Thursday, September 16, 2010

The missing legal framework of Guyana's low carbon development strategy

By Abiola Inniss LLB, LLM, ACIArb The Guyana low carbon development strategy has been hailed internationally for its innovative attempt at mitigating the damage inflicted by carbon emissions globally. It is perhaps even laudable that Guyana’s President Bharrat Jagdeo, Champion of the Earth 2010, has sought to vigorously promote the development and adoption of this strategy in Guyana as a sustainable means of livelihood for its citizens.

At first glance it has a prima facie appearance of a solid, workable alternative to the traditional means of forestry based productivity, complete with value added products, in addition to which, a few interested developed countries such as Norway have given financial commitments in exchange for carbon credits. Simply put, in exchange for leaving our forests intact as far as possible we are to be given sums of money that will ensure that the ability of our people to earn a living is not reduced.

There is some talk of value added products which will come from carefully monitored sustainable forest harvesting, though exactly what these products may be is yet to be defined. The issue of greatest concern and interest however is that this bilateral agreement with Norway does not seem to have a readily identifiable legal and regulatory framework to which Guyanese may apply for guidance on such matters as intellectual property rights, trade rights and the rights and mechanisms of redress for breaches of fundamental business law issues within the ambit of the Low Carbon Development Strategy.

The Memorandum of Understanding and concept note between Guyana and Norway give some indication of the mechanisms for the monitoring of the funds coming from Norway and the standards which are to be met in order that funding might be sustained. It is clear however that it is for Guyana to implement the necessary mechanisms for development of this strategy.

Thus far there have been seven factors considered to be essential to maintaining this arrangement namely: the strategic framework, which deals with the consistent development of a method of sustainable forest management; continuous multi-stakeholder consultations, special reference to Amerindian communities as they are situated in the forested areas and are immediately affected; governance, including relevant legislation and monitoring processes; MRV (monitoring , reporting and verification) processes on emission and removal of carbon from the forests; rights of indigenous people as regards the REDD agreement and, finally, annual assessment and verification.

It is under the governance factor that the requirement for the necessary legislation and legal framework which will see the successful implementation of the LCDS that there is this manqué. Perhaps the architects of the LCDS prefer to allow the ideas expressed in the documents outlining it to first develop, and then to create some kind of legal framework around them or adjunctive to them with the passing of time.

Perhaps this approach is informed by distaste for legal technicians and their craft. However, there is yet to be found across the world, any example of technical arrangements of the nature and magnitude of the Guyana LCDS, which does not have a tightly constructed legal and regulatory framework that provides guidance on the general and specific aspects of business law, such as intellectual property, trade and industry, consumer law and regulation and international trade law.

It is startling therefore that there seems to be little attention to the issue of legislation required for the LCDS to function properly. The general tendency across CARICOM seems to favour a piecemeal approach to the region-wide legal regulation of matters to do with the CSME and it would be a wasted opportunity for Guyana should it not seize the chance, to set the trend of thorough, rigorous construction of substantial and holistic legal regulatory mechanisms, which incorporate dispute resolution fora comprising competent, expert authorities.

It is not difficult to establish a legal and regulatory framework for the LCDS because the scope of the plan encompasses the major areas which will be covered by it. Almost immediately the legal technician can recognize that the interrelationship of traditional knowledge of the Amerindian peoples (this will fall under intellectual property law) local and international trade law (dealing with local and international trade rules and regulations) and public international law, which is applicable to the Norway-Guyana agreement, will have to be considered in the creation of such a framework.

It will also be recognized that environmental law, particularly international environmental law, will have to be included in the new legislation which will deal with carbon emissions and carbon removal.

There is also the necessity to deal with the resolution of disputes through the methods that currently exist and by the creation of alternative dispute resolution mechanisms, such as arbitral tribunals. Guyana would significantly augment its general legal system by establishing a National Arbitration Board similar to that found in Singapore and other parts of Asia, which deal with the resolution of complex technical industry specific disputes.

The Low Carbon development strategy will certainly have a fair share of disputes ranging from traditional knowledge rights and other aspects of intellectual property, to trade rights, accounting and economic issues. In following the example of the Competition Appeal Tribunal of the United Kingdom, which was established in 2003, and which deals with a range of issues in economics, law, business and accountancy, the Guyana LCDS will have a sturdy monitoring forum.

It is clear that the effective working of the LCDS will require a high level of efficiency and management as has been dictated by the current donor, Norway, and which is an essential part of the arrangement. Guyanese as well as the international onlookers to whom it is hoped the LCDS idea will appeal, need to be assured that the LCDS is workable and demonstrates a workable legal and regulatory frame which will hold it together.

In its current state the LCDS expresses a looseness of character akin to a growing unmannerly but bright child, who without the necessary correction, control and discipline will lose all of the advantage of a privileged position, become a nuisance and burden on society, or may not grow up at all. A properly constructed, well thought out legal frame work is necessary for this grand design to work.

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