• Illegal logging or unsustainable logging?
• Does legalising logging operations promote sustainability or shouldn't we be concerned about destructive logging?
• The EU FLEG-T Action Plan, a step forward or backwards?

Illegal logging or unsustainable logging?

Is the dichotomy legal logging – illegal logging the one that should prevail in a forest conservation policy? It is understood that illegal logging takes places when timber – converted into a profitable business to be exploited – is harvested, transported, purchased or sold in violation of national laws. However, laws can vary widely from one country to another, so there is no way of distinguishing between legal and illegal logging on a world scale insofar as there are no international standards in this respect. Perhaps in each case the questions to be asked are: What is legal? What should be legal? Is what is legal legitimate?

Although legal, how far are industrial logging concessions granted to European companies in Africa legitimate, where over 11 million hectares of forests are being exploited, very often taking away from local communities the places where they have the right to carry out community resource management? Is it legitimate to log mahogany trees in Brazil to make sumptuous furniture in the United States, the United Kingdom, the Netherlands or Germany? It affects thousands of hectares of forest per concession altering the water cycle, degrading the soil, increasing surface temperature and releasing into the atmosphere carbon dioxide stored in the trees, among other things. How legitimate is the Finnish State company Metsähallitus’ logging of primary forests, the ancestral territory of the Sami, who thus see their way of life and livelihood threatened, together with their culture and human rights? In this respect, the definition of what is legal should not be separated from the question of whether what is legal is really based on standards that most people feel in a certain way to be their own. It could be that what is illegal for indigenous communities is perfectly legal for the government and forest concessionaires. For this reason, although illegal logging is often presented as a question of what is involved is applying the law, legal provisions often strengthen unfair relationships or ignore consuetudinary rights.

In countries where forestry legislation is not considered to be legitimate by a large number of people, addressing the issue of illegality by centring on these laws could imply perpetuating social inequality. In Indonesia for example, the 1945 Constitution determined that the State has control over all the forests. The 1999 forestry legislation was drawn up on the basis of this concept and explicitly classifies the indigenous peoples’ forests as State forests and grants the Forestry Ministry legal jurisdiction to manage those forest resources. In the framework of an economic policy of exploiting natural resources for export, advised and financially supported by international organizations, the Government has granted logging companies, among others, rights over vast areas of forest lands that the local population considered were theirs. The result is a loss of forest and many conflicts regarding human rights.

Beyond the legitimacy of the logging companies, it is them and the chain of intermediaries which, by increasing their business with illegal activities, are the main components of illegal logging that, linked to international illegal trade, cause the destruction of forests, the introduction and promotion of corruption, making the governments loose billions of dollars through tax evasion and that fund armed conflicts, among other wrongdoings. Even so, in some cases the victims – displaced and impoverished communities - are usually made responsible for exploitation and illegal trade, in these cases, omitting the consideration of the deeper, underlying causes. In this respect, a simple policy against illegal practices that equals situations and does not aim at resolving the underlying causes of some of these special situations of illegal logging in which the actors are far from being agents of power, could do more harm than good. Even though the small communities are those that in the long run have more to loose when their forests are destroyed and their resources are stolen, there are cases, such as in Peru, of indigenous peoples who, tired of poverty and watching others getting richer day by day with the timber leaving their forests, want to share some profit from their resources and very often enter the chain of illegal logging, knowing that they are exploited and robbed.

Perhaps then what should be discussed is sustainable logging. Legal logging can be unsustainable and sustainable logging can be illegal. If the main objective is sustainability, then the aim should be sustainable activities and this might well imply legalization of activities that today are illegal, and making other activities, now legal, illegal. In these terms it may well seem to be a merely legal issue. There are enough processes centred on the application of the law, as described in the FLEG-T articles (Forest Law Enforcement, Governance and Trade) as promoted by the European Union, that hardly provide true solutions.

Once again, the production, commercialisation and consumption pattern on which illegal logging is based, should be considered. We will see that it is dominated by large corporations that generate short-term profits with the indiscriminate exploitation of natural resources. Commercialization is done by a chain of giants that feed frantic and wasteful consumption. And those agents dominate the global scenario. As in other sectors, local processes and solutions should be encouraged, that could bring about changes from community decisions, either by curbing destruction or by encouraging the construction of other, non-destructive models.

By Raquel Núñez, World Rainforest Movement (WRM), e-mail: raquelnu@wrm.org.uy. Based on information from: "The need to control transnational forestry corporations: a European case study", http://www.forestsmonitor.org/reports/solddownriver/cover.htm; “Options for Europe. Controlling imports of illegal timber”, Royal Institute of International Affairs (Chatham House) and FERN, http://www.fern.org/media/documents/document_1587_1588.pdf

---

top

Does legalising logging operations promote sustainability or shouldn't we be concerned about destructive logging?

Illegal logging has possibly been the most debated issue in the forestry sector at international level recently and has been attracting increasing attention in the last ten years. Governments, timber industries, donor agencies and NGOs seem to agree that it is one of the most important issues to be addressed. It also has been discussed in some high profile meetings.

G8 discussion stimulated a series of Forest Law Enforcement and Governance (FLEG) conferences coordinated by the World Bank, among others in East Asia (Bali-Indonesia, September 2001) and Africa (Yaoundé, October 2003). Others are planned for Europe and North Asia (November 2005) and possibly Latin America. Among the European countries, FLEG-T (Forest Law Enforcement Governance and Trade) is being promoted by the European Commission. Currently, the East Asia FLEG has become an ‘international umbrella agreement’ for bilateral treaties between Indonesia (producer) and consumer countries such as the UK, China, and Norway.

Furthermore, a pilot project on legality standard is being operationally undertaken in Indonesia, with main support from DFID, despite many criticisms expressed by local NGOs, which say that it is being carried out in a rush (please see: http://www.illegal-logging.info/news.php?newsId=914).

The system was developed to enable producer countries to produce products independently verifiable for legality to meet new market demands, particularly the European market. This was conveyed to the logging companies in Indonesia and other producing countries as well. They were told that markets were demanding independently verifiable legal timber from suppliers and, if possible, certified sustainable timber.

To these ends, it was believed that auditing timber harvesting practice would be able to re-assure customers that the timber had been extracted in accordance with the forest laws. A new log tracking system was believed to provide further guarantees that timber exports were legal.

The question remains: is legality a tool to promote sustainability or a mere market-led mechanism to ensure continuous timber supply?

In reality, “illegal logging” is not new as forestry history records that the phenomenon might be as old as the commercial forest exploitation itself. It currently becomes a main issue, in particular, due to its massive scale and intensity in the last decade. In Bolivia, Brasil (Amazon), Cambodia, Cameroon, Colombia, Ghana, Indonesia, Myanmar, and Far Eastern Russia, it becomes the main issue as the amount of illegally-sourced timber far exceeds that of the legal one.

However, placing it out of context might lead to the simplification of the complex problems surrounding forestry sector. Besides, it might mislead us to a notion that it is THE only forestry problem and ensuring its legality should suffice to address the issue. In countries with unclear and corrupt legal system and framework, such as Indonesia, the terms ‘illegal logging’ and ‘law enforcement’ are not only unclear and confusing, but also potential to bring about adverse legal consequences to ordinary people, who are often subject to unjust laws.

In many countries ruled by authoritarian regimes, most of the forestry laws are unjust and unfavourable to indigenous and local peoples. Laws regulating national parks, for example, often ignore indigenous and local peoples’ rights and even unilaterally lay claim to customary land. In Indonesia, laws regulating forest and logging concessions are made in violation of human rights and indigenous peoples’ rights over land or their prior and informed consent. Should the law be upheld, it will surely bring about adverse consequences to these peoples.

In a more complicated legal context, action plans to combat illegal logging are problematic due to unclear definition of what legality and illegality are. The governmental officials might argue that some practices, mostly based on traditional customs, are illegal according to the existing law, but indigenous and local peoples would argue, in turn, that their customary rights did exist prior to national laws. In countries like Indonesia, the issue is further complicated by the fact that much forest land has not been officially gazetted as required by the law (for more information, please read: http://www.eng.walhi.or.id/kedai/fsc2n3_book/).

Basically, illegal logging is inherent in legal logging. Illegal logging will only be possible when legal and industrial operations are in place. In many cases, legal logging operations advantageously make use of illegal logging to cover or legalise their illegally-sourced timber (i.e. timber laundering). It is therefore naïve to look into the phenomenon as a separate part of the overall forestry operations and system, claimed to be legal but, in fact, destructive.

Approaches to illegal logging eventually lead to solutions that are pragmatic or purely technical, such as timber tracking, labeling, chain custody, etc. Such approaches are not appropriate to address the structural or the fundamental problems rooted in many countries, such as over-capacity of timber processing, insecurity of land tenure, corruption and the logging concessionaires system. This is like a doctor trying to relieve the symptoms and not to cure the disease completely. The doctor just wants to show people that he can ‘cure’ a patient and say, ‘Look, he now can resume his work!’

The industry sector, as well as the market, is not totally opposed to ‘illegal logging’ campaigns. Instead they seem to be in favour of such campaigns, which will give more legitimacy to their ‘legal’ logging operation. Thus, forestry issues are reduced only to the legality aspect. From the sustainability viewpoint, the term might raise debates as to which is more important: legality or sustainability.

In the context of Indonesia’s forests, which have been being degraded and depleted rapidly, it is very doubtful that legalising a logging operation or its associated products can promote sustainability. Realistically, attention should be focused on destructive logging and sustainability issues. Similarly, to save the critical forests and millions of forest-dependent people, questions should be first asked concerning the existence of commercial logging itself. In brief, “illegal logging” might narrow down the issues on the overall commercial logging operations and might turn the public away from the debates over sustainability and over whether or not logging operation is destructive.

I am not saying that we should completely forget the legality or the legal aspects. I am saying that if we continue with the existing approaches, which see illegal logging as a separate part of the overall logging system, we will only end up legalising the destructive operations. Apart from the existing unjust laws, laws not only can (easily) but will be manipulated. In the end, customers’ expectation of green products will not be met and forests just continue to be depleted – in a more ‘legal’ way.

Donor countries and International Financial Institutions (IFIs) often play a two-fold role in the forestry sector. On one hand, they encourage producer countries to combat illegal logging; on the other hand, they keep subsidising or financially supporting industries or companies, which clearly contribute to forest degradation, as can be seen in the cases of the pulp and paper industry, large oil palm and pulpwood plantations.

Lastly, FLEG and its on-going processes will and only will be effective if they can: (1) direct this ‘law enforcement’ processes to the recognition of indigenous and local peoples’ rights to their resources; (2) initiate a debate over ‘law enforcement’ to curb corruption and downsize timber industry capacity; (3) formulate political action plans rather than technically-focussed ones; and (4) maintain policy and market interest consistency and coherence with social and environmental policies for Northern countries’ investment.

By Longgena Ginting, former Executive Director of WALHI/FOE Indonesia, and currently FOEI’s IFIs Co-coordinator, e-mail: ginting@foei.org

---

top

European NGOs estimate that more than 50% of all tropical timber imports into the EU are illegally sourced, as are over 20% of all imports from boreal forests. Furthermore in several European countries, notably in the Baltics and Eastern Europe, an estimated 50% of all logging is illegal. As the EU has no mechanisms in place to control the timber imports, the EU currently launders large volumes of illegally sourced timber each year. Following pressure from environmental and social NGOs to address this issue, the European Commission adopted in May 2003 an Action Plan on Forest Law Enforcement, Governance and Trade (FLEGT).

The central activity of the Action Plan is to develop voluntary bilateral or regional partnership agreements, with the aim of creating a caucus of the main wood-producing and importing countries. Timber exporting partner countries would then ‘license’ as ‘legal’ all timber exports to the EU (or other importing countries joining the caucus). The licensing scheme would initially cover a limited range of products (logs, sawn timber and plywood) and eventually be extended to other categories. In order to implement these voluntary partnership agreements the Commission must draft a regulation that will form the legal basis for a licensing scheme and would allow customs to seize non-licensed timber products.

Obviously this ‘licensing scheme’ begs a lot of questions such as: ‘who decides what is legal?’, ‘who decides which timber will be licensed as legal or illegal?’, ‘who decides when and how to award a license for legality?’, ‘what control mechanisms need to be in place?’, ‘who will benefit from such a scheme?’ Etc.

Furthermore, there is a clear danger that the EU’s efforts to curb illegal logging with such a licensing scheme will unwittingly encourage national governments to water-down their existing environmental laws rather than strengthening them. This could lead to weakening existing forest laws, or even to legalising current illegal practices, in order to satisfy the EU and other international markets. All this would certainly undermine local struggles for forest law reform.

Nonetheless, most European NGOs have been cautiously positive about the FLEG-T Action Plan. Why?

Firstly, the Action Plan clearly highlights some of the underlying causes of forest loss by mentioning the challenge to “ensure that actions to address illegal logging, particularly enhanced law enforcement, do not target weak groups, while leaving powerful players unscathed. This requires careful considerations in countries where corrupt elements within the police and judicial services operate in complicity with large-scale illegal business activities”. It is therefore the first EU documents that actively promotes policy reform. Furthermore the Action Plan states that “existing forest laws and policies frequently promote large-scale forest operations and may exclude local people from access to forest resources. This inequity breeds resentment and conflict. It also forces local people who depend on forest resources to operate illegally, since they have no choice in the way they meet their basic livelihood needs”. It therefore states that forest dependent communities need to become key allies in the drive to reduce illegal logging. Hence, in terms of highlighting the underlying causes of illegal and unsustainable logging practices and hinting towards possible solutions, this Action Plan is the most progressive EU document on forests to date, thereby opening a door to discuss again issues such as forest law reform, tenure rights and corruption.

Secondly, the Council of the European Union, in its adoption of the Action Plan, showed that it is fully aware of the political nature of the issue, as it called on the European Community and its member states in implementing the Action Plan to:

- strengthen land tenure and access rights especially for marginalized, rural communities and indigenous peoples;
- strengthen effective participation of all stakeholders, notably of non-state actors and indigenous peoples, in policy-making and implementation;
- increase transparency in association with forest exploitation operations, including through the introduction of independent monitoring;
- reduce corruption in association with the award of forest concessions and the harvesting and trade of timber;

The Council thereby paved the way for an implementation of the Action Plan, which could address the underlying causes leading to forest loss such as unclear and unjust tenure rights, corruption, lack of transparency and lack of participation in policy making.

Thirdly, the FLEG-T process has to date created some political space for NGOs from the South, notably Indonesia, Ghana, Brazil, to push for their agenda, including most of the issues listed above.

Fourthly, the Action Plan goes beyond just the FLEG-T licensing scheme and also calls for long overdue due diligence procedures for financial institutions, such as export credit agencies and private banks, as well as asking member states to look into implementing other measures such as money laundering legislation and stolen goods legislation. By doing so the Action Plan has opened a debate for reform of financial institutions and forced member states to look at their own legislation.

So, on the one hand, the FLEG-T Action Plan, including the FLEG-T licensing scheme, has the potential to create opportunities for civil society to push for solutions to highly political issues, such as land rights and tenure rights, transparency, corruption and often much needed forest law reform. On the other hand, the FLEG-T Action Plan has the potential to undermine national and local campaigns for these same issues by e.g. allowing for the adoption of narrow definitions of legality, excluding social and environmental movements in defining legality, and not demanding minimum requirements before entering into a Voluntary Partnership Agreement (VPA).

It is therefore too early to say whether the FLEG-T Action Plan will have a positive or a negative impact. Not in the least because the final texts of the regulation and the negotiation mandate, which details the process of developing a partnership agreement, have not yet been agreed upon and negotiations for partnership agreements have not yet started. What is clear is that some elements of the timber industry are already using the FLEG-T licensing scheme to divert attention away from ‘sustainable production’ to only ‘legal production’. What is also clear is that some NGO coalitions are with success using the opportunities created by the FLEG-T Action Plan to push for solutions to endemic corruption, lack of transparency, and conflicts over tenure rights. What is not clear is whether EU delegations, who will be leading the negotiations for VPAs, will be supportive of their demands. Too often, EU Delegations have used the argument of sovereignty to support the interests of the timber industry over those of local people.

NGOs from Europe and the South have in several joint NGO statements, spelled out in great detail the conditions they believe need to be in place for the FLEG-T licensing scheme to be effective. (see http://www.fern.org) It is now up to the EU Member States to see if they are brave enough to accept most of them. If not, NGOs in Europe and the South will rest nothing else than denouncing the FLEG-T licensing scheme and forcing their governments to focus on other measures, some of which are highlighted in the FLEG-T Action Plan, to address the underlying causes of illegal and more importantly unsustainable logging.

By Saskia Ozinga, FERN, e-mail: saskia@fern.org

---

top