Legality without justice? How to ensure that FLEGT Voluntary Partnership Agreements (VPAs) achieve both

The central safeguard against unjust laws is to ensure that forest communities directly influence the content of legal reforms
By
FPP

Legality without justice? How to ensure that FLEGT Voluntary Partnership Agreements (VPAs) achieve both

This article seeks to touch base with the policy objectives of the European Union (EU)’s 2003 Forest Law Enforcement Governance and Trade (‘FLEGT’) Action Plan, and highlight lessons learnt during Forest Peoples Programme’s EU-funded Strong Seat at the Table project.[1] With partners Centre pour l'Environnement et le Développement (Centre for the Environment and for Development, CED), FERN and ClientEarth, the ‘Strong Seat’ project supported the legal capacity of civil society partners engaged in VPA-related legal reforms in West and Central Africa.

By way of background, the FLEGT Action Plan included an approach to addressing illegal logging that uses bilateral trade treaties between the EU and timber producing countries, called Voluntary Partnership Agreements (‘VPAs’). VPAs are intended to frame the legal, governance and institutional reforms necessary to ensure that all timber exports from VPA countries carry a FLEGT license verifying their legality.[2]

The VPA focus on legality and the insistence on a multi-stakeholder process has been innovative, and VPAs are recognised as the most participatory trade agreements ever made (albeit with minimal participation of forest communities, except in the case of Liberia).[3] Several VPAs have been successful in opening up political space for civil society organisations, which has in turn helped improve transparency, coordination and accountability in the forestry sector.[4]

The EU’s 2003 Action Plan notes that it serves to promote multiple policy objectives in the EC’s development agenda, including human rights, good governance, and environmental sustainability. The Action Plan highlights that where laws promote sustainable forest management, law enforcement will be positive – where this is not the case, the EU should encourage reform. However, a key missing ingredient in the Action Plan is a clear understanding of what ‘legality’ means, merely defining illegal logging as “timber harvested in violation of national laws”. It does not expand on what the sources of ‘national laws’ might be, or what implications this would have for VPAs and their implementation.

The European Forest Institute (EFI)/EU ‘Guidance for developing legality definitions in FLEGT Voluntary Partnership Agreements’ (September 2012) explores these implications in more detail (though there is still no mention of customary law). It does for example expressly include international law in the likely long-list of relevant legislation, and suggests that this list should go beyond merely forestry-specific law, and include areas such as “respect for community and indigenous peoples’ tenure and use rights”.[5] In terms of addressing inconsistencies between applicable laws, the Guidance also suggests that the reforms needed to address that gap analysis should be set out as additional measures in the VPA appendices.[6] This guidance is too late for the five African VPAs currently being implemented which were all concluded prior to 2012.

In practice, VPA partner governments, the EU and civil society have to date defined legality with reference to existing statutory laws, at the expense of customary and international law. Although many VPAs expressly include reforms that integrate international law into national law, these provisions have yet to be properly implemented.[7] This has created problems for communities in many African VPA countries, whose land rights derive most protection from customary and international law, and whose land rights are most threatened by the dispossessing and marginalising effects common in (often out-dated) national statutory laws.[8]

A change of approach to legality within FLEGT and VPA processes is therefore long overdue. FLEGT licensing must be predicated on legal reforms that integrate customary and international law into national statutory laws. Where this is obviously not happening in VPA implementing countries, all stakeholders will need to take a determined stand to make sure that a post-facto gap analysis is completed and agreed, and that the necessary programme of reforms is properly implemented. All of this will require a fully multi-stakeholder process that includes meaningful participation of forest communities. However, countries in the process of negotiating VPAs have the opportunity of crafting VPAs that better set the scene for legal reform, in a more detailed appraisal of the statutory changes that would be needed to give due weight to customary and international law. Those VPAs should also better spell out key procedural requirements for legal reform processes, to ensure that stakeholders and rights-holders – especially forest and indigenous communities – are not excluded from those reform processes.

The recent joint FPP-partner publication 'Securing community land and resource rights in Africa: A guide to legal reform and best practices' sketches out how any statutory reform process relevant to land and resource rights – VPA-related or otherwise – can better recognise the legal pluralism present in many African countries. This includes guidance on structuring legal reform processes; legislating to protect customary land and resource rights; recognising and strengthening customary governance institutions; and ensuring compliance with key principles such as gender equality and the protection of indigenous peoples.

In conclusion, many VPAs stand to be implemented without the necessary reforms taking place, carrying the risk of legitimising unjust and unsustainable laws, and missing the EU Action Plan’s policy goals. A conscious change of approach is therefore needed by all stakeholders which adopts an understanding of legality based on integrating customary law and international law into statutory law. This change of approach needs supporting by a more robust EU strategy for accepting nothing less from partner Governments, and a similarly robust advocacy strategy by civil society (national and international). In both cases, the central safeguard against unjust laws will be to ensure that forest communities are in a position to directly influence the content of legal reforms affecting them and their forest lands.

Tom Lomax, Lawyer, FPP

[1] This article was also delivered as a presentation during the launch of the Strong Seat project’s Securing community land and resource rights in Africa: A guide to legal reform and best practices, held in Brussels on 23 January 2003.

[2] The countries now implementing concluded VPAs are: Cameroon, Central African Republic, Ghana, Indonesia, Liberia, and the Republic of the Congo. Those countries currently negotiating VPAs are: Côte d'Ivoire, Democratic Republic of the Congo, Gabon, Guyana, Honduras, Laos, Malaysia, Thailand, and Vietnam.  A number of other countries have expressed an interest, including Peru, Ecuador, Colombia, Burma, Philippines and Papua New Guinea.

[3] See for example, Fred Pearce, Forest Stands: How new EU trade laws help countries protect both forests and peoples FERN (2012), Moreton-in-Marsh & Brussels

[4] Improving Forest Governance: a comparison of FLEGT VPAs and their impact. FERN (2013), Moreton in Marsh and Brussels

[5] Guidance for developing legality definitions in FLEGT Voluntary Partnership Agreements’, European Forest Institute (EFI) EU FLEGT Facility/EU, see Step 4, page 7.

[6] Id, at Step 6 on page 10.

[7] In Cameroon for example, the draft new Forest Code and the proposed Land reform have so far made little or no contribution to embedding international law on community land and resource rights into statutory law, despite having concluded a VPA with the EU that includes reference to integrating international law into national law.

[8] In most cases in West and Central African VPA countries, statutory laws on tenure are based on the legal frameworks of colonial administrations, adopted with little or no significant change by post-independence states. One exception is Liberia, which nonetheless has land laws that do not satisfactorily protect customary land rights, and which are currently undergoing reform.