Faculty of Law, Georg-August-University Göttingen, Göttingen, Germany
Chapter 3 introduced the fragmentation of the international political forest processes and their failure to provide for an international law directly tailored to forests. Due to the apparent lack of an explicit, overall recognition of a common interest with regard to forests, international law is unable to access the regulation of forests directly. Nevertheless, with the realization of the failure of a legalization of forest issues, a variety of international treaties—respectively their representing treaty bodies—seized this opportunity to fill the void and bring the mandate for forests under their own aegis.
While the previous chapter elaborated on instruments that were created a priori to apply to forests but have—to date—not obtained a transformation into law, the following analysis embraces international treaties that have not been created to apply directly to forests but which may be interpreted—ex post—to capture forests within their scope and have a bearing on the international regulation of forests.1
Thus, the subsequent examination considers the status of forests within three—respectively six—thematic contexts2 that have been regulated by one or more international treaties, that is trade, traditional nature conservation, and the Rio-context, which may be subdivided into the thematic contexts of biodiversity, climate change and desertification.
The trade complex explores:
Finally, the Rio-complex examines:
4.1 Forests and Various Forms of Trade: CITES, ITTA and the WTO Law
Forests contain various tradable components. These include, naturally, timber and wood products. Furthermore, there is a huge variety of tradable non-wood forest products, such as animals, plants (other than trees), as well as processed products and derivatives.12
Almost 4 % of all global trade value in commodity products is taken up by the trade in forest products.13 With Europe as the largest importing as well as exporting region in the world, the majority of forest products trade takes place within and among Europe, North America, Asia and the Pacific.14
While Russia turned to be a major exporter of industrial roundwood, with East Asia and Europe as its primary buyers,15 North America became a net importer of forest products (in terms of value).16
The production and consumption of wood products is expected to rise further.17 A major factor is the need for forest biomass in European countries due to renewable energy policies.18 Particularly primary and secondary wood products from the tropics are on the rise as more countries focus on higher-valued wood products.19
“Projections suggest that the distribution of production and consumption among different regions will not change markedly before 2030, but that growth will increase at the global level.”20 While production is expected to grow in Russia, Eastern Europe and South America, higher consumption rates—and thus, dependence on import—are foreseen for Africa, Asia and the Pacific. Production growth is expected to be highest in the Russian Federation, Eastern Europe and South America. High growth in consumption is also expected in Africa and in Asia and the Pacific.21
Regarding the trade of forest components three major international instruments have to be considered, CITES, the International Tropical Timber Agreements and the international law of the WTO.22 With regard to forests, these instruments offer unique features. While CITES is not specific to forests and concerns the regulation of trade for conservation, the ITTA focusses on trade in timber, but it is regionally limited to timber from tropical forests. The WTO is the prime body in respect to international trade in general, however compared to CITES and the ITTA it is much more detached from the conservation context in which CITES and the ITTA developed.
4.1.1 Trade and Conservation: Forests in CITES
Searching for international treaties that might regulate forests or parts thereof, CITES23 does not seem necessarily applicable at the first sight. CITES gained popularity by promoting the conservation and the restriction of trade with regard to the big animals, such as elephants and rhinos, giving the convention the outward appearance of being an animal protection convention. However, CITES is a general species convention, covering all kinds of animal and plant species, which naturally includes trees, but also any other forest plants and forest-dwelling animals. Therefore, CITES is a relevant international treaty with regard to the regulation of forests by international law.
The subsequent elaborations firstly, give a short overview over the negotiation history of the Convention, its objectives and the instruments applied for achieving the treaty objective. Its structure in terms of organization and organs, as well as financing are summarized. Secondly, the implications of CITES for international forest regulation are elaborated on. Finally, it is concluded that CITES offers a useful approach to strike a balance between forest conservation and utilization. However, CITES prioritizes the utilization of species and thus, disregards the multiple forest functions and their mutual conservation.
126.96.36.199 General Structure and Contents of the Convention
CITES24 is an international environmental treaty concluded in the recognition of the irreplaceability of wild fauna and flora and the threat of over-exploitation of wild flora and fauna—and the products derived from them—through international trade.25 It was concluded 3 March 1973 in Washington D.C. and entered into force 1 July 1975. CITES currently has a near universal membership of 175 countries.26
CITES is the advancement of a variety of sectorial and regional approaches to confer protection measures to species. The 1893 Bering Sea Fur Seals Arbitration, the 1911 and 1957 Pacific Fur Seal Treaties, the 1957 Interim Convention on Conservation of North Pacific Fur Seals, or the 1902 Convention for the Protection of Birds Useful to Agriculture can be named in this regard as “predecessors”. Furthermore, one can refer to the 1973 Agreement on the Conservation of Polar Bears, the 1980 Convention on the Conservation of Antarctic Marine Living Resources and the 1991 Protocol on Environmental Protection to the Antarctic Treaty as well as the 1940 Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere and the 1979 Convention on the Conservation of European Wildlife and Natural Habitats. All of these agreements—to name just a few—incorporate various approaches to protections of species. The agreements use differing methods, like conferring the protective effect upon a specific region, a specific species or a specific habitat.
The 1900 Convention Designed to Ensure the Conservation of Various Species of Wild Animals in Africa which are Useful to Man or Inoffensive (First London Convention) and the 1933 Convention relative to the Preservation of Fauna and Flora in their Natural State (Second London Convention) can be referred to as the predecessors most similar to CITES. In their attempt to protect certain wildlife species from the exploitation by colonial powers, these treaties used the mechanism of listing as it is provided for in CITES. However, the 1900 Convention never entered into force and was forgotten after World War I, while the 1933 Convention came into force but did not survive the era of decolonization.27
In 1963 the International Union for Conservation of Nature and Natural Resources (IUCN) took over the task to design a first draft for an international treaty to restrict the trade in specific wildlife species. The first result of the following process was the endorsement of Recommendation 32 of the Stockholm Declaration. This holds that governments “give attention to the need to enact international conventions and treaties to protect species inhabiting international waters or those, which migrate from one country to another” and that “[a] broadly based convention should be considered which would provide a framework by which criteria for some regulations could be agreed upon and the overexploitation of resources curtailed by signatory countries.” In 1973, CITES was signed, entering into force 2 years later, in 1975. On 13 April 1987 the Bonn Amendment to the Convention on International Trade in Endangered Species of Wild Fauna and Flora entered into force. The Gaborone Amendment of 30 April 1983 has not yet entered into force.
As alluded to above, the CITES system is a “list-permit-system”. It “regulates global market access for wildlife specimens, live or dead animals and plants as well as their parts and derivatives, by subjecting all border-cross trade […] to mandatory licensing on the basis of permits issued by the exporting country, and exceptional cases to additional licensing by the importing country.”28 For these purposes, CITES makes use of three types of lists categorizing species of flora and fauna depending on the threat of their extinction through trade. CITES Appendix I contains the so-called “black-list” of species excluded from trade entirely. Appendix II allows for controlled trade of the listed species (so-called “grey-list”). Within Appendix III countries may add unilaterally species to the list, given they are the country of origin of the listed species. Amendments to Appendices I and II are made in accordance with Art. XV CITES at the COP meetings and can be adopted by a two-thirds majority of Parties present and voting.29
This straightforward listing approach is not, however, absolute. Even though a species is listed in one of the Appendices, it may be traded to specific degrees, provided an exemption clause applies (Art. VII CITES). Additionally, CITES puts forth an opt-out system (Arts XXIII and XV para. 3 CITES) offering member states the opportunity to make reservations to the amendment of an appendix and thus, to opt-out of a trade restriction for a newly added species. This option is a fatal loophole. It allows states to carry on unlimited trade of specific species, despite the fact it is actually covered by a treaty amendment.30
With regard to institutional structures, the Convention text provides for a Conference of the Parties (Art. XI CITES) and a Secretariat (Art. XII CITES) only. According to Art. XII para. 1 CITES, the secretariat functions are covered by UNEP. Additional CITES bodies have evolved over time, such as the Standing Committee (initially established by Res. 2.2/1979) and two scientific committees on plants and animals (Res. 11.1/2000 as revised in 2007). This evolution has been due to the residual decision-making power of the COP.31
CITES features an unusual involvement of non-governmental organizations.32 According to Art. XI para. 7 CITES, non-governmental organizations may fully attend the CITES COP—however just without the right to vote. Not only did the number of NGOs rise constantly since the establishment of CITES, but so did their means of involvement. Starting out as mere observers, NGOs developed from active lobbying at COPs to active participation by providing the required data for monitoring.33
For its financing, CITES does not make use of an internal or external fund, but its funding is based upon the Member States’ governments.34
CITES provides for dispute resolution (Art. XVIII CITES) but does not clearly provide for compliance control in the convention text. However, a compliance procedure evolved over time by practice of the COP, resulting in Resolution 14.3/2007, which set up a guide in this respect.35 Over time, compliance with CITES became a central concern and the number of “compliance control” requests presented to the CITES secretariat rose.36 CITES makes use of recommendations—issued by the secretariat—to suspend trade in cases of non-compliance, even though the Convention (nor any COP decisions) does not explicitly mention trade suspensions.37
Adopted before the Brundtland Report and the UNCED, CITES does not refer to the concept of sustainability. In fact, despite the fact that CITES builds upon the attempt to strike a balance between trade and conservation, a lack of inclusion of sustainability requirements in CITES has been questioned.38
Still, CITES has been termed “one of the most effective multilateral environmental agreements, balancing conservation and economic interests.”39 Leaving aside the severe challenges of effectiveness assessments in general, CITES has been accorded an effective substitution function with respect to the food and fashion industry as well as with regard to medicinal and pharmaceutical research.40 However, the general merit of CITES for attempting to regulate both conservation and legal trade is hard to assess due to a huge variety of regulatory and market-based factors.41 It is particularly difficult to separate measures that have been implemented and enforced in a state due to CITES, from measures that have simply been implemented without a causal link, such as domestic harvest control or adaptation to consumer demands. In certain cases, CITES may even produce detrimental outcomes in that a trade ban may lead to the perverse incentive to trade the specimen illegally on the black market.42
188.8.131.52 CITES and Forests
Forest species can be found within all the Appendices of CITES. Around 200 tree species are included in the three CITES Appendices, and are thus subject to the CITES regulations. About 85 species are included in Appendix II, such as afrormosia (Pericopsis elata) from Africa, ramin (Gonystylus spp.) from Southeast Asia and bigleaf mahogany (Swietenia macrophylla) from Central and South America, all of which are valuable timber species.43 “A growing number of countries are also requesting the inclusion of commercially-important native trees in Appendix III, so that importing and other exporting States can help them ensure that only legal timber and other tree products find their way into the international market. Trade in 110 species is now subject to controls under Appendix III, including the Korean pine (Pinus koraiensis) from the far east of the Russian Federation and the West Indian cedar (Cedrela odorata) from South America, with the list set to expand further in 2011. Finally, CITES Parties have included in Appendix I six tree species that are currently threatened with extinction and are or may be affected by international trade. An Appendix-I listing means that Parties have agreed not to permit any international commercial trade in wild-sourced products of these species.”44 However, forests are home to a vast variety of animal and plant species. The CITES Appendices are dominated by forest dwelling plants45 and, for at least part of their life cycle, forest dwelling animals.46
A major CITES accomplishment with regard to forest species was the inclusion of Big-leaf Mahogany in Appendix II by vote of the majority of the Parties at COP12.47 “Experiences with the implementation of the Appendix-II listings for Big-leaf Mahogany and ramin will undoubtedly shape how the Parties and industry view the role of the Convention in helping to control the international trade in timber in future.”48 However, as the example of the addition of Big-leaf Mahogany to the CITES lists shows, the inclusion of commercially highly valuable species is a contentious and time consuming issue.49
The CITES structure and provisions have the following implications for forests:
Firstly, CITES is a restricted treaty. Its scope encompasses listed species only. Adding tree species—especially tropical timber species—to the appendices has been difficult to date.50 The relation of proposals and rejections reflects the tension between timber consuming and producing states. Producing countries’ rejection of the inclusion of timber tree species in the appendices shows their fear of their sovereign rights to be infringed.51 Particular attention must also be given to the fact that CITES offers protection for species and not for habitat, which is a major limitation with regard to forests.52
Secondly, CITES is subject to a variety of loopholes that impair its rather strict approach. Such a loophole may be found particularly within the exemptions made in Art. VII CITES. Seven exemptions are made. These include exemptions of varying degrees for specimens that are personal or household effects, specimens bred in captivity or artificially propagated for commercial purposes, or parts or derivatives of such plants or animals, the non-commercial loan, donation or exchange between scientists or scientific institutions, as well as for traveling zoos, circuses, menageries, plant exhibitions or other traveling exhibitions. The Management Authorities in charge face a demanding challenge to determine the origin of specimen and their purpose of use. The straightforward listing system of CITES is therefore severely weakened and illegal trade is thereby facilitated. While these exemptions do not really seem to fit trees, particularly trade in tropical timber, the exemptions apply to all forest dwelling plant and animals and as such, the weakening of CITES by these loopholes affects the conservation status of forests under CITES as a whole.
Thirdly, the implications for forests as a result of CITES are largely dependent on the compliance of states with the provisions of CITES, as well as their enforcement. CITES is hard to enforce. The number of Member States, permits and custom points reached a confusing number, customs personal are not trained biologists and identifying species is a hard task. With regard to trade in tree species, CITES—as are standardization and labelling organizations—is confronted with the difficulties in effective monitoring.53
Fourthly, CITES is a trade agreement for endangered, listed species. It is thus, conditional upon these three factors. A specimen has to be endangered AND listed to be accorded protection. CITES does not cover the utilization of forests and forest species within state borders where no cross-border activity is involved.54 Protection by CITES only applies when a species is traded. CITES is not a conservation treaty in the actual sense of the term and therefore offers no benefit with regard to maintaining forest cover. Additionally, CITES defines trade as the source of threat and thus, fails to acknowledge other drivers for species loss in general and forest species loss in particular.
Fifthly, the “non-detriment” clause—export of Appendix II species may not be detrimental to the survival of that species, Art. IV para. 2 (a) CITES—provides a basis for including considerations of sustainable forest management within CITES and vice versa includes the impact of export of tree species within the considerations of sustainable forest management.55
Sixthly, past history has shown that CITES pays more attention to trade in animal species than plant species.56 “Despite the fact that the unsustainable international trade in plants and plant-based products almost certainly far exceeds the trade in specimens of animal origin, it seems unlikely that plants other than those producing timbers will gain centre stage in the foreseeable future.”57
184.108.40.206 Interim Conclusions
CITES offers a useful approach to the international regulation of forests. It attempts to strike a balance between conservation and utilization by using a “list-permit-system”. Thus, CITES does not set up absolute restrictions. It provides for a gradual system that allows member states to adapt, taking into account their local conditions. This is of particular importance with regard to the diversity in forest ecosystems, which makes regulations without a margin of flexibility unfeasible.
CITES is a convention that is tailored to meet the specific needs of trade in species. The listing of species ultimately serves the purpose of facilitating “species sensitive” trade. Accordingly, despite its conservationist character, CITES remains a trade convention. Whilst CITES might be able to contribute to the protection of a variety of forest functions, aside from the enumerated forest species, CITES disregards the multiple forest functions and their mutual preservation, and prioritizes the provisioning forest services in terms of resources production. Nevertheless, in its character of a trade convention, CITES clearly addresses a major driver for deforestation and forest degradation as identified previously: illegal timber trade. Thus, CITES merits recognition in this regard, despite the disregard for the full range of forest functions.
4.1.2 A Regional Trade Approach: Forests in the International Tropical Timber Regime
The ITTA is a special case among the international treaties capturing forests. As has been mentioned above in the introduction to this chapter, the international treaties discussed within this chapter have not been created to apply directly to forests. In this regard, the ITTA is an exemption as it has clearly been negotiated and adopted to apply specifically to forests. Nevertheless, the ITTA merits attention within the group of international treaties not applying directly to forests due to the fact that the ITTA does not apply to forests in general, but only to trade in tropical timber. The ITTA is thus doubly limited: firstly, with regard to its regional scope and secondly, in terms of the regulated substance.
Set out below firstly, is the special negotiation history of the ITTA, and the controversial nature of the issue is highlighted. Secondly, particular attention is given to the overall structure that the ITTA is embedded in—the International Tropical Timber Regime (ITTR). Thirdly, the further elaborations turn to the ITTR and its difficult relation to the negotiation and implementation of conservationist interests within the trade regulation system of the ITTR and the implications for forests in general is emphasised. Finally, it is concluded that the ITTA is of limited significance for forests in general in three respects: firstly, it is limited in regional scope given is applicable to tropical forests only. Secondly, it is limited in its coverage of forest components because it applies to timber only. Thirdly, it is limited in its protective scope, as its primary objective is the expansion of trade. Ultimately, the effect of the ITTA on tropical timber trade and its severe implications for world trade in timber in general must be taken into account.
220.127.116.11 Development and Content of the ITTAs
The ITTA is an international trade agreement designed primarily to “[provide] an effective framework for consultation, international cooperation and policy development among all members with regard to all relevant aspects of the world timber economy […].”58 The ITTA developed in three major negotiation processes from the ITTA 1983,59 to the ITTA 199460 and the most recent ITTA 2006.61
Currently, the ITTA encompasses 61 signatories, covering 25 so-called “producing members”62 from Africa, Latin America and Asia and Pacific, as well as 36 so-called “consuming members”63 including the European Union and its member states, Japan, New Zealand, Republic of Korea, United States of America, Australia, Canada and China.64
The initial impetus for the creation of an international trade agreement on timber emanated from the United Nations Conference on Trade and Development (UNCTAD).65 “UNCTAD was dedicated to the ideal of restructuring historical patterns of global trade to enable lesser-developed states to participate and derive greater benefits.”66 Institutionally, the date November 1966 can be named as the first point of orientation in the history of the tropical timber regime. An UNCTAD/FAO Working Party on forest and timber products suggested the creation of a tropical timber bureau.67 However, this endeavour was stuck on the agenda in the following years due to the concerns of the States involved and disagreement as to the focus on tropical timber only instead of timber in general.
The idea of international cooperation in tropical forest issues regained momentum after the Stockholm Conference in 1972. The International Union for the Conservation of Nature (IUCN) got involved with a number of conferences related to that issue and the outcome of a document called “Ecological Guidelines for Development in Tropical Rainforests”.68 However, this new momentum has to be regarded as uncoupled from the idea to create a tropical timber trade regime. One might only go so far as to assume that this drive brought about “a more favourable climate for such an entity”.69 In this regard it has to be remembered that “when examining the tropical timber regime it must be borne in mind that it was not created to conserve/preserve tropical forests: rather it was designed to facilitate the orderly extraction of tropical timber.”70
The first attempt to better equip the timber bureau shows that it was oriented towards trade means only. The price for commodities was high in the 1970s and developing states—in general the producers states of tropical timber—anticipated huge gains.71 A role model was the success of the Organization of the Petroleum Exporting Countries (OPEC) in 1973–1974. “[…] many LDCs felt that cartels could enable states to control commodity prices and thus increase their power relative to developed states.”72 A precursor for the international tropical timber regime was the UNCTAD Integrated Program for Commodities (IPC),73 a program launched to enable producing but less developed countries to derive greater economic benefits from their resources via commodity trading, which was focused on tea and rubber at first, and later discovered tropical timber.
Preparatory negotiations for an actual timber agreement started in 1976 and lasted 6 years (First Preparatory Meeting on Tropical Timber in May 1977, Second Meeting in October 1977, Third Meeting in January 1978 (until then the focus of negotiations was on the expansion of export of tropical timber, prize and market stabilization), Fourth Meeting in July/August 1978 (shifted the focus on reforestation and forest management, however, mainly with regard to maximize levels of processing; still the recognition of environmental destruction and degradation in general, as well as the loss of forests in particular, gained momentum throughout the late 1970s and thus, also made it to the agenda of the preparatory meetings for a timber regime), First Session of the Fifth Meeting in October 1979, Second Session of the Fifth Meeting in July 1980 (even though environmental concerns remain on the agenda for discussion, they do not penetrate the draft agreement; the focus remains on the assurance of a continuous supply of tropical timber), First Session of the Sixth Meeting in June 1982, Second Session of the Sixth Meeting in November/December 1982, decision to create the ITTO). As far as it can be reconstructed from the material available, environmental issues always remained as mere secondary concerns throughout the negotiations.74
However, even after these years of preparatory meetings, no agreement was signed, let alone ratified. It took 3 more years to convince just enough States to sign and ratify the first International Tropical Timber Agreement, the ITTA 1983,75 by March 31st, 1985 and the first ITTA came into force on April 1st, 1985 for an initial period of 5 years, which was extended twice, for 2-year periods.
When the lifespan of the ITTA 1983 came to an end, negotiations on a successor agreement commenced. With a view to recent scientific findings and the global threat of losing forest resources due to overexploitation, the reopening of negotiations of tropical timber trade brought about the opportunity for environmentally alarmed participants to voice their concerns and the promise to see these concerns reflected in a newly designed agreement. Participating environmental non-governmental organizations, such as WWF, argued for the inclusion of rules on sustainable forest management. Additionally, the core of the negotiations focused on the question of broadening the scope of the agreement to include not only tropical, but also temperate and boreal timber.76 However, as the negotiations quickly revealed, both approaches proved to be a rather futile undertaking.77
The successor agreement, ITTA 1994, remained mostly similar to the ITTA 1983. The 1994 ITTA entered into force in January 1997 for an initial 5-year period and was extended twice for 3-year terms. The negotiations that commenced in 200478 led to the adoption of another successor agreement, the ITTA 2006. This agreement, however, at least seen from a conservationist perspective, seemed to be a “retrograde step” rather than an advancement.79 The recognition of the sovereign right of states to exploit their natural resources, which had formed the chapeau of the agreements’ objectives for the ITTA 1983 and 1994, was not deleted, but rather awarded a betterment within the preambular part.80 This way, not only were the objectives put under the chapeau of national interests, but the whole agreement as such. This meant that the economic interests of producers’ states and timber companies were emphasized even further.81
The ITTA82 provides for a long list of objectives (Art. 1 lit. a) to s) ITTA). The objectives of the agreement serve the overall objective to “[…] to promote the expansion and diversification of international trade in tropical timber from sustainably managed and legally harvested forests and to promote the sustainable management of tropical timber producing forests” (chapeau of Art. 1 ITTA). The ITTA is supposed to provide inter alia for “[…] an effective framework for consultation, international cooperation and policy development among all members with regard to all relevant aspects of the world timber economy; […] a forum for consultation to promote non-discriminatory timber trade practices; […] the capacity of members to implement strategies for achieving exports of tropical timber and timber products from sustainably managed sources; […] improved understanding of the structural conditions in international markets, including long-term trends in consumption and production, factors affecting market access, consumer preferences and prices, and conditions leading to prices which reflect the costs of sustainable forest management.”83
However, with regard to specific methods or instruments, obligations or commitments, the agreement remains silent. As such, “[o]pinions regarding the purposes of the ITTA and the behaviour it was meant to engender remain divided to this day.”84
18.104.22.168 The International Tropical Timber Regime
Instead of the imposition of specific obligations for its member states and the establishment of instruments, the ITTA’s specialty lies in the overall structure it is embedded in.
The International Tropical Timber Regime consists first of all of the International Tropical Timber Organization (Art. 3 ITTA 2006). The ITTO is established in accordance with Art. 3 ITTA 2006. The ITTO is the administrative organ of the agreement and supervises its operation (Art. 3 para. 1 ITTA 2006). The ITTO is operated by the International Tropical Timber Council (ITTC, Art. 6 ITTA 2006), its committees and subsidiary bodies (Art. 26 ITTA 2006) and the Executive Director and staff (Art. 3 para. 2 ITTA 2006). The ITTO is based in Yokohama, Japan (Art. 3 para. 4 ITTA 2006).
A particularly important actor is the International Tropical Timber Council (ITTC), which—as has mentioned above—represents the highest authority of the ITTO. The powers and functions of the ITTC are regulated in Art. 7 ITTA 2006. It “shall exercise all such powers and perform or arrange for the performance of all such functions as are necessary to carry out the provisions of [the] Agreement” (Art. 7 ITTA 2006).
In accordance with Art. 4 ITTA 2006, the ITTO only knows two categories of membership: (a) producer and (b) consumer. This includes 25 producer states from the African, Asian-Pacific and Latin American region and 11 consumer countries (including the EU with 27 member countries of its own). The membership of the ITTC equals the membership of the ITTO.
Further, parties are not envisaged to take part in the decision making of the ITTO, respectively ITTC. Actors, such as the UN, its organs, specialized agencies and other relevant international and regional organizations and institutions, as well as the private sector, non-governmental organizations and civil society, do not have a vote but merely observer status (Art. 16 ITTA 2006). The ITTA merely foresees cooperation and coordination with these actors (Art. 15 ITTA 2006). This is a further indication for the mere intent of the ITTA to further timber trade. By 1992 major ENGOs have left the meetings. Only Friends of the Earth and the Global Forest Policy Project remained.
Careful consideration must also be given to the curious voting structure established by Art. 10 ITTA 2006. Producer members and consumer members each hold 1,000 votes (Art. 10 para. 1 ITTA 2006). The allocation formula for the votes “is similar to some share arrangements within certain corporate structures”.85 While the first share of 400 votes is distributed equally between the producers states of the three regions of Africa, Asia-Pacific and Latin America and the Caribbean (Art. para. 2 (a) ITTA 2006), a share of 300 votes is “distributed among the producer members in accordance with their respective shares of the total tropical forest resources of all producer members” (Art. 10 para. 2 (b) ITTA 2006). A second share of 300 votes is “distributed among the producer members in proportion to the average of the values of their respective net exports of tropical timber” (Art. 10 para. 2 (c) ITTA 2006). This allocation of votes leads to the tenuous situation that member states that fulfil both the requirements of lits (b) and (c)—such as Malaysia, Indonesia and Brazil86—have more say in the ITTO, respectively ITTC.87 Additionally, it must also be noted that the ITTA does not accord votes to countries with large forests, but rather to countries with “tropical forest resources”, Art. 10 para. 2 (b) ITTA 2006. This allocation formula of votes indicates a clear preference for exploiting states and underlines the intention of the ITTA and its parties: to safeguard the trade in tropical timber for the financial benefit of producer states and the material/trading benefit of consumer states. The distribution formula for consumer members (Art. 10 para. 4 ITTA 2006) favours the importers of raw wood over importers of processed timber, such as furniture. Which of the two member categories inherits more power seems to be an ongoing discussion.88
22.214.171.124 The ITTR and Conservationist Interests
Undoubtedly, the economic interests of both producer and consumer states are too superior to allow for more space for conservationist thinking within the ITTA.
Admittedly, throughout its development, the International Tropical Timber Regime, in its three agreements, somehow purported to promote the conservation and sustainable management, use and trade of tropical forest resources. However, it is clear from the ITTA 1983 that this promotion is solely a means to ensure “the optimum utilization”89 of tropical timber, with a view to “achieving the relevant objectives adopted by the United Nations Conference on Trade and Development in its resolutions 93 (IV) and 124 (V) on the Integrated Programme for Commodities”,90 thus the improvement of “the terms of trade of developing countries and in order to eliminate the economic imbalance between developed and developing countries”.91 Therefore, conservation of tropical timber resources is made dependent upon conservation for exploitation—thus, there is no intrinsic motivation to conserve (tropical) forests as such.
As Nagtzaam puts it, “[h]ere is a ‘hard case’ of ‘progressive normative failure’ where the conservationist and preservationist arguments of the various ENGOs [environmental non-governmental organizations] and concerned states have not been accepted and where exploitation continues to be the order of the day.”92
The ITTA 1983 may be said to have provided a starting point for the integration of conservationist norms within the International Tropical Timber Regime.93 However, the parties showed no real intention to explore these approaches, which rather seem to be a lip service and a concession to the observing environmental non-governmental organizations than a true indication of the parties’ intent.94 Given that it was concluded after the UNCED in Rio in 1992, the ITTA 1994 stipulates the recognition of the Forest Principles, the UNFCCC and the CBD in its Preamble. A reference to sustainable forest management is made throughout the Preamble as well as within the objectives of Art. 1 ITTA 1994. However, these references are inferior to the overall endeavour solely to provide regulations for the trade in tropical timber between the producing and the consuming members. In the most recent ITTA of 2006, the lack of intent shows in the almost unchanged wording of the treaty that does not allow for a betterment of conservationist regulation, but still only grants rhetorical meaning to sustainable forest management.
All in all, the conservationist approaches within the ITTA are mere means to ensure “a steady import/export trade in the short-term for the benefit of the cartel members.”95 It must be noted that the primarily environmental non-governmental organizations and international organizations, such as WWF, FoE, IIED and IUCN, drove the inclusion of conservationist language into the agreement.96 However, they lacked the urge to require truly preservationist norms. As clearly stated by the ITTO itself in its “Possible Action 33” document in 1990, conservation and protection are only “secondary objectives”.97
126.96.36.199 Interim Conclusions
With regard to the implications of the ITTR for the international regulation of forests, it must be concluded that, with regard to its scope and structure, the ITTA is of limited significance for forests in general in three respects: firstly, it is limited in regional scope as it is applicable to tropical forests only. Secondly, it is limited in its coverage of forest components, as it applies to timber only. Thirdly, it is limited in its protective scope, as its primary objective is the expansion of trade. Ultimately, however, the ITTA cannot be criticized for not hindering or prohibiting deforestation or forest degradation in the tropics. Environmental concerns and environmental language in the ITTA never made it into the ranks of clearly defined obligations, but remained secondary and ambiguous. The ITTA was never intended to be a forest convention for the intrinsic protection of forests, but rather a commodity agreement to keep up the international trade in tropical timber. Not more, not less.
4.1.3 Trade First: Forests in the WTO Law
Considering international trade with respect to forests, there is no way around the law of the WTO, i.e. the Marrakesh Agreement Establishing the World Trade Organization98 and the so-called Multilateral Trade Agreements and Plurilateral Trade Agreements referred to in Art. II para. 2 and 3 of the WTO Agreement and listed in Annexes 1–4 to the Agreement.
The field of WTO law is a big one. Consequently, only a rough outline of the aims and relevance of the WTO is given here. Special attention is given to the critical relation between trade and environment within the WTO regime, however, this is still a large field and therefore, the elaborations intend to give an overview only. Finally, the relevance of WTO law for forests is explored. Following this brief overview, it is concluded that there is no direct connection of the WTO regime to international forest regulation. Nevertheless, the trade law of the WTO affects any kind of conservation law, respectively law that limits free trade, and as such it has a restricting effect on existing or future forest regulation, putting trade in front.
188.8.131.52 Aims and Relevance of the WTO
The WTO is the culmination of new approaches taken and efforts made with regard to international trade after the Second World War.99 The WTO serves as the institutional roof for the implementation, administration and operation of the Multilateral and Plurilateral Trade Agreements and for the furtherance of the objectives of the WTO Agreement and the Multilateral Agreements.100 Furthermore, the WTO provides for a negotiation forum.101 The WTO comes with a significant dispute settlement mechanism.102
The WTO is based on the recognition that the relation of states “in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.”103 To achieve this aim, the WTO makes recourse to its two basic means of “reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations.”104
184.108.40.206 Trade and Environment Within the WTO Regime
The relation between trade and environment was not high on the initial agenda of the WTO at the time of its establishment in 1994. However, since the famous Tuna-Dolphin-Case concerning the USA and Mexico, the issue has become predominant.105
The exception clauses of Arts XX and XXI GATT 1994 merit consideration in this regard. The GATT provides for two environmental exceptions: Art. XX para. (b) and (g) GATT. Art. XX para. (b) relates to measures “necessary to protect human, animal or plant life or health.” Art. XX para. (g) concerns measures “relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.” Both exception clauses are subject to the chapeau of Art. XX GATT, which states: “Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of [such] measures.”
In general, the difficult trade-environment context is thus, well considered and the requirement of exceptions to trade liberalization in case of crucial environmental concerns is recognized. However, the line between justified environmental measures and measures to disguise trade restrictions is hard to draw. A WTO member must establish a clear connection (“necessary” and “relating to”) between the environmental goal pursued with its measure and the measure itself. The WTO Appellate Body had to take into account the environmental exception clauses of Art. XX GATT several times.106 Over the past decade, the WTO Appellate Body provided for a more literal interpretation of the environmental exception clauses of Art. XX GATT and thereby, generally opened the door for more environmentalist perspectives with the WTO dispute settlement.107 However, this shift in interpretation merely stems from a more “law-based” approach within the Appellate Body than from a trend towards environmentalism.108 Besides the exception clauses of Art. XX (b) and (g) GATT, WTO law has often been discussed in the light of country measures taken to ban products depending on how and where they were produced. These discussions run under the headings of “production and process methods (PPMs)” and “extraterritorial effect”.109
The WTO is a trade organization and thus WTO law is, by its very purpose, trade law. As such, it does not intend to advance environmental standards and should not be expected to. Classifying the WTO rules as environmental friendly or unfriendly is therefore, rather misleading.110 The WTO takes note of environmental concerns and their ability to affect trade issues by the exception clauses of Art. XX para. (b) and (g) GATT and provides for a thorough interpretation by the Appellate Body in this regard. What is much more important, however, is the relation of those laws establishing environmental standards and the WTO law.111
220.127.116.11 WTO Law and Forests
To date, the WTO has not come across a forest related dispute. Furthermore, the WTO does not provide for any forest related program, working group or the like. In general, WTO law applies in the forest context if a traded forest product is discriminated compared to a “like [forest] product”. Such discrimination may be justified if it passes the non-discrimination test of Art. III GATT or under the exception clauses of Arts XX and XXI GATT. Therefore, imposing sustainability criteria on imported forest products is not incompatible with WTO law per se. In this regard, the developments under the Agreement on Technical Barriers to Trade (TBT Agreement)112 and the question as to whether forest certification schemes constitute such a technical barrier to trade deserve further attention, as the issue is currently unsettled.113
18.104.22.168 Interim Conclusions
In conclusion, taking into account the previous elaborations on forests in trade regimes, it can be inferred here that the law of the WTO does not prima facie show explicit reference to forest functions. The clear focus of the treaties under the umbrella of the WTO is trade liberalization, and hardly restricted by environmental concerns. As such, there is no direct connection of the WTO regime to international forest regulation. Nevertheless, ultimately it should be considered that the trade law of the WTO affects any and all kinds of conservation laws, respectively law, that limits free trade and as such it has a restricting effect on existing or future forest regulation in general, and on forest conservation in particular. Hence, the WTO law does not in itself affect forests so much, but rather via its impact on other treaties.
4.1.4 Relevance of Trade Agreements for Forests: Interim Conclusions
The implications arising from the interdependence of trade and environment in general are reflected in the relation between trade and forests.114 A liberal trade in forest products may lead to increased income and thus, promote development and thereby contribute to the foundations for sustainability in trade and sustainable development in general—a phenomenon known as the Environmental Kuznets Curve.115 However, depending on market variables, free trade may increase exploitation of forest resources and may not establish clear incentives for sustainability in trade. Trade restrictions, if strictly enforced, may curtail exploitation. However, they may also simply increase the value of a certain product due to its exclusivity and, as a result, spur illegal trade.116 Trade has further implications, such as the expansion of road networks and other forms of infrastructure, creating development opportunities on the one hand and fragmentation of forest ecosystems on the other hand. Trade increases the risk of carrying along invasive species that displace native species in the importing country. Finally, the very core idea of trade is critical regarding the forest sector.117 Trade in forest products always entails loss of forests on behalf of the exporting country. The consequences of forest loss have severe environmental and social repercussions.
Trade rules impact these implications.118 Competition in the forest products market created by trade may result in a lowering of comparatively high sustainable forest management standards, so as to keep up with competitors, thereby creating a so-called “race to the bottom”.
Furthermore, trade rules include the high risk of interfering with national laws and regulations, especially with regard to domestic conservation laws.119 This is particularly so because sometimes it is hard to distinguish whether a domestic measure is established to protect the environment or to protect the national producer in disguise of the environmental reasoning. Thus, states may simply refrain from enacting forest regulations at all.120
However, the trade agreements relating to forests discussed above are sector specific approaches. Firstly, naturally they cover trade issues only. Secondly, they leave the tradable components of genetic forest resources and carbon to other regimes, thus, causing gaps within the trade system. With a view to the scope, it should also be kept in mind that agreements relating to trade in forest products do not apply to forests until a forest component is subjected to cross-border trade, i.e. these agreements are without legal effect within country borders. However, considering the numbers in regards to trade in forest products, only a minority of forest products go into international trade.121 And yet, international trade agreements relating to forests address a major driver for deforestation and forest degradation as identified previously: illegal timber trade. Thus, international trade agreements merit recognition in this respect despite their disregard for the full range of forest functions.
4.2 Forests and Nature Conservation and Wildlife Protection: The Ramsar Convention and the World Heritage Convention
The condition of forests is not only influenced—positively as well as negatively—by international legal trade regulations, but also from regulations on nature conservation and wildlife protection.122 There are four conventions that merit particular attention with regard to nature conservation and wildlife protection: the Convention on International Trade in Endangered Species of Wild Fauna and Flora,123 which has been elaborated on already above and which takes on a hybrid position in this regard, the Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat,124 the Convention for the protection of the world cultural and natural heritage,125 and the Convention on Biological Diversity. In terms of the development of wildlife law, the 1960s/1970s Conventions, CITES, the WHC and Ramsar, advanced significant new techniques with respect to nature conservation, such as permit systems, protected areas enhancement, listing systems, joint inspection or enforcement schemes, or exchange of scientific data.126 Additionally, these Conventions paid attention to the economic challenges that the implementation of conservation measures, as well as the restriction of natural resources exploitation, pose to certain countries and therefore financial assistance is also addressed.127
4.2.1 Wetlands Protection: Forests in the Ramsar Convention
The significance of the Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention)128 for the international regulation of forests may not be immediately recognized. In the light of the big Rio Conventions, particularly the CBD, and with regard to public perception, the Ramsar Convention can be easily overlooked. This is due to the focus on wetlands on the one hand—a term often misconceived as referring to swamps—and birds on the other. However, taking a closer look at the scope of “wetlands” respectively the Convention, its relevance becomes obvious.129
The following elaborations firstly, address the overall substance of the Ramsar Convention, considering its scope and approach to the protection of wetlands. Secondly, the implications of the Convention for forests are elaborated on. Finally, it is concluded that the Ramsar Convention is of limited relevance for the international regulation of forests by existing international law, as it applies only to those forests that also fulfil the definition of wetlands but does not cover forests in general.
22.214.171.124 Scope and Contents of the Convention
The Ramsar Convention follows the approach to protect wildlife via the concept of habitat protection.
In general, wetlands may be described as zones of transition between terrestrial and aquatic ecosystems.130 “Wetlands are areas where water is the primary factor controlling the environment and the associated plant and animal life. They occur where the water table is at or near the surface of the land, or where the land is covered by shallow water.”131 However “the failure to consider fully the different dimensions and definitions that have been used around the world has resulted in confusion of these systems.”132
Wetlands are not special to a specific geographic region but occur everywhere.133 However, numbers on wetlands are hard to fix, estimates suggest about up to 5.7 million km2, 4–6 % of the Earth land surface, 240,000 km2 of coastal area and 600,000 km2 of coral reefs.134 The insecurity with regard to fixed numbers stems to a certain degree from the varying definitions of wetlands.135
According to Art. 1 para. 1 Ramsar Convention, wetlands “[…] are areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres.” According to Art. 2 para. 1 “[wetlands] may incorporate riparian and coastal zones adjacent to the wetlands, and islands or bodies of marine water deeper than six metres at low tide lying within the wetlands, especially where these have importance as waterfowl habitat.” The concept of “wetlands” within the framework of the Ramsar Convention is therefore a very broad one.136
With the increasing and observable loss of wetland areas, wetlands became an international concern in the 1960s and 1970s. The Ramsar Convention was concluded in 1971 and entered into force 21 December 1975. Since then it has been amended twice—in 1982 and 1987—with the Paris Protocol,137 establishing an amendment procedure in Art. 10 bis of the Convention, and the Regina Amendments,138 establishing the Conference of the Parties to the Convention and its procedure in Arts 6 and 7 of the Convention. These amendments are an indication of the dynamic nature of the Ramsar Convention and brought about a stronger institutional and decision-making framework, providing the Ramsar Convention with almost all of the features which are characteristic for modern Multilateral Environmental Agreements (MEAs).139
The Ramsar Convention aims “[…] to stem the progressive encroachment on and loss of wetlands now and in the future”.140 This original objective is complemented by a mission statement, adopted by the parties in 1999 and refined in 2002, which is “the conservation and wise use of all wetlands through local and national actions and international cooperation, as a contribution towards achieving sustainable development throughout the world.”
The Convention features three regulatory techniques: listings, the concept of wise use and a duty to cooperate.141
The listing obligations are set down in Art. 2 Ramsar Convention. At least one wetland has to be established under the terms of the Convention upon signature, ratification of or accession to the Ramsar Convention.142 According to Art. 2 para. 1 Ramsar Convention “[e]ach Contracting Party shall designate suitable wetlands within its territory for inclusion in a List of Wetlands of International Importance […].” With regard to the criteria relevant for wetlands selection, the Ramsar Convention provides solely for the information that “[w]etlands should be selected for the List on account of their international significance in terms of ecology, botany, zoology, limnology or hydrology.”143 Priority is given to wetlands which are of international importance to waterfowl at any season.144 In line with the dynamic character of the Ramsar Convention, the Parties to the Convention developed criteria for the establishment of wetlands outside the Convention text.145 A state party to the Convention has “the right to add to the List further wetlands situated within its territory, to extend the boundaries of those wetlands already included by it in the List, or, because of its urgent national interests, to delete or restrict the boundaries of wetlands already included by it in the List […].”146 Importantly, the Ramsar Convention also provides for the adaptation to changes that might affect a designated wetland site under the Convention, such as changes in scientific knowledge or technological development. Therefore, the parties “[…] shall arrange to be informed at the earliest possible time if the ecological character of any wetland in its territory and included in the List has changed, is changing or is likely to change as the result of technological developments, pollution or other human interference.”147
The “wise use” concept is contained in Art. 3 Ramsar Convention. “The Contracting Parties shall formulate and implement their planning so as to promote the conservation of the wetlands included in the List, and as far as possible the wise use of wetlands in their territory.”148 Similar to the establishment of criteria for the identification of wetland sites, the contents and meaning of “wise use” have been developed outside the ambit of the Convention text. The Ramsar Secretariat provides for the “The Ramsar Convention Handbooks for the wise use of wetlands”.149 According to the latest issue of the handbook, “[w]ise use of wetlands is the maintenance of their ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development”, taking into account the Convention’s mission statement, the MA’s terminology, the concepts of the ecosystem approach and sustainable use applied by the CBD, and the definition of sustainable development adopted by the 1987 Brundtland Commission.150 The term “wise use” may be understood as, or used interchangeably with, “sustainable use”.151 The wise use concept is of special importance because is not only applicable to listed wetlands but to all wetlands in the territory of a state, regardless of their listing.152 For the determination of the meaning of the term “maintenance of their ecological character”, the Millennium Ecosystem Assessment deserves attention.153
The third pillar of the Ramsar Convention, the duty to cooperate, is fixed in its Art. 5. This norm establishes consultation and cooperation requirements between the Parties with a special view to cases “[…] of a wetland extending over the territories of more than one Contracting Party or where a water system is shared by Contracting Parties.”154 The terms of this international cooperation are also recorded in a Ramsar handbook.155 A focal point for the cooperation with and between the Parties to the Ramsar Convention is the Secretariat. It promotes and organizes activities under Article 5 of the Convention, organizes and co-organizes regional meetings and technical workshops, as well as meetings of the COP, and it facilitates (and sometimes financially assisting) regional multi-Party wetland initiatives operating under the framework of the Convention.156
Assessing the impact of the Ramsar Convention poses similar challenges as with CITES. The Ramsar Convention looks back on 40 years of dealing with wetlands. Given the first two amendments to the Convention and the subsequent continuing revolution of the Convention structure and contents, the Ramsar Convention has developed into a dynamic, flexible instrument for the wise—and thus, sustainable—use and conservation of wetlands. Wetlands are subject to constant change, thus, posing a great challenge to being captured by international law and policy and for trying to establish clear concepts for management and protection. The dynamic structure of the Ramsar Convention and its close link with the Millennium Ecosystem Assessment are an expression of the parties’ recognition of wetland’s susceptibility to change and the adaptability of the Convention as well as its leeway for revolution.157 Over time, the Ramsar Convention has shifted its paradigm focus of a rather species-oriented Convention—as waterfowl have initially been at the centre of the Convention—to an ecosystem-oriented Convention thus, living up to the ecological linkages. These foundations are also of particular benefit for forest conservation and use.
126.96.36.199 The Ramsar Convention and Forests
Looking at the value of the Ramsar Convention for forests, the vegetation of the subcategories of coastal zones need be taken into account. In this regard, mangroves merit attention. “Mangroves are trees and shrubs found in intertidal zones and estuarine margins that have adapted to living in saline water, either continually or during high tides […]. Mangrove forests are found in both tropical and sub-tropical areas […], and global mangrove forest cover currently is estimated as between 16 million and 18 million hectares […]. The majority of mangroves are found in Asia.”158 Mangrove forests are among the most important forest areas. They play a key role in the regulation of the transition from marine ecosystems to terrestrial ecosystems. They stabilize land in the face of changing sea level by trapping sediments, cycling nutrients, processing pollutants, supporting nursery habitats for marine organisms, and providing fuel-wood, timber, fisheries resources. They also buffer land from storms and provide safe havens for humans in the 118 coastal countries in which they occur. Mangroves have a great capacity to absorb and adsorb heavy metals and other toxic substances in effluents. They can also exhibit high species diversity. Those in Southeast Asia, South Asia, and Africa are particularly species-rich, and those in association with coral reefs provide food and temporary living space to a large number of reef species. In some places mangroves provide not only nursery areas for reef organisms but also a necessary nursery ground linking seagrass beds with associated coral reefs. Removal of mangroves can thus interrupt these linkages and cause biodiversity loss and lower productivity in reef and seagrass biomes.159 Mangrove forests are under increasing threat, particularly from human population and agricultural conversion. It is estimated that in some countries, more than 80 % of original mangrove cover has been lost due to deforestation.160
In addition to that, inland water systems may cover many kinds of waterlogged forest areas. Inland water systems, as a specific wetland area, cover habitats such as lakes and rivers, marshes, swamps and floodplains, small streams, ponds, and cave waters.161 In the present context, the peat swamp forests of Southeast Asia need particular mention.
In fact, wetlands and forests provide for multiple linkages and overlaps, depending on the definition used for wetlands and thus, the delineation applied. Looking, for example, at the Ramsar Classification System for Wetland Type,162 forests may fall at least in the categories: I—Intertidal forested wetlands; includes mangrove swamps, nipah swamps and tidal freshwater swamp forests, Tp—Permanent freshwater marshes/pools; ponds (below 8 ha), marshes and swamps on inorganic soils; with emergent vegetation water-logged for at least most of the growing season, Xf—Freshwater, tree-dominated wetlands; includes freshwater swamp forests, seasonally flooded forests, wooded swamps on inorganic soils, and Xp—Forested peatlands; peatswamp forests. Additionally, wetlands and their international regulation merit attention with regard to the linkages of wetlands and riparian forests.
Hence, the Ramsar Convention provides for the maintenance of forest cover as far as wetlands are concerned. As such, it addresses and preserves a variety of forest functions, including particularly soil protection, biodiversity protection and climate regulation.
188.8.131.52 Interim Conclusions
Even before the Stockholm-Rio process took off, the Ramsar Convention had taken note of the tension that exists between the need to protect natural resources for the good of all and the sovereign rights of states to their natural resources.163
Today, Ramsar has 165 Contracting parties and lists 2,106 wetlands of international importance, with a total surface of 205,134,098 ha.164 Yet, the Millennium Ecosystem Assessment reveals alarming statistics, despite the achievements of the Ramsar Convention throughout its 40 years of existence. The question may be posed, if these shortcomings are attributable to the vague obligations for Parties under the Ramsar Convention.165 The Convention text itself does not fully embrace the concept of sustainable development. The Convention’s big advantage of being flexible, due to its further evolution by guidelines, may at the same time be its weakness in that these are soft law instruments only. Furthermore, the Ramsar Convention does not provide for any kind of dispute settlement or compliance mechanism. Thus, it does not provide for capacity building in cases of unintentional non-compliance.
In conclusion, the Ramsar Convention is an international environmental treaty applying in general directly to forests, however only to those that simultaneously fulfil the wetland definition as set out by the Convention. Thus, it does not cover all forests and remains a sector-specific approach in this regard. Nevertheless, given the high-ranked importance of forested wetlands, such as mangroves, with regard to the services and functions they provide, the Ramsar Convention provides a significant contribution to international forest regulation. The application of the wise use concept to and the conservation of these forested wetlands by the Ramsar Convention additionally equip the Convention with particular importance.
4.2.2 Protection of Outstanding Universal Values: Forests Under UNESCO’s World Heritage Convention166
Envisioning forests as sites of cultural custom, space for spiritual and religious practices, but also as sites for the enjoyment of naturalness, of aesthetic impressions and reclusiveness, the WHC167 comes into play.
This section examines the WHC with regard to its general scope and contents as well as its implications for forests. It is concluded that the WHC offers valuable protection for forest sites. This is particularly due to the World Heritage Committees’ constant review of the condition of world heritage sites. Nevertheless, the WHC provides basically for a “no-use” concept and therefore impairing the interests of all stakeholders in the protected site, an issue which the UNESCO Man and Biosphere Programme (MAB) attempts to manage.
184.108.40.206 Scope and Contents of the World Heritage Convention
The WHC168 was created with the aim to protect sites—natural as well as cultural—from man-made and natural destruction.169 The Parties to the WHC recognize “that deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world.”170 In the light of the fact that the “protection of this heritage at the national level often remains incomplete because of the scale of the resources which it requires and of the insufficient economic, scientific, and technological resources of the country where the property to be protected is situated,”171 the General Conference of the UNESCO decided to create the WHC to establish “an effective system of collective protection of the cultural and natural heritage of outstanding universal value, organized on a permanent basis and in accordance with modern scientific methods.”172 The WHC is built on the existing international conventions, recommendations and resolutions that already acknowledge the “importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong.”173 Thus, the WHC clearly takes note of the “internationality” of sites of cultural and natural heritage.
Similar to the Ramsar Convention, the WHC text itself does not provide for linkages of cultural and natural heritage protection and sustainable development. However, this is provided for in the Operational Guidelines.174
With a view to organizational structures, the WHC provides for a Committee (Sec. III, Arts 8 et seq. WHC), the Secretariat (Art. 14 WHC, “the World Heritage Centre”), and the World Heritage Fund (Sec. IV, Arts 15 et seq. WHC). The Centre has been established in 1992 as a focal point and coordinator within UNESCO for all matters related to World Heritage. Ensuring the day-to-day management of the Convention, the Centre organizes the annual sessions of the World Heritage Committee and its Bureau, provides advice to states parties in the preparation of site nominations, organizes international assistance from the World Heritage Fund upon request, and coordinates both the reporting on the condition of sites and the emergency action undertaken when a site is threatened. The Centre also organizes technical seminars and workshops, updates the World Heritage List and database, develops teaching materials to raise awareness among young people of the need for heritage preservation, and keeps the public informed of World Heritage issues.175
In the present context, the concept of “natural heritage” is of particular interest. It is defined in Art. 2 WHC as “natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.”176 Focusing on features, formations, areas and sites, the Convention thus only covers immovable natural components.177 Determining the criteria that shape and define a “natural heritage of outstanding universal value” is the task of the World Heritage Committee.178 Its Operational Guidelines for the Implementation of the WHC submit that “Outstanding Universal Value means […] natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity.”179 The respective criteria are laid down in para. 77 of the Operational Guidelines.180
The WHC facilitates two lists: the World Heritage List according to Art. 11 para. 2 WHC and the List of World Heritage in Danger in accordance with Art. 11 para. 4 WHC.181 The inclusion of a cultural or natural heritage site in one of the lists follows the procedures set up by the Convention, in accordance with the Operational Guidelines and rests largely with the World Heritage Committee in consultation with the state party concerned.182
The obligations of the Parties to the WHC differ with respect to the status of the cultural or natural heritage in question, i.e. whether the respective site is included in the World Heritage List or not. The main obligations arising for states with regard to their cultural and natural heritage independent from an inclusion within the list derive from Arts 4 and 5 WHC.183 According to Art. 4 WHC “[e]ach State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.” Art. 5 WHC states further that “each State Party to this Convention shall endeavor, in so far as possible, and as appropriate for each country” to adopt general policy, set up national protection, conservation and presentation services, develop scientific and technical studies and research and take the according measures, and institute training. These obligations arise for the states in which territory the heritage site is situated. Furthermore, all states hold a duty to cooperate with regard to any natural or cultural heritage no matter where it is located.184 In this regard, the member states additionally have the duty “not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage.”185
Once a natural or cultural heritage site is added to the Word Heritage List, the states parties to the Convention are faced with the additional duty “to give their help in the identification, protection, conservation and presentation of the cultural and natural heritage referred to in paragraphs 2 and 4 of Article 11 if the States on whose territory it is situated so request.”186
Taking into account the obligations arising from the mere membership to the WHC, as well as the duties coming with an inscription of a cultural or natural heritage to the World Heritage List, there seems to be little incentive to enrol in the Convention. However, the listing of a site on the World Heritage List also entails a number of beneficial rights for the “host states”, i.e. the states parties in whose territory the natural or cultural heritage is situated. Most importantly, the WHC provides them with international assistance for the protection of the world cultural and natural heritage located in their territories and inscribed, or potentially suitable for inscription on the World Heritage List.187 Whilst international assistance is primarily financed by the World Heritage Fund,188 it is solely supplementary to national efforts.189
The WHC does not foresee regulations with regard to dispute resolution or compliance. Besides the deletion of a site from the Heritage List, no sanction mechanisms are provided for. However, so far only two sites have been deleted from the list. Thus, it seems as if states react to recommendations from the Committee to increase protection measures and fear any negative reputation connected to a deletion by the Committee.190
220.127.116.11 The WHC and Forests
Taking into account forests as protected sites under the WHC, one is faced with the challenge of defining a “forest” as well as defining a “site of outstanding natural value”. According to an earlier definition, a forest may be considered a world heritage forest “if the nominations of the respective State Parties or WCMC forest data revealed a substantial amount191 […] of forest cover within the site.”192 With regard to shortcomings of this definition, it has been further specified that a world heritage forest is “a World Heritage site for which the nomination files provided by States Party or WCMC forest data reveal a substantial amount of forest cover within the terrestrial component of the site and for which forest ecosystems contribute to the site’s Outstanding Universal value (OUV).”193 Applying this definition, as of July 2012, 106 natural heritage sites on the World Heritage List (i.e., about 56 % of all the natural sites listed) are protected forest areas. In total, the natural heritage sites cover 211,578,003 ha. In sum, the area of protected forests under the WHC covers 75 million ha.194 It should be noted, however, that some of the sites included in these numbers do not fully consist of forests, but have only the smaller share of their surface covered by forests.195 On the other hand, some other World Heritage sites contain a considerable amount of trees without passing the threshold of the World Heritage forest definition. Nevertheless, the WHC has recognized the significant link between forests and World Heritage sites.
In June 2001, following a review of the World Heritage Fund’s international assistance requests, the World Heritage Centre presented a system of “programmes” to “[…] establish and implement priority actions for the conservation of World Heritage properties through a more strategic management of International Assistance provided under the World Heritage Fund.”196 It had been recognized that the diversity of conservation problems required a more methodological approach. The first proposed programs for 2002–2003 focused on sustainable tourism, forests, cities and earthen built heritage.197 Thus, the World Heritage Forest Programme was initiated. It envisages the following activities:
Studies and analyses on the Convention’s role in conservation and sustainable use of forests worldwide.
Establishment of a World Heritage Forest Network: to create links between developed and developing countries to promote exchange of information, experience and knowledge.
Studies to link World Heritage Forest conservation and the global efforts to mitigate global climate change: preserve carbon sinks, and establishment of sustainable conservation financing mechanisms.
Technical assistance to developing countries to design, launch and finance specific projects for individual sites.198
An assessment of 2011 revealed that firstly, the WHC is well equipped for the conservation of forests due to the special role of the World Heritage Committee in constantly monitoring the state of world heritage sites. Secondly, the assessment discovered that world heritage forests “[…] largely consists of what should be fairly resilient forests that are representative of the diversity of the world’s forest ecosystems.” Thirdly, however, world heritage forests are proportionately overrepresented on the List of World Heritage in Danger, which again illustrates the difficulties in protecting forests.199
World heritage forests have been accused of dislocating threats. According to this criticism, the strictly enforced protection of one forest site may lead to surrounding forest, outside the protected site, being destroyed instead. Furthermore, it is argued that this dislocation of forest utilization may also lead to ecological isolation of the protected site, and thereby minimizing the conservation effectiveness of the WHC approach. To resolve this problem, the biosphere reserve concept evolved out of the UNESCO Man and Biosphere Programme (MAB) throughout the past four decades. It aims to achieve “the three interconnected functions of conservation, development and logistic support”.200 In particular, it makes use of so-called zoning schemes, providing for core zones, buffer zones and transitions areas.
18.104.22.168 Interim Conclusions
The WHC was the first convention to recognize and embrace the need for financial assistance for states in reaching conservation aims in the interest of mankind as a whole. Its financial mechanism, the World Heritage Fund, proved to be quite successful so far.201
As of 19 September 2012, 190 states are parties to the Convention. The World Heritage List includes 962 properties forming part of the cultural and natural heritage which the World Heritage Committee considers as having outstanding universal value. These include 745 cultural, 188 natural and 29 mixed properties in 157 states parties.
In comparison, the obligations set up by the WHC follow a different wording and are stricter and more specific than those contained in the Ramsar Convention. The WHC thus goes beyond the Ramsar Convention in this regard.202 Nevertheless, the listing approach still only offers limited protection to cultural or natural heritage sites.
The WHC strongly promotes the “internationality” of cultural and natural heritage and parts of it.203 Forests protected under the WHC receive the status of being a common heritage of mankind. “The legal concept is […] modeled upon a trust or mandate exercised in the interest of mankind as a whole.”204 Nevertheless, the decisions taken by the World Heritage Committee show strong respect for state sovereignty. There is no possibility to inscribe a site to the List unless the state in whose territory the site is situated agrees.205
The WHC emphasizes the socio-cultural dimension of forests. Comparable to the Ramsar Convention, the WHC is also directly applicable to forests, provided that the relevant forest is listed in the World Heritage List. It is thus a conditional respectively, limited approach.
4.2.3 The Limited Listing Approach: Interim Conclusions
The two conventions examined in the preceding elaborations provide for habitat instead of species protection—unlike CITES, the Bonn Convention or the comprehensive CBD. However, species of flora and fauna, and thus, forest plant and animal species other than the stationary forest itself, may benefit indirectly from the conservation measures accorded to the covered sites as such.
However, both the Ramsar Convention and the WHC are subjected to the challenge that they constitute “listing conventions”. The right to recommend a certain site—be it a forested wetland or a forested natural heritage—for inclusion in the Ramsar List or the World Heritage list rests with the Party holding the respective site. This approach is in line with the propagated principle of state sovereignty over natural resources and impairs the overall impact these conventions could exert.
Still, the funds available under the conventions provide an incentive for listing.206 Also, the Ramsar Convention goes one step further in this regard in that it extends the wise use concept to all wetlands of the Parties to the Convention and not only those listed. However, as the wise use concept has not been shaped by the Convention as such, but only within the framework of the Convention’s subsequent soft law, its influence is limited. Nevertheless, the evolution of the wise use concept by the Ramsar COPs is at least an indication of the willingness of the Parties to the Convention to accept these newly developed standards.
But the WHC also inscribes obligations for cultural and natural world heritage, even though it is not included in the World Heritage List or the List of World Heritage in Danger. The WHC puts a strong focus on the recognition that even certain forested natural sites demand a value beyond the territorial boundaries and should be subject to an international system that complements the existing domestic systems.
The WHC and the Ramsar Convention largely overlap in their scopes, however due to its stricter obligations and the particular role of the World Heritage Committee the WHC seems to go beyond the Ramsar Convention.
Obviously, both conventions do not provide for comprehensive forest conservation as forests are not the main subject of these conventions. Thus, these conventions cover only a fraction of forests, i.e. primarily the forest area as a protected area. Secondarily, both conventions provide for certain management provisions for the areas protected under their scope. Despite the limitations of the two conventions which accord protection to specifically listed areas only, the conventions nonetheless facilitate the maintenance of forest cover in that given area and also provide for certain—though not forest-specific—management measures. Hence, these conventions play a crucial part in the conservation of a variety of forest functions, including biodiversity and protection, water catchment and climate regulation, and therefore contribute to the control of deforestation and forest degradation.
4.3 Forests and the Rio Conventions: CBD, UNFCCC and UNCCD
Given the previous contexts for forest regulation within international treaties, one may very well regard forests separately within the single contexts of desertification, biodiversity and climate change. However, these contexts are interconnected by the overarching frame of the UNCED as established in Rio in 1992. Especially with regard to the developments in the run-up to Rio pertaining to the creation of an international forest convention additionally to the CBD and its accompanying protocols, the UNFCCC and the Kyoto Protocol,207 and the UNCCD.208 and the developments at the UNCED itself, including the failure of a forest convention, merit coherent attention.
The subsequent elaborations address the significance of the three Rio Conventions for the international regulation of forests. In the first part, the capture of forests by the CBD is addressed.
4.3.1 Forest Biodiversity: Forests in the CBD
The CBD209 is the centrepiece of contemporary international species conservation, respectively nature conservation law. The CBD was adopted as a result of the recognition of the extinction of species and the loss of ecosystems. As a result, it goes well beyond the related nature conservation and wildlife conventions because it provides a much more sophisticated approach. Unlike the “progenitor” agreements CITES, the Ramsar Convention or the WHC, the CBD does not follow the listing approach. The Convention was adopted 22 May 1992 and entered into force 29 December 1993. It currently has 168 signatories and 193 parties and is thus the most widely recognized international environmental treaty.
22.214.171.124 Objectives of the Convention
The CBD does not solely allow for species or habitat protection, but rather comprehends a broad range of issues. These aims are apparent in looking at its three key objectives. According to Art. 1 CBD, “[t]he objectives of this Convention […] are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources […].”
According to Art. 2 CBD “‘Biological Diversity’ means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.”
The CBD approaches the conservation of biological biodiversity with the concept of “sustainable use”. According to Art. 2 CBD “sustainable use” is defined as “[…] the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.” In this regard, the Convention foresees the measures of in situ conservation, primarily promoting protected areas and the ecosystem approach, and ex situ conservation, as a complementary tool to preserve samples of biological diversity outside their natural surroundings, in accordance with Arts 8 and 9 CBD.210
The creation of a viable balance between use and protection of biological resources through the concept of sustainable use211 is a very specific feature of the CBD. It constitutes a major incentive for the conservation of biological diversity as it allows the people concerned to obtain benefits from the resource in question while maintaining its status. Thus, this concept holds the potential to overcome the deep chasm between the principle of sovereignty over natural resources and the common concern with regard to biological diversity, but furthermore, also take ups the concerns of indigenous and local communities most affected by protected areas that exclude any kind of human use and sustain their livelihoods.
Similarly, the third objective of the CBD introduces a viable incentive for compliance with its provisions, in that it promotes access and benefit sharing and the strengthening of this objective by the Nagoya Protocol. The CBD establishes a stronger recognition of the particular linkage between the role of indigenous peoples, sustainable development and the natural environment.212
126.96.36.199 Principle and Obligations
Art. 3 CBD states that “[s]tates have […] the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” The CBD is thus subjected to the principle of state sovereignty over natural resources.
The obligations of the parties to the CBD are put forward in Arts 6–20. These cover:
general measures for conservation and sustainable use (Art. 6 CBD),
identification and monitoring of components of biological diversity as well as the adverse impacts on conservation and sustainable use of biological diversity (Art. 7 CBD),
providing for in situ conservation by establishing protected areas or areas where special measures need to be taken to conserve biological diversity (Art. 8 CBD),
providing for ex situ conservation (Art. 9 CBD),
integrating and adopting measures considering the sustainable use of components of biological diversity (Art. 10 CBD),
adopting economically and socially sound measures that act as incentives for the conservation and sustainable use of components of biological diversity (Art. 11 CBD),
providing for research and training in measures for the identification, conservation and sustainable use of biological diversity and its components (Art. 12 CBD),
promoting and encouraging public education and awareness (Art. 13 CBD),
introducing impact assessment with a view to avoiding or minimizing adverse impacts on biological diversity (Art. 14 CBD),
creating conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties (Art. 15 CBD),
providing and/or facilitating access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources (Art. 16 CBD),
facilitating the exchange of information (Art. 17 CBD),
promote technical and scientific cooperation (Art. 18 CBD),
taking measures regarding the appropriate handling of biotechnology and the distribution of its benefits (Art. 19 CBD), and
providing financial support (Art. 20 CBD).213
Additionally, special consideration should also be accorded to the preamble of the Convention.214 Several of its recitals pick up principles and underline obligations from the substantive part of the treaty, bestowing increased significance upon them. The preamble establishes that biodiversity embodies not only ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic—and as such, anthropogenic—values, but also has intrinsic value.215 Furthermore, it introduces the concept of “common concern of humankind”.216 Even though, this concept is comparatively weak and lacks normative content,217 it remains an evolving concept providing states at least with a common interest in concerted international action.218 In accordance with Art. 3 CBD, the preamble in the following reaffirms the sovereign rights of states over their own biological resources.219 Subsequently, however, it also reaffirms the states’ responsibility for conserving their biological diversity and for using their biological resources in a sustainable manner.220 The preamble also establishes that in situ conservation is the fundamental requirement for the conservation of biological diversity.221 The measures for in situ conservation are set up in Art. 8 CBD. Likewise, the preamble emphasizes the desirability of sharing equitably benefits arising from the use of traditional knowledge.222