Faculty of Law, Georg-August-University Göttingen, Göttingen, Germany
The loss and state of the world’s forests has attracted fierce public attention throughout the past decades and has now reached a new peak with regard to the developments within the climate change discussions. Particularly the loss of tropical forests seems to give cause for serious concern, even—or particularly—in non-tropical countries.
In the light of the increase of international environmental agreements to tackle urgent concerns, especially in the 1970s after the Stockholm Conference, the United Nations Conference on the Human Environment (UNCHE) and the extensive drafting of negotiation texts in the run-up to the Rio Conference, the United Nations Conference on Environment and Development (UNCED), in 1992, the calls for an international forest convention obtained a strong impetus.
With the failure to adopt an international forest convention in Rio in 1992, an international forest convention remained a persistent, but fruitless agenda item in several international fora. Given the reiterated failure of the negotiations and the adoption of an international forest convention on the one hand, and the pertinacious attempts to reinstate negotiations for such a convention on the other hand, one is lead to ask: “Is there really a need for an international forest convention?”
To answer this question, it is firstly, necessary to establish why the world’s forests should be subjected to an international instrument that entails the willingness of state parties to assume obligations among themselves, and that holds a state liable under international law in case it does not comply with its obligations.
Taking on a historical perspective on forests, it becomes apparent that there is a constant correlation between societal change, forest utilization patterns and forest conservation patterns. Two main parameters for intensified forest utilization are population growth and the interconnected desire for economic power, respectively the achievement of developmental goals for the benefit of a society. In turn, the loss of forest resources and the interconnected decline in developmental status gives cause for forest conservation considerations with the overall purpose to further sustain forest utilization.
This fundamental recognition gains even further significance in light of the rather recent perception of forests. The increase in knowledge about forest ecosystems has created a complex multifunctional forest concept. Forests provide for a broad spectrum of ecosystem services and functions, ranging from providing resources, providing ecological protection services, providing biospheric regulation services, providing social services and providing amenities. This includes the production of fuelwood, industrial wood and non-wood products, water protection, soil protection and health protection, biodiversity conservation and climate regulation, ecotourism and recreation, as well as spiritual, cultural and historical services.
This multi-functionality of forests gives rise to significant aspects that require further consideration when taking into account the need for an international forest convention.
If it is presumed that forests are to be deemed worthy of protection because of their role as service providers, it follows that regulation with agreeing on the scope of services and functions provided will simultaneously constitute problems with a view to the scope of regulation.
Not all of the services and functions provided for by forests are valued and utilized equally by all stakeholders and the relevance attributed to a given function is largely a matter of local proximity and perspective, respectively interest. Thus, a different significance might be attributed to one and the same function, depending on whether it is perceived from an economic, socio-political or ecological point of view, or from a local or global perspective. Forests vary across the globe and in time. Thus, not all forests provide equally for the same quantity and quality of services and functions, and a single forest does not provide for its services and functions steadily. Further, not all of these services can be provided by the same forest at the same time. Accordingly, the question for the scope of forest regulation consequently becomes a question of priorities.
With various stakeholders involved, however, it is rather difficult to agree on a common set of priorities. Attempts at determining hierarchy levels can quickly become a matter of “cui bono”. In this regard the dichotomy of “public vs. private” forests, respectively forest services and functions, adds yet another layer of complexity. Basically, forests as such, i.e. in their shape of a conglomerate of trees, are a territorially bound, immovable natural resource. Therefore, the services and functions forests provide are predominantly at the disposal and for the benefit of those stakeholders in close proximity to the forest or even more, only for those who legally own the forest and have the authority to exclude other stakeholders from forest utilization. However, some forest ecosystem services are clearly providing a public good to a local, trans-boundary or even a global audience, respectively public. Focusing on these factors, it becomes a compelling argument to see forests on the whole as a public good. On the other hand however, services like timber and non-wood forest products make it seem plausible to subject forests to the category of private goods given that a public audience cannot access these services. Thus, forests might be regarded as a hybrid good in this regard.
The difficulty with regard to the differing priorities concerning forests becomes apparent in the threats to forests, collected under the broader categories of deforestation and forest degradation. Ultimately, notwithstanding the intricate interaction of many drivers—natural as well as human induced—deforestation and forest degradation are fundamentally driven by economic considerations. There is a clear prioritization of those forest functions and uses that provide higher developmental, respectively economic, gains.
Unregulated, the conflict of prioritization will lead to the preference of single functions before others, which is likely to be accompanied by the permanent loss of single functions, leading to the malfunctioning of all functions. Therefore, international regulation is necessary to ensure that the full range of forest functions is available to all stakeholders.
This unresolved discrepancy between the opposing or conflicting priorities is reflected in the development of the so-called “international forest regime”. Instead of a comprehensive international forest convention, a complex system developed, which is an aggregate of very different instruments: international (environmental) treaties, political guidelines, recommendations, rules of procedure, resolutions of international and non-governmental organizations, standard-setting and certification businesses.
This aggregate has often been accorded the term “international forest regime” in international law and policy. It can be structured in two dimensions. In its primary dimension, the “international forest regime” is a cluster of political processes that accrue from the idea to combat deforestation and forest degradation or at least to regulate a more sustainable utilization of forests. These political processes are mainly: