The Options for an International Regulation of Forests
(1)
Faculty of Law, Georg-August-University Göttingen, Göttingen, Germany
Despite the fact that there is currently no international legally-binding forest convention, the previous chapter addressed a selection of international agreements indirectly referring to forests. It is argued that there is already international law that has a bearing on the international regulation of forests. All of the international treaties analyzed above are directly applicable to forests. However, their applicability is subject to conditions. Forests are not the regulatory subject of these treaties. A positive or negative effect of these treaties on forests is, in effect, a side effect.
Regarding the need for an international regulation of forests, as established in Chap. 2 on the one hand and the existing aggregate of instruments analyzed in Chaps. 3 and 4 on the other hand, leads back to the initial question: “Is there really a need for an international forest convention?” To attempt to answer to this question, this chapter firstly, addresses the need for a new, self-contained international convention. Therefore, the first part establishes an ideal for an international forest regulation. The second part of this chapter then weighs the status quo of international forest regulation, as it has been described in Chaps. 3 and 4, against the ideal criteria for international forest regulation previously established. In recognition of the fact that actually all of the substantial elements necessary for an international forest regulation are already provided for by international law, as well as the international political forest processes, but recognizing furthermore that this aggregate of instruments is severely fragmented, this chapter secondly, examines if an international forest convention is actually feasible with regard to the fragmentation of international law. It is established that the fragmentation of international law in general, and the fragmentation of international forest instruments in particular, together with the lack of tools to overcome this fragmented character, preclude an international forest convention in the traditional shape of a traditional international treaty. For this reason, this chapter finally, puts forward the concept of an international cooperation convention on forests so as to overcome the issue of fragmentation and to make effective use of the existing substance on international forest regulation.
5.1 The Ideal Substance for International Forest Regulation
Chapter 2 presented the multi-functional character of forests. It explored the diverse benefits these forest functions entail. These functions are mutually supportive and ensure the effective operation of the forest ecosystem itself, and they additionally overlap with other ecosystems and thus, reinforce each other and create benefits for humans. Chapter 2 furthermore, addressed the difficulties arising out of the multi-functional character of forests and the related issue of priorities with regard to forest functions. Forest functions are valued differently by the relevant stakeholders depending on a variety of factors, leading to cases of competition in forest utilization. Finally, Chap. 2 introduced the concepts of deforestation and forest degradation as the main threats to forests and thus, consequently also human well-being.1
The findings made in Chap. 2 imply the minimum necessary elements for an international forest regulation.2 Accordingly, it is possible to gather these elements together to form the ideal for an international forest regulation, which is necessary for the following assessment of the existing status quo of international forest regulation.
5.1.1 No Prioritization: Balancing Forest Conservation and Forest Utilization
First and foremost, any kind of international forest regulation needs to find a sensitive balance between forest utilization and forest conservation. The economic pressure of the timber industry, respectively the wood producing and processing industry altogether, does not allow for a purely conservationist approach to international forest regulation. Further, a focus on conservation without an acknowledgement of utilization is not desirable for societies and communities that rely upon forest utilization for their livelihood. Equally, a purely utilization-oriented approach is not feasible as well. An approach that gives equal preference to all forest functions must be found.
This fundamental objective entails the need to include a counter-balance for the principle of state sovereignty over natural resources.3 While it can be regarded as a consolidated opinion that forests cannot be qualified as a common good,4 an ideal international forest regulation needs to express the recognition that forests are more than solely a national resource, subject to state claims only, but also entail functions that are of public interest—and hence, also a matter of public responsibility.5 A possible approach to the recognition for the public realm of forests may be the stipulation of the “principle of common concern”, or a similar expression for the shared interests in forests, within international forest regulation.6
An ideal international forest regulation needs to acknowledge the full spectrum of forest functions, and the necessity of their equalization, as well as a recognition of the full spectrum of interests in forest, ranging from social, economic, ecological, and cultural and spiritual needs.
5.1.2 The Rule of International Law
According to Art. 38 of ICJ Statute7 international law is provided by three sources: international conventions, international custom, and the general principles of law. In addition to these traditional sources, there is the somewhat ambiguous category termed “soft law”. The nature of “soft law” is not undisputed. In general “soft law” may be understood as “[…] law instruments [that] range from treaties, but which include only soft obligations (‘legal soft law’), to non-binding or voluntary resolutions and codes of conduct formulated and accepted by international and regional organisations (‘non-legal soft law’), to statements prepared by individuals in a non-governmental capacity, but which purport to lay down international principles.”8 The concept and nature of “soft law” is subject to an extensive debate in international law and international relations.9 Given the complexity of the subject, some general statements shall be made in this regard.
In and of itself, the non-legally binding—soft law—nature of an instrument is not generally to be equated with its “ineffectiveness”.10 However, the expectation prevails that “hard law” instruments are “[…] likely to improve the quality of implementation and compliance.”11 As such, “soft law” should not be considered to form an independent, formal source of international law.12 It has been accorded a role “[…] in developing, interpreting and clarifying international as well as municipal law [and providing] a model formula for the drafting of international and municipal law, and [containing] elements which contribute to the evolution of international law.”13 The distinction between norms of “hard and soft law” thus, allows for actors in international law to shape their expectations. “Those States that reject any particular resolution or code do not generally distance themselves from the negotiating process and do not subsequently ignore its existence. Instead they make it public that they feel no obligation to comply, allowing other States to react as they think appropriate.”14 Thus, “soft law” is characterized by a lack of state consent, respectively the lack of the consent to be bound by an agreement. State consensus—notwithstanding its implications on decision making processes15—is perceived as a fundamental parameter for the legitimacy of an agreement, which in turn might have repercussions regarding its compliance pull.16
Considering these aspects, “soft law” on forests is essential for the formation and evolution of international law on forests and as such a valuable part of an ideal international forest regulation. This in turn advocates for international legally-binding norms on forest to ensure the enforcement of forest regulation.
5.1.3 A Common Understanding of “Sustainable Forest Management”
The pursuit of an equilibrium between forest conservation and utilization requires a common understanding about the concept of “forest conversation”. “Sustainable forest management” (SFM) became a buzzword within the international political processes dealing with forests. “There appears to be global consensus that the concept of sustainable forest management is a desirable outcome.”17 However “[t]he means of achieving and implementing this concept remain open ended.”18 There is no universal definition and the elaboration of the concept remains contextual.19 Thus, the term “sustainable forest management” is a slogan and a placeholder at the same time. An international forest regulation requires a determined definition of “sustainable forest management”.
Nevertheless, it is possible to identify at least a general meaning and the basic requirements and elements for the ambiguous concept of sustainable forest management. SFM “[…] is a dynamic and evolving concept that aims to maintain and enhance the economic, social and environmental value of all types of forests, for the benefit of present and future generations.”20 It “[…] aims to ensure that the goods and services derived from the forest meet present-day needs while at the same time securing their continued availability and contribution to long-term development. In its broadest sense, forest management encompasses the administrative, legal, technical, economic, social and environmental aspects of the conservation and use of forests. It implies various degrees of deliberate human intervention, ranging from actions aimed at safeguarding and maintaining the forest ecosystem and its functions, to favouring specific socially or economically valuable species or groups of species for the improved production of goods and services.”21
Within the framework of the FAO seven thematic elements are established to be key components of SFM: (1) extent of forest resources, (2) biological diversity, (3) forest health and vitality, (4) productive functions of forest resources, (5) protective functions of forest resources, (6) socio-economic functions, and (7) legal, policy and institutional framework. These thematic elements are built on nine regional or international criteria and indicators processes and are based on the thematic areas identified by the FAO.22
On the international level, the concept of sustainable forest management did not develop in parallel to the forest discussion on the international agenda.23 The initial discussions within the different frameworks, and particularly at the UNCED in Rio in 1992, focused on the general concept of sustainable development and the issue of forests had been embedded within this rather general discussion. Admittedly, the Forest Principles already hint at the concept of sustainable forest management in several sections and particularly establish that “[f]orest resources and forest lands should be sustainably managed to meet the social, economic, ecological, cultural and spiritual needs of present and future generations.”24 However, this basic idea did not obtain further shaping within this context.
The development of the concept essentially took place on the regional level.25 The earliest outlines of the concept may be found within the framework of the Ministerial Conference on the Protection of Forests in Europe (MCPFE).26 Building upon the three pillars of sustainable development, the signatories to the Ministerial Conference at their first session in Strasbourg in 1990 recognized “[…] the right of future generation to benefit from a quality environment that is healthy and unpolluted, which, for forests, must be expressed in ecological, economic and social terms in a way which is reflected in a sustainable and multi-purpose management of the forest.”27 In this spirit, the MCPFE established a definition of sustainable forest management at its second meeting in Helsinki in 1993, stating that “‘sustainable management’ means the stewardship and use of forests and forest lands in a way, and at a rate, that maintains their biodiversity, productivity, regeneration capacity, vitality and their potential to fulfil, now and in the future, relevant ecological, economic and social functions, at local, national, and global levels, and that does not cause damage to other ecosystems.”28 Additionally, this resolution put forth general guidelines for sustainable forest management.
The International Tropical Timber Agreement 1983 states in Art. 1 lit. (h) that one of its objectives is to “[…] encourage the development of national policies aimed at sustainable utilization and conservation of tropical forests and their genetic resources, and at maintaining the ecological balance in the regions concerned.”29 The International Tropical Timber Organization (ITTO) began to promote the concept of sustainable tropical forest management in 1992 by establishing criteria and indicators (C&I) for sustainable management,30 drawing on the earlier outcomes of the 11th Session of the Tropical Timber Council in Yokohama in 1991.31 The ITTC definition states: “Sustainable forest management is the process of managing permanent forest land to achieve one or more clearly specified objectives of management with regard to the production of a continuous flow of desired forest products and services without undue reduction of its inherent values and future productivity and without undue undesirable effects on the physical and social environment.”32 The ITTC definition of sustainable forest management is clearly much more oriented towards the productive and tradable dimension of forests and disregards the reference respectively linkage to sustainable development as it is entailed in the MCPEF definition.
Given the ambitious aim that the concept of sustainable forest management is an ideal conception that should manage to embrace all forest dimensions, and to reconcile all the competing—sometimes even mutually exclusive—forest interests in these different dimensions,33 it is hardly surprising that SFM seems to be a rather utopian concept.
Notwithstanding the differences in the definitions endorsed by the different institutions, “[t]oday, most forest policy experts and actors with exposure to the international debate refer to C&I if it comes to clarify what is meant by SFM.”34
Criteria and indicators offer the opportunity to define SFM operationally and to provide the possibility for governments and global organizations to monitor and report on the status of SFM in the respective region.35 As indicated by the ITTO report, criteria and indicators are tools for the measurement of sustainable forest management. Criteria are elements of sustainable development, while an indicator is a factor for the measurement of the criterion that detects changes over time.36 Criteria and indicators have been developed not only by the ITTO but also by several other international initiatives.37 The criteria for SFM previously referred to are the criteria that all the international initiatives have in common and thus, establish some kind of consensus. However, the indicators used vary, and also largely depend on local or regional conditions. Nevertheless, criteria and indicators make the concept of sustainable development operational.38 They allow for the measurement and monitoring of sustainable management in a country or a region. The development of criteria and indicators has been one of the main achievements in the forest sector since the United Nations Conference on Environment and Development.39
Therefore, a widely shared understanding of the concept of sustainable forest management has evolved since the 1990s.40 Thus, despite the fact that SFM remains a rather vague term, the method to approach a universal understanding via criteria and indicators makes it less ambiguous and most importantly operational in the end.
5.1.4 Maintaining Sufficient Forest Cover
As has been mentioned above, the numbers regarding deforestation and forest degradation vary globally and the underlying causes are hard to fix. It has furthermore been established that deforestation has occurred throughout human history to various degrees. However, definitive statements on the ultimate effect of deforestation on the one hand, and the overall significance of forests for “the overall ecological equilibrium of our planet”41 on the other, cannot be made. Nevertheless, as indicated by various environmental assessment projects42 in the recent past, there is a negative correlation between forest loss—in quantitative and qualitative terms—and the loss of biodiversity, the impairment of livelihood for forest dependent people, the deterioration of water quality and quantity, soil erosion and at least a local influence on the air quality, to name but a few examples. Thus, in the light of the precautionary principle,43 any international forest regulation needs, at least, to provide for the maintenance of globally sufficient forest cover.44
5.1.5 Counter Illegal and Unsustainable Trade
It has been outlined above that the drivers for deforestation and forest degradation vary considerably on a global scale. Additionally, these underlying causes are partially interconnected, and some are mutually reinforcing; they are hard to pinpoint. Nevertheless, the handling of these underlying causes requires their acknowledgement in the first place. Furthermore, some of these drivers are more easy to pinpoint then others, such as illegal trade.
As has been referred to earlier, forest certification schemes entered the political forest processes in the late 1980s.45 It has furthermore been established that forest certification schemes—if enforced by law—generally contradict the regulations of the WTO, which is an issue still under debate.46 However, with regard to the previous elaborations concerning the definition of sustainable development, and by the use of internationally and commonly determined criteria and indicators for sustainable forestry, an international certification system seems a useful tool to ban illegal and unsustainable trade in forest products. Such a system does not interfere with the regulations of the WTO, as long as the requirements apply equally to imported and national goods.47
5.1.6 Financing
Given the fact that deforestation and forest degradation are fundamentally driven by economic interests, a clear focal point must be to balance these utilization interests with protection and conservation interests. The functions and products offered by forests vary across the globe in quantity and quality. In addition to the fact that not all forest ecosystem services and functions possess a market value,48 values vary from region to region—again this is also a matter of prioritization. In contrast, an adequate market value may very well be an incentive for protection.49 As such, there is a requirement to evaluate forest products and services adequately. Sustainable forest management has to be economically viable to achieve a balance between utilization and conservation.50 Political decision makers already have a variety of financing mechanism at hand. This includes, in particular, the highly sensitive issue of country payments.51 In addition, there are new forms of financing systems, with REDD as one of the best examples, that offer financing options to states that are willing to sign up to protection and conservation measures. In conclusion, for an international regulation of forests, there is the need to establish international mechanisms and norms for financing the fair and equitable financing of forest utilization and conservation.
5.1.7 Participation, Benefit-Sharing and Compensation
In connection to the adequate valuation of forest products and services (monetary), benefits have to be shared with all stakeholders. This endeavour requires first of all a secure system of land tenure patterns and the recognition of the rights of forest-dependent indigenous people and local communities, particularly within national laws and jurisdictions.52 Despite the efforts of the Parties to the CBD to establish a system of access and benefit-sharing for genetic resources—the Nagoya Protocol to the CBD53—and the critical question with regard to its effectiveness, it is nevertheless required to establish and recognize the right to benefit-sharing in the forest context.
5.1.8 Capacity Building
Adequate participation requires knowledge. An international forest regulation of any kind needs to take into account aspects of education and learning.
5.1.9 Monitoring, Assessment and Reporting
A variety of international assessment projects have taken place in recent years in an attempt to provide more accurate numbers on the current state of forests. However, information is scarce. Gathering the information needed to measure deforestation and forest degradation or—the other way around—the quantity and quality of ecosystem services and functions of a forest requires the willingness of stakeholders—particularly states—to provide this information together with the necessary technology to gather the information. An international forest regulation needs to address and determine aspects of data collection, the processing and evaluation of data and data ownership. Whilst the technical aspects of data and information gathering are available already,54 politics and law need to establish the further modalities for the collection of the information itself.
5.1.10 Implementation, Enforcement and Compliance Mechanisms
Any kind of international regulation approach is redundant unless it is implemented and enforced on a national level. Leaving aside, for now, the complexity arising out of questions on the effectiveness of international treaties,55 providing for enforcement and compliance mechanisms is essential for an international regulation.
5.1.11 Provision of Dialogue Structures
Finally, a continuous forum for forest dialogue has to be established. Allowing for negotiation of the regulation measures, as well as the persistent discussion of current forest issues, require specific structures. Furthermore, a continuous forum ensures that international forest issues remain constantly on the international political agenda and strengthens “long-term political commitment at the highest level.”56 The centralization of forest matters in a single forum is a prerequisite for establishing a common consensus on forests, and for further consensus building. Thus “[…] a clear, holistic and comprehensive view of the management, conservation and sustainable development of forests […]”57 can be achieved.
5.1.12 Interim Conclusions
The previous elaborations indicate that there are identifiable core elements that an international regulation on forests should entail in an ideal case.58 These include the overall objective of striking a balance between forest utilization and forest conservation, the definition of sustainable forest management, the stipulation of a minimum sufficient forest cover, mechanisms of forest product certification to counter illegal and unsustainable trade, financing measures, providing for stakeholder participation and benefit-sharing among stakeholders, capacity building, monitoring and mechanisms for enforcement and compliance for implementation, as well as providing for a continuous forum for forest dialogue.
5.2 Evaluation of the Multi-Instrument-Approach
The previous two Chaps. 3 and 4 have elaborated on two sets of norms and norm-creation regarding forests. Firstly, there are the international processes established primarily for the purpose of developing norms for the international regulation of all forests, the outcomes of which directly aimed at forests but lack legal obligation. Secondly, there are legally-binding norms of international law that have a bearing on forests but which are not specific to forests. These instruments,59 when taken together, provide for a complex, multi-layered set of values, objectives, principles, obligations, guidelines, recommendations, rules of procedure, decisions, resolutions from international and non-governmental organizations, treaty organs, standard-setting and certification businesses, establishing a “multi-instrument-approach” to international forest regulation.
Subsequently, an attempt is made to evaluate this multi-instrument approach to international forest regulation, the status quo, in the light of the above made findings, i.e. reviewing and comparing the current approach to international forest regulation against the ideal of an international forest regulation. The first section highlights, based on the findings made within the framework of Chap. 3, the contribution of the international political forest processes to an ideal international forest regulation. Within the framework of the second section, the legally-binding part of the multi-instrument approach is considered with a view to the complex interactions between international treaties.
The first section concludes that the multi-instrument approach provides for considerable substance, and fulfils the requirements for an ideal regulation. Nevertheless, the multi-instrument approach has considerable shortcomings. The essential contents of the regulation are firstly, scattered among instruments of different legal nature, i.e. non-legally binding—“soft law”—instruments and legally-binding international treaties—the “hard law”. Secondly, the contents are scattered disproportionately. While the fundamental principle and objectives for a comprehensive forest regulation are stipulated in non-legally binding instruments, the legally-binding instruments lack forest-specific detail and thus, create a regulatory gap.
5.2.1 The Political Contents and Structures
The international political processes on forests provide for three considerable features: a—virtually permanent—forum for forest dialogue, facilities for data collection and the fundamental objectives and principles of international forest regulation.
As outlined above, the UNFF60 serves as a steady forum for the negotiation of all forest-specific issues on the international agenda. Though it is not established as a permanent forum, the UNFF’s historical development with regard to its predecessors, the IPF and the IFF, indicates that there is an interest to continue the UNFF process, or at least to tie in with this process and begin a new forum based upon the UNFF.61 “This type of arrangement has demonstrated various advantages: it has facilitated information and experience sharing; it has helped to establish trust and confidence between states; and it has added to the growing body of soft international law on forests in the form of the IPF and IFF proposals for action. To abandon international political cooperation on forests would be seen as highly retrogressive.”62
The Food and Agriculture Organization of the United Nations (FAO), with its general mandate on forests within the UN system,63 developed as a central forest information gathering institution, providing for large volumes of data on forests worldwide.64
Further, and as discussed above, given Chapter 11 of the Agenda 21, the Forest Principles and the NLBI,65 a significant amount of content for international forest regulation is delivered.
Chapter 11 provides for a comprehensive catalogue for combatting deforestation. It takes note of the multiple ecological, economic, social and cultural roles of forests and diverts the focus with regard to deforestation away from the often blamed tropical deforestation, but calls for the sustainment of all types of forests and goes even further in including forest lands and woodlands.66 In particular, Chapter 11 acknowledges various causes of deforestation, such as uncontrolled degradation and conversion to other types of land uses, influenced by increasing human needs, agricultural expansion, and environmentally harmful mismanagement, including, for example, a lack of adequate forest-fire control and anti-poaching measures, unsustainable commercial logging, overgrazing and unregulated browsing, harmful effects of airborne pollutants, economic incentives, and other measures taken by other sectors of the economy.
In connection to the acknowledgement of the multiple roles of forests, Chapter 11 establishes the causal link between these causes of forest loss and an infringement of forest roles, such as impacts in the form of soil erosion; loss of biological diversity, damage to wildlife habitats and degradation of watershed areas, deterioration of the quality of life and reduction of the options for development.
Finally, Chapter 11 supports the appropriate evaluation of forest goods and services and the need for natural scientific forest assessments.
Taking into consideration the principles of The Forest Principles, as outlined above, these provide, in particular, for a recognition and balance of interests—and priorities—that accrue from the multiple forest functions.
Finally, it has been established that the NLBI establishes a sound foundation for the concept of sustainable forest management. It sets up an extensive framework for national policies and measures that states should adopt to pursue the purpose of the instrument, as well as international cooperation and implementation measures. The NLBI also acknowledges the need for financial incentives, capacity building, monitoring and reporting.
These elaborations rather provide for an overview. The instruments and institutions covered in the analysis have a much more extensive content. However, as this overview indicates, the political forest processes provide for considerable content for an ideal international forest regulation. These instruments specifically constitute the fundamental principles and objectives necessary for a comprehensive international forest regulation that pursues the equitable realization of all stakeholders’ interests in forests, as well as the equitable realization of all forest functions.
As has been noted above, in and of itself, the non-legally binding—soft law—nature of an instrument is not generally to be equated with its ineffectiveness.67 However, as highlighted within the framework of Chap. 3, the instruments developed within the international political forest processes lack the consent of the negotiating states, and they are explicitly not legally-binding under international law. Thus, while they are not redundant, as they become important with regard to the interpretation and clarification of international law and might insert the fundamental principles and objectives for international forest regulation into international law, they are not enforceable.
For the time being, and with regard to the evaluation of the multi-instrument-approach to international forest regulation, it is concluded that the forest-specific processes assessed in Chap. 3 provide for substantial elements of an ideal international forest regulation, but they are formally inadequate.
5.2.2 The Contents of the Indirect International Forest Law and the Implications of Treaty Interrelations
The previous elaborations on the “indirect international forest law” have drawn a multi-layered picture of a smorgasbord68 of international treaties covering regulatory measures and instruments with regard to the protection of certain tree species and forest species in general from illegal trade (CITES), trade in timber harvested in tropical forests (ITTA), the free trade in any kind of forest products (WTO), forested wetlands (Ramsar Convention), forests of outstanding universal value (WHC), forest biodiversity (CBD), forests in their capacity as carbon sink and sources (UNFCCC), and forests for soil protection (UNCCD). The regulatory measures and instruments employed by these agreements vary with regard to the purpose of the agreement from inter alia listing approaches, to the setting of clear commitments and obligations for the ratifying states, or obligatory management standards for protected areas established under an agreement.
These treaties thus cover the multifunctional character of forests and provide protection measures for these functions, while simultaneously serving the differing stakeholders’ interests in forests. Moreover, these agreements come with a permanent and reliable treaty infrastructure. The relevant treaty organs safeguard the “living character” of the treaties, thereby allowing them to develop in accordance with technical and scientific developments, or political changes, and provide and create opportunities for cooperation. The treaty infrastructure furthermore provides for the crucial financial infrastructures. In addition, the international treaties provide for regulation with regard to monitoring, assessment and reporting, as well as mechanisms for the settlement of disputes, compliance and enforcement mechanisms.
Hence, regarding content, it may be asserted that—considered as a whole—the indirect international forest law already in existence provides the substantial elements of an ideal international forest regulation.
However, merging international treaties to become a uniform entirety causes structural problems.
5.2.2.1 The Spectrum of Treaty Interrelations
International treaties, whilst created largely independently from one another by newly established ad-hoc organs, do not operate in entire isolation from one another. To the contrary, and specifically in the context of international environmental law, separation is already precluded to a large degree by the factual interaction of biological and ecological components.
Apart from the factual interdependence of the regulated subject matter of international (environmental) treaties, these treaties furthermore interrelate—whether in a conflictive, synergistic or duplicative way—in legal and political aspects.69 Thus, the interrelation of international treaties has not only been a subject matter for international legal research, but has also been widely captured by international political sciences. In this regard, various concepts have been developed, such as “institutional linkages”,70 “interlinkages”,71 “overlapping international regimes”,72 “regime-” or “institutional interplay”,73 or the purely legal conception of “conflict”.74
Interrelating factors inter alia include party membership. Congruency in this regard provides for a useful starting point for a harmonized treaty development.75 Furthermore, treaties may interrelate with regard to their aims, objectives or principles. For example, treaties pursuing free trade may come into conflict with treaties restricting trade for the benefit of nature conservation. Other treaties may support each other in the achievement of a common goal by proposing different tools and instruments for target achievement, or by being based on different principles.76 The most critical case is the interrelation of commitments and obligations established by different treaties. Treaty obligations may be mutually supportive where two treaties sharing comparable objectives inscribe different obligations for the parties in order to further the overall objective. On the other hand, in a worst case scenario, a treaty establishes an obligation for a party that can only be complied with by impairing the obligations of another treaty. This is the model case of a conflict of norms. The most common set of interrelations between international treaties, particularly in international environmental law, stems from the mode of implementing the treaty into national law.77 As international environmental treaties, particularly framework conventions,78 make use of rather vague wording to achieve the states’ consensus in the first place, but also to maintain a large amount of flexibility and adaptability for future (normative) development, states receive a certain leeway for the implementation of the commitments into their national law.79 Treaties may furthermore, interrelate—in conflictive or synergistic ways—with regard to, respectively because of, political considerations.
On a second level, aside from the rather “textual” interrelations, i.e. interrelations stemming from the wording of the treaties, treaty interrelations are caused by the activities and output created by a treaty’s organs. In this regard, the decisions, resolutions and recommendations established by the Conferences of the Parties (COPs) are of particular concern.80 As the framework conventions, such as the CBD or the UNFCCC are designed in rather general terms, their treaty content is largely completed by the negotiations and resulting decisions in the COPs. In contrast, the standards for implementation are often set by the scientific treaty organs. Consequentially, this gives rise to the possibility that treaties are smoothly compatible with regard to their wording however, they come into conflict with regard to COP decisions.
5.2.2.2 Treaty Interrelations in Indirect International Forest Law
When applying these categories of interrelations to the international treaties relating to forest matters81 as examined above, the following interrelations can be established82:
Taking into account the objectives and/or rationales of the international treaties, different variations of objectives have to be distinguished. Basically, the international treaties compete with regard to their objectives altogether. As has been noted above, the objectives of these treaties diverge. Their objectives cover trade in timber harvested in tropical forests, free trade in any kind of forest products, forested wetlands, forests of outstanding universal value, the protection of certain tree species and forest species in general, forest biodiversity, forests for soil protection or forests in their capacity as carbon sinks and sources. Thus, the objectives of these treaties vary along a continuum between the two extremes of maintaining forest exploitation for trade in forest products, and safeguarding the conservation and sustainable use of forests. They are oriented towards very different goals and generally interrelate in an incompatible, or at least conflictive, way.
However, taking into account a broad understanding of objectives, the international treaties can nevertheless be grouped in trade and conservation treaties. Due to its dual objectives of trade and conservation, CITES is particularly prone to conflictive but also synergistic treaty interrelations.83 Aiming at the conservation of species, CITES also follows the objective of protecting biodiversity and thus, to a considerable degree shares treaty scope and purpose with the CBD.84 CITES could therefore, play a vital role in implementing the CBD in forest biodiversity related matters.85 However, the Ramsar Convention and the WHC also collaterally promote biodiversity goals. Looking at—rather politically induced—priorities however, CITES gives much greater attention to species of fauna than to flora.86 Within the framework of the CBD on the other side, plants take centre stage.87 Thus, whilst these treaties might not share their overall objectives, they interrelate in a mutually supportive way, provided the positive interrelations are acknowledged.
A general overlap between these treaties may however be seen in their anthropocentric-utilitarian approach.88
Finally, there is mutual recognition among the international treaties for the principle of state sovereignty over natural resources.89 Except for CITES90 and WTO law, all the international treaties examined above recognize the sovereign right of states to exploit their own natural resources, and pursuant to their own environmental policies.91 By sharing this principle they make it a common theme of the multi-instrument-approach. At the same time, the adherence to the principle of sovereignty reveals a gap in the interrelation of international treaties relating to forests. While the climate and biodiversity are regarded as “common concerns of humankind” within their treaties,92 the multi-instrument-approach as such lacks a counterbalancing recognition for a general public interest in forests that goes beyond the recognition of a shared interest in the particular forest function covered by the specific agreement.
With regard to substance, the most commonly cited example of treaty interference is the clash of the GATT and basically all multilateral environmental treaties, as measures taken to protect the environment might infringe free trade. But the WTO law does not only interrelate with purely environmental agreements. The trade measures foreseen, for example, by CITES, also provide for considerable interrelation with the WTO law.93 But there are more particular interrelations of substantive treaty parts. The ITTA and CITES come into conflict concerning the trade in mahogany, which is, on the one hand, listed in a CITES Appendix and as such subject to trade restrictions, thus—on the other hand—interfering with the trade in tropical timber under the ITTA.94 Interrelations are furthermore given in cases where a protected area is established according to the Ramsar Convention or the WHC. The question arises if it is sufficient to manage these areas according to the prerequisites set by the constituting convention, or if the demands of the CBD apply as the broader treaty covering all of biological diversity. In particular, Art. 22 para 1 CBD is a contentious issue in the discussion of treaty interrelations with the CBD. Art. 22 para. 1 CBD states that “[t]he provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.” In general this clause is useful in that it determines that the rules and regulations of the CBD do not affect already existing commitments and obligations entailed in other international agreements. However, the exception clause at the end of the sentence holds the potential for significant dispute. It indicates that in cases of a “[…] conflict, the specific conflicting provision of the other international convention cannot be applied in the particular instance.”95
Discussing the interference of COP decisions pertaining to forests, the most discussed overlap is the one between the UNFCCC and the CBD.96 Particularly the Kyoto Protocol’s provisions on sinks—pertaining to afforestation, reforestation and deforestation—bring about serious consequences for biodiversity. One of the most known examples is that of the deforestation of a primary forest, which is substituted by a plantation—maybe even of non-native tree species—and accounted for under the rules of the climate change regime as a reforestation measure. The effects on the biodiversity of the given area are immense, such as eliminating habitat for endemic animal species, limiting the number of tree species, and introducing an alien species. Similar concerns are voiced with regard to the potential REDD-mechanism.97
Looking at the tools and measures provided for by the treaties to reach their aims, some share the tool of listing (CITES and WHC), while others use the establishment of protected areas (WHC, the Ramsar Convention and CBD). The climate regime promotes economic means, and, like CITES, relies on scientific monitoring to assess achievement with the stated aims and objectives.98 Moreover, the ITTO takes into account the forest certification measures and other instruments verifying the source of timber and timber products. However, the legitimacy of these measures under WTO law is heavily debated.99
The ITTO has provided support to the development of forest certification and other source verification initiatives. There is, however, uncertainty under WTO rules as to whether or not source verification initiatives could be considered a barrier to trade.
A rather political treaty interrelation factor is the divergence in state membership to the treaties. In terms of numbers, the UNFCCC, the CBD and the UNCCD enjoy almost universal state membership.100 The WHC has 190 State Parties, CITES 179, the Ramsar Convention 168, the WTO 159 and the ITTA 58.101 However, what is sometimes more decisive than the actual number of members is the political power that members hold. The non-membership of the United States of America in the CBD gives an indication of the significance with regard to the difference one state is able to make when it is, or is not, party to a particular treaty or regime.
The differences in state membership, as well as differences in voting structures, as they are purported for example by the ITTR, give an indication about the interrelations between treaties with respect to power imbalances within the international agreements. Furthermore, some treaties interrelate with regard to finances, as they use the same financial mechanism. This is true for example for the three Rio Conventions, using the Global Environmental Facility (GEF) as their common financial mechanism.
Finally, as mentioned above, whilst treaties may well be compatible in regard to their wording conflicts may arise at the implementation phase. As the treaties of the indirect international forest law pursue very different overall objectives, the implementation of a single treaty is likely to disregard other treaty objectives in the implementation phase thus, prioritizing overall trade or conservation objectives over other possible objectives.
Considering treaty interrelations in the light of an ideal international framework for forest regulation however, also requires addressing the gaps.102
In this regard, it must be noted that—aside from the ITTA 2006—there is no reference to sustainable forest management in the language of international treaties relating to forests. As the ITTA 2006 is limited to tropical timber, its recognition of sustainable forest management is therefore also restricted to the “sustainable management of tropical forests”—even more specifically of “tropical timber producing forests”—and thus has only limited value for the regulation of forests in general. Admittedly, whilst there is frequent reference to the concept of “sustainable development” to be found within the aggregate of international treaties, these references lacks clarity and the necessary specificity to achieve sustainable forest management. Thus, this potential international framework for international forest regulation exhibits a significant gap.103
The international treaties relating to forests address a variety of human activities that lead to environmental changes. However, despite the broad variety of human interferences with the natural environment, aside from the trade agreements, the climate regime and the UNCCD,104 there is no specific reference to various drivers for forest loss and degradation,105 as they have been identified previously.106 Therefore, this potential framework illustrates yet a further gap of international forest regulation.
Additionally, within the framework of the indirect international forest law, and aside from carbon sequestration, there is little reference to the protective functions of forests to provide for soil protection and water purification and catchment. These functions are only recognized, albeit indirectly, within the UNCCD.107
5.2.2.3 Interim Conclusions
The indirect international forest law provides for measures for the conservation as well as the (sustainable) use of specific forest functions and is legally-binding in nature. With regard to substantive content, the indirect international forest law may contribute substantially to an ideal international forest regulation.
The mere fact that the international treaties, of which the indirect international forest law consists, interrelate does not imply a conflictive or synergistic interrelation. However, the indirect international forest law does not form a comprehensive, homogenous whole. Each treaty is construed to pursue its own objective. The single objectives of the international treaties relating to forests vary along a continuum between the two extremes of maintaining the exploitation of a natural resource for trade and safeguarding the conservation and sustainable use of a natural resource. No indication is given with regard to achieving a balance between treaties pursuing opposing objectives. Furthermore, following from what was said above, these objectives, respectively these treaties, are not forest-specific. They lack detailed substance on the fundamental principles and objectives required for an ideal international forest regulation as they are put forward by the forest-specific political processes. Thus, forest-specific implementation of these treaties is significantly impeded and subordinated to the implementation for the achievement of the overall treaty objective.
In conclusion, the indirect international forest law, despite its legally-binding nature, presents itself as fragmentary and incomplete in forest-specific regards.
5.2.3 The Shortcomings of the Multi-Instrument-Approach: Interim Conclusions
The multi-instrument-approach provides for considerable substance, and fulfils, to a great extent, the requirements for an ideal forest regulation. The international political forest processes provide inter alia for the fundamental principles and objectives for international forest regulation. They foresee the need to equitably support and put into effect the social, economic, ecological, cultural and spiritual interests in forests and thus, acknowledge the multifunctional character of forests. Furthermore, they fill the concept of sustainable forest management with substance and thus, provide for a feasible instrument. Additionally, the underlying threats to forests are acknowledged, thereby providing the opportunity to develop specific measures to counter these threats.
The indirect international forest law adds to this substance in providing for treaty structure and the general coverage of the forest functions and related interests within the scope of the treaties.
Nevertheless, the multi-instrument-approach has considerable shortcomings. The essential content is scattered among instruments of different legal nature, i.e. non-legally binding—“soft law”—instruments and legally-binding international treaties—the “hard law”. As referred to above, the soft law character of an instrument is not necessarily an impediment to its effectiveness. Nevertheless, the characterization of an instrument as hard and soft law will necessarily result in a difference in terms of actors’ compliance with the norms of an instrument. Consequentially, the fundamental principles and objectives for a comprehensive forest regulation, stipulated in non-legally binding instruments, remain formally inadequate.
The legally-binding instruments relating indirectly to forests on the other hand, in fact cover the forest functions and related interests however, the single functions are scattered among the different treaties and are pursued independently from one another. Despite the fact that these treaties interrelate in multiple ways, there is no indication as to how these objectives might be achieved simultaneously. Furthermore, these treaties are not forest-specific. The primary aim is either to achieve a certain success of trade or conservation in general, and this in turn creates a regulatory gap with regard to the forest-specific implementation of these agreements.
The multi-instrument-approach is thus, a sufficient approach with regard to its contents. However, the content is unfeasible given its fragmented arrangement.
5.3 The Impact of Fragmentation on the Options for International Forest Regulation: The Metamorphoses of the Concept
In the light of the conclusions drawn above, it is not the lack of contents for regulation which needs to be addressed, rather it is the fragmentation of the content which presents the relevant obstacle for an international forest regulation.
This section seeks to clarify the influence of fragmentation on the options for international forest regulation. Subsequently, the classical notion of the fragmentation of international law is set up as a point of reference. In the following the tools and techniques of international law used to manage the fragmentation of international law are considered. Drawing on the outcomes of the previous chapters, it is established that the traditional concept of fragmentation does not match the fragmentation of the indirect international forest law, which is not characterized by normative conflicts but rather the conflict of values and objectives that require equitable implementation, and the ever growing number of instruments pertaining to forest regulation emanating from different sources and adding to the fragmented structure. Hence follows the inapplicability of the traditional tools and techniques for the management of fragmentation, which do not provide for the mutual applicability of norms, but rather prioritize one norm over another. There is however, room for utilizing fragmentation beyond the limits of legal techniques by referring to institutional cooperation and coordination.
5.3.1 The Concept of Fragmentation in International Law
The fragmentation of the indirect international forest law has been heavily debated.108 In general, the “phenomenon” of fragmentation of international law109 is a much debated topic in international law literature.110 The discussion emanated from the concern of the “proliferation of courts and tribunals”,111 brought about, for example, by the establishment of the International Criminal Court and the International Tribunal for the Law of the Sea as well as the creation of regional courts or tribunals. Fears were voiced that this “proliferation” would spur the risk of incoherence between the interpretations of law by these differing bodies.112 Similarly, concern has been raised about an increasing specialization within international law, respectively a split-off of the field of general international law into subsystems, so-called “self-contained regimes”.113 Furthermore, the discussion about the fragmentation of international law included the awareness of a congestion of the rising number of treaties, particularly in international environmental law.114
The International Law Commission (ILC) took notice of the issue of fragmentation and delivered its fundamental report in 2006.115
The fragmentation of international law has largely been classified and interpreted as a risk and a threat to international law. Fragmentation is depicted as international law’s biggest weakness, causing discord, legal uncertainty, inconsistency and even a lack of legitimacy. According to this opinion, fragmentation allows disputing parties to engage in “forum-shopping”, in which the answers to their legal questions are dependent on whom they ask and not on the law.116 However, this negative connotation also has a strong political background and alludes to the strong politicization of the concept of fragmentation. The proponents of legal unity have often been criticized for actually protecting their “sovereign territory” of general international law, respectively their interpretation sovereignty causing power struggle and turf wars.117
A different perspective treats fragmentation as a sign of vitality of international law.118 It is argued that fragmentation was inherent in the international legal order from the beginning. There has in fact never been a coherent set of international law norms. The discussion about fragmentation is therefore rather seen as the recognition of the—natural—fragmentation of international law.119 “Rather, the growing number of treaties, institutions, and adjudicative bodies in a broad sense reflect ways to address specific needs, which actors have identified as worth regulating by the means and methods of international law. As such, specialization is the essence and success of the international legal system.”120
Notwithstanding these variations in the perception of the character of fragmentation, fragmentation as a process, as such, is a reality that poses a number of practical challenges to the application and effect of international law. The fragmentation of international law may assume the shape of negative interferences in terms of explicit conflicts—respectively an incompatibility121—between norms, mere overlaps or of positive synergies between norms. Additionally, it is possible to identify gaps which have been entirely overlooked by the treaty actors.
5.3.2 The Classic Tools of International Law to Manage Treaty Interrelations
International law is and has been well aware of the particular cases of treaty interrelations, and with the adoption and application of the Vienna Convention on the Law of Treaties122 this has provided a toolbox to address these cases.
The legal techniques and tools for dealing with normative treaty conflicts have been subject to extensive discussions,123 which shall not be repeated unnecessarily. Nevertheless, some points should be noted here.
The strict understanding of a conflict as a “direct incompatibility […] where a party to the two treaties cannot simultaneously comply with its obligations under both treaties”124 has become difficult to apply in many cases, particularly in international environmental law.125
In general, tensions may arise between different interpretations of the same law, between general law and a specialized field of law, as well as between two specialized fields of international law.126 If such tensions arise, the question must be answered, which law—respectively which interpretation—should ultimately prevail. International law itself, as well as international legal science and literature, provide techniques to address this question. These techniques are presented in detail in the ILC report on fragmentation.127 They are conflict-oriented and can be categorized as conflict avoidance and conflict resolution techniques.128
Conflict avoidance tools include drafting techniques such as conflict clauses or cross-referencing. Drafting is however, an essentially political arena, only secondarily a legal one. As such, conflict prevention through drafting is heavily dependent upon political conditions and therefore situation-dependent and unsteady. A conflict of norms may furthermore be avoided by the interpretation of the norms in question. Treaty interpretation is a particularly legal technique and the central area of activity of many lawyers. It is a task not only for adjudicators, but also for government officials and legal advisors. The basic rules for treaty interpretation can be found in Arts 31–33 VCLT, with the particular and strongly discussed case of Art. 31 (3) (c) VCLT.129 As techniques for the resolution of conflicts, international law furthermore provides for the paradigms of lex posterior and lex specialis.130 However, these rules are of limited use only.131
The tools of international law used to resolve conflicts between treaties are hierarchy-oriented, i.e. they are directed towards prioritizing one norm over another.132 They are norms of derogation, resolving conflicts inter partes in a specific case only.133 Other than the techniques of conflict avoidance, the tools of international law are oriented towards the ex post resolution of a conflict instead of the ex ante prevention of a conflict. Such an approach might be useful in cases of conflicting obligations however, it does not seem appropriate in cases where the objectives and aims of both treaties should be supported for a global benefit.134 In other words, the classical tools of conflict resolution, and the orientation towards conflictive treaty interrelations, neglect the occurrence of synergetic treaty relations, which—if utilized efficiently—give leverage to a common goal and thus, create a common benefit.
Furthermore, it is primarily the scope of application of these classical tools, which is restricted to the “same subject matter” of the competing norms, and the living nature of the comparatively modern environmental treaties, i.e. their ability to adapt to changes by virtue of consecutive conferences of the parties, that prevent or hamper the application.135 It is particularly the rule development under an existing agreement that may cause cases of conflict instead of the text of an existing treaty as such.136 Applying the classical tools of conflict resolution to COP decisions is however not undisputed and rather critical.137
5.3.3 The Indirect International Forest Law: A Different Type of Fragmentation
The interrelations of the international treaties relating indirectly to forests have been established previously.138 The classical tools of international law for the management of treaty interrelations as they have emanated from the discussion on the fragmentation of international law are not appropriate in the case of the “international forest regime”. They are unfit for three reasons:
Firstly, a normative conflict in the sense as discussed above, is not at the core of the problem at hand. In fact, the conflictive potential of the international treaties consists of their diverging underlying values and objectives. They vary along a continuum between the two extremes of maintaining forest exploitation for trade in forest products and safeguarding the conservation and sustainable use of forests, causing conflicts rather at the end of the chain: within the framework of implementation.
Secondly, the tools of international law for the management of treaty interrelations are hierarchy-oriented. Their primary aim is for one norm to take priority over another. As has been argued repeatedly, the prioritization of certain forest functions over others is a central area of fundamental conflict that frustrates the achievement of the required balance between forest conservation and utilization. Consequentially, the application of the traditional tools of international law hampers the equitable feasibility of all the relevant forest related regulations for the benefit of all forest functions and the interests in these functions.
Thirdly, the classic techniques of conflict resolution disregard the complex structure of the “international forest regime”, consisting of more than just legally-binding treaties, but comprising a complex, multi-layered set of objectives, principles, obligations, guidelines, recommendations, rules of procedure, decisions, and resolutions from international and non-governmental organizations, treaty organs, standard-setting and certification businesses.
The traditional notion of fragmentation of international law addresses the proliferation of specialized regimes that—even though they might consist of more than one single instrument—emanates from a single, rather uniform process. This is a misleading starting position—not only with regard to the set of instruments relating to forests. In addition to the traditional notion of fragmentation raising concerns with respect to this compartmentalization in different fields of international law,139 international environmental law—despite its title—does not know of one