The forestry crisis as a crisis of the rule of law.

• Author: Segall, Craig

INTRODUCTION I. CENTRAL AND LOCAL INSTITUTIONS IN FOREST MANAGEMENT: A THEORETICAL GROUNDING II. ECOLOGICAL LIMITATIONS ON FORESTRY RULE OF LAW MODELS III. THE DISMANTLING OF TRADITIONAL INSTITUTIONS IV. MODERN EFFORTS AT REFORM CONCLUSION INTRODUCTION

The abstract global ideas of sustainable development (1) and of the rule of law (2) meet in the forests of the tropics, where the absence of viable community forest management institutions is driving deforestation and, therefore, the larger legal and ecological stability of the region. This interaction needs to be better understood by rule of law theorists seeking to discover and implement proper legal structures for development. (3)

The rule of law effort can be seen either narrowly, as a "thin" program focused on improving the mechanics of courts as well as legislative and administrative bodies, or as a "thick" conception rooted in the belief that such improvements will lead toward a stronger civil society and democracies rooted in the human rights tradition. (4) Such improvements are assumed to be integral to sustainable development--the process of improving the welfare of poor nations without damaging their long-term ecological sustainability. (5) The tools developed for use in the international rule of law effort can be usefully applied to problems of sustainability inherent in the deforestation crisis.

In this Note, I show how the process of colonial state consolidation in the tropics has led to a juridical state but an empirical vacuum, as it has replaced complex indigenous forest management systems with simplified central state governments geared toward exploitation. As the nations of the tropics now attempt to restore control to forest communities and manage for sustainability, they are confronted with what is, in essence, a rule of law problem: how to either rebuild or create a legal and social management system in a political and social space of considerable disruption.

After generations of exploitation by undemocratic colonial and post-colonial states, the world's forests are in grim shape. One-third of the world's surface (3.54 billion hectares) is forested; an average of 1.3 million hectares was cleared annually between 1980 and 1995. (6) At this rate of harvest, few tropical forests will survive intact far into this century. (7) Regionally, the data are stark: Haiti, for instance, lost half of its remaining forests in the 1980s, the Philippines forty percent, and Ecuador twenty percent. (8) This loss is catastrophic, as it increases flood frequency, speeds soil erosion, displaces communities, foregoes the economic possibilities inherent in sustainable forest management, and presents major threats to global biodiversity. (9) The result is a downward ratchet of increasing poverty and degradation as poor communities must further degrade surrounding forests to survive, kleptocratic governments capture forest wealth for themselves through corrupt concession-awarding processes, and the chances of forest recovery grow ever slimmer.

While the causes of deforestation are complex and country-specific, similar drivers appear globally. The deforestation problem can be disaggregated into two separate but related crises: one of abusive central government and the other of abused villagers and peripheral districts. In the least democratic tropical states, dictatorial governments can award lucrative forestry concessions to political allies and foreign corporations without local checks. In the Philippines under President Ferdinand Marcos, for instance, the forests were treated as resources to be liquidated. (10) Logging companies were encouraged to clear-cut forests in the name of efficiency. (11) Similarly, the Burmese ruling junta invested heavily in destructive logging in mountainous border areas both as a source of profit and as a way of controlling rebellious minority groups in these outlying regions. (12) The forest is seen as a source of capital and political control, not as a natural resource worth preserving. At the other end of the crisis, local communities may be deeply concerned about the forest as a resource but may nonetheless participate in its destruction as a result of economic and social factors beyond their control. Their helplessness results from a century or more of exploitation by central governments motivated by the possibility of political and economic gain that have devoted themselves to limiting community control over forest resources and to dismantling traditional patterns of shifting agriculture. (13) This effort, combined with massive population increases in hinterland areas, has resulted in a syndrome of poor communities, stripped of traditional forest management institutions and under considerable pressure from migrants from other areas.

The deforestation problem, then, is a problem of the rule of law at both the national and local ends of the scale. Processes of state consolidation first destroyed the legal and demographic reality that sustained forests in the pre-colonial era and then created a new political economy centered on forest exploitation. Because massive forest loss threatens existing state structures through its attendant social and ecological destabilizing effects, it demands urgent reform of these structures. In short, the survival of the forests and the survival of the state are two faces of the same coin.

In recent years, community-based forestry has emerged as a theoretical answer to this problem. Although the form of this global participatory conservation effort varies from nation to nation, its focus is essentially on removing power from the centralizing state and restoring it to local levels, rebuilding the rule of law destroyed by the colonial exploitation effort. (14) Community-based forestry reacts against a century of colonial discourse, in which destructive local communities were presumed to be the problem, and instead considers the use of local knowledge and management systems to be the solution. (15) The challenge for rule of law efforts in this area is to design a regime that encourages the development and maintenance of sustainable local forestry management practices without losing the benefits of programmatic policy planning at the state level. As William Ascher explains in his comprehensive overview of this area, "sustainable forestry activities need to be encouraged and disciplined through nongovernmental collective action, aided by supportive, rather than domineering, governmental actions." (16)

But the problem is, in fact, even more complex. After years of abusive state rule, local institutions that once sustainably managed local forests have been vitiated. In many cases, the very biophysical context of these institutions is gone, washed away by changing land use, shifting populations, new economic demands, and novel legal landscapes. Moreover, even surviving management practices may nonetheless be undemocratic, favoring local village elites over the very poor, minority groups, and women. Attempting to remedy these deficiencies through state intervention risks creating "Potemkin village" management systems, in which communities merely become arms of a central state that makes all major policy decisions. And of course, any framework must be responsive not only to the political reality of the nation but also to the ecological reality of the forests. The rule of law, in a forestry context, must be scaled to both human and natural parameters. Thus, restoring a sustainable network of community management systems is both central to the maintenance of the rule of law in developing countries and an enormously complicated structural problem.

In this Note, I examine some aspects of this problem. I begin, in Part I, with a theoretical overview of the process and goals of forestry institution-building, with a particular emphasis on the importance of creating institutions that develop and maintain sustainable social and personal norms. In Part II, I discuss some of the aspects of ecological scale that must be accounted for in any viable forestry rule of law program. In Part III, I discuss how pre-colonial forestry institutions were systematically dismantled by colonial and post-colonial states, creating an empirical vacuum in the name of juridical state consolidation. Part IV examines community-based forestry programs, largely in South and Southeast Asia, with a few comparative examples. This discussion, rooted in the rule of law institutional analysis developed in Part II, demonstrates how the history of colonial exploitation limits and shapes this new effort. In this Part, I examine to which "communities" power should be devolved, how much power should be vested in them, and their likely capacity to manage such power wisely. I conclude with general suggestions for combining rule of law and sustainable development goals in the forestry context, emphasizing the importance of a sustained effort to rebuild a deep and broad system of forestry management at both local and national levels.

1. CENTRAL AND LOCAL INSTITUTIONS IN FOREST MANAGEMENT: A THEORETICAL GROUNDING

   The central insight of the community-based forestry effort is that the law enforced by a centralized state can be only one component of a broader forestry solution. This is both because of the dangers of centralization, which include corruption and lack of democratic representation, and because of the benefits of local control. These benefits include a better sense of local forest needs and conditions, potentially more focused enforcement capabilities, and some possibility of spreading forest wealth more broadly. But building this local capacity, particularly after generations of poor central management, is not by any means easy. It requires expanding the rule of law from a centralized veneer into a country-wide system of forestry institutions and organizations. As such, it demands a considerable theoretical understanding of how legal and...