mexico, 11 February 2013). Other interviewees working in the legislature eg Interview 7 (Mexico City, Mexico, 13 March 2013) and Interview 8 (Mexico City, Mexico, 13 March 2013) as well as civil society organisations with national scope Interview 67 (Mexico City, Mexico, 10 March 2015), Interview 2 (Mexico City, Mexico, 11 February 2013), Interview 4 (Mexico City, Mexico, 13 February 2013), Interview 11 (Mexico City, Mexico, 13 February 2013) and at the sub-national level (Focus Group, Quintana Roo, Mexico 22 February 2013) also considered that the UNFCCC-COP in Mexico generated momentum for escalating REDD+ discussions in the legal and political agenda.

62

Mexico Federal Legislature (n 38).

63

ibid.

64

After the approval by the Deputies’ Chamber, there were additional steps at the national level that needed to be taken for the safeguards reform to become approved and legally binding including the approval by the Senate. National political parties’ politics including the parallel negotiation of a new climate change law and electoral times also contributed to the approval of this safeguards reform (Interview 1 international organisation (Mexico City, Mexico, 11 February 2013) Interview 7 legislature (Mexico City, Mexico, 13 March 2013) and Interview 8 legislature (Mexico City, Mexico, 13 March 2013).

65

Interview 2 national NGO (Mexico City, Mexico, 11 February 2013).

66

Abbott and others (n 1).

67

Interview 32 government (Tuxtla Gutierrez, Chiapas 31 March 2014); Interview 67 national NGO (Mexico City, Mexico, 10 March 2015).

68

Focus Group 2 government (Mexico City, Mexico, 12 February 2013); Interview 43 government (Chiapas, Mexico 13 February 2015); Interview 67 national NGO (Mexico City, Mexico, 10 March 2015); Interview 50 subnational NGO (Chiapas, Mexico 10 March 2015); Interview subnational NGO 39 (Chiapas, Mexico 31 March 2014); Interview 20 local organisation (Quintana Roo, Mexico 25 February 2013).

69

Mexico Federal Government (n 55), see pages 30, 58, 68–79.

70

Interview 39 subnational NGO (Chiapas, Mexico 31 March 2014); Interview 67 national NGO (Mexico City, Mexico, 10 March 2015).

71

CONAFOR Diseñando un Sistema Nacional de Salvaguardas REDD+ en México (CONAFOR 2014) <http://www.conafor.gob.mx/web/temas-forestales/bycc/redd-en-mexico/salvaguardas/> accessed 10 May 2017. See also Daniela Rey and Linda Rivera, Diseñando un Sistema Nacional de Salvaguardas REDD+ para México y propuesta de indicadores estructurales para el sistema (Agencia de los Estados Unidos para el Desarrollo Internacional (USAID), Proyecto de Reducción de Emisiones por la Deforestación y la Degradación de Bosques de México (Alianza México-REDD+) 2014) <http://www.alianza-mredd.org/componentes/politica-publica/productos/disenando-un-sistema-nacional-de-salvaguardas-redd-para-mexico-propuesta-de-indicadores-estructurales-74#.Vj5k5xLrv85>, accessed 10 May 2017; and Rachel Baker, Juan Carlos Carrillo and Allison Silverman, The Development of a National Safeguard System, for REDD+ in Mexico. A Case for the Value of International Guidance (Bank Information Center, the Center for International Environmental Law, and the Mexican Environmental Law Center 2014) <http://www.ciel.org/research-publications/> accessed 10 May 2017.

72

ibid.

73

As part of the next steps, CONAFOR refers to the need to define the architecture and functioning of the NSS as well as its operationalisation between the national and state (subnational) levels (CONAFOR ibid). For more information about the on-going process for developing the NSS and the SIS, see also <https://www.gob.mx/conafor/documentos/salvaguardas> accessed 16 June 2017.

74

Abbott and others (n 1).

76

See Transitory Second of the legal reform.

77

This reglamento can be found at < http://dof.gob.mx/nota_detalle.php?codigo=5365828&fecha=28/10/2014> accessed 16 July 2017.

78

Participant observation in a workshop for the diffusion of the National Strategy REDD+, Cintalapa de Figueroa, Chiapas, 7th March 2015; Participant observations on the Second legislature dialogue-workshop with communities, ejidos and indigenous peoples on forests and climate change, 12 and 13 March 2013, Deputies Chamber; Focus group 10, academia (Chiapas, Mexico 1 March 2015); Interview 2, national NGO (Mexico City, Mexico 11 February 2013); Interview 11 national NGO (Mexico City, Mexico 14 February 2013).

79

Interview 11 national NGO (Mexico City, Mexico 14 February 2013.

80

Focus group 10, academia (Chiapas, Mexico 1 March 2015). Similar concerns regarding extractive industries were raised in various events and interviews such as in the event addressing land rights, territory and women participation in decision-making (Chiapas, Mexico 8 March 2015); mega-mining forum (Chiapas, Mexico 23 January 2015); Interview 68 academia (Chiapas, Mexico 21 February 2015); Interview 49 subnational NGO (Chiapas, Mexico 8 February 2015).

81

Interview 4 national NGO (Mexico City, Mexico, 13 February 2013).

82

For example, Interview 45, ejidatario (Chiapas, Mexico 10 March 2015); Interview 58, small-scale land owner, (Queretaro, Mexico, 13 January 2015); Interview 33, ejidatario (Chiapas, Mexico 1 April 2014), Interview 18 ejidatarios organisation (Quintana Roo Mexico, 23 February 2013). ‘Salvaguardas’, the Spanish translation of ‘safeguards’ is not a term used in ordinary language even less by people who have indigenous language(s) and not Spanish as their mother tongue and may have limited formal education. A local NGO working with REDD+ related issues (Focus group 1, Quintana Roo Mexico 22 February 2013) said that in communicating REDD+ information with local communities they have chosen not to use the term safeguards, because it is not a concept of the communities, ‘it is a World Bank concept … we see it more in terms of rights to land, rights to a healthy environment’.

83

Abbott and others (n 1).

84

(n 56). See pages 8, 75, 76 and 77.

85

See also Baker, Carrillo and Silverman (n 71).

86

Participant observation in a workshop for the diffusion of the National Strategy REDD+, Cintalapa de Figueroa, Chiapas, 7th March 2015. For CONAFOR's description of the ENAREDD consultation process, see ‘Avances del proceso de consulta pública de la Estrategia Nacional REDD+’ (2016), <http://www.enaredd.gob.mx/wp-content/uploads/2016/05/Avances_consulta_ENAREDD.pdf> accessed 10 May 2017.

87

Interview 1 international organisation (Mexico City, Mexico, 11 February 2013); Interview 2 national NGO (Mexico City, Mexico, 11 February 2013); Interview national NGO (Mexico City, Mexico, 13 February 2013).

88

Interview 2, national NGO (Mexico City, Mexico 11 February 2013).

89

This was also discussed in the Second legislature dialogue-workshop with communities, ejidos and indigenous peoples on forests and climate change, 12 and 13 March 2013, Deputies Chamber.

90

Mexico Federal Legislature (n 38).

91

For a more general discussion how FPIC impacts social equity and implications for REDD+, see Sango Mahanty and Constance McDermott, ‘How does “Free, Prior and Informed Consent” (FPIC) Impact Social Equity? Lessons from mining and forestry and their implications for REDD+’ (2013) Land Use Policy 35, 406.

92

Interview 2, national NGO (Mexico City, Mexico 11 February 2013).

93

Andres Aubry, ‘Autonomy in the San Andres Accords: Expression and Fulfilment of a New Federal Pact’ in Jan Rus and others (eds), Mayan Lives, Mayan Utopias, The Indigenous Peoples of Chiapas and the Zapatista Rebellion (Rowman and Littlefield Publishers 2003).

94

Focus group 5 governmental organisation, Interview 2 national NGO (Mexico City, Mexico, 11 February 2013). Legal personality refers to any individual, company or government agency with the right to enter into binding agreements such as signing a contract (Lewis Kornhauser and Bently MacLeod ,Contracts Between Legal Persons (NBER Working Paper No 16049, 2010)).

95

Interview 11 national NGO (Mexico City, Mexico 14 February 2013).

96

Interview 12 governmental organisation (Quintana Roo, Mexico 7 April 2013).

97

Deputies Chamber (2011) (n 35).

98

Avencindados may live in the ejido and sometimes exceed in number the titled ejidatarios but do not hold formal land or resource rights.

99

Equity gender challenges and proposals from social movements go beyond but interact with REDD+ dynamics. For example, in Chiapas, there is a movement promoting the defence of human rights including gender equality through a network of collective local support including for fostering co-entitlement and entitlement of land rights between men and women; Participant observation in event addressing land rights, territory and women participation in decision-making, Chiapas 8 March 2015. See also <http://cdmch.org/cdmch/que-hacemos#> accessed 16 July 2017.

100

For more information about the dynamics of different actors in community forest management, see David Barton, Leticia Merino-Pérez and Deborah Barry (eds), The Community Forests of Mexico: Managing for Sustainable Landscapes (University of Texas Press 2005).

101

For example, there is a long history of agrarian conflicts in Chiapas involving nacionaleros. The lack of formal land rights of nacionaleros limit the possibility of environmental co-management with public authorities including those nationaleros in Natural Protected Areas (Participant observation in an inter-institutional an NGO and the Natural Protected Areas Commission meeting, 23 March 2015; Interview 38 subnational NGO (Chiapas, Mexico 27 March 2014); Interview 46 ejidatario (Chiapas, Mexico 10 March 2015)).

102

Participant observation in a workshop for the diffusion of the National Strategy REDD+, Cintalapa de Figueroa, Chiapas, 7th March 2015. After 1992 the Agrarian Reform was formally finished, despite the existing claims of land less people (Interview 47 subnational NGO (Chiapas, Mexico 23 February 2015)).

103

Interview 12, governmental national organisation (Mexico City, Mexico 15 February 2013).

104

Interview 56 governmental organisation (Queretaro, Mexico 14 January 2015).

105

Mexico Federal Government (n 55).

106

ibid 64.

107

‘REDD+ Early Action’ in Yucatan is executed by CONAFOR and the National Commission for Biodiversity (CONABIO) funded by the EU’s Latin American Investment Fund (LAIF) and Norway with the funding canalized through the United Nations Development Programme (UNDP) (Interview 12 governmental organization (Quintana Roo, Mexico 7 April 2013), Interview 22 international NGO (Quintana Roo, Mexico 4 March 2013) and Interview 23 International NGO (Quintana Roo, Mexico 7 March 2013).

108

Interview 15, local NGO (Quintana Roo 9 April 2013), see also McDermott and Ituarte-Lima (n 36).

109

See <http://www.conafor.gob.mx:8080/documentos/docs/37/4345Comunidades%20Instructoras.pdf> accessed 10 May 2017.

110

Participant observation in a Meeting on Community Monitoring (Chiapas, Mexico 11 and 12 March 2015); Interview 4 national NGO (Mexico City, Mexico 13 February 2013); Interview 56 governmental organisation (Queretaro, Mexico 14 January 2015).

111

<http://www.tebtebba.org/index.php/content/271-developing-and-implementing-cbmis-the-global-workshop-and-the-philippine-workshop-reports> accessed 10 May 2017.

112

Interview 4 national NGO (Mexico City, Mexico 13 February 2013).

113

Interview 67 national NGO 2015 (Mexico City, Mexico, 10 March 2015).

114

(n 18) and Ituarte-Lima and others in (n 1).

115

See World Resources Institute, Millennium Ecosystem Assessment, Ecosystems and Human Well-being: Biodiversity Synthesis (World Resources Institute 2005).

116

National general environmental law, art 3 XXXVI.

117

This intertwined relationship was expressed by eg Interview 45 member of an indigenous people (Chiapas, Mexico 23 January 2015).

118

Paris Agreement under the UNFCCC (adopted 12 December 2015), <http://unfccc.int/paris_agreement/items/9485.php> accessed 10 May 2017.

119

See eg [55].

120

See Preamble.

75

The national forest law’ definition reads as follows: ‘Environmental services: Those that forest ecosystems provide naturally or through sustainable management of forest resources, such as: … carbon sequestration… oxygen generation; … modulation or climate regulation; protection of biodiversity, ecosystems and livelihoods …’.

The authors would like to express gratitude to the people in Mexico who participated in the interviews, focus groups and meetings related to laws for ecosystems including REDD+, for their generous and insightful contributions to this research. Initial research for this article was funded by the John Fell Fund, University of Oxford through the research project ‘Qualifying carbon: building trust and credibility in REDD+ through reflexive, multi-level governance’. Further work was funded by the Swedish Research Council Formas through the research project ‘Effective and Equitable Institutional Arrangements for Financing and Safeguarding Biodiversity (254-2013-130)’ lead by Stockholm Resilience Centre.

Author notes

**

Environmental Change Institute, School of Geography and the Environment, University of Oxford, UK