Agenda-Setting and Institution Building for Forests: Entangled Structures and the Failure of Legalization

The early stages of forest law and policy are marked by the perception of forests as providers of timber. Timber was regarded as a re-growing resource that can be exploited without much difficulty. Thus, forests are perceived as a natural resource under the sovereignty of states, and as such forests can be dealt with at states’ discretion. This does not mean that forests remained entirely unregulated. To the contrary, states had a major interest in using forest resources to their fullest and regulated the use of forests in this sense. However, regulation for use was done not on an international level, but rather through the means of national law.

With the establishment of the IUFRO—the International Union of Forest Research Organizations—in 1892 and its mission to investigate and collect knowledge about the ecological, economic and social aspects of forests, forests came under increased international monitoring and assessment. The foundational knowledge about forest ecosystems and interrelations within this ecosystem and human well-being grew immensely, and with it the knowledge about the threats of deforestation and forest degradation to both forest ecosystems and human well-being.

However, as with international environmental law in general, a lot of momentum for forest issues was lost due to the World Wars. In 1945 the newly developed specialized agency of the United Nations for Food and Agriculture (FAO) obtained a general forest mandate and thus, the foundation was laid to incorporated forest issues in the United Nations agenda.³

Nevertheless, forests remained a rather untouched issue during the early stages of recognition of international environmental concerns. The issue of forests has not been formally acknowledged, but was part of a bundle of concerns regarding the human environment that achieved general attention on the international agenda.

These international environmental issues in general experienced a significant upturn with the United Nations Conference on the Human Environment (UNCHE) held in Stockholm in 1972 and the resulting Declaration of the United Nations Conference on the Human Environment, the Stockholm Declaration.⁴ The Stockholm Conference lay some of the foundations for the subsequent UN environmental agenda and set up the environmental principles that were to keep international politics and international law occupied until today.⁵ The Stockholm Declaration however did not pay specific attention to the issue of forests.⁶ Despite the lack of a formal acknowledgment of the forest issue, the Stockholm Declaration merits consideration with regard to the fundamental recognition of environmental liability given the elaborations on the relation between the sovereign right of States to exploit their own resources pursuant to their own environmental policies, and the responsibility thereby not to cause harm for States or areas beyond their national jurisdiction in its Principle 21.⁷ The Declaration not only provides the positive effect of bringing the attention of states and societies to environmental liability, it also sets up the negative impact of not providing for a sound concept of liability and thus, also lays the foundation for harsh and continuous disagreement on the contents of this principle.

The World Conservation Strategy of the International Union for Conservation of Nature (IUCN) of 1980 makes several explicit references to forests. It is strongly focussed on conservation, while at the same time acknowledging the need for conservation for development. The World Conservation Strategy emphasizes the role of international law for international conservation and development. In itself, the IUCN is solely a strategic document without legal consequences, but it nevertheless establishes forests as a vital factor within the entanglement of environmental conservation and development, respectively sustainable development and draws a clear picture “of the essential issues for the development of international law to protect ecosystems.”⁸In a similar fashion, the United Nations General Assembly in the World Charter for Nature⁹ “solemnly proclaims” the role of forests for sustainable development. Again, however, the legal influence of the document is rather limited.¹⁰

The Stockholm Declaration, the World Conservation Strategy, as well as the World Charter for Nature, all play a role in the elaboration of the principle of sustainable development and confirming the issue of forests on the international political agenda. Despite the fact that even non legally-binding documents are significant for the actions of states, these documents however remain without consequence.

With the establishment of the International Tropical Timber Organization (ITTO) in 1985 and the first International Tropical Timber Agreement (ITTA 1983), “[…] the importance of, and the need for, proper and effective conservation and development of tropical timber forests with a view to ensuring their optimum utilization while maintaining the ecological balance of the regions concerned and of the biosphere […]” was recognized.¹¹ As this notion already indicates, and parallel to international environmental agreements of this era, the recognition of the need for the protection of natural resources stems from the approach of protection for utilization. Additionally, the origin of the ITTA in the UN Integrated Programme for Commodities reinforces the previously mentioned perception of forests as mere providers of timber.

With the FAO mandate for forests and the ITTO—respectively its ITTA—the first two threads for the eventual tangle, which will later be referred to as “the international forest regime”, came into existence. However, these two threads were already developed and introduced with each having very different perceptions of forests and objectives.

These first strands of the developing “international forest regime” reflect the relation of tension between conservation and development. During this first era of forests on the international political agenda, three types of negotiations reflecting three perceptions of forests on the international level, become visible: Firstly, the general incorporation of forests within the overall discussion on sustainable development; Secondly, the focus on forests as an exploitable, tradable resource; And finally, forests within the context of agriculture.

The late 1980s however, also brought about a third thread of the international forest tangle. Routed in the frustration over the process within the ITTO, with regard to the integration of sustainable forestry into the ITTO system, non-governmental environmental organizations, formerly involved in the ITTO, intended to achieve sustainable forest management with a new approach: forest certification. The first advance in forest certification was made by WWF, Greenpeace and the Rainforest Alliance with the creation of a certification working group in 1991, which lead to the foundation of the Forest Stewardship Council (FSC). The parties to the FSC are private, non-governmental actors; the FSC principles are voluntary standards. Thus, with the FSC a private perspective on forests is introduced to the “international forest regime”.¹²

With the preparations for the environmental summit in Rio in 1992, the focus of interest in forest issues shifted from an interest in tropical forests only to all forests.¹³ In the pre-UNCED talks, the northern industrialized countries addressed and advanced the idea of an international forest convention. However, this approach was immediately met with strong resistance, particularly by Malaysia and India, taking an irrevocable lead. The diverse group of opposition members rejected an international forest convention due to developmental, economic and legal concerns. Forest rich countries with a strong timber industry feared the industry would be restricted by an international treaty and considered that their economic gains would be jeopardized. In this respect, forest-rich developing countries regarded an international forest treaty as an impediment to development. Other countries, whether forest-rich or forest-poor, perceived an international forest treaty predominantly as a financial burden. In turn, developing countries were unwilling to accept any kind of commitment that interfered with the utilization of their forests unless the developed countries carried this financial burden. Furthermore, all opposition members suspected an internationalization of the resources under their sovereignty by the application of concepts such as common good, common heritage of humankind or common concern of humanity. All of these concepts were rejected forcefully and the principle of states’ sovereignty over natural resources within their territory was reinforced. Thus, upon meeting such strong resistance, not only did an international forest convention fail, but furthermore any kind of legally binding consensus on forests.¹⁴ An “asymmetric deadlock”¹⁵ was established with respect to the negotiation of an international forest convention.

What remained from the discussions was Chapter 11 on “Combating Deforestation” of Agenda 21 and the “Non-Legally Binding Authoritative Statement of Principles For A Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests”—the Forest Principles. Two merely programmatic documents full of the continued, and somewhat obsessive, reference to the states’ sovereign right over forests and the non-binding character of any forest related program. Thus, a fourth thread is woven into the “international forest regime”.

Parallel to the negotiations of Rio, the ITTO convened to reassess and review its Timber Agreement. The revision process in the ITTO was heavily influenced by the negotiations in Rio and the “convention approach”. The revised ITTA 1994 is the result of vague negotiations.

In the aftermath of the failure of the international forest convention, there was a general confusion about how to proceed with forest issues and the missing attribution of forest issues to a single institution. As such, the Commission on Sustainable Development attempted to engage with forest issues and established the IPF in 1995 for a period of 2 years until 1997.¹⁶

This took considerable attention away from the FAO, which—until then—perceived itself to be the responsible forest institution. Still, during those 2 years, the FAO—respectively the European Union within the FAO—itself intended to establish an international forest convention, which also failed.

With the end of the 2 years period envisaged for the IPF, it was decided to continue the dialogue that was initiated by the IPF. Accordingly the IFF was established for a 3 year period.

With regard to forest governance, the 1990s are characterized by the creation of multiple strands of forest issues that developed mainly in parallel, but all without clear concepts or mandates, with each group trying to occupy and cover the issue area independently. While the multifunctional character of forests can be traced within all these processes, eventually they remain attached to the fundamental principle of state sovereignty over natural resources.

After a second unfruitful attempt to launch negotiations for an international forest convention within the IFF process, in October 2000 the parties opted for a new forest organ: the UNFF.¹⁷ Compared to the IPF/IFF process, the UNFF established a novelty in the UN system as well as in forest governance. “Its creation represented an enhanced international profile for forests.”¹⁸ The UNFF was established as a subsidiary body to the ECOSOC, and with universal membership.¹⁹

In parallel, the ITTO—again—attempted to revise its tropical timber agreement for the third time, but again failed to broaden the scope of the treaty beyond the limits of tropical timber or to establish sound and clear criteria for sustainable forest management.²⁰

Looking at this development of international forest institutions and international institutions producing forest instruments—respectively content relevant for the international regulation of forests, one is able to detect what has been termed regime-shifting.²¹ A process that is “[…] designed to reshape the global structure of rules.”²² Actors that are outmanoeuvred in one process turn to another process where alternative values or interest prevail.²³

Presently, it seems, the divergence of the “international forest regime” reached its peak. With the occupation of forests by a multitude of international institutions, it is hard to make out the involvement of ever new actors, and further, where the institutions created and currently involved in the international agenda-setting seem to intend to carry on their business in isolation from each other.

Nevertheless, a process that merits further attention is the work of the Ministerial Conference for the Protection of Forests in Europe (MCPFE)²⁴ within its Intergovernmental Negotiating Committee for a Legally Binding Agreement on Forests in Europe.²⁵ On the basis of the so-called Oslo Mandate²⁶ the Ministerial Conference decided to “[…] establish an Intergovernmental Negotiating Committee with the mandate to develop a legally binding agreement on forests in Europe […] with the goal to completing its work not later than 30 June 2013 […].”²⁷

Forest Europe registers 46 member countries and the European Union. Forest Europe is intended to be a pan-European process and as such also lists the Russian Federation as a signatory. Furthermore, 14 observer states, including the USA, Brazil, Canada and China,²⁸ and 40 observer organizations, particularly FAO, ITTO, IUCN, IUFRO, UNDP, UNEP, and UNFF, are involved.

Creating the Ministerial Conference in 1990, the signatories intended to “[…] 1. promote and reinforce cooperation between European states in the field of forest protection and sustainable management, by developing exchanges of information and experience, and by supporting the efforts of the international organizations concerned, 2. improve exchanges of information between forestry research workers, managers and policy makers, both within and between the signatory countries, in order that the most recent advances can be integrated into the implementation of forest policies, 3. encourage operations for restoring damaged forests, 4. demonstrate, by way of an agreement on common objectives and principles, their will to implement, progressively, the conditions and the means necessary for the long-term management and conservation of the European forest heritage, 5. examine the follow-up of decisions taken during the present conference and pursue the actions that will have been initiated, in the course of any subsequent meetings of government ministers or officials, and of international institutions, responsible for seeing that forests fully assume their ecological, economic and social functions.”²⁹

At the Ministerial Conference in Oslo 2011, the common vision of the signatories was established. It is “[t]o shape a future where all European forests are vital, productive and multifunctional. Where forests contribute effectively to sustainable development, through ensuring human well-being, a healthy environment and economic development in Europe and across the globe. Where the forests’ unique potential to support a green economy, livelihoods, climate change mitigation, biodiversity conservation, enhancing water quality and combating desertification is realised to the benefit of society.”³⁰

The Ministerial Conference is an informal, regionally limited discussion forum which produces predominantly criteria and indicators for sustainable forest management, guidelines and resolutions. However, Forest Europe gained political weight by the expansion of its regional scope beyond European boarders, including Russia in the process and thereby a country with extensive forest cover and a considerable forest industry. Furthermore, with the ambitious Oslo Mandate to create a legally binding agreement on forests in Europe, Forest Europe sends out a clear sign of the conviction “[…] that a legally binding agreement on forests in Europe is necessary to reinforce and strengthen implementation of sustainable forest management with the view to achieving balanced and stable continuity of all economic, environmental, cultural and social forest functions in Europe, and will contribute to achieving the vision, goals and targets for forests in Europe […].”³¹

A remaining variety of unresolved issues concerning the substantive standards of the agreement as well as the design of a compliance mechanism,³² the negotiation process and the expected outcome already have a considerable spillover effect. Thus, the Legally Binding Agreement on Forests in Europe might serve as a model agreement for other regions or even on the international level.³³ This possibility is strengthened by the fact that the negotiators to date have left out regional references, which opens up the possibility to include states beyond European borders.

But Forest Europe and its quest for a legally binding agreement on forests in Europe attracts even more attention with regard to the question as to whether such an agreement should be incorporated within the United Nations framework or if it should remain a stand-alone instrument. The “UN-umbrella question” is of crucial importance. Firstly, the decision to bring a potential Legally Binding Agreement on Forests in Europe under the UN-umbrella in general bestows such an agreement with a strong connectivity and expandability beyond the pan-European region. Secondly, it is of major importance, if and which UN institution will serve as the secretariat on that case. At its last session in April 2013, the Intergovernmental Negotiating Committee for a Legally Binding Agreement on Forests in Europe decided to bring the Agreement under the “UN-umbrella”.³⁴

The evolution of international forest processes reveals the lack of an explicit competence for a single institution in international forest matters and the lack of a precise debate in this concern. The multi-functional character of forests is generally acknowledged however, there seems to be no solution as to how to effectively enforce this awareness. International processes that focus on the economic gain entailed in the trade with forest products, particularly timber, prevail. In contrast, international processes that intend to ensure evolvement of all forest functions and strike a balance between conservation and utilization fail.

The UNFF is built upon the brittle foundations provided for by its predecessors, the IPF and the IFF, and carries the burden and legacy of the forest negotiation processes from Rio onwards.³⁵

Created by the UN Commission on Sustainable Development in 1995³⁶ the IPF is grounded in the high expectations, failures and frustrations of the UNCED negotiations on forests, and the subsequent lack of impetus by the CSD.³⁷ The IPF process deserves credit for negotiating its IPF proposals on action (and thereby adding to the body of instruments on forest issues), for establishing the concept of national forest programs in international forest discourse, establishing the link between forest issues and indigenous peoples’ concerns and traditional knowledge, and finally for creating an impetus beyond its initially envisaged termination period of 2 years, in that it led to the establishment of its successor, the IFF. Unfortunately, the IPF did not manage to overcome the shortcomings inherent to the UNCED forest negotiations, which includes particularly the amplifying north–south divide in forest issues, financial matters and finding the right trigger to overcome the dominant economic interests in forests.

Still, as mentioned above, it created an impetus beyond its initial envisaged termination period of 2 years, leading to the establishment of its successor, the IFF. This impetus was however not solely driven by the contentedness of the participants with the process as such.³⁸ Firstly, the IPF finally was right back where it started from: the debate about a forest convention. Unable to reach a conclusion in this matter, the IPF submitted its options for follow-up to its work to the CSD, which forwarded the matter to the UN General Assembly. The General Assembly decided on the follow-up option to establish a mechanism similar to the IPF with a redefined mandate³⁹ and established the IFF.⁴⁰ Secondly, the IPF process left a considerable amount of issues from its Program of Work unfinished. The successive IFF incorporated these outstanding issues into its own mandate.⁴¹

The IFF was—again—charged with the mandate to engage in identifying options for a legally-binding forest convention. Again, participants were unable to come to terms with the debate and—again—opted for a new forum instead: the UNFF.⁴²

Thus, the UNFF is built, on the one hand, on the positive impetus to provide an international platform on forests and forest-related issues and accordingly, furnishes the cause of conservation and sustainable development of all forests with a positive momentum and establishes this cause as an inherent part of the international political agenda. On the other hand, however, the UNFF continued to build on and carry on the discrepancy between the continuing pursuit of an international forest convention and its failure.

The IPF had the mandate to pursue a consensus and to formulate coordinated proposals for action towards the management, conservation and sustainable development of all types of forests.⁴³ The IFF was established to continue the intergovernmental policy dialogue on forests and to promote and facilitate the proposals for action of the IPF.⁴⁴ In the same line, the UNFF is set up to promote the management, conservation and sustainable development of all types of forests, and to strengthen long-term political commitment to this end.⁴⁵

The purpose of the UNFF is to promote the implementation of internationally agreed actions on forests at national, regional and global levels, to provide a coherent, transparent and participatory global framework for policy implementation, coordination and development, and to carry out principal functions based on the Rio Declaration on Environment and Development, the Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (Forest Principles), Chapter 11 of Agenda 21 and the outcomes of the IPF–IFF process, in a manner consistent with and complementary to existing international legally binding instruments relevant to forests.⁴⁶

Just like its predecessors, the UNFF was charged with the task to consider the parameters of a mandate for developing a legal framework on all types of forests.⁴⁷

At its sixth session in 2006, the objectives of the UNFF were extended by four Global Objectives, whose achievement is to be evaluated in 2015⁴⁸:

The UNFF was set up to work on the basis of so-called multi-year programmes of work,⁴⁹ based upon the elements provided for by the Rio Declaration, Chapter 11 of Agenda 21, the Forest Principles and the IPF/IFF proposals of action.⁵⁰

The UNFF is a dynamic arrangement that is subject to a 5-year review.⁵¹ The first review took place in 2005. The seventh session did not make any reference to extending the duration of the UNFF, but implicitly extended its mandate by scheduling its sixth session in 2006.⁵² The UNFF set up a multi-year programme in 2007 for a period of 8 years until 2015.⁵³

The UNFF is established as a subsidiary body of the ECOSOC, in what it differs from the IPF and the IFF, which were established under the aegis of the CSD.⁵⁴ Membership to the UNFF is open to all States Members of the United Nations and/or members of the specialized agencies.⁵⁵ Additionally, it foresees the participation of all relevant international and regional organizations, including regional economic integration organizations,⁵⁶ institutions and instruments, as well as major groups as identified in Agenda 21.⁵⁷

The Collaborative Partnership on Forests (CPF) was established by the same resolution as the UNFF.⁵⁸ Members to the CPF are the CBD, the Food and Agriculture Organization of the United Nations, the Global Environment Facility, the International Tropical Timber Organization, the International Union for Conservation of Nature, the International Union of Forest Research Organizations, the United Nations Convention to Combat Desertification, the United Nations Development Programme, the United Nations Environment Programme, the UNFF, the UNFCCC, the World Agroforestry Centre, and the World Bank. The CPF thus, unites forest related international political processes and institutions, general political environmental institutions and the three Rio Conventions as non-directly forest related international agreements. The CPF was established to support the UNFF, to enhance cooperation and coordination among parties, and to call upon their governing bodies and their heads to support the activities of the CPF to achieve the goals of the UNFF. This seems like a “matryoshka doll-syndrome”—a cooperation institution nested in a cooperation institution nested in a cooperation institution and so forth.

In general, the work of the UNFF must reflect the overall objective of sustainable forest management.⁵⁹ “Each session of the Forum will address the principal functions as outlined in Economic and Social Council resolution 2000/35, with particular emphasis on the implementation of the proposals for action of the IPF/IFF (IFF).”⁶⁰

The resolution establishing the UNFF foresaw the following functions for it:

In 2006 the UNFF was furthermore furnished with the following additional functions:

The course of events for the UNFF sessions is largely and rather strictly pre-set by the resolutions on the multi-year programmes of work. These working standards provide for a clear structure of work and are comprehensive in nature. They seem to cover all relevant topics, and actors, with regard to the sustainable management of all types of forests. At the same time, this comprehensiveness is a portent of the rigor of the system and the difficulty of actually achieving all its tasks.

The topics of the first multi-year programme of work (2001–2005) included⁶⁸