Antonio Herman Benjamin – Opening Keynote: Landscapes for climate and development

8 December 2014

Justice Antonio Herman Benjamin of the National High Court of Brazil speaks in this opening plenary from the second day of the Global Landscapes Forum 2014, in Lima, Peru, during COP20. In 2015, the Sustainable Development Goals will replace the Millennium Development Goals. At the UNFCCC COP21 in Paris, international leaders are expected to reach a new climate agreement as successor to the Kyoto Protocol. This panel discusses how the new climate and development agendas will offer unprecedented opportunities for a number of sectors to jointly support healthy and sustainable landscapes.

Sunday, 7 December 2014

Global Landscapes Forum, Lima, Peru

#COP20GLF #ThinkLandscape

Antonio Herman Benjamin – Opening Keynote- Landscapes for climate and development (Transcript)

AHB:                  [0:00] CIFOR and its many partners for bringing us here together. I guess this is the first time that a judge participates in a CIFOR or any landscape meeting. Or at least of this size. So, many thanks to CIFOR. I’ll begin with the title of this panel, which is the connection between forests, climate and ecologically sustainable development. And I guess the first question we need to ask ourselves is, what is the glue that binds those three components together? I guess there is no question whether those components should be together. The question is, how can we do it? It seems to me that we could begin with ethics, say that they have to be together because there are ethical rationales for that. If you are a religious person, or if you have faith, you could say I do it because it’s part of the covenant I have with the divine. We could say that they could be together because it’s part of the culture of a particular society or group. We could say they have to be together because market forces are now requiring that. We have just heard our colleague from Unilever saying precisely that.

[1:56] We could also say, well, they have to be together because there are policies. This was Ibrahim Thiaw’s point in his opening remarks. But I would submit that they have to be together, and that’s not the only one but one of the most indispensible glues. It is law. So, let me discuss with you in the 10, 12 minutes I have, four propositions that I take from the fact that we definitely need law in bringing those three components together. My first proposition is that there can be no effective forest or landscape regime without law. Does this sound obvious to you? I see everybody shaking their heads. So why is it that in scientific papers, in policy papers, in corporate discourse, we don’t see any mention about law? Why is that? It seems to me that soft mechanisms are relevant, and if I had more time I would discuss them – like the Forest Principles of 1992. But has anybody here applied the Forest Principles in practice? Have you done that? Have you complained about your neighbor because your neighbor is not compliant with the soft mechanisms of 1992? Do you see that in the courthouse? Do you see it in the local dialogue?

[4:03] The second proposition is that forests and landscape are a victim primarily of lack or weakness of the rule of law. This is the elephant in the room. Everywhere. We don’t need to kill the elephant, but we need to identify and deal with the elephant. But we are so concerned about only talking about this elephant. I would submit that without a strong rule of law, we cannot have clarity of property legal regimes. Or we might even have a very good legal regime for property, but it will be meaningless. We also will not have sufficient response in the permitting process, and this will end up in chaos.

[5:16] And third, the biggest elephant in the room, or the little baby but very strong still. In very parts of the world, including my own, we have corruption. So those are things that we need to address in discussing the glue that brings the connection between forests, climate and ecologically sustainable development. In the second proposition then, I would conclude, saying that without the rule of law we miss the most precious commodity in democracies. A systematic and normal approach to the protection of forests and natural habitats. So this has to be a commodity that is part of our lives. That’s why every time we meet in an international conference, we have to give awards to heroes. Because protecting the environment in many parts of the world is the business of heroes. But unfortunately, we don’t have that many heroes all over the world. So it is the rule of law that will make each one of us be brave enough to speak up to make sure that the laws are implemented, and finally to bind together I repeat forests, climate, and ecologically sustainable development.

[6:54] We’ll still have our heroes, but it will be much more democratic because each one of us will be a little hero. My third proposition – and don’t think I’m advertising for you to become a judge. But law without good judges is a paper tiger. There’s a conclusion that we can take from the proposition that we need the rule of law. But not just any judge. Good judges. Independent, ethical, knowledgeable of the ecological processes and forces that made up what we are. And this is probably the biggest challenge that we all have, to make judges understand the laws of nature. Not just the nature of law, but the laws of nature. Judges are the most powerful actor in the conservation process and in landscape protection. I guess you’d not disagree with this. But we are nowhere. They enforce the boundaries of protected areas, or make their establishment illegal. Just a few examples. They can shut down wide cut mining operations and impose good behavior in large corporations. Or make sure that when you have a good corporation like Unilever, the competitors are not doing exactly the opposite. So the ground is level for the good people and corporations to proceed with good behavior. They can secure the land of indigenous people or kick them out. But, most importantly, judges are the final arbiters of property rights. And this is what makes the difference at the end of the day.

[9:10] My fourth proposition and last one is that we always talk about the tragedy of the commons. So, we can shift blame to the natural resources themselves. It’s not a tragedy of people. It’s a tragedy of those public goods, including forest, health air, the land, the soil, the oceans, and so on. I’m inclined to believe that the tragedy of the commons is in fact a tragedy of the laws. So we are getting closer to people here. And, even more important, it is a tragedy of the judges. Since we are the final arbitrators of everything, including life and death. Even love. We are the arbitrators of love. See how powerful are judges are. Why is it that we can’t use this power in order to make sure that mother earth continues to nourish us and the future generations?

[11:05] So, it is a tragedy of the judges. However – I have already spoken for 10 minutes. Can I have two more minutes? And I will end here. It’s not that it will be an easy task. But we are not used to easy tasks. If something is easy, people that work with environmental issues, we are not really very interested. We like challenge. And let me give you two or three examples why it would be very difficult with us judges, although we need the judges. We hear very often the word synergies. I think I heard it today already, and if I have not, I can tell you that yesterday several people used synergies. We judges don’t know this term because we work alone. We work by exclusion. So this is a vocabulary that we need to translate for judges. I’ll give you another example. From today, the term strategy, we have to have a strategy. Judges don’t work based on strategies, because we depend on the parties to bring the cases before us – the way they do it. And lastly, I think we take for granted that planning has to do with space integration. Looking at everything at the same time in a holistic manner.

[12:55] Well, we judges and law enjoy exactly the opposite – disintegration. We disintegrate the environment vertically and we disintegrate the environment horizontally. Vertically because we disintegrate the elements of the environment – air, forest, water, now ecosystem service, and so on. And we do this also horizontally through property rights. A little plot here, a bigger farm over there, a protected area. So it’s exactly the opposite of what a landscape approach would require from us. I am here with a word of optimism and at the same time, I hope, a better perspective for this integration between law, science, policy, economics. UNEP has established what it’s called the International Advisory Council for Sustainable Justice. Something that [Unclear 14:21], our colleagues from UNEP are very proud of. I’m the Secretary General of this group.

[14:33] I think the way to work with judges is to bring judges to the dialogue, but understanding all those handicaps that we have. Those are institutional handicaps. We are never going to really overcome all of them, and perhaps we never should, because that’s part of the independence of the judiciary that we cherish so much. Thank you very much and good luck.

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