Much has been written about forest law enforcement, both during the FLEG policy push of the past 15 years, and earlier, when enforcing laws properly was no less a concern. We have known for some time that an effective law enforcement strategy will focus not just on the mechanisms of enforcement, but also on the content of the law and how it is made. Yet knowing something is not the same as doing it. Many countries still follow a narrow, compliance-based approach to enforcement, and, despite some recent gains, continue to struggle with forest crime as a result.
In the eyes of many, creating the right conditions for effective law enforcement means strengthening the mechanisms of enforcement – what is known in the jargon as PDS, or prevention, detection and suppression. This is true, but only to a degree. Reducing the scope for illegal acts, reliably detecting such acts when they happen, and successfully prosecuting or penalising the offenders, are necessary and should be part of any strategy to curtail forest crime. But ultimately the size of the challenge posed by PDS is determined by the content of the law and how it has been drafted. Put simply, poor law makes tough demands on PDS; good law smoothes its way.
Almost ten years ago, the FAO’s Development Law Service* came up with six principles of good legislative design to improve forest law enforcement. These bear repeating since they are sometimes forgotten:
- Avoid legislative overreaching.
- Avoid unnecessary, superfluous or cumbersome licensing and approval requirements.
- Include provisions enhancing the transparency and accountability of decision making.
- Enhance the stake of local non-government actors in forest management.
- Ensure that the drafting of law is a broadly participatory process.
- Include elements aimed at increasing the effectiveness of direct law enforcement.
Although most countries probably aspire to these principles, there is still some way to go before they are universally applied. The current crop of negotiations for VPAs (Voluntary Partnership Agreements) provides good examples of both progress and shortcomings. The negotiations themselves, based as they are on wide consultation about the form and substance of a licensing regime for legal wood products, support the principles of transparency, accountability and participation. Yet one element of a VPA, the definition of legality, is exposing overreach and excessive regulation. As countries compile their forest-related laws in preparation for deciding which ones should go into a definition of legality, they are finding large bodies of applicable laws – several hundred in Indonesia’s case – riddled with inconsistencies and contradictions. Luckily, the VPA can provide the means and opportunity to reduce this burden through legal reform, albeit for a still-small group of countries.
Enforcing forest law effectively is about more than just prevention, detection and suppression. It is also about the substance of the law and the quality of the law-making process. One supports the other: good PDS helps countries achieve the societal goals embodied in their laws; well-designed laws reduce the obstacles to effective PDS. Together they provide a basis for fair and effective forest management.
Contact: Matthew Markopoulos, firstname.lastname@example.org. The author would like to thank Guido Broekhoven and Peter Neil for constructive comments on a draft of this article, which will appear in a forthcoming issue of the Arborvitae newsletter.
* Lindsay, J., Mekouar, A. & Christy, L. (2002) Why law matters: design principles for strengthening the role of forestry legislation in reducing illegal activities and corrupt practices. Pp 163–174 in: Schmithüsen, F., Iselin, G. & Herbst, P. (eds), Forest Law and Environmental Legislation: Contributions of the IUFRO Research Group 6.13: Proceedings VII. Swiss Federal Institute of Technology, Zurich. <http://e-collection.library.ethz.ch/eserv/eth:25924/eth-25924-01.pdf>