Will the EU’s timber supply chain and policies on deforestation be brought into line with international human rights law?

In July 2014 the European Commission embarked on an evaluation of the EU FLEGT Action Plan. FLEGT stands for Forest Law Enforcement, Governance and Trade and is the EU’s response to illegal logging and associated illicit trade. The action plan was adopted in 2003 and since then several so-called voluntary partnership agreements (VPAs) between the EU and producer countries have been negotiated as part of the initiative. By improving forest regulation and governance, the VPAs are meant to ensure that timber and timber products exported to the EU are legal. 

While the VPA has opened up important political space for civil society and set best practice for participatory trade negotiations in several timber-producing countries (e.g. in Liberia), the FLEGT Action Plan and the associated VPA development processes also suffer from a number of shortcomings. One current case is that of Guyana, where indigenous communities and indigenous peoples’ organisations have persistently raised strong concerns that their rights to their land and resources are not protected in the draft agreement. According to the current draft, logging concessions and timber rights can be allocated on customary community lands that are not yet legally recognised under national law without the free, prior and informed consent (FPIC) of the customary land owners. These and other concerns are covered in two reports launched in Georgetown in November 2015. 

Since the concerns had still not been addressed to the satisfaction of communities, the General Assembly of the Amerindian Peoples Association (APA) issued a resolution on FLEGT in May this year. The resolution stated that “[….] Moving forward, the APA calls on the government of Guyana and the EU to ensure that the VPA, including the definition of legal timber, contains clear and strong safeguards for the protection of the rights of indigenous peoples of Guyana to our lands, territories and resources in line with the Constitution and international human rights law and standards. If such protections are not in place in the VPA text and annexes before signing, the APA cannot and will not endorse it.”

Based on experiences from Guyana as well as those of partners in Cameroon, DRC and Indonesia, FPP made a detailed submission to the FLEGT evaluation process in August 2015. The inputs highlighted that there were key positive aspects of the action plan, such as the participatory approach to forest governance, improved transparency in forest policy discussions and the scope for legal and policy reforms. It concluded, however, that there was a lack of coherence between FLEGT and the EU’s overall policy objectives on human rights, and that the VPAs contained gaps in their treatment of rights and land tenure issues. By taking an approach in which legality was defined purely by a selection of national laws, the VPAs could risk harmful impacts on forest communities without secure tenure and livelihood rights. A FPP review  of all existing and draft VPAs highlighted this problem. It found that across the board, VPAs did not require the incorporation of human rights laws and that there was no systematic framework to evaluate whether national laws were consistent with international laws and the related obligations of producer countries.

This review and FPP’s submission to the FLEGT evaluation recommended that the integration of partner countries’ international human rights obligations be made a compulsory agenda item in VPA discussions and that the EU’s approach to supply chain legality should guarantee compliance with all applicable laws, including national, international and customary laws.

It is highly positive that the FLEGT evaluation report, from April 2016, picked up some of these concerns (see p. 47) and stated that “by entrusting definition of legality to national legislation in producer countries, the EU may not live up to its own international commitments” as well as EU policy and legislation. The report referred specifically to the legal requirement in the Lisbon Treaty for all relevant EU institutions and bodies to ensure that trade and development were a positive force for human rights (p. 142). Further, it observed that in the name of EU policy coherence, “the sovereignty of a VPA process should be reconciled with the need for the EU to set minimum requirements reflecting EU stakeholders’ expectations, particularly on human and labour rights and for recognition of customary laws and rights on land tenure of forest communities (p. 164).”

Driven by these crucial observations and recommendations, will the EU uphold its obligations and human rights commitments by including a dedicated human rights pillar in an updated FLEGT Action Plan and in other commodity supply chain initiatives, such as the proposed EU Action Plan on Deforestation? 

By Oda Forberg Almås, Forest Peoples Programme