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ITEM 6a: DEFINING ILLEGAL LOGGING: WHAT IS IT AND WHAT IS BEING DONE ABOUT IT?

Paper prepared for FAO by Kenneth Rosenbaum

In the last few years, illegal logging has emerged as a serious worldwide concern in the forest sector. Individuals from all spheres, including government officials, businesspersons and social activists, denounce it. But what is it? And what are people doing about it?

This background paper offers general answers to those questions. It begins by looking at what people have included in the term illegal logging. It then briefly discusses why illegal logging is a concern to such a wide and varying group. Finally, it describes some recent activities that have been developed to fight illegal logging.

What is `illegal logging'?

`Illegal logging' has no single definition. It is not a legal term derived from treaties, statutes, or court opinions. Neither is it a technical term that professionals use in a consistent way. In a general sense, "illegal logging takes place when timber is harvested, transported, bought or sold in violation of national laws" (Brack & Hayman 2001, p.5).

This broad definition includes almost any illegal act that may occur between the actual growing of the tree to the arrival of the forest-based product in the hands of the consumer:

"Illegal acts include...unauthorized occupation of public and private forest lands, logging in protected or environmentally sensitive areas, harvesting protected species of trees, woodland arson, wildlife poaching, unlawful transport of wood and other forest products, smuggling, transfer pricing and other fraudulent accounting practices, unauthorized processing of forest products, violation of environmental regulations, and bribing government officials." (Contreras-Hermosilla 2002)

"Examples of the types of illegal practices that have been detected in the forest industry...largely fall into three categories: illegal logging of various forms; movement of wood products, which may or may not have been harvested legally, without proper authorization or in contravention of controls; and activities directly aimed at avoidance of payment of taxes or forestry charges." (Calister 1999)

"There are many types of illegal forest practices...public servants may approve illegal contracts with private enterprises. Private commercial corporations may harvest trees of species that are protected by law from timber exploitation. Individuals and communities may enter public forests and illegally take products that are public property. Illegal activities do not stop at the forest. They travel down the line to operations in transportation, processing and trade of forest products. Individuals or corporations may smuggle forest products across international borders or process forest raw materials without a license. Corporations with strong international links may artificially inflate the price of imported inputs or deflate the volume and prices of their exports to reduce their tax liability and to facilitate the illegal transfer of capital abroad." (FAO 2001, pp. 88 & 90)

Appendix I contains a detailed list of unlawful actions that might be included in the term. Arranged by categories, these actions include:

Harvest and transport

Sales or processing

Export and import

Associated crimes (which may happen anytime from harvest to export)

Abuse of governmental authority

Not everyone would agree that all these actions should be considered illegal logging, yet in many contexts people are comfortable using `illegal logging' without strictly defining it. When used in an abstract sense, the term unites people with diverse interests. Environmental activists and directors of multinational corporations, village heads and heads of state, advocates of social justice and advocates of stronger law enforcement - all can agree that illegal logging is detrimental.

Why are people concerned about illegal logging?

Underneath this agreement lies a diversity of concerns about the effects of illegal logging. These concerns include:

Ultimately, these differences in concern lead to disagreements over what illegal logging is, or over what kinds of illegal activity are the most important to combat. For example, when an indigenous group continues to practice slash-and-burn agriculture despite newly enacted bans, a government forester might see illegal logging while a social activist sees a people deprived of their traditional rights. When a paper mill violates recordkeeping requirements under pollution control laws, an environmental activist may decry this as lawless behaviour, while the mill owner considers it only a little more serious than illegally parking a vehicle.

It would be a mistake, however, to make too much of these differences. Environmental activists do value stable business environments, and corporate officials do care about the environment. In the end, the disagreements are more about priorities than about fundamentals. There is general agreement over most of what is meant by illegal logging. This agreement has led to a diverse assortment of responses to combat illegal logging. In some cases, groups that seldom work together have found a common interest in this cause.

The responses

Direct action: Local direct action has a low profile, but it has sometimes proved effective on a limited scale. In a 2001, at the World Bank electronic conference, a government forester in Bangladesh reported successfully depriving an illegal logger of local labour by hiring the workers to do reforestation and timber stand improvement. The November 2002 newsletter of the Forest Integrity Network reported two instances of community groups in India rising up to defy and drive away illegal loggers, to protect their traditional forest access (Forest Integrity Network 2002). Indeed, it is a basic assumption of community forestry advocates that when local communities have an economic stake in nearby forests, they will be more likely to protect those forests.

Research and investigation: It has been said of illegal activity that if we could expose and quantify it, we would be halfway towards eliminating it. A number of governments, NGOs, journalists, and academics have been working to shed light on illegal logging.

In some cases, this involves direct field investigation. Prominent NGO examples include the work of the Environmental Investigation Agency, whose "Forests for the World" program has been investigating environmental crimes since the early 1990s. Since 1997, they have joined with Indonesian NGO Telapak to expose environmental crime in that country (Environmental Investigation Agency & Telapak 2001 & 2003). The Australian Broadcasting Corporation's investigative journalism program "Four Corners" recently produced a feature on illegal logging in Indonesia, based in part on the EIA-Telapak work, and coupled the broadcast with an extensive web site (Australian Broadcasting Corp. 2002). The NGO Global Witness is dedicated to exposing environmental abuses linked to human rights abuses. It has written reports on illegal logging in Liberia, Cameroon, Cambodia, and Zimbabwe (see www.globalwitness.org/campaigns/forests). Until this past winter, Global Witness had been working in partnership with the United Nations Development Program, FAO, and the Government of Cambodia to monitor illegal logging in that country (see www.forestcrime.com), but relations between Global Witness and the Cambodian Government have deteriorated (Sipress 2003). Working with other NGOs, Forest Monitor has produced investigative reports of illegal logging in Cameroon (Forest Monitor & Greenpeace 2002) and the Russian Far East (Bureau for Outreach Campaigns et al. 2001), among other places. Greenpeace has investigated and publicized illegal logging in Cameroon, Brazil, the Russian Federation, and other countries (see publications available at http://archive.greenpeace.org/~forests/resources/).

Illegal logging has been the subject of a growing number of academic studies. For example, a conference at Yale University last year drew over a dozen papers on forest crime. Among the presenters, Anita Akella showed through an economic analysis how enforcers could better allocate their resources in Brazil (Akella et al. forthcoming), Richard Dudley presented a systems analysis of the dynamics of illegal logging in Indonesia (Dudley forthcoming), and Nalin Kishor showed correlations between statistical indicators of poor governance and the prevalence of forest crime (Kishor forthcoming). NGOs known for research such as the World Resources Institute (WRI) in Washington and the Royal Institute of International Affairs (RIIA) in London have also sponsored studies and conferences.

Training and capacity building: Lack of enforcement skill and technology among government enforcers makes it harder to prevent, detect, or suppress illegal logging. Training can help. Sometimes foresters need to learn how to preserve evidence for use in a criminal trial. Sometimes police need to learn how to tell valid permits and log markings from invalid ones. Sometimes prosecutors and judges need to learn about the serious consequences of forest crime, so that prosecutors will pursue the cases and judges will hand down serious punishments.

In other cases, the problem is not lack of skill but lack of tools. Land tenure records may be so poor that it is difficult to tell who owns the land. Lack of copies of current law may leave enforcers unsure about what rules to enforce. Lack of surveys may make it hard to locate boundaries in the field. Lack of personnel, vehicles, and communication equipment all hinder enforcement. Newer technologies, such as satellite surveillance, global positioning systems, DNA analysis to prove wood origin, and electronic log marking, are promising but expensive. With the aid of international donors, governments are acquiring better tools.

Legal and institutional reform: Reforms of laws and institutions can be powerful tools to fight illegal logging, though the reforms must be carefully tailored to fit local circumstances. In some serious cases, an initial response has been to enact temporary bans on harvest or export. For example, Brazil has recently put a moratorium on the harvest of mahogany, Cambodia has banned commercial harvest, and Indonesia and Malaysia have agreed to halt log exports across their mutual border. Though not guaranteed to be effective, bans are easier to enforce than regulatory programs. Longer-term responses have included revamping the laws defining and setting punishments for forest offences; increasing public participation and transparency in forest administration; clarifying the powers, duties, and accountability of government forest officers; and shifting control over the forests within the government or between government and private owners. Some importing countries are considering their own legal reforms, including requiring proof of legal origin of imported wood products and criminalizing trade in wood products harvested in violation of producer-country laws.

Conferences and networking: Conferences, meetings, and workshops on illegal logging have become so common that it is impossible to track them all. Here are some examples of the variety of events in the past few years:

Certification and procurement: Lawful producers and many consumers of forest products would be glad to see tainted wood products disappear from the market. The problem is how to identify tainted products. One promising avenue is through certification, which can provide assurances of the origin of wood and the circumstances of its harvest.

Certification systems have grown in popularity in the last decade as a means of ensuring that wood products are harvested sustainably. The Forest Stewardship Council (FSC), formed by a coalition of environmental NGOs and based in Oaxaca, gave momentum to the certification movement by seeking development of a family of sustainable management standards, each written for a specific area or forest type. While some have embraced the FSC standards, some industrial groups and landowners have responded by developing alternative certification systems. European industry and forest owners have promoted development of mutually recognized national standards, under the umbrella of the Pan European Forest Certification (PEFC) Council. As of 2002, the PEFC Council had endorsed thirteen European national certification systems and was reviewing systems in six other European nations and six non-European nations, including Brazil, Chile, Malaysia, and Australia. US forest product companies have developed the Sustainable Forestry Initiative. US private landowners have updated a decades-old standard, the American Tree Farm System, to reflect current sustainable management concepts. Canadian industry has developed the Canadian Standards Association CAN/CSA Z809 standard. Some Asian governments have been promoting standard development, with Indonesia helping create Lembaga Ekolabel Indonesia (LEI) and Malaysia helping to create the Malaysian Certification Council & National Timber Certification Council (NTCC). In Africa, the African Timber Organization (ATO) is developing criteria that it hopes will evolve into certification systems. Besides these systems developed specifically for forests, some landowners and processors are adopting the international ISO 14000 series standards for general environmental management.

Designed to promote sustainable use, most certification systems are imperfect indicators of legal use. Some standards require compliance with harvest laws but are silent about processing or trade laws. Some, such as the ISO 14000 system, are process-based. They require subscribers to be aware of the laws, and to track efforts to remedy violations, but actual compliance is not a requirement as long as you are working towards it. Even with a system that demands compliance, some kinds of illegality, such as paying bribes or evading taxes, are difficult for certifiers to detect.

Some systems focus on forest management and lack downstream product labelling and chain-of-custody verification. By some estimates, 20 percent of the world's forests are now certified, but only a tiny fraction of the world's forest-based consumer products bear certification marks. So, not all certification systems help downstream consumers make informed market choices.

Nevertheless, through certification retailers and consumers are beginning to influence forest management. Some major retailers of wood-based products are encouraging their suppliers to adopt independent certification or environmentally equivalent practices. Among them are the Sweden-based home furnishings retailer IKEA, the US-based building supplies retailer Home Depot, and the US-based office supplies retailer Staples. The tremendous market power of these large buyers is making certification more attractive to many producers.

Another category of large buyers is government. At least one country, the United Kingdom, is aiming to reform its procurement programs to avoid spending government funds for goods made with tainted forest products.

Bilateral agreements: Indonesia has been particularly intent on seeking bilateral agreements on illegal logging. The agreement between Indonesia and Malaysia to close their border to log exports was noted above. Indonesia has also negotiated a general Memorandum of Understanding (MOU) with the United Kingdom on illegal logging in April 2002, signed a letter of intent to cooperate with Norway in August 2002, and signed an MOU with China in December 2002. It is discussing further agreements with Japan, France, and other countries.

Multi-party international efforts: Multi-party international efforts to address illegal logging include the following:

Donor support and technical assistance: Several major international aid donors and development assistance organizations have committed to fight illegal logging.

Efforts by industry: Producer groups have rallied to condemn illegal logging. Among those issuing statements on the topic have been the American Forest & Paper Association (AF&PA), the Japanese Federation of Wood Industry Associations, and the International Council of Forest and Paper Associations. The AF&PA has amended its SFI certification standards to require compliance with local laws. The Malaysian Timber Council maintains a page on illegal logging on its website.

The World Bank's CEO's Forum on Forests, coordinated by the World Business Council for Sustainable Development, has discussed illegal logging. One of its subcommittees has produced a draft code of conduct for forest companies in tropical Africa. Voluntary measures such as codes of conduct and pledges not to engage in bribery have shown promise in other contexts.

As discussed above under certification, major retailers are discouraging illegal practices by promoting demand for certified wood. Large forest and paper firms are enabling this trend by embracing third-party certification, ensuring that the market can fill this demand.

Crosscutting actions: Some of the most promising new efforts are alliances that link traditional antagonists, some of which have already been mentioned. The Forest Leadership Forum brought together environmental and industry groups to find common ground on certification, sustainable development, and suppressing illegal forest use, despite ongoing disagreements over the quality of their various certification programs. The Forest Integrity Network links activists, academics, government officials, and businesspersons. The FLEG programs have brought governments and activists together in a non-adversarial setting.

The Nature Conservancy (TNC) and the WWF have launched an alliance of businesses, governments, and environmental groups to combat illegal logging in Indonesia. The project aims to increase demand for certified wood products in key markets, increase the supply of certified wood products from Indonesia and reduce the availability of financing for companies involved in illegal logging. The majority of the funding for the alliance will come from businesses and business associations. The major governmental donor is US AID (Forest Integrity Network 2002).

In Cambodia, since 1999, the Forest Crime Monitoring Project has sought to use independent monitoring to help the government fight forest crime. Funders and participants have included the Government of Cambodia, FAO, the World Bank, UNDP, and the donor agencies of, the United Kingdom, Denmark, and Australia. Global Witness has served as independent monitor. Recently, the government has complained that Global Witness has defamed the government's efforts at law enforcement. Indeed, when Global Witness has found shortcomings in forest governance, it has communicated its concerns widely, not just to the government. However, diplomatic observers have suggested to the press that the concerns are valid and that high-level government corruption is involved. Whatever the case, the government has insisted on replacing Global Witness as independent monitor, even in the face of possible loss of donor assistance (Sipress 2003). Recently one of the government's political opponents, a member of the royal family, has publicly criticized the government about corruption generally and illegal logging in particular (Boustany 2003). Many see the Cambodian project as a possible model for third-party verification of enforcement efforts in other countries. Observers will continue to follow developments in Cambodia with interest.

Conclusion

From time to time, despite long-standing conflicts over forest use, abstract concepts emerge as centres of consensus. `Sustainability', long in the forester's vocabulary, rose to prominence as a consensus point in the 1990s. `Legality', long a concern of government foresters and enforcement officials, is now enjoying its day. People will continue to debate the details of what is sustainable, just as they will debate which illegal acts are most important to suppress. But in both cases, the agreements are more important than the disagreements.

The list of people engaged in the fight against illegal logging is impressive in its diversity: environmental activists, social activists, forest-dwelling community leaders, private landowners, forest products business operators, retailers, consumers, government foresters, police officers, prosecutors, judges, cabinet ministers, and heads of state. Their hopes for the forest are equally diverse. However, all see a critical role for forest governance. Too much illegal and unsustainable activity is happening. Without effective forest governance, lawless use will continue to destroy forests.

Illegal logging problems will not yield quickly to solutions. Crime is a chronic problem in every society. Powerful forces drive illegal logging, including poverty, greed, and political instability. These will be with us for many years to come. But the attention that the world is paying to the problem is reason for optimism. Cooperation is triumphing over old antagonisms. Progress will surely follow.

Appendix I: Activities that may fall under the term `illegal logging'

The following is a list of some of the illegal actions that may be included as part of illegal logging. The basic list is adapted from Calister (1999), Contreras-Hermosilla (2002), and Brack and Hayman (2001).

Harvest and transport

Theft of trees

Theft of trees is what people often first think of when they hear the term `illegal logging'. Theft involves cutting trees knowing that they do not belong to you and that you do not have permission to cut them. However, there are many kinds of timber theft, differing in scope and motivation. For example, there is:

Unlawful use of other forest resources

A few people use the term illegal logging to refer to any illegal forest resource use, including:

Destruction of forest property

Actions in this category do not directly result in wood leaving the forest, so not everyone would consider them to be `illegal logging'. However, they do all interfere with forest management, and some can be part of a larger scheme that includes illegal removal of timber. These actions include:

Wrongly obtained permission to harvest

A person may appear to have a right to cut wood, either through land ownership or a concession, but actually the person obtained that right illegally, with bad intent. Under many legal frameworks, the courts would consider this crime to be something other than theft. These kinds of illegal activities would include:

Mistaken permission

This category involves cases where the harvester honestly believes that he has permission to cut, but he does not. In some cases, cutting trees under this circumstance is not a crime (punishable under the criminal justice system, with fines and imprisonment possible) but is still unlawful (subject to lawsuits for damages or injunctions). Harvesters in this category include:

Broken contracts

When a landowner grants permission to log trees, usually permission comes as part of an agreement or contract. The logger has some obligations in return. If the logger does not keep the bargain, the law may enforce the agreement. Most people concerned about illegal logging focus on criminal behaviour, not contractual disputes. However, honest business depends on contracts being enforced. Also, breaches of contract can incidentally lead to environmental and other problems. Acts of concern include:

Broken harvest rules

The law may set rules governing harvest. Some of these are substantive rules to protect the forest resource, some have more to do with raising revenue or protecting social welfare, and some are procedural rules used to apply the substantive rules. Violation of any of these rules is illegal. However, people will disagree about whether all these violations in this category should be considered illegal logging, particularly the violations of commercial or procedural rules. The larger set of violations in this category includes:

Broken management rules

The law may also set rules governing forest management that apply well before harvest. To some people, any trees coming off illegally managed lands should be considered `illegal'. These management violations include:

Illegal local transportation

Most people consider `illegal logging' to include illegal activities that happen well after harvest. Illegal harvest can trigger a series of subsequent illegal acts such as illegal transport, processing, and export, but even legally harvested wood can follow illegal paths. Some people, such as landowners and environmental groups, are concerned primarily with violations that happen on the forest, but they believe that failure to control subsequent violations only encourages problems on the land. Some people, such as government finance officials, see violations off the forest as independent and equal concerns.

The first opportunity to break the law after harvest often comes with the transport of the logs. Governments often regulate log transport because it is easier to catch timber thieves on the road than to catch them in the forest. Transport violations may be closely linked to illegal harvest or they may be independent. Typical violations include:

Sales and processing

From forest to ultimate consumer, harvested wood may be sold or processed many times. At a basic level, if the wood is originally stolen, the law may regard subsequent sales to be illegal (see Associated Crimes below). However, processing and sales can raise other legal issues.

Fraud

A seller commits fraud by intentionally misrepresenting a material fact, to the injury of the buyer. In wood or wood product sales, this can involve deception about characteristics of the goods sold, such as the:

Regulatory control of sales

The law may regulate the sale of wood products. Some jurisdictions do not regulate sales at all, while others regulate sales tightly. Possible violations of sales laws include:

Regulatory control of processing

As an industrial activity, processing offers another venue for regulation. Some of the regulatory issues directly parallel those in sales, such as:

Other regulatory issues parallel those in harvest settings, such as:

Sophisticated deceptions

An otherwise innocent-looking transaction can be part of a scheme to evade future responsibilities or to cover up past crimes. Whether these transactions are illegal depends on local law.

Import and export

Here are some typical illegal acts associated with import and export:

Associated crimes

`Linked' crimes

When crime becomes organized, prosecutors look to reach beyond the initial criminals to the entire organization. In those circumstances, a group of linked or associated crimes become of interest. These include:

Revenue crimes

At several points along the chain of commerce from forest to consumer, the government may levy fees or taxes. The long list of fees that people may seek to evade includes:

Bribery and extortion

At any point where a person seeks government action or inaction, the door is open for bribery, or more rarely, extortion. Bribery involves granting a personal benefit to a government official to secure a desired result; extortion involves a threat of force to a government official if the desired result is not achieved. To a prosecutor, bribery can involve several offences. Offering a bribe and paying a bribe are offences by private persons. Asking for a bribe and accepting the bribe are offences by government officials, mentioned below under Governmental Abuse of Authority. Motives for bribery by private citizens include:

Governmental abuse of authority

Corruption

Corruption involves use of a public position for personal enrichment. Its forms include:

Exceeding powers or ignoring duties

Government officials can abuse their authority without receiving direct personal gain. For example, they might:

BIBLIOGRAPHY

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