Clarifying the Definition of Illegal Logging
Prepared by Kenneth L. Rosenbaum
With the contributions of
Arnoldo
Contreras, Manuel Paveri and Olman Serrano
This discussion paper for the FAO Advisory Committee on Paper and Wood Products looks at the issue of defining “illegal logging”. Illegal logging has become a matter of widespread concern, yet people use the term in different ways, without consensus on its meaning. At last year’s meeting the Advisory Committee discussed illegal logging and encouraged FAO to look at how to clarify the definition. This paper reviews some developments in the field since the Advisory Committee’s last meeting, explores issues that arise in clarifying the definition, and considers how FAO might encourage the development of more specific definitions to advance action against illegal logging.
2 The Issue
Stakeholders throughout the forest sector have raised concerns about illegal activity. The alarm has rung most notably and loudly about the problem in developing countries (see, e.g, Curran et al. 2004; Tacconi et al. 2003, p. 7, Table 3) and in countries in economic transition such as those in Central and Eastern Europe (see, e.g., Bouriaud & Niskanen 2003; WWF Latvia 2003). However, even developed countries such as the United States may have significant environmental and monetary losses from illegal logging (see Government Accountability Project 2002), and consumer nations contribute to the problem by buying forest products regardless of legality, by financing illegal activities, and by unintentionally offering opportunities for laundering of products and profits through illegal trade (see the discussion in Commission of the European Communities 2003, pp. 9–21).
The issue resonates across the entire forest stakeholder community: industry groups, environmental groups, academics, international aid organizations, producer nations, and consumer nations all are speaking out. The concern is broad because illegal logging affects the forest sector in many ways:
• Environment: Illegal logging could affect the quality of forests and the goods and services they provide: sustainable fuel and fiber supplies, wildlife habitat, water supplies, and other environmental values. (For a current example, see Curran et al. (2004), a report on the impact of illegal logging on protected areas in Indonesian Borneo);
• Commerce: Orderly conduct of business depends on enforcement of property rights, honouring of contracts, and the even-handed application of the law;
• Social welfare: On the one hand, illegal logging can be a symptom of laws out of step with local needs; on the other hand, illegal logging can deprive people of access to their own forest resources, expose them to dangers in their work, and turn stable communities into boom-and-bust, unstable communities. In the hands of rebels, criminals, or corrupt officials, income from illegal logging can support violence and repression;
• Governance: Illegal logging is a symptom of the failure to administer justice effectively, and it feeds corruption and organized crime;
• Revenues: Illegal logging has cost governments billions of dollars in lost taxes and forest owners billions of dollars of lost stumpage. Because illegal logging is often unsustainable, it robs communities of future income.
3 Recent Developments
Last year’s background paper for the Advisory Committee reported developments on several fronts against illegal logging. They ranged from spontaneous direct actions by villagers to high-level meetings of producer and consumer nations.
Since the last session of the Advisory Committee, actions have continued at an accelerating pace. The most prominent events and actions are noted briefly here. For a more comprehensive reference, consult www.illegal-logging.info, the Sustainable Development Program of the Royal Institute of International Affairs website tracking developments related to illegal logging.
In May 2003, the European Commission released its draft Action Plan for Forest Law Enforcement, Governance and Trade (FLEGT). The plan addresses the problem of illegal logging and related trade, and some regions or countries were targeted: Central Africa, Russia, Tropical South and Southeast Asia. Among the actions proposed in the draft plan, those having the most direct influence on timber trade are :
• The EU will work with timber producing countries in the form of cooperation to implement effective systems that could distinguish legal from illegal production and track timber from the point of origin to final markets;
• In the short term, it is proposed to help countries set up a voluntary licensing scheme to ensure that only legal timber is imported from those countries. Under this scheme, exporting countries would become Forest Law Enforcement, Governance and Trade (FLEGT) Partner Countries and the exported timber would be accompanied by an export permit;
• Timber originating in a FLEGT Partner Country and arriving at an EU point of import would not be released for free circulation in the EU without such a permit;
• In the case of a refusal by a country to develop a FLEGT Partnership, the feasibility of legislation to control imports of illegally harvested timber into the EU could be undertaken. (Commission of the European Communities, 2003).
The African Forest Law Enforcement and Governance (FLEG) ministerial conference took place in October 2003 in Yaoundé, Cameroon, under the umbrella of the New Partnership for Africa’s Development (NEPAD). Representatives from 39 nations (including consumer nations and the EU) along with international organizations and NGOs met to discuss technical and political aspects of illegal logging in Africa. The Ministers issued a Declaration that contained various pledges to fight violations to forest law by not only strengthening national initiatives but also bilateral, regional and multilateral collaboration. The Declaration outlined 38 specific actions countries should undertake to support better law enforcement in the region. A follow-up meeting has been planned for this spring. (A summary of the meeting can be found in International Institute for Sustainable Development (2003)).
The African FLEG followed a similar effort in Southeast Asia in 2001. Future FLEG conferences, focusing on Latin America and Russia, are in the planning stages.
The Asia Forest Partnership is an effort by Japan, Indonesia, the Nature Conservancy, and the Center for International Forestry Research to further sustainable forest use. It was created at the 2002 World Summit on Sustainable Development in Johannesburg. In November 2003 it held its third meeting, and illegal logging was a major topic of discussion. Among the points discussed was a proposal to establish minimum standards of legality. A set of links to proposals and presentations related to illegal logging from the third meeting is posted on the web at http://www.asiaforests.org/scripts/events.asp?ref=/events/events.htm&bm=2.
A similar outgrowth of the Johannesburg Summit, the Congo Basin Forest Partnership, brings together 29 national governments, international organizations, and NGOs with an interest in Congo Basin forests. Its first meeting was in Paris in early 2003 and it plans to meet again in Brazzaville this spring.
The International Tropical Timber Organization continued its interest in
reducing illegal logging. In a November 2003 press release from the 35th meeting of
the International Tropical Timber Council, the Council urged the private sector to
become more involved in combating illegal activities. The release is available at http://www.itto.or.jp/live/Live_Server/207/news20031108e1.doc.
4 Working towards better definitions
The lack of a common understanding on a core set of definitions related to illegal logging has actually helped to advance general discussions of forest sector problems. It has allowed people of different backgrounds and interests to find common ground in their respect for the rule of law and opposition to illegal activities.
However, the lack of harmonized terms and definitions makes acting on the problem more difficult. For example, a study in the Baltic region found that people interviewed there did not share a consistent definition of illegal logging and so had significant differences in their understanding of the problem (WWF Latvia 2003). A recent study for the European Commission identified the lack of a clear working definition of legality as a hurdle to verification of timber imports (ERM 2003). In trying to develop procurement standards for legally felled timber, the UK government found sustainable and legal timber to be complex and difficult to define (UK DEFRA 2003). To move from discussion to action, it is necessary to identify specific standards and issues of concern. This means clarifying exactly what “illegal logging” means.
5 What would clarifying the definitions entail?
An effort to clarify the definition could move in two distinct directions. The first approach is give up on the general term “illegal logging” at the outset. The argument here is that the term is too vague. It means everything and nothing. The solution is to adopt a more precise set of new terms that would allow certainty in discussions, policy papers, and perhaps legislation.
The eventual result would be a family of overlapping, related terms, such as:
• Timber theft: harvest of trees without lawfully obtained permission from the owner;
• Forest injury: unlawful destruction of forest property or resources, including acts such as arson, illegal hunting, or destruction of survey and boundary marks;
• Forest revenue crimes: evasion of forest-related taxes, tariffs, and fees, including stumpage fees owed to the government;
• Illegal forest use: trespass, illegal occupation of forestland, unauthorized harvest or land development, and other actions that displace lawful forest uses;
• Unlawful forest commerce: fraud, embezzlement, wrongful possession and use of property, failure to honour contractual obligations, money laundering, transfer pricing, and other illegal acts involving commercial transactions;
• Forest environmental violations: violations of management or harvest laws intended to protect the forest resource or the environment generally;
• Illegal forest transport: violation of forest product transport controls;
• Illegal processing: violation of environmental, commercial or other laws in the processing of forest products;
• Illegal forest trade: trade in forest products in violation of national laws or international agreements.
The second distinct approach is to develop multiple, variable definitions of “illegal logging” depending on the different contexts/people involved in forestry activities. This approach assumes that there is no need for a single, universally applicable meaning for each of these people, depending on factors such as:
• Geographic scope of the action developed by a person;
• Scope of authority the person;
• Powers or capacity of detection available;
• Practical objectives pursued.
Here are some examples of the factors as applied to specific contexts.
The government forest administration in a rural district is limited firstly by geographic scope. Naturally, it focuses on activities within the district. Depending on geography, it may not be directly concerned with issues of processing. It is unlikely to be dealing directly with issues of international trade, unless the district is a haven for smuggling.
The scope of its authority is going to colour its working definition as well. Its authority may be restricted to timber-related matters, with no authority to arrest people hunting without a license or capturing protected species. Its authority may be strictly limited to government lands, with no authority to stop a log truck on a public road or inspect a mill, or no authority to arrest a trespasser in a private forest.
As a practical matter, limits to detection will colour the working definition. It will probably be interested in timber theft, no matter how difficult to detect. However, depending on the structure of local government, it may be in poor position to detect that a private owner has bribed a clerk in the land department to get the necessary proof of land ownership to cut, or that the owner is under-reporting his harvest income to the revenue department to evade taxes.
Finally, its working definition will be coloured by it own objectives as a forest agency. For example, it may be in a good position to detect violations of labour laws by the harvester, but it may see its role as limited to issues that affect the productivity of the forest. It may be ready to cite a logging operation for failure to have fire control equipment on hand, but not for failing to have a first aid kit. It may consider that labour and employee safety issues are beyond the scope of illegal logging.
Appendix I is a chart that shows roughly how these kinds of contextual definitions might differ among the actors described above. On the basis of this, one can make a few general statements about the problem of defining illegal logging. First, there are some common features to all the contextual definitions, notably that they all include theft of trees. This squares with the common use of the term and the image that “illegal logging” probably brings to most people’s minds. Second, the most comprehensive definitions may come from within industry itself. This is because industry can be geographically diverse and can have a high power of detection, in the sense of self-policing. Third, it is unlikely that any universal definition will emerge when contexts demand so much difference in focus. In fact, some the greatest definitional differences may be found within governments, where different departments such as forestry and revenue have different authorities, detection powers, and objectives.
6 What is FAO doing
The Food and Agriculture Organization of the United Nations, FAO, in partnership with the International Tropical Timber Organization, ITTO, initiated a global analysis of experiences in combating illegal logging and trade with the objective of identifying and designing best practices and guidelines for ensuring law compliance. These guidelines will help government decision-makers in designing and implementing policy, legislative and institutional approaches to ensure better adherence to the law. FAO also initiated a catalogue of forest laws in various countries, as well as a number of case studies to examine factors of the policy and legal framework that facilitate or compel actors to engage in illegal actions. Several country analyses by FAO and ITTO are under way. These studies are providing insights on causes of illegal acts and the possible remedial measures that country governments can undertake. The National Forest Programs Facility, hosted by FAO, continue to provide advice to countries on policy reforms and FAO is also studying ways in which private forest corporations could contribute to better law enforcement in the countries they operate by adopting corporate codes of conduct. FAO is also providing technical assistance to some member countries to increase their institutional capacity to improve and enforce forest laws and to develop appropriate related policies and strategies to combat and reduce illegal activities in forestry.
7 Options for further action by FAO
Considering the above discussion it is apparent that any attempt to clarify the definition is unlikely to result in a single, universally applicable meaning, in fact different motives for clarification would take the definition in different directions. This imply that perhaps efforts should not be invested in clarifying or defining a single term, but rather in harmonizing existing terms for a better understanding of illegal logging in the international debate.
Here are some possible roles for FAO. They are presented to stimulate discussion among the Advisory Committee members, without particular endorsement. FAO invites the members’ suggestions and advice.
I. FAO to convene a panel of experts and stakeholders to identify and define specific classes of acts and main elements which could conform or lead to illegal logging.
II. FAO to convene a discussion of illegal logging among businesses (and perhaps NGOs, development banks, and governments) to promote consensus on illegal logging as part of a voluntary code of socially responsible behaviour? Recent years have seen the development of voluntary codes such as the Equator Principles for socially and environmentally responsible private investment (see http://www.equator-principles.com) and the Business Principles for Countering Bribery (see http://www.transparency.org/building_coalitions/private_sector/business_principles.html). A committee of the International Standards Organization is exploring the feasibility of an ISO standard for CSR management (see http://www.iso.ch/iso/en/comms-markets/industryforums/corporatesocialresp/index.html). Should there be a model code for avoiding complicity in illegal acts in forestry, or in natural resource management?
III. Are there other constructive roles for FAO beyond those suggested here?
L. Bouriaud & A. Niskanen. 2003. Illegal logging in the context of the sound use of wood. (Available on the Internet at http:// www.unece.org/trade/timber/docs/ sem-1/papers/r30Niskanen.pdf).
Commission of the European Communities. 2003. Communication from the Commission
to the Council and the European Parliament: Forest Law Enforcement, Governance and Trade (FLEGT): Proposal for an EU Action Plan. 32 pp. (Available on the Internet at http://europa.eu.int/eur-lex/en/com/cnc/2003/com2003_0251en01.pdf).
L.M. Curran et al., 2004. Lowland Forest Loss in Protected Areas of Indonesian Borneo. Science Vol. 303, pp. 1000–03 (13 Feb. 2004).
ERM. 2003. Feasibility of and Best Options for Systems for the Identification, Verification, Licensing/Certification and Tracking of Legality of Timber and Related Products for Imports into the EU. (Contract No: B4-3040/2002/343025/MAR/E3, available on the Internet at http://europa.eu.int/comm/environment/nature/forest_report.pdf).
Government Accountability Project. 2002. Field Guide to Timber Theft: Understanding Timber Sales, the Contract & the Law. 31pp. (Available on the Internet at http://www.whistleblower.org/uploads/Field Guide To Timber Theft v2.0.pdf).
International Institute for Sustainable Development. 2003. A Summary Report of the Africa Forest Law Enforcement And Governance Ministerial Conference (AFLEG). Sustainable Developments, Vol. 60(7), pp 1–8. (19 October 2003). (Available on the Internet at http://www.iisd.ca/download/pdf/sd/sdvol60num7e.pdf).
L. Tacconi et al. 2003. National and International Policies to Control Illegal Forest Activities: A report prepared for the Ministry of Foreign Affairs of the Government of Japan. (Available on the Internet at http://www.cifor.cgiar.org/publications/pdf_files/events/Illegal-logging.pdf).
UK Dept. for Environment, Food & Rural Affairs (DEFRA). 2003. Government Timber Procurement Policy. (Available on the Internet at http://www.illegal-logging.info/papers/Defra_-_Timber_Policy_-_Oct_03_-_SD_Mag_v2.doc).
WWF Latvia. 2003. The features of illegal logging and related trade in the Baltic Sea region. (A discussion paper prepared for the Nordic Council of Ministers, available on the Internet at http://www.wwf.fi/ www/uploads/pdf/balticillegalloggingreport.pdf).
