Transnational Environmental Law (TEL) was launched in 2012. Its emphasis on the contribution of non-state actors and recognition of the multilevel governance context in which law and regulatory developments now occur was path breaking. It is now a platform for some of the most innovative scholarship on environmental law and governance issues. TEL in its first five years has become a key publication for academics and students alike. It is a publication I am always delighted to receive.

No anniversary is complete without a celebration. So in style TEL held a Fifth Anniversary lecture on 21 February 2017 at the Pitt Building in Cambridge. The lecture ‘What Difference Does CBDR Make? A Socio-Legal Analysis of the Role of Differentiation in the Transnational Legal Process for REDD+’ drew on the prize-winning article published in TEL’s Fifth Anniversary Issue, and was jointly presented by authors Sébastien Jodoin (McGill University, Canada) and Sarah Mason-Case (York University, Ottawa). The article was developed in response to the TEL Fifth Anniversary Competition, which invited contributions on the changing role of the principle of common but differentiated responsibilities (CBDR) in the era of transnational law. All submissions were subject double blind peer review, and successful contributions were reviewed by Professor Jacqueline Peel (University of Melbourne, Australia) to determine the winning article. In addition to Jodoin and Mason-Case’s work on REDD+, the contributions in the Anniversary Issue range from articles with a focus on the dynamic interpretation of CBDR in the Paris Agreement (Voigt and Ferreira) to those examining the scope for differentiation in determining responsibilities of large carbon intensive energy companies (Benjamin).

I attended the lecture keenly interested in the winning article, given my own research interests in forests and international law-making processes. I was particularly interested in the authors’ choice and application of methodology to capture the processes of norm diffusion and the inter-relationships with CBDR. The article draws on extensive field work to identify the level of norm diffusion of the United Nations Framework Convention on Climate Change’s (UNFCCC) mechanism to reduce deforestation and degradation (REDD+) and link this with the CBDR principle. The article aims to demonstrate that CBDR is a key principle referred to by different actors pursuing REDD+.

Jodoin and Mason Case use a new legal realist perspective to identify the transnational legal processes actors developed, adopted or used to advance REDD+. The article guides the reader chronologically through the emergence of REDD+ in the UNFCCC negotiations, from initial inception to fully fledged mechanism. This is followed by a detailed analysis of the role of CBDR in both the diffusion of legal norms at the jurisdictional level as well as their implementation through policy and regulation. The authors conclude that multiple actors used the ‘principle of CBDR in a new way to support the emergence and effectiveness of the transnational legal process for REDD+’. The article’s novelty lies in understanding that, in a transnational multilevel governance context, actors use environmental principles to advance their own normative interpretations of international mechanisms like REDD+.

Many countries have incorporated REDD+ legal norms into their legal systems. However, often this incorporation has occurred in ways that reinforce exclusion and undermine opportunities for forest peoples to advance claims over territories and restrict access to livelihood resources. Jodoin and Mason-Case’s article acknowledges the obstructions to advancing REDD+ multilevel differentiation, particularly those caused by developed country governments’ failure to deliver on financial pledges and by continued high levels of consumer demand for products such as palm oil, which drive exploitation and deforestation. On a critical note, I would have enjoyed a fuller exploration of the exclusionary dynamics surrounding REDD+. In particular, the article might have benefitted from including forest based communities, especially indigenous peoples, in its survey of actors. The lack of forest peoples’ voices is palpable and will, hopefully, be addressed in further research. Work building on Jodoin and Mason-Case’s research could also situate REDD+ norms within the broader normative framework of the international forest regime, in order to uncover tensions and conflicts as well as synergies between different transnational approaches. Such developments would add further layers and texture to the analysis.

The choice of Jodoin and Mason-Case’s article as the winner of the TEL Fifth Anniversary Competition affirms the increasing importance of socio-legal methodologies in the study of transnational environmental law and policy. It also invites the scholarly community to continue the interdisciplinary search for other innovative approaches to enrich environmental legal analysis. I look forward to the TEL‘s tenth anniversary in 2022 to see how transnational environmental scholarship will have evolved in the next five years.

 

Written by Feja Lesniewska

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