Global Deforestation is an issue of International Concern, and a Transnational Law Response could be the Solution

Written by Hannah Harris, Isabella Knowles, Monica Pedro and Madison Toohey

 

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Forests are essential to our planet’s ability to sustain life. Deforestation results in loss of vital ecosystems and biodiversity, and increased carbon dioxide in the atmosphere, accelerating climate change and undermining our planet’s resilience.  Illegal logging is a significant barrier to ending global deforestation and protecting vital forest ecosystems. As international consensus is reached on the need to protect global forest resources, agreements will be forged to do so. However, these agreements will only be as effective as the laws in place to implement and enforce them. The path to ending deforestation is paved with laws, and with laws, comes the risk of illegality.

The international importance of tackling illegal logging and global deforestation is enhanced by its relationship to COVID-19 and pandemic risk. Recent research warns that anthropogenic activities such as deforestation pose risks of zoonotic disease outbreaks. This is because activities like deforestation increase disruptive interaction between humans and wildlife. Furthermore, research has demonstrated that the COVID-19 pandemic is driving increases in illegal logging and harmful deforestation.

Illegal logging refers to the harvest of timber in contravention of laws in place in the country where that timber originated. It can include harvesting timber without a license for the purpose of selling that timber on the global market, or logging in protected areas to clear land for other activities, such as crop farming or livestock production. Illegal logging costs the global community up to $206 billion each year, but the cost is more than just financial. Our own academic research and that of others shows that illegal logging has significant environmental, social, and political implications. Impacts are felt on both a local and global scale, from traditional landowners and communities to governments and corporations along a complex transnational supply chain. 

Law and policy makers encounter a range of challenges when trying to combat illegal logging. Transnational law could present a solution to many of these challenges. Transnational law is a unique theoretical approach to law that can also be used as a tool for reshaping legal responses to global challenges. Transnational law moves beyond the traditional International Law focus on treaty and custom. Transnational law seeks to link up distinct legal frameworks at the international, regional, and domestic levels and find innovative ways to connect the law across jurisdictional boundaries.

Illegal logging transcends jurisdictional boundaries and is driven by context specific motivations. These motivations include efforts to generate economic wealth in source countries, the demographic shift towards urbanisation, increasing demand for exotic timber, and expanding global markets for agricultural products that require arable land. Furthermore, illegal logging has been linked to bribery and corruption, which further complicates law enforcement efforts.

In the Pacific, the cultural, social, and physical value of forestry resources is undermined by corruption and prioritisation of the economic value of timber, which is driven by demand in developed western economies. In Papua New Guinea, Special Agricultural Business Leases have been found to lack accountability and consistent implementation, resulting in perpetuation of illegal logging practices with harmful impacts for customary landowners. In the Solomon Islands, the nation’s heavy reliance on revenue generated by logging complicates efforts to overcome illegal activity, despite ongoing issues around customary ownership, corruption, and lack of transparency. Further afield, Brazil continues to struggle with enforcement of laws to protect the Amazon rainforest. Efforts are undermined by lack of political will, and by fraudulent and corrupt schemes driven by strong economic incentives for deforestation to make way for agriculture and livestock operations.

The above examples demonstrate the different motivations for illegal logging and the diversity of contexts in which illegal logging occurs. They also reveal the challenge of enforcement presented by activities that occur as part of complex global supply chains. Because of these challenges, a single legal approach is unlikely to be effective. Thus, a transnational law framework is required.

The foundations of a transnational law framework can be seen in the evolution of destination country laws that prohibit the importation of illegally harvested timber. However, these laws are only the beginning. Destination countries (importers of timber) have sought to implement laws to prevent the importation of illegally harvested timber into domestic markets. Examples include Australia’s Illegal Logging Prohibition Act 2012 (Cth) and the Illegal Logging Prohibition Regulation 2012 (Cth). Similar laws exist in Europe, the United Kingdom, and the United States. However, the effectiveness of these legal tools are limited by two major shortcomings: they rely on source country definitions of legality (which are open to corruption and co-optation and are difficult to validate); and they focus exclusively on the importation of timber without acknowledging industries where illegal logging occurs as a by-product of other activities.

The United Kingdom is taking steps towards recognising the transnational nature of illegal logging and integrating this into their legal approach. The UK Environment Bill 2020 will require corporate due-diligence for importation of all “forest risk commodities”. Other destination countries, including Australia, should follow the United Kingdom’s lead. However, additional steps will also be necessary.

Early findings suggest some important opportunities to improve the existing legal framework: developing a minimum standard of legality that is robust to corruption risk and includes a requirement to consult with forest communities in jurisdictions where harvest occurs; expanding due-diligence requirements to include financial institutions who may inadvertently fund projects that create incentives for illegal logging; and finally, supporting the negotiation of a universally agreed definition of ‘harmful deforestation’, moving beyond source country definitions of legality. Developing laws to support these objectives will require the joining up of efforts at the national, regional and international levels.

A successful transnational law framework will require interaction between destination country laws and efforts to create more robust and consistent legal frameworks in source countries. Other components of the response include effective regulation of global supply chains through enhanced corporate governance and accountability, consumer awareness and deployment of technologies to support enforcement efforts. The benefit of a transnational law approach is that laws can be designed with these multi-jurisdictional dimensions in mind. The legal response does not have to be limited to the international sphere and treaty law on the one hand, and domestic legislation constrained by jurisdictional boundaries on the other.

The challenge of illegal logging is transnational, and the legal solution must also be transnational. The solution will require international negotiation, destination and source country cooperation, and enhanced corporate governance practices. These efforts must be pursued collectively, only then, will it be possible to combat illegal logging and contribute to the protection of our vital forest ecosystems and the communities that rely on them for their health, wealth, and happiness.


Photo credit: Roya Ann Miller via Unsplash

Hannah Harris
Hannah Harris
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Dr Hannah Harris is a Lecturer at Macquarie Law School and Deputy Director of the Centre for Environmental Law (CEL). Her research area is transnational law and corporate regulation. Her current work includes analysis of legislative responses to transnational challenges, including illegal logging, modern slavery, and foreign bribery. Please contact Dr Harris with comments or questions: Hannah.harris@mq.edu.au

This Perspectives piece is based on continuing research by Dr Hannah Harris on the importance of enhancing transnational law and regulation to end illegal logging and protect vital forest ecosystems. Her published research findings on this topic can be accessed here and here.

This Perspective piece was co-authored by three Macquarie Law students and volunteers with the Centre for Environmental Law (CEL).

Isabella Knowles
Isabella Knowles
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Isabella Knowles is studying a Bachelor of Environment majoring in Biology and a Bachelor of Laws at Macquarie University.

Isabella is excited to work with the Centre for Environmental Law as she wants to pursue her growing passion for realising a sustainable future and protecting a part of our world without a voice of its own - the environment - through a legal and scientific perspective.

Monica Pedro
Monica Pedro
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Monica is currently in her final year of studying a Bachelor of International Studies with a Bachelor of Laws at Macquarie University.

Monica has a keen interest in policy and government accountability in the areas of social justice, human rights, environmental law, and international law.

Monica joined the Centre for Environmental Law (CEL) as a volunteer, as a way to learn more about environmental law and to be a part of and be able to contribute to the great work that CEL is doing.

Madison Toohey
Madison Toohey
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Madison Toohey is in her final year of a Bachelor of Laws majoring in Public Policy, Law and Governance.

Madison has long has a passion for social issues, with a particular focus on the plight of asylum seekers and refugees, women, and the elderly.

Always conscious of the environment and the need for sustainable lifestyle choices, Madison hopes to learn more about the environmental threats facing humankind and how we can best address these through research and advocacy. Madison hopes to use her law degree in a policy-making context when she graduates.

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