Accounting for 11% of the CO2 emissions, deforestation and forest degradation are the second most important cause of climate change after the combustion of fossil fuels. In the EU, deforestation has been halted thanks to afforestation and reforestation programmes as well as natural growth. On the international plane, however, the situation remains bleak. Every hour, the equivalent of 800 football fields of forest disappears from the world’s surface. In this respect, the EU market represents about 10% of the global share of deforestation in terms of total final consumption.
One way to address deforestation is through the development of sustainable forest management rules. In that regard, the EU Forest Law Enforcement, Governance and Trade (‘FLEGT’) Action Plan and its progeny have usually received scant attention. Yet, it provides for an interesting example of how the EU’s externalization of GhG emissions and ecological damage could be addressed in an innovative manner.
1. Addressing illegal logging through trade and demand-side regulation
After several failed attempts to agree on a legally binding international regime on sustainable forest management, the EU and other countries decided to act unilaterally in support of the existing international endeavours, such as the UN-REDD programme and the World Bank FLEG initiative. The focus of the FLEGT was voluntarily set on legality rather than sustainability. Ensuring that timber was produced in compliance with the producer’s domestic rules accommodated better the sovereignty concerns of these countries, rather than imposing “northern” environmental and social standards on the “global south”. In addition, many tropical countries had, at that time, adopted stringent regulations which however were hardly enforced.
The first interesting feature of the FLEGT system is the EU reliance on its market power as leverage for its international ambitions. The FLEGT initiative initially hinged on two instruments: Voluntary Partnership Agreements (‘VPAs’) concluded with timber producer countries on the one hand, and Regulation No 2173/2005 (‘the FLEGT Regulation’) on the other. Altogether, this mixture of international and EU rules set out a licensing scheme for the timber produced in the partner country and imported in the EU.
The VPAs and FLEGT Regulation form the two sides of the same coin. On the one hand, the VPAs lay down the procedures and conditions aimed at ensuring the legality of the timber imported on the EU territory. They define what constitutes “legal timber” and set out a timber legality assurance system (‘TLAS’) to be managed by independent auditors. They also lay down the rules for the issuance of FLEGT licences. On the other hand, the FLEGT Regulation deals with the implementation of the licensing scheme within the EU. Its article 4 establishes an obligation that imports from partner countries be covered by a FLEGT licence.
Initially, the EU induced the conclusion of VPAs through the promise of a privileged access to its market. However, for fear of unfair competition, several negotiating countries insisted on the enactment, by the EU, of what has now become Regulation No 995/2010 (the EU Timber Regulation, ‘EUTR’).
Article 4 of the EUTR creates an obligation of due diligence on EU operators who place timber or timber products on the market for the first time. As per its article 6, the due diligence system comprises the obligation to gather detailed information on the sources of the timber, the undertaking of risk assessments, and the implementation of a risk-mitigation plan. The due diligence obligation is complemented by the prohibition of placing illegally harvested timber on the market.
The incentive to sign VPAs is further reinforced by a presumption of legality in favour of imports from partner countries (article 3 EUTR). Conversely, undertakings exporting timber from non-VPA countries are at risk of substantial liability and costs. The EUTR initial effectiveness as penalty default has proven (almost) unquestionable. The VPAs signatures and requests to open negotiations started to surge as soon as the legislation was announced.
To date, seven countries have agreed on VPAs, whilst negotiations are ongoing with nine others. Such conclusion bears testimony to the success of the EU in inducing the signature of VPAs by focusing on legality and relying on combined trade and demand-side regulatory measures.
2. Fostering change towards sustainable forest management
Whilst the FLEGT could be perceived as a mere law enforcement instrument, such a conclusion would occult its potential to bring about change in forest governance.
- Strengthening the role of civil society in forest governance
As laid down in the Action Plan and subsequent briefings, one of the most important conditions for the conclusion of a VPA is the requirement for a participatory and inclusive negotiation process. As a result thereof, all the VPAs negotiations usuamy involve domestic environmental and civil rights civil society organisations (‘CSOs’) as well as private undertakings. These actors partake in the negotiation process, from the definition of what constitutes “legal timber”, to the drawing up of the detailed indicators for verifying compliance and the resulting TLAS.
Such participatory approach is also reflected in the composition joint implementation committee of the VPAs that, alongside with EU and partner country representatives, traditionally also includes representatives of civil society and private undertakings. In fact, the joint implementation committee has been depicted as an “effective platform for CSOs and other domestic stakeholders to raise problems about the working of the VPA with support from the EU, and to set in motion collaborative processes for developing provisional solutions”.
Civil society and public participation in forest governance is an important component of sustainable forest management and, more generally, of environmental decision-making. The VPAs approach based on extensive domestic participation undeniably strengthens the legitimacy of its processes. With regard to some of the partner countries, the inclusion of CSOs has been described as “ground-breaking” in terms of forest governance, while it was also acknowledged that the process helped CSOs building capacity. Globally, CSOs have been empowered to play a central role in designing the VPA system and, more generally, in working towards improving the forest governance of the partner country.
- Promoting reforms towards sustainable forest management
Defining what constitutes “legal timber” in a partner country is a precondition to concluding a VPA. This identification process is based on the multi-stakeholder review of existing national law and international agreements adhered to, in order to identify gaps and inconsistencies. What constitutes “legal timber” does not merely hinge on forestry and environmental law, but must cover a wide range of domains, including fiscal, social, and labour law and community rights. As a result, the VPA negotiation process helps partner countries to identify and clarify the applicable rules, as well as to allot the relevant private and public responsibilities.
But the VPAs also act as catalysts for domestic reforms. As per the Action Plan, the EU assists partner countries in reforming and improving their legal and administrative frameworks on forest management. This process is bilateral. One the one hand, partner countries are required to undertake reforms, including to draw up far-reaching forestry code or national forest programs together with the assistance of the FAO. On the other, the EU provides capacity-building support to domestic public and private actors throughout the process. Significant aid has been channelled from the EU, its members states as well as other international donors to assist in the implementation of the VPAs.
One last interesting trait of the FLEGT governance model is its experimentalist character. Throughout the implementation of VPAs, progress is continuously monitored and all the aforementioned stakeholders are committed to revising the open-ended framework goals on the basis of the experience gained. The legality definitions themselves are subject to periodic reviews. This process guarantees an adaptability to the specific needs of the partner country and ensures that workable and tailored solutions are ultimately found.
3. Conclusion
The international regulatory context for forest sustainable management is fragmented and polycentric, defined by multilateralism and cooperation, hard and soft law, norms and private self-regulation. Against this background, many have saluted the FLEGT innovative approach: a combination of coercive regulation and international cooperation together with a participative and experimentalist governance, which ultimately aims at profound reforms while respecting and accommodating the sovereign rights of the producer countries. In fact, some have argued that such process may even reinforce developing countries’ national sovereignty, while contributing to the construction of a broader transnational forest governance regime.
While the decrease in illegal logging worldwide has been partially attributed to the FLEGT endeavours, it is far from perfect.
Amongst others, some have pointed to its ineffectiveness to deliver its sustainability promises or to the lengthy implementation of the VPAs. In that regard, it appears that FLEGT VPAs are particularly challenging for partner countries, in terms of both the requirements for a participatory process as well as wide reforms.
Finally yet importantly, in relation to some partner countries, the continued deforestation has been highlighted. Amongst the reasons advanced are the (indirect) land use changes which can occur in relation to commodities other than timber, such as palm oil, and which, ipso facto, do not come within the FLEGT reach.
As the FLEGT initiative constitutes a quite innovative example for addressing the externalization of ecological damage which the EU, through its market, is often culprit of, it might be interesting to assess to which extent similar initiatives could be set up in relation to other – yet similar – problematics. In that regard, the recent commitment of the European Commission to step up action against deforestation might provide for a window of opportunity.
Bibliography
Hélène Decottigny is currently trainee at the European Court of Justice. Between 2018 and 2019, she worked as legal officer at the EACEA, an executive agency of the European Commission. She is a graduate from the LLM in European Law of the European Studies Institute (Université Libre de Bruxelles), as well as the LLM in Environment, Energy and Climate Change Law coordinated by the Katholieke Universiteit Leuven and the University of Malta.
blogdroiteuropéen 