The notion of international forest regulation had its roots in two proposals put forward in 1990: one for a global forest convention, and the other for a forest protocol within the climate change convention. Support for a forest convention increased, particularly among the G7 countries. With this in mind, the Global Legislators Organization for a Balanced Environment (GLOBE) published a model Convention for the Conservation and Wise Use of Forests in early 1992. The hope of various countries that UNCED would produce an international forest convention later that year, however, proved premature; long-running disagreements, especially between developed and developing countries, had become strongly polarized. Countries had - and still have - very different perspectives on what constitute global issues. In part, a country's viewpoint depends on the size of its forest assets and its perceived developmental need to transform some of these assets into other forms of capital. It is also a function of how far the country wishes to treat forests as global commons, as opposed to sovereign domain.
Although a legally binding agreement on forests was not secured, UNCED did produce several legal instruments, both "soft" and "hard" (see Box 26), with direct - if not comprehensive - bearing on the use and management of forests. The Rio Declaration establishes general principles to guide States in a new "equitable global partnership" in matters of environment and development. The Rio principles call for environmental protection to form an integral part of development and for the elimination of unsustainable patterns of production and consumption. Agenda 21 highlights the cross-sectoral nature of forests and underlines the importance of forests in providing socio-economic benefits as well as environmental services. The Forest Principles reaffirm the sovereign right of States to use their forest resources to meet their own needs, while acknowledging that the incremental costs associated with sustainable development must be shared equitably by the international community. The Forest Principles do not, however, identify the global aspects of sustainable forestry. In addition to soft-law instruments, UNCED agreed on the terms of three conventions (CBD, FCCC and UNCCD) which are relevant to, but not solely concerned with, forests and forestry.
Definitions of "hard" and "soft" law
The names of different types of "hard law" tend to reflect negotiating procedure or degree of formality. For example, terms such as "treaty", "convention", "protocol", "agreement", "arrangement" and "statute" are often used interchangeably.
"Convention" refers to a formal legal instrument of a multilateral character. The term also includes instruments adopted by the organs of international institutions such as the International Labour Conference. It is interchangeable with "treaty".
The Vienna Convention of Treaties defines "treaty" as "a formal international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".
A "protocol" is normally treated as an instrument subsidiary to a convention, or a supplementary treaty concluded at a later date; it is of independent character and operation to the convention and subject to independent ratification.
"Soft law" instruments such as intergovernmental principles (e.g. the Forest Principles) or frameworks for action (e.g. IPF's Proposals for Action) are not legally binding. However, they reflect consensus, negotiated agreement, political endorsement and commitment. Obligations are no more than moral. However, if extensively used, soft law can gain greater legal weight by its cumulative impact on international customary law.
These international environmental agreements heralded a period of consensus-building on forests which coalesced around the newly established UN Commission on Sustainable Development. CSD was mandated by ECOSOC to promote the incorporation of the Forest Principles into the implementation of Agenda 21. When CSD established IPF in 1995, it directed IPF to examine future legal instruments as one of its five categories of work. It was not until IPF's final session in February 1997, however, that this mandate was substantively addressed. It became clear then that positions on the subject had shifted somewhat; some countries which previously had been opposed to extending binding forest law were able to consider and even support a legal instrument. Many, however, remained unconvinced. CSD subsequently directed IFF to continue the deliberations on the subject started by IPF, as one of its three categories of work.
Worldwide agreement on what constitutes sustainable forest management at both the national and forest management unit levels has progressed considerably. Various international processes currently working to develop and implement national-level criteria and indicators of sustainable forest management and other efforts to identify indicators for the forest management unit have resulted in considerable convergence of opinion as to what sustainable forest management means in practice. The progress at these two levels has underscored the need to address the global dimensions of sustainable forest management. Failure to ensure sustainable forest management globally will undermine national and subnational initiatives.
A priority at this stage is to address the following questions. What forest issues are best dealt with by international law? Are current instruments adequate? Do they need to be improved? Are new instruments required? If so, what form or forms are most appropriate?
The first step is to distinguish purely global issues from those that are local and national, which is often difficult. Also, the "additionality" component needs to be identified, i.e. what a nation (or company or group) has to do to provide for regional or global needs, beyond what it would do to secure national or local forest goods and services. Reaching agreement on this may be difficult.
The next step is to consider which of the global issues identified can be dealt with only by means of international action. For those issues, the question is whether existing international law is sufficient. If not, there are three broad options:
Two central issues that international forest law is well placed to address are: security of global services and other benefits from forests; and cross-border activities and conditions which affect the provision of, or access to, forest goods and services, whether of global, regional, national or local value. These global and cross-border issues can be distinguished from those that are common to many countries but have essentially a local or national nature.
The concept of security of specific forest goods and services is important in clarifying the purpose of future international legal instruments. What people get from forests - and the equitable distribution of associated costs and benefits - matters more than the amount of forest land or deforestation statistics (which have dominated much international discussion).
The security and maintenance of global services from forests are important for humanity as a whole. These services include:
Although forests fall under domestic jurisdiction, in recent years nations have increasingly acknowledged the "global commons" nature of forests, recognizing the global community's dependence on certain forest functions. International agreements could define national obligations or create incentives for the provision of global forest services, for which new "markets" could develop and which could provide the basis for compensation payments. At present, it is difficult to identify and harness individual countries' willingness to pay for these services. Markets for global services could tip the balance in favour of sustainable forestry, which often provides these services anyway, but which (at present) is not always rewarded for doing so by timber revenues alone. Some markets for forest services, notably for carbon offsets and bioprospecting, have recently developed, offering useful lessons.
A well-established tenet of international law is that nations are responsible for ensuring that activities within their jurisdiction or control do not harm the environment of other nations. Cross-border activities - such as trade, aid, foreign investment, forest operations of foreign companies and pollution - have huge potential to either help or hinder the security of forest goods and services at any level, from local to global. The international legal means to ensure that such activities by one nation (or, indeed, one company) do not create negative impacts in another country are currently insufficient, especially in regard to environmental services of forests. The challenge is to determine what kinds of measures (e.g. agreed standards for operations and procedures, such as environmental impact assessment and codes of practice) or multilateral institutional arrangements might be most effective to address the activities. Cross-border problems have tended to be most effectively addressed through regional agreements in the first instance (e.g. the UN Economic Commission for Europe's Long-Range Transboundary Air Pollution Convention).
Five prerequisites will facilitate further progress, regardless of which intergovernmental or civil society options (including the status quo) are selected.
This is necessary so that all relevant international instruments, whatever their locus and form, can be calibrated meaningfully, so that protocols for their communication, payments (for services or as compensation), planning, monitoring and verification can be consistent and can incorporate the critical dimensions of sustainable forestry. Thus, continued support of current efforts to develop criteria and indicators of sustainable forest management at the national and forest management unit level will be important.
Any counterproductive policies and procedures should be especially noted.
Countries need to be clear about what they seek from, and what they can offer to, the international community, while also promoting sustainability and equitability within the nation itself. Strong, stakeholder-driven national forest programmes and associated multistakeholder processes will be fundamental to advancing intergovernmental discussions. Until such national processes are under way and the trade-offs between interest groups are understood, countries will not be well prepared to agree upon analogous trade-offs at the global level. There is a need to ensure that such programmes are not merely wish-lists, but rather that they build upon promising local institutions and mechanisms to reconcile power and potentials for better forestry.
The sustainability of forests is highly dependent on processes connected to causes of forest problems but emanating from outside the forest sector (e.g. trade and agricultural policy). Engagement with them is essential, whatever mix of international measures is in place.
Problems linked to trade, aid, foreign investment and pollution have root causes which cannot be tackled solely by international forest agreements. The global issue of indigenous and minority people's rights is a similar case. International forest initiatives clearly need to provide specific inputs on these important issues to bodies such as CSD, the Organisation for Economic Co-operation and Development (OECD) and the World Trade Organization (WTO) and to coordinate fully with them.
Four options are laid out here, with no judgement offered on which would be most effective. Analysis and debate by nations as suggested above is critical before any decisions can be made. The first three options cover the status quo or modifications of it. The fourth option touches on the more ambitious option of a global forest convention.
The maintenance and security of some global forest services are provided for by existing global environmental agreements, notably those covering biological diversity conservation (CBD and CITES), wilderness heritage (World Heritage Convention), carbon and climate moderation (FCCC) and protection against desertification (UNCCD). These environmental agreements are increasingly having developmental implications.
CBD provides for forest conservation, notably through setting aside of representative protected areas, but also in the context of sustainable use, rehabilitation and restoration, and equitable access and benefit sharing. As such, the convention is compatible with the requirements of sustainable forest management. Although forest-based biological diversity is only a part of its concerns, the convention has many provisions that can support global services provided by forests, irrespective of whether or not a special forests protocol be established under it. CBD confirms a country's sovereign rights to access and use of biological diversity in its territory, and calls for equitable distribution of the benefits derived from using genetic resources. The convention requires national plans and procedures to integrate biological diversity concerns into sectoral activities. Although it confirms the "global commons" aspect of biological diversity, which paves the way for global payments, adequate incentive mechanisms related to forest use are yet to be established. There are large areas of overlap between the CBD provisions and the Forest Principles, suggesting the possible value of a forest protocol under CBD to solidify obligations for forest conservation and some aspects of sustainable use.
FCCC emphasizes the role of forests as carbon sources and sinks. Through its Joint Implementation projects and the Clean Development Mechanism, the convention is developing implementation and payment protocols covering forest offsets paid for by parties in other countries. Further development of criteria and indicators of sustainable forest management and improved carbon accounting may help widen the options beyond large afforestation or set-aside schemes to include also more complex local forest management and agroforestry schemes as carbon offset projects. Although a protocol for forests under FCCC might be effective for regulating biomass and carbon issues, it would not cover many other forest services.
UNCCD is less focused on specific forest issues, but it emphasizes integrated approaches which address the socio-economic, physical and biological aspects of desertification. By requiring national plans and calling for decentralized resource management, UNCCD has the potential to integrate local and global forest needs. However, it is not applicable to many countries and biomes, and it does not provide comprehensive coverage of all forest services on a global level.
The International Tropical Timber Agreement is a legally binding commodity agreement on tropical forest product trade. As the first commodity agreement to incorporate principles, and now targets, for conserving the resource on which the commodity depends (i.e. tropical forests), ITTA has many elements of a legal agreement on tropical forest management (although reporting mechanisms are not rigorous and there are few real incentives or penalties).
Despite the obvious value of these conventions for forests, relying mainly on this option for an international regime on forests would have limitations. Most of the environmental instruments are relatively new and are not yet fully operational. While several international agreements deal with many global services from forests, they do not cover all of them. In addition, controls on cross-border activities (trade, aid, foreign investment, corporate forestry practices and pollution) are very weak. Finally, there are differences in degree of political commitment, availability of resources for implementation, willingness to pay for the global forest services the instruments provide for, effectiveness and equity of obligations and incentives, and speed and timeliness of actions.
Many parties have been reluctant to let one of the existing conventions (notably CBD and FCCC) take the leading role in an international forest regime because they do not wish forests to be treated primarily as environmental concerns. Such countries (and corporations) - particularly those that value forests highly as economic assets to be maintained, increased or transformed into other forms of capital as best suits the nation - stress the need to consider forests' multiple benefits together so that they can be integrated or traded off according to complex needs. Furthermore, the prospect that parts of the spectrum of benefits and purposes of forests could be divided up and governed by different international instruments and bodies is cause for concern to those who believe that forests have suffered from being treated in a piecemeal fashion.
Non-legally binding, or "soft law", approaches tend to be employed where room is required to manoeuvre and to experiment. Their main use is as frameworks for action. These approaches are useful in times of rapid market and social change and uncertainty, where local conditions vary greatly and where consensus has not been reached. These conditions characterize many forest issues today, which explains why soft law has been over the past decade, and continues to be, the predominant approach used. Even as soft law, the Forest Principles and Agenda 21 have increasingly been referred to in conventions since UNCED and have been incorporated into some national laws. Hence they are having an impact on international customary law.
Elaborating, adapting and/or enforcing compliance with intergovernmental soft law, notably the Forest Principles. It has been suggested that the Forest Principles could be adapted and extended to form a basis for an international forest regime. This proposal would appear to have merit for two reasons: unlike other examples of international law, the principles deal exclusively with forests; and they represent a consensus view. However, while the principles focus on forests, they do not deal exclusively (or indeed very much) with global forest issues. Instead, they embody a mix of global, national and local issues, and do not form a basis for regulating global issues. Furthermore, the principles represent a consensus that was achieved precisely because they are not, and were never intended to be, legally binding. Their nature is therefore somewhat incompatible with enforcing compliance, although they are helpful for establishing future agendas and retain the advantages of soft law.
Civil society initiatives. Civil society has already begun to develop incentive systems for better forestry. There are increasing numbers of bilateral markets for biological diversity conservation, bioprospecting and carbon storage (e.g. between corporations and/or NGOs in the industrialized countries and governments in developing countries). An important discussion point is the extent to which these may be alternatives to regulation, and conversely, how much regulation might be needed to ensure their effective and equitable operation.
The forest certification movement has taken off rapidly in some countries through multistakeholder initiatives, albeit driven largely by environmental NGOs, retailers and (more recently) some forestry companies. Certification initiatives could be likened to civil society "conventions" on what sustainable forestry is, how it should be achieved and how managers should be held accountable. While certification has focused on local impacts of commercial forest operations, certification of carbon offset forests has also now begun. Local governments and some companies have also instituted procurement or purchasing policies for forest products, which may or may not include certification. There is certainly scope for these initiatives to give greater attention to global issues. However, there is also a need for national-level frameworks to ensure that these localized initiatives are equitable.
Most civil society initiatives have stressed "best practice" and thereby tend to encourage progressive forest managers. However, NGOs have also called for exposure of bad practice; an example is the Forest Watch proposal to improve transparency regarding corporate logging and forestry activities.
Many of the prevailing problems of international law also apply to civil society initiatives, i.e. different degrees of commitment, resources for implementation, willingness to pay, effectiveness, equity, speed and timeliness. The prerequisites suggested above for further progress - agreement on criteria of sustainable forestry and strong national forest programmes (which can give civil society initiatives a clear legal framework) - must also be in place for these options to be successful. In addition, questions of authority, representativeness, equity and compatibility are important. However, these initiatives are still young, and experimentation and competition among them could be productive for achieving sustainable forest management goals.
The IPF Proposals for Action, representing the product of both nations and civil society, contain the ingredients for establishing ground rules for all soft law activities, whether they be intergovernmental, national or civil.
Regional agreements have significant potential for addressing cross-border problems, as has been demonstrated in the Central American and Amazon countries' forest agreements and the Pan-European Process. They can help to create political momentum and institutional conditions that are supportive of long-term investment in sustainable forest management. They also represent bottom-up forms of international cooperation that build on specific shared concerns, i.e. they are very much purpose led and dependent on mutual support. Finally, they tend to make effective and practical links with national forest programmes, which are fundamental to progress in securing forest goods and services at the local, national and global levels. Regional agreements themselves, however, do not address interregional issues and international commitments which are essential for resource transfer between those who benefit from and those who are disadvantaged by forest interventions.
A separate forest convention has been proposed as an incentive for States to fulfil their various forest-related commitments under a holistic framework. These obligations would be treated together through a financial and legal mechanism which would allow for progress to be made, reported on and evaluated internationally. Arguments for a forest convention cite the need to deal with forests in their entirety and to avoid fragmentation of forest issues among many initiatives, which can lead to their marginalization.
It seems, however, that it will be difficult in the short term to reach consensus on a broad agenda for an international forest regime. Many issues are genuinely not perceived as priorities by individual nations. In addition, those opposed to a legally binding instrument on forests point out that international agreements are time consuming to negotiate and operate, have opportunity costs and diminishing returns, will weaken other efforts which have been negotiated and implemented at great cost and which need to be consolidated, and/or will promote unsustainable or inequitable objectives.
Forest issues are so diverse and so tied to varied environmental, economic and social interests that hard and soft law, existing and new, will inevitably be mixed. This diversity would call for a flexible framework forest convention which would recognize and support other existing initiatives and bring them together into a holistic picture. Such a convention would not change existing legally binding conventions; rather it would have a gap-filling role by incorporating, step by step, further obligations resulting from continuous international debate and review. The indications to date are that any such framework convention would have to be:
The following are some key questions which may be considered in the context of intergovernmental deliberations on international legal instruments on forests.
Consideration of these questions will help stimulate analysis and determine whether there is a need for further international law on forests and, if so, what form(s) it might take.