International Instruments Relevant to Protection of Forests
Prepared for the Forest Caucus of the Canadian Environment Network by Michelle Swenarchuk, Canadian Environmental Law Association, March, l999.


1. Introduction.

Preliminary discussions are now occurring regarding the possible future negotiation of an international convention on forests. This raises many issues, including whether a convention would in fact contribute to the promotion of sustain ability and conservation of forests, or whether it would be a vehicle for increased exploitation of forests particularly for expanded international trade in forest products.

This paper will review the international legal regimes currently in place which would provide the legal and political context for any new convention, and their likely impacts on the convention and efforts to promote forest sustain ability. It will also examine the Canadian government's approach to these questions over the past decade.

It is particularly necessary to examine the relationship between an international forest convention and the WTO trade rules, including those in the chapter on Technical Barriers to Trade (TBT) . A major barrier for environmentalists in Canada is the continuing profound commitment of Canadian governments, federal and provincial, to deregulated trade, and their acceptance of the view that environmental standards may be characterized as non-tariff barriers to trade. This is particularly problematic regarding forest product trade, given its high economic value to Canada.
This concern arises from a review of the CFS documents provided to members of the Forest caucus of the Canadian Environmental Network who were participants in a Workshop on international forest instruments (1). The approach focuses on the primacy of trade rules without acknowledging the role of trade expansion in threatening sustainability of forests.

2. Review of Technical Barriers to Trade and Code of Good Practice of the WTO

The Technical Barriers to Trade chapter of the GATT (and similarly, NAFTA) and its appended Code of Good Practice contain rules regarding how governments set standards and regulations. These are defined in the chapter:

Technical regulation: Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provision, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labeling requirements as they apply to a product, process or production method.

Standard: Document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging , marking or labeling requirements as they apply to a product, process or production method. (2) (emphasis added)

The chapter provides an entire scheme for the setting of regulations and standards in Articles 2 to 9. It requires that they not have the effect of creating unnecessary obstacles to international trade, although they should be permitted to meet legitimate objectives including "protection of human health or safety, animal or plant life or health, or the environment." With an emphasis on international harmonization of measures, the chapter requires that they should be based on science; and comply with international standards where such exist. Where proposed domestic measures do not comply with international ones, governments are required to notify other WTO members and provide time for them to comment on the proposed measure. (Article 2) National governments should attempt to require local governments and non-governmental bodies to comply with these requirements in setting standards. (Article 3) Further, domestic standardizing bodies, both governmental and non-governmental, are to comply with the TBT and Code of Good Practice. (Article 4) In evaluating the conformity of imports with domestic standards, countries must assess the imports no differently than they assess domestic products. (Articles 5 and 6) The TBT established a Committee on Technical Barriers to Trade (Article 13) which has recently completed a triennial review of the TBT.

The TBT is accompanied by a Code of Good Practice for the Preparation, Adoption and Application of Standards (3) which is "open to acceptance" (Paragraph B) by standardizing bodies within WTO member countries. Those which apply it are to inform the International Standardization Association (Para. C) In developing standards, these bodies shall treatment imports as favourably as domestic products; shall not prepare, adopt, or apply standards to create unnecessary obstacles to trade; shall use international standards where they exist; shall participate in international standard setting; shall regularly publish its work program; shall allow opportunities for comment on proposed standards from other WTO members; and shall cooperate generally with other bodies that have adopted the Code.

Since the chapter "permits" standards for environmental protection, one would hope that strong forest standards would be acceptable. However, repeated case decisions at the WTO have found environmental standards in violation of the WTO Agreements as detailed below.

2.1 The role of the International Standardization Organization

The TBT implicitly recognizes the ISO, the International Organization for Standardization, as an international standard-setter. It is an international organization of national standardization bodies which has established standards for many goods, facilitating commerce through certifying goods. Its standards are voluntary, and participating countries obtain certification that their products comply with the standards established. The ISO does not monitor or accredit certification bodies.

In the early 1990s, it began to develop standards for environmental management (the ISO 14000 series) and the Standards Council of Canada, together with the federal and provincial governments and industry groups, worked to produce a standard applicable to the forest industry. It was criticized nationally and internationally by environmental groups on many grounds (4). Most important, the CSA certification did not require compliance with an objective set of criteria of sustainable forest management, but only with the goals established by an company, whatever they might be. The CSA/ISO proposal was eventually abandoned, though its planning committee, TC207, did agree to create a technical report type II on the application of 14001 to forestry, a non-binding, information document. (5)

3. The WTO treatment of environmental protection measures

To evaluate whether forest conservation standards would be advanced at the WTO, it is instructive to consider its treatment to date of two other areas of public interest standards, those pertaining to environmental protection and health. They are particularly instructive, since an "environmental and health clause" has existed in the GATT since l948 and could have been the basis of reconciling domestic, environmental, health, and sovereignty concerns. Further, the use of trade sanctions for environmental purposes has been explicitly mandated in a number of multilateral environmental agreements (MEAs), and discussions regarding those sanctions and WTO compatibility are also instructive.

3.1 WTO jurisprudence on Article XX: General Exception

Article XX provides a general exemption from the other disciplines of the WTO-GATT regime, including national treatment and most favoured nation principles. It "permits" countries to maintain standards deemed necessary for protection of "human, animal or plant life or health" and for "conservation of exhaustible resources" This article was included in the Canada-US Free Trade Agreement and NAFTA, and jurisprudence under the three agreements is relevant.

With the implementation of the expanded trade law regime following the establishment of the WTO, an increased number of trade disputes have arisen in which environmental or health standards have been in issue. (6) In every case, the domestic standard that was at issue has been found incompatible with GATT or the FTA leading to a requirement that it be rescinded.

It is important to understand that the GATT could have accommodated environmental and health concerns from the beginning, given the wording of Article XX. However, every case has gone against national standards, leading to the systematic elimination of governmental options previously thought to be available under the article. Regarding the environmental and health concerns, there is a difference of perspective between Northern and Southern activists who co-operate on many issues. Southern writers emphasize that Northern health and environmental regulations may be used as non-tariff barriers with the effect of keeping southern products out of industrialized countries. Some emphasize the rules-based approach to standard-setting established with the WTO Agreements on Sanitary and Phytosanitary Standards and Technical Barriers to Trade, and their requirements for risk assessment and science-based standards justification, and that Southern countries were enticed to agree to the Uruguay Round agreements with the assurance that the WTO system would provide a reliable rules-based approach to standards that would be to the advantage of Southern countries.

Northern activists emphasize the problems inherent in what passes for risk assessment, the power of corporate lobbyists over government regulators, and the limitations of so-called science-based standard-setting. They also emphasize the loss of potential influence for local public interest groups seeking to improve local and national standards, given the dominance of trade law in domestic discussions, and the removal of standard-setting to remote, international standard-setting bodies including the International Standardization Organization and the Codex Alimentarius Commission, promoted by the GATT. They also note the undermining of environmental and health standards by an increased willingness to rely on corporate "voluntary initiatives" for environmental protection, a trend also discernable internationally, in promotion of "Codes of Conduct" for corporations, and the movement of the ISO into public policy areas where it has not previously worked, and for which it is ill equipped.

In summary, the WTO dispute record on its "environment and health clause" is negative, as regards protection of the environment and human health and demonstrates the wide gap in legitimate perspectives between Southern and Northern citizens on these issues, and the impact of the trade regime on them.

3.2 WTO treatment of trade sanctions pursuant to Multilateral Environmental
Agreements (MEAs)

The Marrakesh Agreement of April 1994 established a Committee on Trade and Environment (CTE) at the WTO to discuss problems between environmental policy and the new trade regime. The CTE members met between 1994 and the Singapore WTO Ministerial meeting of December 1996, and continue to meet, with few concrete results. Amongst the agenda items for the committee was the question of whether trade sanctions taken pursuant to multilateral environmental agreements could be accommodated within the WTO regime, despite apparent conflict with the provisions of the WTO agreements. (7)

MEAs, like ILO conventions, represent an international consensus rendered into law on the subject matter at issue, at least amongst those countries that have signed them, and cannot be said to be instruments of unilateralist protectionism. From the perspective of environmentalists, this issue should have generated the least debate in the CTE. A number of legal options were proposed by some Northern countries for accommodating trade sanctions pursuant to MEAs . These included: a general agreed interpretation of Article XX by WTO members providing authorization for the use of trade restrictions under MEAs, regardless of conflicts between their provisions and member's WTO rights; a case-by-case approach to allow WTO members to consider exemptions in order to permit trade restrictions under MEAs in individual cases; or an amendment to the wording of Article XX.

Specifically, the EU proposed that measures taken under specific provisions of an MEA "shall be presumed to be necessary for the achievement of the environmental objectives of the MEA..." or alternatively '''necessary for the protection of the environment..." To achieve such protection, the MEA should be open to participation from all countries concerned with its environmental objectives, and should reflect, through adequate participation, the interests of all parties concerned.

Developing countries responded with discussions of other issues of concern to them including that MEAs do not usually bind all countries, so that a WTO member could find its trade rights affected by a trade restriction under an MEA to which it did not adhere. Further, to the extent that MEAs cover process and productions methods (PPMs) for environmental purposes, they would extend the concept of extra-territoriality, imposing standards of one country on another, a result that is broadly opposed in the South. MEAs should be open to all countries to join, but local environmental issues should be addressed by the country concerned, not by external countries, using the mechanism of MEAs. Any trade measures to be contemplated under MEAs with broad membership should be compatible with the GATT.

The Canadian government took the position that no change is required in Article XX, and that any waivers on trade measures should be on a case-by-case basis.

At the WTO Ministerial meeting in Singapore in December 1996, a "Joint NGO Statement on Issues and Proposals for the WTO Ministerial Conference" stated, regarding MEAs:

para.53: Whilst we oppose "green protectionism", on the other hand the trade regime and WTO should respect decisions of MEAs that are broad-based in membership and with adequate regional representation. Countries should not prevent or weaken needed and legitimate environmental measures in MEAs on the pretext that this may be against "free trade" and WTO principles. (8)

Although the wording of Article XX, which "permits" measures to protect the environment, and the wording of the TBT which favours international standard setting both suggest that a strong international forest convention fits within the trade law regime, the WTO debates regarding MEAs and the existing dispute panel decisions mitigate against optimism. To date, the attempts to accommodate trade restrictions pursuant to multilateral environmental agreements within the WTO regime are at an impasse, and no accommodation has been reached. This impasse provides an important signal of how an international forest agreement may be treated at the WTO, particularly if it includes agreed trade restrictions.

3.3 WTO negotiations regarding forest products At this time, the US group American Lands Alliance reports that the WTO is negotiating a new international agreement to eliminate all tariffs on forest products world-wide, and to consider eliminating non-tariff forest protection measures such as forest management standards, exotic species regulations and building codes that protect domestic industry. (9) The agreement is to be completed at the November Ministerial meeting of the WTO in Seattle. If this information is correct, the group is rightly worried that the agreement will result in increased consumption and will create further barriers to reform of unsustainable practices.

3.4 Secrecy of WTO processes

One issue for which the trade regime has been consistently criticized throughout this decade is the secrecy of its negotiations and dispute resolution processes. Although there are various initiatives underway to increase transparency at the WTO, the current practice is to maintain confidentiality on ministerial deliberations, negotiations, and dispute panel processes. Dispute panel processes at the WTO are confidential, and only governments participate. NGOs have no access so that to the extent that forest issues are decided in WTO dispute panes, NGOs will have no opportunity to participate, or even to observe the process.

3.5 The concern regarding US unilateralism

An issue which pervades discussion of environmental issues in the WTO agreements is the repeated use by the United States of its domestic trade laws, to unilaterally enforce its trade policy world-wide. Governments and NGOs from developing countries and some Northern countries readily admit to an over-riding concern that the US will use environmental clauses (including MEAs) for protectionist and blatantly punitive purposes.

Even within the US, the use of trade restrictions is controversial with both NGOs and industry.
According to a l997 report by the National Association of Manufacturers in the US, between 1993 and 1996, the US took unilateral measures 61 times against 35 countries, representing 42 percent of the world's population and $790 billion worth of export markets. (10) The US record has a seriously intimidating effect on the trade and environment debate.

4. Canadian Government position regarding the TBT and Code and forest certification schemes.

In short, in numerous forae and position statements, the Canadian government takes the position that forest standards, including labeling schemes, should be subject to the requirements of the TBT and related Code of Good Practice for the Preparation, Adopting and Application of Standards. This would have the effect of making all forest standards, including eco-labeling schemes subject to these requirements. They include the FSC in these intentions. Such a position would allow governments to challenge, at the WTO, other governments which have eco-labeling schemes developed without regard to the TBT rules. Non-governmental schemes are also targeted and are mentioned in the TBT and Code.

4.1 Canadian intervention in the Third Meeting of the Intergovernmental Panel on Forest Program Element IV Trade and the Environment

This paper focuses entirely on trade priorities and makes no proposals for strengthened conservation efforts for forests. With regard to forest-related measures Canada stated:

As regards non-tariff barriers, Canada is concerned about the growth of formal and informal barriers to trade in forest products for both developing and developed countries. While government measures to restrict imports for environmental measures are subject to WTO rules, informal restrictions promoted by private sector groups remain beyond existing international trade rules. (11)

4.2 Canadian position at the WTO Committee on Trade and Environment

In 1996, Canada worked to promote the application of WTO disciplines to eco-labeling schemes at the WTO Committee on Trade and Environment. (12) Canada's paper argued.

that eco-labeling programmes, whether mandatory or voluntary, are clearly within the scop of the Agreement to the extent that they are based on standards that relate to product characteristics or their related processes and production methods (PPMs). It argues that bodies that develop and run eco-labeling programmes should be considered as standardizing bodies. It further suggest that the scop of the TBT Agreement should be interpreted to cover the use of certain standards based on non-product-related PPMs by eco-labeling programmes, provided that these standards strictly adhere to multilaterally-agreed eco-labeling guidelines. (Para.2)

Further, Canada argued that because the TBT Annex 1 refers to standards as "documents approved by a recognized body,"

The term "recognized body" is broader in its scope than "standards body" or "national body," which are more specific; thus, one can conclude that voluntary standards established by non-traditional standards-setting bodies fall within the scope of the standards definition. Members should therefore acknowledge that as eco-labeling schemes are established by standardizing bodies, they should take reasonable measures to ensure that such standardizing bodies, whether governmental or non-governmental, accept the Code of Good Practice. (Para.13, emphasis added)

The paper goes on to argue that WTO acceptance should extend to eco-labeling programmes that are developed "by recognized bodies that have a wide, open, international membership including a balanced representation of interests;' that utilize "scientific methodology," and that arrive at criteria through "impartial decisions." (Paras.17 &18)

The suggestion that "non-traditional bodies" that create eco-labeling schemes should be subject to WTO rules is highly dubious, and may well be directed at the efforts of organizations like the Forest Stewardship Council. Support for this position would potentially permit a challenge to governments relying on the FSC certification label in purchasing decisions.

The paper described ISO 1400 as "the most advanced example of a multilaterally developed set of guidelines for eco-labeling" (Para.16) and therefore, presumably, the most WTO-compatible guidelines. This intervention appears to promote, in another forum, the Canadian government's support for the CSA/ISO process that was ongoing at that time.

4.3 The first Triennial review of the Technical Barriers to Trade Agreement (13)

The draft report provides insight to the operation of the WTO TBT Committee and the concerns of its members. They noted the slow response by WTO members to the requirement in TBT Art. 15.2 to inform the WTO of measures in existence; only 57 members (out of 128) have submitted such statements. (Para 6.) Only 83 standardizing bodies (out of about 600 world wide, according to David Shortall)) have accepted the Code of Good Practice, an unacceptably low level, in the opinion of Canada and others. (Para 11) Further, too few standardizing bodies are participating in international standardizing bodies. (Para.13)

The TBT committee plans to discuss the Code of Good Practice provisions E which limits standardizing bodies from adopting standards that may constitute "unnecessary obstacles to international trade."(Para 15) The committee emphasized that "in the preparation of international standards, it was important,[...] that trade needs were taken into account along with technical progress" as well as the particular interests of Developing Country members regarding some products. (Para 20) and reiterated the basic WTO requirements regarding technical measures: that they only be enacted if necessary; be limited to their specific requirements, accord with the TBT, and be aligned with international standards. (Para 23)

It is notable that these requirements constitute a veritable strait jacket for the establishment of environmental measures such as forestry standards in Canada. Trade officials and dispute panel decision makers with no particular expertise in forest issues or knowledge of Canadian forests determine if a measure is "necessary" They may employ experts for advice, but in the highly fractured world of forest debates, they would likely use mainstream, industrial experts, and as Canadians well know, forest science is highly contentious with divergent views amongst scientists on many issues.

The need to align domestic standards with international ones raises the problem that to be effective, environmental measures need to be ecosystem-specific, with protections designed to comply with unique ecological characteristics. A significant problem of reliance on international standards, including a forest convention, is that "international standards" will either be inappropriate to many specific ecosystems, including Canadian forest ones, or will be drafted in such general terms that they are not applicable in a meaningful, rigorous way on the ground. This is particularly true if they are drafted with trade considerations foremost.

Canadian goals for the TBT review, as stated by David Shortall of DFAIT, are instructive. They include pursuing strategies for further harmonization of measures, disciplining of standards-setters and coverage of management standards (like the ISO 14000 series) by the Code of Good Practice. Canada was not successful regarding the management standards/Code element, but was more successful regarding future discussions on disciplines for standards setters.

Canada also pushed for the linkage of work in this committee to that of the WTO Committee on Trade and Environment and for " a clear reference to the need for transparency for all types of environmental standards including, implicitly, eco-labeling. (14)

4.4 Canadian government position on the Biosafety Protocol

This protocol was mandated by the Convention on Biological Diversity to establish rules for the international trade of genetically modified living organisms (LMOs) and represented an opportunity to establish a precautionary approach to these products, given their possible dangers to biodiversity in receiving environments. The Canadian position, in common with other exporter nations, was to insist on the primacy of WTO rules, and deny important and environmentally justifiable concerns from the South and the EU, with the result that the protocol negotiations failed in February 1999, and no protocol was achieved.

Much remains to be said about the Canadian actions in this process, but they do provide a clear indication of how Canadian trade policy favours economic interests over the environment. If an international convention regarding forests were to be negotiated, given the importance of forest product exports to Canada, the Biosafety Protocol example suggests that the Canadian goals in those negotiations would be to protect and increase Canadian forest exports, not to protect the world's forest ecosystems.

5. Environmentalists views of certification schemes to date

Canadians involved in forest issues are well aware that forest product eco-labeling and certification of sustainability of forests and/or forest products is a controversial issue in this country. Further, it is well known that Canadian environmentalists were deeply critical of the CSA/ISO approach to forest sustainability certification, but are widely supportive of the efforts of the Forest Stewardship Council, in Canada and internationally. (15)

6. Relationship of FSC to the WTO Technical Barriers to Trade and Code of Good Practice

The arguments of the federal government that schemes such as the FSC are subject to the TBT are dubious. The Center for International Environmental Law argues that the FSC scheme should be considered to comply with the TBT, as it incorporates the" mutual recognition" concept, acceptable under the GATT. (16)

While FSC employs non-product related criteria in determining eligibility for its label, the program modifies its criteria according to the features of a particular area through a process that involves the local stakeholders as well as international representatives of consumers and producers. In light of the widely divergent conditions in forests around the world, mutual recognition - based on principles strongly focused on sustainable forest management, such as those adopted by the FSC - very likely constitutes the most realistic approach to harmonization possible in this sector.

A recognition by the WTO that international certification and labeling programs such as the F.C. - which strive for mutual recognition of different yet comparable standards - are consistent with the TBT Agreement's provisions, would be s significant step toward reconciling trade and environment objectives.

While this is a helpful approach to analyzing the relationship between the FSC approach and the WTO rules, I doubt that most WTO member countries would agree with the Center. Arguments against the FSC approach would include that its standards are too high and not "necessary" that they're ; not based on science (as accepted by most governments and trade officials) ; and amount to unnecessary barriers to trade.

However, it is important to note that WTO rules only apply to governments, and cannot extend to non-governmental trade. In other words, when individual buyers decide to rely on F.C. certified wood, without being required to do so by their governments, they are making a private, market decision into which the WTO cannot intrude. Only if governments including local ones decide to buy FSC certified wood would the WTO tentacles possibly extend to permit the possibility of a challenge, by another country, of that policy.

If the purchasing government concerned is not a national one, it is still its national government which is subject to a WTO challenge. If the national government loses the challenge, and is ordered by the WTO to require the lower level government to abandon its policy of buying FSC certified wood only, the national government can only do so to the extent that its national constitutional powers so permit. In Canada, for example, that is not a simple matter. With regard to jurisdictional subjects that are within provincial jurisdiction, including resource use and regulation, there is an unresolved dispute regarding the powers of the federal government to enforce trade law requirements on the provinces. (17)

Therefore, despite the federal government's apparent efforts to bring "non-traditional" standards-setters, such as the FSC, under TBT disciplines, it is not clear that this can be done and implemented regarding governmental purchasing decisions. Nor is there any evident route for using the WTO to interfere with private sector purchasers' decisions to purchase FSC products.

7. Existing international instruments relevant to forest protection

The IUCN has produced a series of useful studies of the current international forest regime (18), demonstrating that a plethora of instruments and international institutions exists. This paper will review the most significant of them, for purposes of evaluating the utility of another forest instrument. However, readers should note that some role in international forest issues is also played by numerous additional bodies and legal instruments reviewed by Tarasofsky and Downes (19)

7.1 The International Tropical Timber Organization (20) (ITTO)

Operating under the International Tropical Timber Agreement (ITTA) adopted in 1983 under the UN Conference on Trade and Development (UNCTAD), the ITTO seeks to regulate tropical timber trade amongst its 50 members, affecting more than 90% of the trade. Its mandate (possibly internally contradictory) is to promote trade in tropical timber, implement the ITTA, promote the conservation and sustainable management of tropical forests. It operates through a council, with votes allocated on the basis of market share. In 1990, the Council adopted a objective requiring states exporting tropical timber to establish sustainably managed sources by 2000, but this goal was reduced in a subsequent re-negotiation to merely enhancing the capacity of members to implement a strategy for achieving exports from sustainably managed sources by 2000. The ITTO adopted the Libreville Action Plan (1998-2001) in 1998, with goals and sets of actions, not largely related to sustainable management.

The ITTO has established the Bali Partnership Fund to assist members to achieve the objective, now obviously with a timeline after 2000. The fund is not yet operational, and since it depends on voluntary contributions, its ultimate resources are unknown, but the ITTO has decided to begin identifying projects and activities eligible for funding. The ITTO also has a Special Account, financed by voluntary contributions, largely from Japan, which in 1997 contained over $18 million , down from $24 million in 1996. Through this account, the ITTO has financed over 300 projects, mostly relating to reforestation and forest management.

With regard to ecolabeling the ITTO has not acted on proposals from 1989 that it encourage ecolabeling to promote sustainably managed products, though it has recently hired consultants
doing analytic studies.

The ITTO has been criticized for not having mechanisms to ensure implementation of its policies at both the national and international levels. No country has yet implemented its guidelines nationally, and although its projects include helping countries develop management plans, few have been implemented. Policy documents are sufficiently general that implementation on the ground is difficult to assess, as is the actual impact of specific projects. There is a fundamental conflict in the ITTO objectives, between conservation and increased trade, with the 1994 re-negotiation moving to further support fro trade, including an explicit statement that the Agreement does not authorize the use of trade restrictions regarding timber products. Its approach has been summarized by one commentator

Tropical forest conservation, while central to the ITTO's mandate, has not been allowed to challenge the sovereignty of producer members over their forests, to interfere with free trade or to prevent the exploitation of tropical forests for timber products. (21)

7.2 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

The objective of CITES is to prevent the over utilization of species, subspecies, and populations due to international trade. The periodic Conference of the Parties or COPs (143 signatories) decide on possible restrictions on trade depending on the degree of threat to a particular species. They may prohibit trade (listing the species on Appendix I, which currently contains 800 species) or regulate trade (by listing sepcies on Appendix II, which currently contains nearly 35,000 species) Countries may unilaterally list species in Appendix III. Proposals to list endangered tree species that are harvested commercially are highly controversial and to date seven species are listed on Appendix I, thirteen on Appendix II, and four on Appendix III. Species affected include Brazilian Rosewood, teak, and mahogany, sometimes listing only certain specimen types (ie. Logs, sawn wood, veneer sheets). Controversies arise from the practical and technical problems of differences between timber transport practices and CITES permit requirements, from the difficulty of recognizing specimens of some species, and regarding the role CITES should play regarding timber trade. A Timber Working Group formed at the 9th COP has helped to resolve some of the technical problems.

In the view of David Downes of the IUCN, CITES, has significant institutional capacity to address trade and conservation concerns relating to forests (a Secretariat, COPs, various committees and working groups, information exchange, management authorities from all Parties, scientific authorities responsible for implementation of CITES. Although CITES does not include financial mechanisms, some developed countries have provided bilateral assistance to developing country Parties. The Timber Working Group provides a flexible and practical approach to complex implementation efforts.

7.3 The Convention on Biological Diversity (22)

The Convention was concluded at Rio in 1992, and includes a comprehensive if sometimes contradictory regime for the protection of the world's biodiversity, including forests. With over 115 parties (excluding the US, which did not ratify it), its objectives are the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits of genetic resources.. (Article 1) It asserts the right of countries to exploit their own resources without causing damage to the environment of others (Art.2) , and their responsibility to develop national strategies for conservation and sustainable use of biodiversity (Art.6) The Convention seeks to promote both in-situ conservation of species and ex-situ conservation (Art. 8 and 9), incentive measures for conservation (Art.11), and promotion of research, training, public education and awareness, impact assessment and the minimizing of adverse effects (Art. 12, 13, 14). Its provisions regarding access to genetic resources (Art 15) attempts rather imperfectly to balance the sovereign rights of countries over their genetic resources with the demands for access to them from Northern biotechnological corporations.

The conservation obligations required in Article 8 include establishing protected areas; management of biodiversity resources to ensure conservation and sustainable use; protection of ecosystems, habitat, and viable populations of species in natural surroundings; rehabilitation of degraded ecosystems; protection from dangerous alien species; development of necessary legislative protections, management of adverse impacts on biodiversity; and co-operation with other countries, particularly developing ones.

The Convention also promotes inventive measures for biodiversity protection (Article 11), research and training (Article 12), public education and awareness (Article 13) impact assessment and minimizing adverse effects (Article 14), information exchange and technical and scientific cooperation (Article 17 and 19), and the establishment of financial resources and a financial mechanism (Articles 20 and. 21). It includes a largely consensual approach to dispute resolution (Article 27), in contrast to the litigious process of the WTO on trade matters.

Clearly, the CBD provides a full range of options for biodiversity protection, including that pertaining to forests, while recognizing economic interests throughout. It raises the significant question of what could be usefully added to its provisions by another international instrument, focused on forests.

7.4 Climate Change Convention

Although a full analysis of the impact of The United Nations Framework Convention on climate Change (FCCC) and the Kyoto Protocol are beyond the scope of this paper, (23) both agreements clearly have impacts on the management of forests in relation to international obligations on climate change. The Kyoto Protocol calls for reductions of net greenhouse gas emissions, considering
net changes in greenhouse gas emissions from sources and removals by sinks resulting from direct human-induced land-use change and forestry activities, limited to afforestation and deforestation since 1990...(Article 3)

The meaning of all of these terms are highly controversial, and implementation strategies are not resolved, including in Canada. The three implementation mechanisms provided for under the Protocol, joint implementation, emissions trading, and the clean development mechanism, all have potential significance for forests. At this time, controversy prevails regarding how (and whether) implementation will occur. Given the seriousness of the threats to forests of climate change, observed in Canada last year by increased numbers and intensity of forest fires, it appears that principled implementation of the climate change treaties by Canada could be one of the most useful and important contributions to forest protection, nationally and internationally.

7.5 NAFTA

While the North America Free Trade Agreement includes many similar provisions to those in the GATT, including a TBT chapter, it also includes an Investment chapter which does not exist in the GATT. The chapter includes an "investor-state" arbitration clause, with such broad definitions of "investment" and "expropriation" that corporations are increasingly using the provisions to claim compensation from governments for regulatory actions that reduce corporate profits. To date, four investor-state suits have been filed against Canada, and all have environmental implications. They are:
The Canadian government is currently attempting to qualify the impact of Chapter 11 of NAFTA
negotiations with the US and Mexican governments. However, it is not clear that these efforts will succeed, and the chapter remains a threat to all Canadian public policy initiatives which regulate corporate activity. This could apply to forest management schemes in many varied conditions.

7.6 Global Environment Facility (GEF)

This fund was first established in 1991 by the UN Development Program, UN Environment Program, and World Bank and is the funding mechanism for the Framework Convention on Climate Change and the Convention on Biological Diversity. It is designed to benefit the environment regarding climate change, biological diversity, international waters, and stratospheric ozone. Projects concerning desertification and deforestation relating to those subjects are also eligible for funding The GEF has 156 country participants, which may be eligible for GEF funds if they are eligible under the Climate Change and Biological Diversity conventions financial mechanisms, or certain World Bank and UN programs. It addresses forests though its biodiversity program, emphasizing an ecosystem approach with the goal of conserving forest biological resources through conservation areas and sustainable use forest management. The GEF currently has a portfolio of $1.6 billion in 230 projects (compared to the World Banks's $141 billion in 1.766 projects.) A recent independent evaluation found that the GEF has not succeeded in facilitating the mainstreaming of biodiversity or other global environmental concerns into the World Bank's programs and policies.

8. Civil liability in an international forest convention

Environmentalists have raised the question of whether an international forest convention could be used to prevent consumers from exercising their preferences and purchasing, for example, only FSC-certified wood.

First, it is only possible to speculate on the issue, absent the wording of a convention. Although the enforceability of international conventions is currently in flux, as the Pinochet case demonstrates, and although I can speak only to the Canadian domestic scene, it is generally the case that international conventions are not designed to create civil liabilities within domestic law. There are some exceptions, such as the NAFTA investor-state suits noted above, for which damage awards are enforceable domestically, but these examples are rare. International conventions generally include dispute settlement processes which do not include actions in domestic courts. In Canada, the signing and ratification of international agreements which touch on provincial areas of constitutional jurisdiction is an unresolved area of law, and strictly speaking, the powers of the federal government to sign and ratify such conventions are limited. Therefore, Canada does not ratify a significant number of international conventions which one would expect it to ratify; ILO conventions, for example.

Given that provinces have constitutional authority over forests in Canada, and given the practice of the federal government of including provincial representatives in negotiating delegations for international agreements, it seems unlikely that the two levels of government would agree to a convention with such strict and clear standards that it could be used to prohibit the exercise of consumer choice in purchasing. Considerable political and legal risks and difficulties for the governments could result if they did.

Regarding whether such a convention could be used outside Canada to mount a challenge against buyers who only buy certain certified products, it may possibly be used at the WTO, if an infraction of the trade regime were alleged, for governmental purchase decisions. It is difficult to see how it could be used against strictly private sector decisions.

I cannot comment on the implications of a convention within other domestic legal systems.

9 Conclusion

9.1 Utility of an international forest convention

Although an international effort to achieve a convention with a high standard of forest protection could be compatible with trade rules, it seems unlikely that governments would approach the negotiation with the goal of increased protection for forests.

Many influences in the international arena indicate that governments are very unlikely to agree to a convention that takes precedence, for forest protection purposes, over the current trade-biased rules of the WTO.

The Canadian government position is unlikely to favour a strong agreement to mesh with WTO rules and provide a high international standard for forest protection. The examples of Canadian actions to date on the CSA certification standard, at the WTO Committee on Technical Barriers to Trade, at the Committee on Trade and Environment, and during the TBT review all demonstrate a priority of trade over forest protection. The deplorable Canadian actions regarding the Biosafety Protocol further demonstrate the unwillingness of DFAIT to balance environmental protection when trade interests are involved.

9.2 Other opportunities for international forest protection

Eco-labeling by an international organization with considerable environmental credibility remains a preferred option for on-the-ground action to protect forests. As noted above, direct action in the market place, directed to private sector consumers, is not governed by WTO rules. The attempts by the Canadian government to extend TBT disciplines to "non-traditional" standard setters are dubious, so that even governmental purchasing decisions based on such standards are not clearly within WTO jurisdiction.

Trade Sanctions to achieve environmental purposes are broadly condemned by the international community. By their very nature, they are inequitable, being practically available only to strong countries for use against weaker ones. The impasse at the WTO regarding trade sanctions under existing multilateral environmental agreements demonstrates that such sanctions are unlikely to survive a trade challenge at the WTO. Further, it is not at all clear that this punitive, simplistic approach can result in beneficial environmental policy in the affected country. Effective policy formation generally requires a more thoughtful, complex and politically sophisticated process than will result from imposition of blunt trade sanctions.

Incentives in various forms can be utilized to improve environmental protection in other countries, and in my view, are the preferred approach in the international arena.

The background documents for the February Canadian Forest Workshop recognize that these possibilities exist regarding forest protection. Financial mechanisms and transfer of technology (Section A-3) and capacity building (Section A-5) indicate a recognition by the federal government that previous international discussions have identified these needs. Section A-3 calls for increased ODA (overseas development assistance); "innovative ways to use existing financial mechanisms and to generate new and additional public and private financial resources"; possible need for a new international fund for "management, conservation and sustainable development" of forests, particularly in developing countries; and the need for solutions to the debt problem including debt-for-nature swaps. General statements regarding the need for technological transfers are also made, but notably, donor countries made no commitments for either economic or technological support. The section on capacity building (Section A-5) again makes general statements about the need for increased training, public education, coordination, data-sharing, and forest research but no indication of commitments of funds from donor nations.

Tariff preferences: Within the trade regime, both the US and EU have Generalized Systems of Preferences which give tariff-reduction preferences to countries under certain conditions. The EU currently gives a tariff preference, for admission to its market, on products from countries that comply with the forest processing standards outlined by the Tropical Timber Organization

Existing international law: As discussed above, a plethora of international agreements already exists which could be utilized to enhance forest protection globally. Though far from adequate, these agreements include the necessary principles; use varied approaches to forest protection, and address North-South inequalities. A fundamental issue that arises from reviewing them is the lack of implementation that has followed their arduous negotiations, including by Canada. It appears clear that the work has already been done to reach international agreements sufficient to result in much enhancement of forest protection. Given their existence, and the many under-utilized opportunities they entail, good faith efforts to implement them would undoubtedly bring results that protracted negotiations for yet another forest convention negotiation would delay or preclude.

Existing financial mechanisms: The Global Environment Facility is an existing funding mechanism which, if adequately funded, could undoubtedly assist in innovative forest protection actions globally. As the workshop documents indicate, increased contributions from donor nations for foreign assistance, capacity building, and forest research, and serious attention to relief of developing country debts could contribute more to forest protection than any new legal instrument.





1. Workshop on international forest instruments, 'Guidebook", January 29, l999. The documents purport to reflect issues from UNCED Forest Principles, the Forest related chapters of Agenda 21, the final report of the Intergovernmental Panel on Forests, and elements of the Panel's work program. The section on trade (Annex A, Section D-2) promotes free trade in forest products consistent with trade law; decries "protectionism," emphasizes trade rules, and does not situate the trade focus within the wider context of the named documents, which include other conservation-oriented goals which qualify the blunt trade focus.

2. Agreement on Technical Barriers to Trade, Annex I, Articles 1 and 2

3. Agreement on Technical Barriers to Trade, Annex 3

4. See "An Environmental and First Nations Response to the Canadian Standards Association Proposed Certification System for Sustainable Forest Management," prepared by Michelle Swenarchuk and others for the Forest Caucus of the CEN, October 1995.

5. Downes, David, "Global Forest Policy and Selected Interantional Insruments and Institutions: A Preliminary Review" IUCN, January , 1999, p.23 and Hauselmann, Pierre, Certification and Labeling of Forest Products: Complementarity Between Trade and Forest Policy (Geneva: UNEP/IUCN, 1996) cited therein.

6. In the Matter of Canada's Landing Requirement for Pacific Cost Salmon and Herring, 1989; US Restrictions on Imports of Tuna, GATT doc. DS21/R; Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, GATT Doc. 375/200; US Standards for Reformulated and Conventional Gasoline WT/DS2/AB/R 1996 and WT/DS2/R/1996; EC Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada,WTO WT/DS48/R/Can. And WT/DS48/AB/R/1998, US Import Prohibition of Certain Shrimp and Shrimp Products WT/DS58R/

7. Sources include WTO Trade and Environment reports; Raghaven, Charkravarti, " The EU proposal on Environmental Treaties is Trade Restrictive" in Third World Economics, No. 132; Shahin, Magda, "Trade and Environment in the WTO: Achievements and Future Prospects", in Third World Economics, No. 156, 1997; and personal discussions with WTO delegate- participants in the CTE discussions.

8. Reprinted in Third World Economics, No. 152, Jan. 1-31, l997, pp.27-34.

9. American Lands Alliance, electronic transmission, February 24, l999.

10. "NAM CALLS FOR STRINGENT CONDITIONS ON USE OF UNILATERAL SANCTIONS," in Inside US Trade, March 7, 1997.

11. Canadian Intertrvention, Third Meeting of the Intergovernmental Panel on Forests Program Element IV, Trade and Environment, September 11, l996, pp.1-2

12. WTO Communication from Canada: "Elements of a Possible Understanding to the TBT Agreement", WT/CTE/W/21/G/TBT/W/21 February 21, l996.

13. See WTO committee on Technical Barriers to Trade First Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade DRAFT, 14 November 1997 and David Shortall Summary of Triennial Review, (undated) provided to the author by David Shortall, Department of Foreign Affairs and International Trade.

14. Shortall, ibid. Para.I

15. See comments referenced in Footnote 4 above.

16. Center for International Environmental Law, "The Application of trade Rules to Timber Ecolabeling Understanding the WTO Agreement on Technical barriers to Trade," January 1997, at p.46.

17. Hogg, Peter, Constitutional Law of Canada, 2nd. ed., Carswell, Toronto, 1985, at pp. 249 to 254.

18. See Downes, op.cit; Tarasofsky, Richard G."The International Forests Regime: Legal and Policy Issues, IUCN and World Wide Fund for Nature, December 1995; Tarasosky and Downes , "Global cooperation on forests through international institutions" December 1999, forthcoming.

19. These include the Ramsar Convention on Wetlands; the World Heritage Convention; The UNESCO Man and the Biosphere Program, International Labour Organization (ILO) Conventions 107 and 169 regarding indigenous peoples' rights; The UN Working Group on Indigenous Populations; the UN Food and Agriculture Organization; the World Bank and International Monetary Fund, the UN Environment Program, and the UN Development Progam.

20. Tarasofsky and Downes, op cit pp. 1-6

21. D. Humphries, "Hegemonic ideology and the ITTO, in J. Vogler and M. Imber (eds), The Environment and International Relations, at 224, quoted in Tarasofsky and Downes, p.6.

22. This section relies on the helpful summary of the CBD in Tarasofsky, Richard, op.cit.

23. For a more comprehensive review, see Downes, op.cit.