Faculty of Law, Georg-August-University Göttingen, Göttingen, Germany
This thesis has reviewed the evolution of the concept of forests from a source of livelihood, to agricultural space, to the point of being the predominant impetus of progressing industrialization, and finally to a multi-functional concept as it is known—however, not always perceived—today. Throughout this evolution, forests prove to be a manifest development factor, with the forest utilization patterns interlinked with the status of development, and the forest conservation patterns interlinked with the decline in possible forest uses.
The international regulation of forests is not a recent or fashionable agenda-item in national and international politics. Forest regulation follows forest utilization. Forests were perceived as an exclusively national resource under the principle of the sovereignty of the state and as such, forest utilization follows the interests of states, which were predominantly fiscally motivated. States in general had, and still have, a major interest in using forest resources to their fullest, and will regulate the use of forests in this sense. With regard to the historical development of forest utilization, the recognition of the need for the conservation of natural resources thus stems from the approach of conservation for further and sustained utilization.
The “internationalization” of forests, together with an increasing “preservationist” approach to forests, is the outcome of two developments: Firstly, the increasing knowledge about the spectrum of forests’ functions, and the modalities and consequences of interaction between ecosystems and human well-being, led, on the one hand, to a duplication in utilization opportunities, and on the other hand, to a duplication of stakeholders—even beyond national boarders—claiming interest in, or actually entitlement to, these utilization opportunities. Secondly, following the growth of knowledge about forest performances, the endangerment of these benefits resulting from human utilization interferences with forests received increasing attention. The multiplicity, heterogeneity and intricate interplay—domestically and globally—of these so-called drivers for deforestation and forest degradation suggests the need for cooperative action not only on a local but also global level.
Hence, the result is an ecologically, economically, socio-politically and legally most-complex concept of forests, and the concurrent intricacy and difficulty to comprehensively regulate this hard-to-grasp conception. In the light of the increase of international environmental treaties on issues of internationally shared interests, and in recognition of the common responsibilities regarding these issues, the idea to subject forests to a similar regime was established. Considering the outcome of this fundamental approach, two further developments that shape the character of international forest regulation enduringly may be distinguished. Firstly, the branching out of international initiatives to provide for a comprehensive international forest convention must be recognized. These initiatives fail to establish a legally-binding instrument and thus, lead to diplomatic negotiation forums on forest issues, and a variety of non-legally binding instruments on forests. Secondly, and in the light of the failure to adopt a new international convention on forests, forests are subsumed under the scope of existing international—predominantly environmental—treaties. Subsequently, forests become the subject matter of a variety of international treaties claiming to regulate the issue.
Considering the international political processes on forests, the output with regard to institutionalization of forest issues and contents on forest matters must be distinguished. Seen in their entirety, the political initiatives brought forth an extensive volume of objectives and principles with regard to forests, as well as an operating and focussed institution with a defined forest mandate, the UNFF.
However, given the fundamental conflict between purely conservationist interests and utilization interests, the lingering disagreement with regard to the de facto execution of an international regulation of forests, the frustration of the different actors with the continuing deadlock of negotiations and thus, the unimproved conditions of forests, profoundly different forest initiatives have resulted. As an essentially national resource affecting several sectors of states due to their multifunctional character, there is no international institution holding an exclusive forest competence. Thus, international institutions having some kind of share in forests start covering the matter independently from one another with overlapping competences and different objectives and approaches, causing a multiplication of efforts and, eventually, wasted resources. Consequentially, these processes are substantially fragmented.
Furthermore, none of these processes has been transformed into law. These processes remain political and their outcomes are not legally-binding in nature. The over-emphasis on the non-legally-binding character of these initiatives reflects a rigid reluctance towards accepting “serious” obligations with regard to forests. Despite the fact that even soft law is able to provide for a certain compliance pull, this vehement reluctance towards a binding treaty, as well as the hypersensitivity towards any wording that could be interpreted as implying a legally-binding meaning, puts the relevance and influence of the instruments that were developed into question.
Accordingly, a specific international forest law did not develop. What is more, the repeated and continuing failure to transform the extensive political processes and negotiations into international law is a crucial parameter for the existence of a cluster1