Why is there no international forestry law?: An examination of international forestry regulation, both public and private.

• Author: Lipschutz, Ronnie D.

ABSTRACT

This paper addresses the question posed in its title. The absence of a "third generation international environmental law" in the form of an interstate convention dealing with tropical and temperate deforestation, and mandating sustainable forestry practices, is not the result of a lack of effort. Rather, it is, I argue, inherent in the political economy and history of national forestry programs. These were originally devised to conserve timber through managed production, with little attention being paid to the other environmental services provided by forests. As a result, very strong domestic interests developed with great concern for continuing logging and little concern about the environment. It is this legacy, very different from that characterizing other "global commons" issues, that obstructs progress on a global forest convention.

In lieu of such an agreement, there are a growing number of groups, organizations and companies offering various forms of environmental certification to timber companies. These are meant to operate through the market for timber products, on the assumption that environmentally-concerned consumers will choose the "greener" product. Eventually, goes the argument, the profit motive will move timber producers to be green and to manage their forests in a sustainable fashion. For the time being, this must be considered a hope rather than an outcome.

In 1992, representatives of 180 of the world's nations met in Rio de Janeiro to consider, among other things, the adoption of an Agreement on Forestry Principles, entitled a "Non-legally binding authoritative statement of principles for a global consensus on the management, conservation and sustainable development of all types of forests."(1) The statement was the result of several years of sustained, intensive negotiation and controversy, a product of growing concern during the 1980s and early 1990s about the future of the world's remaining tropical forests. That this meeting was taking place in Brazil was especially apposite for two reasons. First, the burning forests of Amazonia had, during the late 1980s, served to focus global attention on their survival as well as their role in the global environment. Second, the Brazilian government expressed strong opposition to any hint of internationalization of its sovereign resources and territory (for background, see, e.g., Goodman & Hall, 1990; Schmink and Wood, 1992). Opposition to the statement was, however, much broader than support, and the Forestry Principles crashed and burned. During the intervening years, there have been continuing efforts to resurrect some version of the principles in the form of an International Forest Convention but, so far, these have been for naught. In this paper, I investigate the reasons for, and international responses to, this failure.

It is worth noting that the title of this paper is somewhat misleading. Instead of the question posed there, we should ask, "Why is there no global forestry convention of the type we find in several other environmental issue areas, such as ozone, toxics and biodiversity?" For the fact is that there do exist several forms of "international" forestry regulation, although they are, for the most part, deeply embedded within long-standing national legal and regulatory systems. If we examine national forest regimes, as I do briefly in this paper, we will discover that virtually all contemporary forest management systems have been derived from principles and practices developed originally in what would eventually become Germany, subsequently revised and adopted by France, Britain and the United States and later diffused throughout European colonial territories (Scott, 1998; see also Schama, 1995; Peluso, 1992). In all instances, these systems of practice were implemented as representing the "best available approach" to forest management at the time. Inasmuch as these management techniques were intended by state authorities not for purposes of forest preservation, but rather, conservation and commodification, it is not surprising that a global forestry convention has proven so difficult to formulate. Institutions are sticky.

One result of this apparent international impasse has been the growing privatization of international forestry regulation. There is nothing new about private law, either domestic or international; private maritime law regimes and customary laws governing relations among traders of different nationalities were already in existence millennia ago (Green, 1996; Gold, ch. 1-2, 1981; Cutler, 1998). As well, there is a considerable body of "private international law" to which various countries adhere. These apply to relations among individuals or corporations based in different countries, and are overseen by non-governmental organizations such as the "Hague Conference on Private International Law" and the "International Institute for the Unification of Private Law."(2) But, whereas private law was, historically, constituted by contract among signatories, and is now legitimated and maintained through ratification and enforcement by states, the private regulation about which I write here rests on the viability and hope of a form of "social contract" between producers and consumers. Such a contract involves consumer brand loyalty in return for corporate production of goods that meet certain consumer demands. Such agreements may be weak reeds on which to base the Earth's environmental future.

My paper is organized as follows. I begin with a more detailed discussion of the questions posed above. As we shall see, one key obstacle to a global forestry convention lies not so much in conflict over principles as in the political economies of national forest management, which are historically-rooted institutions that are not easily addressed or changed through international law. I then turn to the matter of private international law, with a brief digression on its historical origins. In the third part of the paper, I discuss a number of initiatives to implement semi-public or private forestry regulation, and the ways in which market-based methods lie at their core. Finally, I assess what I see as the fundamental flaws in such an approach, and argue that the sovereign consumer, when faced with contradictory messages about her purchases in the market and, possibly, unmotivated by normative concerns, is not necessarily going to choose an environmentally-friendlier product.

I.

THE POLITICAL ECONOMY OF FORESTS

It is commonplace, in this era of almost-instantaneous communication, to argue that the diffusion of both knowledge and practice is more widespread than ever before (see, e.g., Castells, 1996, 1997, 1998; Lipschutz, 1996a). Successful practices--if they are not proprietary--attract attention, and are replicated by others living in other places far removed. But as attested by the diffusion of agriculture throughout the world 10,000 years ago, there is nothing new about this (what has changed is the velocity with which communication takes place). Hence, it is not surprising that there are a limited number of templates for forestry management in place around the world. As I noted above, these are based primarily on practices first developed in Prussia and Saxony in the 18th century as a response by state authorities to a growing shortage of wood. Scientific forestry was based on the precise measurement of the distribution and volume of wood in a given parcel, the systematic felling of trees, and their replacement by standard, carefully-aligned rows of monocultural plantations that could be harvested at set times (Scott, 1998). As James Scott points out, this approach succeeded beyond expectations during the first cycle of 80 years or so, but began to fail during the second cycle as a result of unforeseen ecosystemic damage and destruction.(3) No matter--by then, the model had been adopted around the world and become the law of many lands.

What is noteworthy about this "scientific" management system is that its goal was not preservation of forests, or even "sustainable development," in the sense that we understand those practices today. Rather, as Scott has observed, the goal was entirely economic:

The early modern European state, even before the development of scientific forestry, viewed its forests primarily through the fiscal lens of revenue needs. To be sure, other concerns--such as timber for shipping, state construction, and fuel for the economic security of its subjects--were not entirely absent from official management. These concerns also had heavy implications for state revenue and security. Exaggerating only slightly, one might say that the crown's interest in forests was resolved through its fiscal lens into a single number: the revenue yield of the timber that might be extracted annually.(4) In each instance, management was overseen by the state, with the objective of maximizing production in the national "interest."

Actual practices differ from one country to the next (compare Hays, 1980; Peluso, 1992; Schama, 1995). For example, even though most forest land in the United States and Canada was, and is, privately-owned, a considerable amount is held by the state as a "public good" but systematically leased to private timber producers. In India, the Raj took ownership of virtually all forests, declaring them to be "wasteland" and, therefore, unowned (see Guha, 1990). In Indonesia, forests are legally state-owned but, in practice, treated as private property, while in Brazil, the lack of national government capacity literally renders forests open access commons. In all cases, however, public forests are viewed as a national resource, that is, the sovereign property of the state. In this role, the conservation of forests is tightly linked to the production of timber and other commodities that generate both capital and jobs, and the economies of large regions are almost wholly-dependent on natural...