An analysis of the principal international and European legislative efforts that combat illegal international trade in tropical timber. How do CBD, CITES, ITTA and EU FLEGT interact and compare? A.W. Bruijnzeel (SNR:2026618) Supervisor: Professor A. Trouwborst Master’s Thesis International Law and Global Governance Thursday June 11th, 2020 US-English, APA references Word count: 12391

Abstract Illegal international trade in tropical timber occurs when there are violations of trade and transport regulations. This thesis distinctly maps, explains and compares the key international and European legal instruments in their efforts to directly or indirectly combat the illegal international trade in tropical timber. In short, CBD focuses on sustainable management of tropical forest and thereby addresses only part of the problem of illegal international tropical timber trade at its root, CITES aims to regulate the international trade in tropical timber species to the point that international trade does not threaten the survival of the species in the wild, the ITTA promotes the expansion and diversification of international trade in tropical timber from sustainable managed and legally harvested forests and the EU FLEGT only allows FLEGT- licensed products from countries that have VPAs with the EU and in turn excludes the illegal international trade in tropical timber. However, gaps and loopholes remain in the international and European framework and there is not enough of a specific focus on the illegal international trade in tropical timber in the international and European key legal instruments to effectively counter the problem.

2 Statement of integrity

3

4 Table of Contents

List of abbreviations ...... 7

1. Chapter 1: Introduction ...... 8

1.1. Background and relevance ...... 8

1.2. Clarification of the research/research gap ...... 9

1.3. Research questions and structure thesis ...... 10

1.5. Process of international illegal trade in (tropical) timber ...... 13

1.6. Timber species that are traded illegally most ...... 15

1.7. Overview of the principal international and European legislative efforts that combat the illegal international trade in tropical timber ...... 16

2. Chapter 2: The Convention on Biological Diversity ...... 19

3. Chapter 3: The Convention on International Trade in Endangered Species of Wild Fauna and Flora ...... 21

4. Chapter 4: The International Tropical Timber Agreement ...... 27

5. Chapter 5: The European Union Forest Law Enforcement, Governance and Trade Action Plan ...... 30

5.1. Introduction ...... 30

5.2. Voluntary Partnership Agreements ...... 31

5.3. The European Union Timber Regulation ...... 35

6. Chapter 6: Comparison and interplay ...... 37

6.1. Introduction ...... 37

6.2. Comparison of the principal legislative efforts ...... 37

6.3. Interplay of the principal legislative efforts ...... 39

7. Chapter 7: Conclusion ...... 42

References ...... 44

5 Appendix I Relevant Articles from the Convention on Biological Diversity ...... 49

Appendix II Relevant Articles from the Convention on International Trade in Endangered Species of Wild Flora and Fauna ...... 51

Appendix III Relevant Articles from the International Tropical Timber Agreement .... 59

6 List of abbreviations CBD Convention on Biological Diversity CITES Convention on International Trade in Endangered Species of Wild Flora and Fauna COP Conference of the Parties EU European Union EUTR European Union Trade Regulation EUWTR European Union Wildlife Trade Regulations FLEGT Forest Law Enforcement, Governance and Trade FSC Forest Stewardship Council INTERPOL International Criminal Police Organization ITTA International Tropical Timber Agreement ITTO International Tropical Timber Organization IUCN International Union for the Conservation of Nature MoU Memorandum of Understanding UN United Nations VPA Voluntary Partnership Agreement

7 1. Chapter 1: Introduction 1.1. Background and relevance Forests are the lungs of our planet, they are critical for stable CO2 emissions, and they regulate the Earth’s climate.1 Sustainable forest management is essential for the livelihood of local communities and the protection of biodiversity. However, according to the World Bank, an area of 1.3 million squared kilometers of forests was lost between 1990 and 2016 because of deforestation.2 To clarify, this is as much as 800 football fields of forests that are lost every hour.3 Even more concerning is that huge parts disappear through illegal logging. It is estimated by INTERPOL that between 15% and 20% of the wood traded globally originates from illegal timber logging.4 As forests are part of wildlife (wildlife includes all organisms in a specific area that have not been introduced by humans), illegally logged timber accounts for almost half of the illegal trade in wildlife.5 This is a massive issue, not only because of the reasons mentioned above, but also because governments lose enormous amounts of revenues that can for example be spent on sustainably managing the forests. To explain this point further, the report ‘The Environmental Crime Crisis’ classify illegal logging as: ‘the largest, least risky and most profitable illicit environmental industry’6 and place it in the box of environmental crimes:

‘The proceeds of environmental crime – which encompasses not just wildlife crime, but also fuel smuggling and illicit mining of gold, diamonds and other minerals and resources – have become the largest source of income for non-state armed groups and terrorist organizations. Combined, environmental crimes, including those that involve the sale or taxation of natural resources, account for 38% of the financing of conflicts and of non-state armed groups, including terrorist groups.’7

These numbers concern the complete category of illegal timber logging and related trade and are, to say the least, very worrisome. There are different estimates of the scale of illegal timber trade, ranging up to for it to be a global industry of US$152 billion per year.8 However, there are more distinctions that must be made in relation to timber trade, in particular the distinction

1 Bisschop, 2012. 2 World Bank, 2016. 3 World Bank, 2016. 4 INTERPOL Environmental Crime Programme, 2012. 5 International Union of Forest Research Organizations, 2016. 6 INTERPOL, RHIPTO and the Global Initiative Against Transnational Organized Crime, 2018, p. 8. 7 INTERPOL, RHIPTO and the Global Initiative Against Transnational Organized Crime, 2018, p. 8. 8 Foreign Agricultural Service, 2019.

8 of tropical timber from the bigger category of timber, and the distinction between the legal and illegal international trade of tropical timber.

1.2. Clarification of the research/research gap In the literature in recent years, there is a call for more international cooperation to combat illegal logging and related timber trade.9 However, a good number of years before that, Oldfield10 stated that tackling the illegality in the trade in timber requires major changes in approaches and in attitudes. One of these changes in behavior could be to utilize the existing legal framework to the fullest instead of focusing on the need to develop other instruments that tackle especially the illegal international trade in tropical timber. This idea touches upon the aim of this thesis. To clarify, specifically the key international and European legal instruments that combat the illegal international trade of tropical timber will be analyzed in this research. Particular focus is put on the framework of the European Union, because this is one of the, if not the, most structured and advanced international legal framework in the area of combatting the illegal international trade in tropical timber. To clarify, the attention of this paper is largely focused on the illegal international trade of tropical timber and not the illegal logging of tropical timber, even though the illegality of the logging may have a relationship to the illegality of the trade itself. This limit is created to make the research manageable and not too broad. This also means that the focus of this paper is not on the question whether or not there is a need for an international agreement that tries to combat the illegal trade of (tropical) timber, because that question has already been researched quite extensively in recent years11, but the focus is on mapping the key instruments in the international and European legal framework itself that combats the illegal international trade in tropical timber to see where there remain any gaps. Even though there are researches that focus on one of the legislative efforts that will be analyzed in this research in particular, they only focus either on one instrument, or they focus on the complete category of timber, tropical timber, or trade in timber. This thesis distinctly aims at mapping all the key international and European legislative efforts that directly or indirectly combat the illegal international trade in tropical timber. At the end of this research, a conclusion will be provided that ascertains whether or not there are gaps in this research and where there

9 See for instance Hoare (2015) and Kleinschmit, Mansourian, Wildburger & Purret (2016). 10 Oldfield, 2003. 11 See for instance Vanclay and Nichols (2005) or Eikermann (2015).

9 are possible opportunities for better protection of legal tropical timber trade and eradicate, or at least greatly reduce, the illegal international trade in tropical timber.

1.3. Research questions and structure thesis The main research question that will be addressed in this research is: ‘What are the principal international and European legislative efforts that combat illegal international trade in tropical timber, and how do they function, compare and interact?’

In the remaining part of this introduction, the distinctions and definitions that were mentioned before will be explained in greater depth. These distinctions and definitions will be for instance on what ‘illegal’ means in relation to tropical timber trade and what ‘illegal’ means in relation to tropical timber logging. In this part, the process of international illegal international trade in tropical timber will also be assessed and explained. This is necessary to understand the illegality of the trade in tropical timber. Only when the bigger picture is provided, it is possible to go into more depth. The research questions that correspond to this part of the thesis are mostly the ‘how-questions’ and consist of the following questions: - How are ‘(tropical) timber’ and ‘illegal international trade in (tropical) timber’ defined? - What are the dimensions of the illegal international trade in tropical timber? - How does the process of illegal international trade in tropical timber function?

Following up on this, this thesis aims at composing a coherent analysis of the principal international and European legal efforts that endeavor to combat illegal international trade in tropical timber. One of the ways in which this is done, is by evaluating in what way and in what intensity the legislative efforts mention the words ‘illegal’, ‘trade’, ‘tropical’ and ‘timber’. This is to assess how the legislative efforts aim at combatting the illegal international trade in tropical timber in a direct way with mentioning the topic researched. Moreover, the most significant and relevant articles in relation to combatting the illegal international trade in tropical timber will be explained and analyzed in relation to each legislative effort. Here it is important to assess in which way(s) these principles and rules combat the illegal international trade in tropical timber more indirectly, so without mentioning the illegal international trade in tropical timber, but with a focus on combatting it. This research is undertaken to understand whether the framework is used to the fullest extent or whether there are more unused possibilities to combat

10 illegal international trade in tropical timber. Each of these principal legislative efforts will be assigned a chapter for the purpose to go into greater depth in each legal instrument and to keep a clear structure so that it is easily distinguishable which efforts counter the illegal international trade in tropical timber in which way. The result of this is that in the second chapter, the Convention on Biological Diversity (CBD) will be explained and analyzed. The third chapter will do the same with the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), the fourth chapter will do this with the International Tropical Timber Agreement (ITTA) and the fifth chapter with the European Union Forest Law Enforcement, Governance and Trade (FLEGT) Action Plan. The main sub questions that correspond to this part of the thesis are: - What are the key international and European legal instruments that combat illegal international trade in tropical timber and how do they function? - In what way does each of these legal instruments aim to (effectively) combat the illegal international trade in tropical timber? - What are the most significant and relevant articles in the key international and European legislative efforts that combat the illegal international trade in tropical timber and how do they function?

In the sixth chapter, the principles and rules of CBD, CITES, ITTA and the EU FLEGT framework will be compared in relation to how they combat the illegal trade of tropical timber; an analysis will be made of how they interplay. Moreover, this chapter will also study the question whether there are any joint initiatives by the key legal instruments that combat the illegal international trade in tropical timber. It is relevant and important to look into this, as joint initiatives are often the result of and respond to a pressing issue that needs more attention. One way of tackling specific and critical issues like the illegal international trade in tropical timber is thus by working together and addressing the problem with new actions or alternative approaches. To sum up, this chapter thus addresses how the complete international legal framework of key instruments responds to the problem of illegal international trade in tropical timber. In order to answer the question: ‘How do the main international legislative efforts that combat the illegal international trade in tropical timber work and interplay?’, different sub questions must be answered. These are the following: - How do the legal instruments compare to each other? - Which of these articles are most strict in their wording?

11 - Are these legal instruments successful in tackling the illegal international trade in tropical timber? If yes, what makes each of these legal efforts successful? - Are there any joint initiatives set up by the key international and European legal efforts? If yes, what is their aim and how do they combat illegal international trade in tropical timber together?

1.4. Definitions and numbers In order to explain the far-reaching impact of the illegal international trade in tropical timber, first a definition on what illegal logging is, is given. After that, several numbers on illegal timber trade and illegal tropical timber trade will be provided. Oftentimes when illegal logging is mentioned in for instance policymaking, the whole spectrum of problems in relation to illegal forest activities is meant.12 These activities appear in all the different phases of forest management, from the moment a planning is made to start the harvesting, to the moment the final product is assembled. Illegal logging and related trade fall into the scope of illegal forest activities. Forestry crime describes the criminal activities in the forestry sector in the entire supply chain, from harvesting and transporting the forest products, to processing and selling them. Criminal offenses that facilitate these activities, such as document fraud, corruption and money laundering are also included in this definition.13 The illegal activities are for instance violations of indigenous peoples’ rights by logging in their territories, violations of forest management regulations (otherwise known as illegal logging), violations of trade and transport regulations, violations of industry legislation through illegal timber processing activities, and violations of financial and tax regulations.14 Illegal timber logging is thus defined as the harvest, transport, purchase or sale of timber that occurs in violation of a nation’s laws.15 In relation to the present topic, the violations of trade and transport regulations are the violations that are categorized as illegal timber trade, and this is thus what the focus will be on in this thesis. To continue, numbers on the range of illegal trade in timber differ immensely. Bisschop provides three different reasons for this. The first reason is that different stakeholders report different numbers, because they have different interests.16 The second reason for this is that there is not one accepted definition on what is regarded legal and illegal timber and related

12 Bisschop, 2012. 13 INTERPOL, 2019. 14 Tacconi, 2012. 15 Foreign Agricultural Service, 2019. 16 Bisschop, 2012.

12 trade.17 The third and final reason Bisschop gives is the fact that statistics are not complete, not even for CITES reports, because not all states (completely) report the knowledge or data they have on the illegal timber trade. 18 However, a few numbers can be provided that outline the enormous size and immense impact of the illegal trade in (tropical) timber. Numbers on illegal international (tropical) timber trade - In 2005 it was estimated that about half of the trade in tropical timber on the western and European markets was illegal.19 - 20 to 30 per cent of the regional timber trade in the whole of Central America is clandestine.20 - In the timber trade, the most common form or corruption is bribery.21 - 90% of Peruvian mahogany (a tropical hardwood) is estimated to come from illegal logging.22 Figure 1 Numbers on illegal timber trade

Tropical timber originates from the countries situated between the Tropic of Cancer and the Tropic of Capricorn.23 As briefly mentioned before, illegal timber trade consists of violations of transport and trade regulations. Transport is illegal when transport is not authorized due to reasons of ‘quota, biosafety, tariffs or trade bans’24, but also when excise duties are not paid, when species are misclassified or deliberately undervalued or when border authorities are corrupted.25 The highest supplying countries of tropical timber, both illegal and legal tropical timber, are Indonesia (50% illegal), Brazil (25% illegal) and Malaysia (10% illegal) with China and India as highest importing countries of tropical timber.26 Of this tropical timber, tropical hardwood has been the primary species that is associated with illegal timber trade.27

1.5.Process of international illegal trade in (tropical) timber To properly explain the process of the international illegal trade in timber, first the timber production process needs to be explained. Figure 2 distinguishes legal production from

17 Bisschop, 2012. 18 Bisschop, 2012. 19 Jaakko Pöyry Consulting, 2005. 20 Wells, del Gatto, Richards, Pommier, & Contreras-Hermosilla, 2012. 21 INTERPOL, 2019. 22 Foreign Agricultural Service, 2019. 23 Article 2 under 1 of the International Tropical Timber Agreement, opened for signature on 27 January 2006, entered into force on 7 December 2011. 24 Bisschop 2012, p. 194. 25 Bisschop 2012. 26 Hoare, 2015. 27 Hoare, 2015.

13 legalized production and from clandestine production in the forest production in Central America. This figure can also be used to explain the (tropical) timber logging in general. Legal timber is logged in confirmation with all the applicable laws. Legalized production and clandestine production together comprehend the illegal timber logging. Legalized production is ‘timber fraudulently legalized at the stump, in transport or in processing’28 by for instance mixing legal production with illegal production or by using a transport permit for one load of timber multiple times. CITES permits and Forest Stewardship Council (FSC) labels are often falsified to get the documents needed to legalize illegal (tropical) timber.29 However, the most commonly used way to hide the import and/or export of illegally logged timber is by mixing the legal and illegal wood.30 Illegal timber crosses the borders of countries as a legal product that is laundered.31 This load of timber will have the official documents, the fees will have been paid for it and official statistics will include the legalized production of timber. In contrast to legalized production, clandestine production has none of the documentation, the fees have not been paid for it, and the timber is not registered in official statistics.32

Figure 2 Legal, legalized and clandestine production of timber.33

National legislation has no jurisdiction in the countries that the legalized timber has been shipped to. This results in challenges, because only through specific operations or by special agreements, this type of crime can be detected and stopped. Yet, there are great incentives for those that are involved to keep the illegal trade going. Once for instance a specific company is closed down by a government, in many cases the cover up operations will continue elsewhere

28 Wells, del Gatto, Richards, Pommier, & Contreras-Hermosilla, 2012, p. 142. 29 Bisschop, 2012. 30 INTERPOL, 2019. 31 INTERPOL Environmental Crime Programme, 2012. 32 Wells, del Gatto, Richards, Pommier, & Contreras-Hermosilla, 2012. 33 Wells, del Gatto, Richards, Pommier, & Contreras-Hermosilla, 2012, p. 142.

14 in the country.34 More advanced laundering operations will take place instead, making it harder to stop this crime from occuring. Yet, these ways of illegal trade are only possible because of large cashflows from investors all over the world, but specifically from Asia, the European Union and the United States.35 These investments also include large sums of money from pension funds36, as illegal timber logging and trade are lucrative sources of wealth. Pension funds make money available to establish plantations that launder illegally sourced timber and get valid permits in illegal ways. This results in revenues that are fivefold to tenfold than what it would be if all done legally.37

1.6. Timber species that are traded illegally most The species of timber that are most often targeted for illegal logging and related trade are the highly valuable, often rare and endangered, species that are protected under regulations.38 Gan et al.39 explain this phenomenon with the help of economic theory: many tree species that are rare and endangered have higher economic value than other tree species, because of their unique characteristics and these values positively relate to rarity and scarcity. Because the value is higher, incentives are created to illegally harvest and trade them. This, in turn, results in the rarity of the species, driving up their status that they are threatened species and possibly resulting in their extinction. Figure 3 represents this vicious cycle.

Figure 3 Vicious cycle on scarcity, value, and illegal logging and trade.40

34 INTERPOL Environmental Crime Programme, 2012. 35 INTERPOL Environmental Crime Programme, 2012. 36 Idem. 37 Idem. 38 Gan, 2016. 39 Gan et al., 2016. 40 Gan, 2016, p. 38.

15 The main species that fall into this category are mahogany (often used for cabinets and furniture), rosewood (suitable for guitars, furniture and luxury flooring) and ebony wood (often used in small pieces, like the black pieces in chess).41 Moreover, countries that have had a rapid growth in overall hardwood trade are the places where there is the most risk for illegality in tropical hardwood trade.42

1.7. Overview of the principal international and European legislative efforts that combat the illegal international trade in tropical timber As there is not one overarching global agreement that tackles all the problems related to the illegal logging of tropical timber and related trade, it is of essence to provide the main instruments in the international and European legal framework that together combat the problem of illegal logging and related illegal trade. In relation to these international regulations, it will be outlined and made clear how many countries are part of it and how exactly the legislative effort relates to or combats the illegal international trade in tropical timber. Reach Name legislative effort Effective on Parties International Convention on Biological Diversity (CBD) 29 196 Parties: December the EU and 1993 195 countries International Convention on International Trade in 1 July 1975 183 Parties: Endangered Species of Wild Fauna and Flora the EU and (CITES) 182 countries International International Tropical Timber Agreement 7 December 74 Parties (ITTA) 2011 European Communication from the Commission to the 21 May European Union Council and the European Parliament - Forest 2003 Union Law Enforcement, Governance and Trade (FLEGT) - Proposal for an EU Action Plan /* COM/2003/0251 final */. European Commission Regulation 2173/2005/EC on the 20 European Union establishment of a FLEGT licensing scheme for December Union 2005

41 Huang & Sun, 2013. 42 Hoare, 2015.

16 imports of timber into the European Community (EU FLEGT) European Commission Regulation 1024/2008/EC laying 17 October European Union down detailed measures for the implementation 2008 Union of Council Regulation (EC) No 2173/2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community (EU FLEGT) European Regulation (EU) 995/2010 of the European 20 October European Union Parliament and of the Council laying down the 2010 Union obligation of operators who place timber and timber products on the market European Commission Delegated Regulation (EU) 23 February European Union 262/2012 on the procedural rules for the 2012 Union recognition and withdrawal of recognition of monitoring organizations as provided for in Regulation (EU) No 995/2010 of the European Parliament and of the Council laying down the obligations of operators who place timber and timber products on the market. European Commission Implementing Regulation (EU) No 6 July 2012 European Union 607/2012 on the detailed rules concerning the Union due diligence system and the frequency and nature of the checks on monitoring organisations as provided for in Regulation (EU) No 995/2010 of the European Parliament and of the Council laying down the obligations of operators who place timber and timber products on the market. Table 1 Overview international legal framework that combats illegal international trade in tropical timber

These international legal instruments focus on different areas of environmental law, but all in some way combat the illegal international trade in tropical timber. For instance, the Convention on Biological Diversity’s main focus is on the sustainable use of natural resources, while CITES

17 mainly tries to regulate the trade in species that are endangered. In the next four chapters, these legislative efforts will be extensively analyzed in relation to how they combat the illegal international trade in tropical timber, beginning with CBD, then continuing onto CITES, the ITTA and finishing with the EU FLEGT framework that consists of the Regulations by the European Union mentioned above in table 1. This structure is chosen so that a logical flow occurs between the overall international legal framework of CBD, CITES and ITTA to the European legal framework of FLEGT.

18 2. Chapter 2: The Convention on Biological Diversity Beginning with The Convention on Biological Diversity (CBD), CBD aims to conserve biodiversity, to sustainably use biodiversity and to share fairly and equitably the benefits arising from the use of genetic resources.43 In short, the aim of the CBD is to encourage actions that lead to a sustainable future. The CBD opened for signature on 5 June 1992 and entered into force about one and a half year later, on 29 December 1993. Some scholars state that CBD has few binding principles that counter illegal timber trade. 44 However, although the text of the Convention does not mention tropical timber, timber, or forests, CBD is relevant in combatting the illegal international trade in tropical timber through articles 8 and 10. These articles are added in Appendix I to this thesis. Beginning with article 8 In-situ Conservation, this article ensures an obligation for the Contracting Parties to classify areas as protected areas where measures must be installed that conserve the biological diversity in that area.45 There is an obligation for Parties to promote the protection of viable populations of species in natural surroundings and to promote the recovery of threatened species. Also, where a significant adverse effect on biological diversity has been determined (in relation to article 7), the relevant processes and categories of activities need to be regulated and managed. One of the activities that cause a significant adverse effect on biological diversity are the illegal activities associated with illegal logging and related trade.46 Article 10 of the Conservation on Biological Diversity is concerned with the sustainable use of components of biological diversity. There is an obligation for each Contracting Party to ‘integrate consideration of the conservation and sustainable use of biological resources into national decision-making’47, as well as to adopt measures that avoid or minimize adverse impacts on biological diversity and to encourage cooperation between governmental authorities of the Contracting Party and the private sector to develop methods for sustainable use of biological resources48. These measures are mostly focused on combatting the illegal logging of tropical timber and not necessarily on combatting the illegal international trade in tropical timber. However, when the areas where tropical timber is logged are managed sustainably and it is made sure that adverse impacts on biological diversity are avoided or minimized, this means that it is against the treaty to unsustainable log tropical timber. The illegal logging of tropical

43 Article 1 of the Convention on Biological Diversity, opened for signature on 5 June 1992, entered into force on 29 December 1993. 44 Hansen, Panwar and Vlosky, 2013. 45 Article 8 under b and c of the CBD. 46 CBD, 2005. 47 Article 10 under a of the CBD. 48 Article 10 under b and e of the CBD.

19 timber is unsustainable. This is thus partly an effective way of combatting the illegal international trade in tropical timber by tackling the problem largely at the root of the illegal international trade in tropical timber, so where the illegal logging occurs. CBD is accordingly relevant to combatting the illegal international trade in tropical timber in a more indirect way. As the Convention focuses on biodiversity, it also implicitly focuses and understands the enormous importance and impact of sustainable forest management on the preservation of biodiversity.49 The Conference of the Parties 11 to the CBD stated in their overall findings that:

‘Illegal activities associated with logging and timber trade and their effects on forest biodiversity can occur at the land allocation, harvest, transport, processing, accounting, taxation, and trade levels (annex II). Therefore, analysing the impacts of unauthorized (illegal) activities on forest biological diversity presents several difficulties as it is an inherently multi-dimensional issue. Other complications arise. It is generally assumed that illegal logging has worse impacts than legal logging, but this is not demonstrated to be true in all cases. Finally, legal logging and associated trade can have, without incorporating technically sound biological considerations, negative impacts on forest biodiversity.’50

In short, the COP to CBD state that there is a problem in relation to how the illegal international trade in tropical timber can be countered, as it is a multi-dimensional issue. The CBD is, however, relevant through articles 8 and 10 of the Convention, but it lacks the ability to counter the issue directly.

49 Rosendal, 2006. 50 Convention on Biological Diversity, 2005.

20 3. Chapter 3: The Convention on International Trade in Endangered Species of Wild Fauna and Flora CITES is one of the most important international instruments that deals with illegal international trade. This Convention is the only instrument that requires Parties to criminalize illegal trade in species that are included in the Appendices.51 In short, CITES aims to regulate the international trade in specimens to the point that international trade does not threaten the survival of the species in the wild. CITES entered into force on the 1st of July 1975 and currently has 183 Parties. The way in which CITES works is that it provides a legal framework, meaning that all the Parties must implement CITES into their national legislation in order to become effective. About 30,000 species of plants are protected under CITES, amongst which are also species of tropical timber. The species in this convention are classified into three Appendices according to how threatened they are by international trade, with Appendix I species as the most threatened. Appendix I lists the species that are threatened with extinction which are or may be affected by trade.52 Strict regulations must apply to the trade in specimens of these species, in order not to endanger their survival further and only in exceptional cases, this trade is allowed.53 Appendix II ‘shall include all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival and other species which must be subject to regulation in order that trade in specimens of certain species referred to in Appendix I may be brought under effective control’54. Appendix III ‘shall include all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the cooperation of other Parties in the control of trade’.55 Appendices I and II are lists of protected species that are agreed upon internationally, while Appendix III contains species that have been added unilaterally by States and are species that need protection in specific individual countries, but not internationally. The trade of species listed in either Appendicex I, II or III are respectively regulated in articles 3, 4 and 5 of CITES, with article 3 having the strictest and most extensive rules for trade and article 5 the least strict of the three. This following example will show how CITES works in practice. In 2019, INTERPOL wrote a report on Global Forestry Enforcement and in this

51 Schloenhardt, 2008. 52 Article 2 under 1 of CITES. 53 Article 2 under 1 of CITES. 54 Article 2 under 2 of CITES. 55 Article 2 under 3 of CITES.

21 report, they provided information about a case study in West African countries between March 2016 and February 2017 in relation to the issue of transnational illegal timber trade that was becoming more and more pressing.56 Intelligence officers from INTERPOL analyzed the information they were given by the countries that were affected by the illegal international trade in timber and came to the conclusion that the law enforcement agencies in the West African countries were quite weak and were unable to manage timber trafficking at the borders between the West African countries themselves.57 One other issue that became clear was that the documentation for importing and exporting the timber was unclear or not established. They found out that West African rosewood, otherwise called Pterocarpus erinaceous, was subjected to illegal trade the most. This eventually led to the inclusion of the West African rosewood in Appendix II of CITES instead of Appendix III (where it came from). Listing it in Appendix II meant that all trade in those species requires the prior grant and presentation of an export permit.58 These permits would only be granted if: ‘ a) a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of the species; b) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; and c) a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.’59. This is a difference as to when the species would be listed in the less protective Appendix III. For species listed in this appendix, sub b and sub c of article 4 under 2 are also required but sub a is not present. This means that species listed in Appendix III do not need a Scientific Authority of the State of export to advise that such export will not be detrimental to the survival of the species. Table 2 shows a number of tropical timber species that are listed in CITES in Appendix I, Appendix II and Appendix III.60

56 INTERPOL, 2019. 57 INTERPOL, 2019. 58 Article 4 CITES. 59 Article 4 under 2 CITES. 60 UNEP-WCMC and CITES Secretariat, (2020). Retrieved from https://www.speciesplus.net/species.

22 Appendix Scientific name English name Listed since Appendix I Abies guatemalensis Guatemalan fir 01/07/1975 Araucaria Araucana Monkey puzzle tree 13/02/2003 Dalbergia nigra Brazilian rosewood 11/06/1992 Fitzroya cupressoides Alerce 22/10/1987 Pilgerodendron uviferum Pilgerodedron 01/07/1975 Podocarpus parlatorei Parlatore’s podocarp 01/07/1975 Appendix Aniba rosaeodora Brazilian rosewood 12/06/2013 II Bulnesia sarmientoi Galacwood 02/01/2017 Paubrasilia echinata Pernambuco 13/09/2007 Caryocar costaricense Ajillo 26/11/2019 Dalbergia baronii Madagasy rosewoods 26/11/2019 Dalbergia cochinchinensis Thailand rosewood 26/11/2019 Dalbergia darienensis Leguminosae 26/11/2019 Dalbergia granadillo Granadillo rosewood 26/11/2019 Dalbergia pervillei Black rosewood 26/11/2019 Dalbergia stevensonii Honduras rosewood 26/11/2019 Gonystylus bancanus Ramin 26/11/2019 Oreomunnea pterocarpan Gavilan 26/11/2019 Osyris lanceolata African sandalwood 12/06/2013 Pericopsis elata African Teak 26/11/2019 (Afrormosia) Platymiscium parviflorum Cristobal graradillo 26/11/2019 Prunus africana African rosewood 26/11/2019 Pterocarpus santalinus Red sandalwood, 13/09/2007 redsanders Senna meridionalis Taraby 12/06/2013 Swietenia humilis Pacific Coast 26/11/2019 mahogany Swietenia macrophylla Bigleaf mahogany 26/11/2019 Swietenia mahagoni Caribbean mahogany 18/09/1997

23 Appendix Cedrela fissilis61 Argentine cedar 26/11/2019 for III Bolivia and Brazil Cedrela lilloi62 Cedro 26/11/2019 for Bolivia and Brazil Cedrela odorata63 Spanish cedar 26/11/2019 for Bolivia, Brazil, Colombia, Guatemala and Peru. Dipteryx panamensis Almendro 13/09/2007 for Nicaragua and 13/02/12003 for Costa Rica. Magnolia lifiifera varieties Magnolia 23/06/2010 for obovate Nepal. Pinus koraiensis Korean pine 14/10/2010 for the Russian Federation. Podocarpus neriifolius Podocarp 23/06/2010 for Nepal. Tetracentron sinense Tetracentron 13/09/2007 for Nepal. Table 2 Tropical timber species listed in CITES64

Mahogany and rosewood are two species that appear in the appendices of CITES quite often and the listing of these species shows that they are the species that need protection most. On

61 This species is now listed under Appendix III by Bolivia and Brazil (both listed since 26/11/2019). However, this species will instead be listed under Appendix II from 28 August 2020 onwards. When it is listed as an Appendix II-species, the Appendix III-listings will be deleted. 62 This species is now listed under Appendix III by Bolivia and Brazil (both listed since 26/11/2019). However, this species will instead be listed under Appendix II from 28 August 2020 onwards. When it is listed as an Appendix II-species, the Appendix III-listings will be deleted. 63 This species is now listed under Appendix III by Bolivia, Brazil, Columbia, Guatemala and Peru (listed since 26/11/2019). However, this species will instead be listed under Appendix II from 28 August 2020 onwards. When it is listed as an Appendix II-species, the Appendix III-listings will be deleted. 64 UNEP-WCMC and CITES Secretariat, (2020). Retrieved from https://www.speciesplus.net/species.

24 the one hand, coming back to the analysis made by Gan65, their listing also means that these species are more and more likely to be traded illegally. Their scarcity and unique values put them in a more fragile position in this way. Nonetheless, on the other hand, because they are listed, they are also under more protection. There is thus a constant tension between listing the species for more protection while also risking the wellbeing of the species by listing them, because it makes them more wanted. In relation to the listing of species, parties to this Convention are also able to make reservations. This means that during a period of 90 days after the amendment of Appendix I and II, any Party may make a reservation with respect to the amendment.66 When referring to an ‘amandment’ here, it either means that a species is added to Appendix I or Appendix II to the Convention. An example of a reservation regarding a species of tropical timber is the reservation of Dalbergia darienensis (a type of Leguminosae rosewood) by India.67 This reservation is in effect from 02/01/2017 onwards for the species listed in Appendix II and states the following: ‘Dalbergia spp. (except for the species listed in Appendix I)’68. The type of species is mentioned, if relevant the living area of the species is given, and if applicable, the Appendix to which the species belongs is provided. When a Party has a reservation, it means that until such a reservation is withdrawn, the Party must be treated as a State not a Party to the Convention with respect to the trade in the species concerned.69 This makes the Convention on the one hand less effective, because a State can make as many reservation as it wants, but on the other hand, by having this possibility, more countries are party to CITES, because it means they have the possibility to make reservations in regard to certain species they do not want to have restrictions on. On top of this, for some of the species listed, there are quotas in place. For instance, for the Bulnesia sarmientoi (listed in Appendix II), Paraguay entered an export quota of 250,000 kg of extract and 1,400,000 kg of wood.70 The possibility of establishing export quotas comes was established during the Conference of the Parties 1571 and the export quotas usually in place for one year by a Party. The export quotas are a management system that provide for the possibility to monitor the trade. This means that every time a shipment is planned for a listed

65 Gan, 2016. 66 Article 15 of CITES. 67 CITES, 2019. 68 CITES, 2019, p. 7. 69 Article 15 CITES. 70 UNEP-WCMC and CITES Secretariat, (2020). Retrieved from https://speciesplus.net/#/taxon_concepts/23851/legal 71 CITES Conference of the Parties 15, Resolution Conference 14.7 (Revisited in CoP 15): Management of nationally established export quotas, 2010.

25 species, a non-detriment finding is not necessary as long as the quota is not reached. This makes the trade simpler, but the quota acts as a safeguard and will make it impossible to trade the species when the international trade is detrimental to the survival of that species. All in all, CITES is an effective way of countering the illegal international trade in tropical timber for the species that are protected under one of the Appendices. However, even in relation to these species, there are exceptions possible that lead to less protection, for instance through the option of making reservations in relation to a specific species.

26 4. Chapter 4: The International Tropical Timber Agreement The United Nations International Tropical Timber Agreement (ITTA) entered into force on the 7th of December 2011. This is the only international agreement that mainly and only focuses on tropical timber. Tropical timber is defined in the ITTA as ‘non-coniferous tropical wood for industrial uses, which grows or is produced in the countries situated between the Tropic of Cancer and the Tropic of Capricorn. The term covers logs, sawn wood, veneer sheets and plywood. Plywood which includes in some measure conifers of tropical origin shall also be covered by this definition.’72. The ITTA’s objectives are ‘to promote the expansion and diversification of international trade in tropical timber from sustainable managed and legally harvested forests and to promote the sustainable management of tropical timber…’73. Article 1 continues with summing up 19 ways through which this objective will be reached. Six of these ways refer to the word ‘trade’: Objective Content b Providing a forum for consultation to promote non-discriminatory timber trade practices. h Improving market intelligence and encouraging information sharing on the international timber market with a view to ensuring greater transparency and better information on markets and market trends, including the gathering, compilation and dissemination of trade related data, including data related to species being traded. k Improving marketing and distribution of tropical timber and timber product exports from sustainably managed and legally harvested sources and which are legally traded, including promoting consumer awareness. l Strengthening the capacity of members for the collection, processing and dissemination of statistics on their trade in timber and information on the sustainable management of their tropical forests. m Encouraging members to develop national policies aimed at sustainable utilization and conservation of timber producing forests, and maintaining ecological balance, in the context of the tropical timber trade. n Strengthening the capacity of members to improve forest law enforcement and governance and address illegal logging and related trade in tropical timber.

72 Article 2 under 1 ITTA. 73 Article 1 ITTA.

27 Even though the ITTA refers directly to countering the illegal international trade in tropical timber, the obligations on the members are not very strict as these are objectives that the ITTA is trying to reach, but the ITTA is reliant on the Members to take action and there are not any strict obligations that can be imposed on the Members. Hence, the ITTA functions in a different manner than CBD and CITES. The membership of the ITTA is divided into countries that are producer countries and that are consumer countries of tropical timber.74 Producer countries have tropical forest resources and/or export tropical timber and are a party to the agreement. Consumer countries are importers of tropical timber and are a party to the agreement. The highest authority of the International Tropical Timber Organization (ITTO) is the International Tropical Timber Council (ITTC) and all the members are represented in the Council by a representative.75 In spite of the fact that the words ‘illegal trade’ are mentioned only once in the agreement, in article 28 on the ‘Annual Report and Biennial Review’, the Council is the authority that deals with the illegal international trade in tropical timber. This article states that the council has an obligation to assess in a biannual review the international timber situation and other issues and developments that are relevant to the objectives mentioned in the beginning of the agreement. Under 3 sub e of article 28, it is required that ‘the review shall be carried out in the light of ‘information supplied by members on their progress towards the establishment of control and information mechanisms regarding illegal harvesting and illegal international trade in tropical timber and non-timber forest products’. This accordingly means that the ITTO must report on, amongst others, developments that are relevant to the illegal trade of tropical timber. However, ITTO is depending on both producer and consumer countries on the data, only in some instances, the ITTO is responsible themselves on getting the data. In order to collect all the necessary data, the ITTO needs enough funding itself. Therefore, the result of this is that there are a lot of factors on which the ITTO is dependent in getting accurate and complete data. In short, these are the articles that are most relevant in relation to how the ITTA counters the illegal international trade in tropical timber. However, there are some other comments that must be made in relation to the strength of these articles. Brazil and some other producer countries have made strong reservations in relation to the obligation that the countries need to review information that is supplied by signatories on illegal international trade in tropical timber.76 Brazil, in particular has a reservation in relation to an interpretation of a term: ‘For

74 Article 4 ITTA. 75 Article 6 ITTA. 76 Gulbrandsen and Humphreys, 2006.

28 the purpose of this Article, illegal logging means an activity, or a series of activities, considered a contravention to the national law of a producer country and therefore must be addressed exclusively within the exercise of the law enforcement prerogative of that State.’77. All in all, the ITTA forms an Agreement that has evolved from not recognizing that there were problems in the forest sector in the first Agreement to a framework that is focusing more and more on the illegal international trade in tropical timber.78 However, ITTA does not have a(n) (effective) regulatory system like CITES or FLEGT in place, meaning that the possibility to tackle the illegal international trade in tropical timber is reduced to encouraging members to take action and by setting up for instance projects or joint initiatives based on the objectives of this Agreement.

77 Reservation by Brazil to the International Tropical Timber Agreement 2006. 78 Gulbrandsen and Humphreys, 2006.

29 5. Chapter 5: The European Union Forest Law Enforcement, Governance and Trade Action Plan 5.1.Introduction In 2003, the European Union Forest Law Enforcement, Governance and Trade Action Plan79 (EU FLEGT Action Plan) was adopted. This Action Plan is an initiative from the European Union to address the problem of illegal logging in the world’s forests and associated trade. It attempts to tackle the social, economic and environmental harm illegal logging and related trade causes, and it does that by implementing 7 measures: 1. Support countries that produce timber, 2. Promote the trade in timber that is logged legally, 3. Promote public procurement policies that are environmentally and socially beneficial, 4. Support initiatives from the private sector, 5. Put financing and investment safeguards in place, 6. Use existing or new legislation, and 7. Address the problem that is conflict timber.80

By implementing these measures, both the demand and the supply side of timber are being regulated in order to cover all elements of the trade in timber. For instance, the supply side is regulated by the first measure: support countries that produce timber, and the demand side is regulated by the sixth measure: the use of existing or new legislation. In this Action Plan, two consecutive actions were envisaged: the creation of ‘reliable systems which can distinguish legal from illegal production… to provide credible guarantees to the market that timber has been legally harvested’81 in other words, partnership agreements with countries that produce timber82, and the creation of new legislation ‘to control imports of illegally harvested timber into the EU’83 . Together they try to ensure that only legally harvested timber gets imported into the European Union (and eventually major consumer markets in other places of the world)84.

79 Communication from the Commission to the Council and the European Parliament - FLEGT - Proposal for an EU Action Plan /* COM/2003/0251 final */, p.7. 80 Idem, p. 7. 81 Ituarte-Lima, Dupraz-Ardiot and McDermott, 2019. 82 Communication from the Commission to the Council and the European Parliament - FLEGT - Proposal for an EU Action Plan /* COM/2003/0251 final */. 83 Idem, p.15. 84 Idem, p. 3.

30 5.2. Voluntary Partnership Agreements To begin with the creation of the bilateral partnerships. Through Regulation 2173/200585, a FLEGT licensing scheme for imports of timber into the European Community was established. This licensing scheme was extended by Regulation 1024/200886 and lays down detailed measures for the FLEGT licensing scheme. These bilateral partnerships between the EU and a timber-exporting country outside of the EU are called Voluntary Partnership Agreements (VPAs). When a VPA is entered into by countries outside of the EU, they agree that they will work on improving and streamlining their forest laws, developing a definition of ‘legal wood’ and creating a system of legality licensing for wood that enters the market of the European Union.87 Usually, five elements are included in a VPA: a definition of legal timber, a procedure that verifies the supply chain, tools for verifying the supply chain and the capacity to be able to use them, details on which authority will give out the licenses and in what way, and an independent audit not linked to either the EU or the country the VPA is agreed upon with. These are bilateral agreements, meaning that the EU could have a different working definition of legal wood with one VPA-country than with another VPA country. Once a timber- exporting country has a VPA with the EU, only legally licensed timber is allowed in the EU.88 The next step in the VPA process is then to start the FLEGT-licensing. Once timber has a FLEGT-license, it guarantees that the timber is legal. However, as of May 2020, only one country has started the FLEGT-licensing: Indonesia. (In the sixth chapter, this licensing scheme will be explained in more depth.) In table 4 below, an overview is provided on the countries that either have an existing Voluntary Partnership Agreement, that have initialed one or are negotiating one. When no VPA is yet established, but there is communication between the EU and a timber-exporting country, a distinction can be made between a VPA initialed partner country or a VPA negotiating partner country.

85 Council Regulation 2173/2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community. (2005). 86 Commission Regulation (EC) 1024/2008 laying down detailed measures for the implementation of Council Regulation (EC) No 2173/2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community. (2008). Official Journal of the European Union L277, p. 23-29. 87 Ituarte-Lima, Dupraz-Ardiot and McDermott, 2019. 88 Ituarte-Lima, Dupraz-Ardiot and McDermott, 2019.

31 Type of VPA VPA Parties Name Partnership effective on FLEGT-licensing 1 May 2014 The EU and Indonesia Indonesia – EU Voluntary partner Partnership Agreement VPA 1 December The EU and Ghana Ghana – EU Voluntary implementing 2009 Partnership Agreement partner VPA 1 December The EU and Cameroon Cameroon – EU Voluntary implementing 2011 Partnership Agreement partner VPA 1 July 2012 The EU and the Central Central African Republic – implementing African Republic EU Voluntary Partnership partner Agreement

VPA 1 March The EU and the Republic of the Congo – EU implementing 2013 Republic of the Congo Voluntary Partnership partner Agreement VPA 1 December The EU and Liberia Liberia – EU Voluntary implementing 2013 Partnership Agreement partner VPA 1 June 2019 The EU and Vietnam Vietnam – EU Voluntary implementing Partnership Agreement partner VPA initialed - The EU and Guyana - partner VPA initialed - The EU and Honduras - partner VPA negotiating - The EU and the - partner Republic of Côte d’Ivoire VPA negotiating - The EU and the - partner Democratic Republic of the Congo (DRC)

32 VPA negotiating - The EU and the - partner Gabonese Republic VPA negotiating - The EU and the Lao - partner People’s Democratic Republic VPA negotiating - The EU and Malaysia - partner VPA negotiating - The EU and Thailand - partner Table 3 Overview existing, initialed and negotiated VPAs

In these timber regulations, when speaking of timber, the term refers to roundwood and rough sawn wood.89 However, because this definition (and thus scope of the EU FLEGT Action Plan) is broader than the scope of this paper, the focus of the EU FLEGT Action Plan will be that in relation to tropical timber for this paper. In 2019, the EU FLEGT Facility reported that 15 tropical timber-exporting countries work with the EU to halt illegal logging and promote responsible use of the world’s forests. These include the countries that are either negotiating or implementing FLEGT agreements with the European Union. 80% of the total global tropical timber trade comes from these 15 countries that the EU is working with in relation to the EU FLEGT Action Plan.90 In 2017, a total of 18.17 billion euros worth of timber products were imported into the EU, of that, 3.78 billion euros worth of timber products came from tropical countries.91 Of these timber- exporting countries, all of them are located within the tropics, which means that they all export tropical timber. All in all, the total percentage of tropical timber products imported into the EU from all VPAs was 75% in 2017.92 An example of what a FLEGT license under Regulation 1024/2008 looks like is provided for in figure 4. One of the advantages of this way of licensing is the fact that besides this document, no further due diligence is necessary. By being able to license, the timber that is traded is automatically legally harvested according to the applicable laws of the exporting country.

89 Communication from the Commission to the Council and the European Parliament - Forest Law Enforcement, Governance and Trade (FLEGT) - Proposal for an EU Action Plan /* COM/2003/0251 final */, p.3. 90 FLEGT Independent Market Monitor, 2016. 91 FLEGT Independent Market Monitor, 2017. 92 FLEGT Independent Market Monitor, 2017.

33

Figure 4 a FLEGT license.93

93 Commission Regulation (EC) 1024/2008, p. 27.

34 5.3. The European Union Timber Regulation Then continuing to the component referred to as ‘new legislation in the European Union’ in the Action Plan: The European Union Timber Regulation (EUTR)94.The aim of EUTR is to prevent illegally harvested timber from being placed on the EU market, as the EU recognizes that illegal logging and associated trade have become matters of great concern due to the growing demand for timber and timber products worldwide in a world with institutional and governance deficiencies present in the forest sector in a number of timber-producing countries.95 This is consummated by assigning obligations on operators, who place the timber on the market in the EU for the first time, and traders, who trade in timber on the international market. There are three principal obligations of operators: firstly, it is forbidden to place illegally harvested timber on the internal market, secondly, operators must exercise due diligence, and thirdly, traders must keep track of their suppliers and customers.96 As for traders in the EU, they need to keep track of their suppliers and their clients, in order to trace the tropical timber back to the operator.97 Because EUTR is set up only by the EU, this means that the regular methods of implementing a Regulation also apply to this Regulation. A Member State must implement EUTR itself and must select an authority in its own country that enforces the EUTR and also sets out penalties when operators or traders do not comply with the Regulation. EUTR is implemented in all Member States of the European plus Norway, Iceland and Liechtenstein; they are part of the European Economic Area.98 In contrast to the bilateral nature of the VPA licensing schemes, the EUTR is legislation which parameters are solely decided by the European Union itself.99 However, the EUTR complements the VPA process and they reinforce each other to make their reach further and their impacts and effects stronger.100 Just like the Regulation that established the licensing scheme, the EUTR also has complementary regulations that set out further details of the EUTR. To begin with, Regulation 363/2012101 sets down detailed rules for which organizations may be recognized as monitoring organizations,

94 Regulation (EU) 995/2010 of the European Parliament and of the Council laying down the obligation of operators who place timber and timber products on the market. 95 Preamble Regulation 995/2010. 96 Article 4 Regulation 995/2010. 97 Article 5 Regulation 995/2010. 98 UN Environment World Conservation Monitoring Centre, 2019. 99 Ituarte-Lima, Dupraz-Ardiot and McDermott, 2019. 100 Ituarte-Lima, Dupraz-Ardiot and McDermott, 2019. 101 Commission Delegated Regulation (EU) 262/2012 on the procedural rules for the recognition and withdrawal of recognition of monitoring organisations as provided for in Regulation (EU) No 995/2010 of the European Parliament and of the Council laying down the obligations of operators who place timber and timber products on the market. (2012). Official Journal of the European Union L115, p. 12-16.

35 based on rules by the Commission. Regulation 607/2012102, on the other hand, lays down detailed rules on the due diligence system and the frequency and the nature of the checks on the monitoring organizations from Regulation 363/2012. As said before, a due diligence system must be respected by operators that place tropical timber on a market. This system is outlined in article 6 of Regulation 995/2010. In short, due diligence in this context means that when tropical timber is placed on the EU-market, the operators must provide the EU-importers with information and proof that legal timber is being traded. Three elements are enclosed in the due diligence system: information gathering, risk assessment and risk mitigation where a risk is assessed.103 This holds that credible information about the supply chain needs to be collected, there should be a risk assessment on the risks that are specific to the country of origin of the timber and those risks should be minimized.104 By trading in FLEGT-licensed products, the legal trade in timber is promoted and the illegal trade is excluded, because only FLEGT-licensed products may be imported in the EU. There are however some ambiguities in this idea of regulating the trade in tropical timber. Since EU FLEGT was implemented, less tropical timber was exported to the EU.105 This could have two potential explanations. The first one is that the VPA-licensing scheme is effective, because it means that the exporting countries would be in a transitioning period, a period of behavioral change towards illegal logging.106 The second potential explanation is that exporting countries are not going through a behavioral change but are instead shifting towards markets that have less stringent access.107 Even though the trade of this tropical timber going into the EU is then still legal through the licensing scheme, it would mean that the policies are ineffective, because globally not per se less illegal trade would occur, it would only go towards different markets. Nevertheless, the EU FLEGT framework is an effective instrument for more regulation in the international trade in tropical timber and for promoting the legal international trade in tropical timber to Member States of the European Union.

102 Commission Implementing Regulation (EU) on the detailed rules concerning the due diligence system and the frequency and nature of the checks on monitoring organisations as provided for in Regulation (EU) No 995/2010 of the European Parliament and of the Council laying down the obligations of operators who place timber and timber products on the market. (2012). Official Journal of the European Union L177, p.16-18. 103 Article 6 Regulation 995/2010. 104 Article 6 Regulation 995/2010. 105 Jonsson et al., 2015. 106 Pirlot et al., 2018. 107 Pirlot et al., 2018.

36 6. Chapter 6: Comparison and interplay 6.1. Introduction This chapter will be divided into two sections. The first section is focused on the comparison of the different key legal efforts and the focus will be on comparing the ways in which they try to tackle the problem of illegal logging. A few questions that will assist to answer this main question are: Which of these articles are most strict in their wording? Which articles have the most weight? How do the legislations compare to each other, do they tackle the same problem in the same way? The second section of this chapter focuses on the actual interplay between the different international and European legislative efforts that combat the illegal international trade in tropical timber. The main question that will be answered is how do the mechanisms in the international and European agreements interplay. Some questions that will help to understand how they work are the following: Do these legislations work together in some way to tackle the issue of illegal international trade in tropical timber? If yes, how exactly do these legislative efforts interplay? Have new initiatives been started by two or more of the key legislative efforts and what are their main goals in doing that? It important to look into this, as joint initiatives focus often on one issue that is particularly pressing, for instance the illegal international trade in tropical timber. By answering this range of questions, the abilities of the key legislative efforts in tackling the problem of illegal international trade in tropical timber will become clearer.

6.2. Comparison of the principal legislative efforts Beginning with CBD, the main focus of CBD is the conservation of biological diversity and to encourage actions that lead to a sustainable future. As stated previously in the chapter on CBD itself, CBD tackles the illegal international trade in tropical timber mostly through articles 8 and 10. These articles each contain the phrase ‘Each Contracting Party shall, as far as possible and as appropriate…’ after which several actions for the Contracting Parties are mentioned. In the above-mentioned articles, shall implies an obligation and thus indicates mandatory requirements for the Contracting Parties. This is a very strict type of wording that is also present in CITES in for instance the regulation of trade in specimens of species in appendices I, II and III of CITES. These provisions accordingly likewise consist of mandatory regulations on the

37 States, such as ‘all trade in specimens of species included in Appendix II shall be in accordance with the provisions of this article’108. Where CBD is more relevant in combatting the illegal trade through tackling the problem of illegal international tropical logging and related trade at the root, CITES on the other hand is of vast relevance to those species of tropical timber that are protected under CITES. This means that CITES is not relevant to tropical timber species not protected under CITES, because CITES does not require import and export permits for all tropical timber species, it only requires import and export permits for species that are listed. The trade in those protected species is limited to the extent that parties are not allowed to trade them except in accordance with the Convention. In comparison, EU FLEGT licenses are issued by a VPA-licensing authority to either operators or to particular shipments of tropical timber. Once such a license is obtained, the timber may be imported into the European Union. The EU FLEGT is a strict regime for Member States and States that have a VPA with the EU. In contrast, the first article of the ITTA demonstrates that this agreement operates in an altogether distinct manner than the licensing scheme of EU FLEGT and the import and export permits of CITES. In its first article, most objectives start with either ‘strengthening’, ‘encouraging’, ‘promoting’, ‘providing’ and ‘contributing to’. These are words that are not very strong in their meaning but do show the agreement’s intention to promote the expansion and diversification of international trade in tropical timber from sustainably managed and legally harvested forests and promote the sustainable management of tropical timber producing forests. They for instance provide a forum for consultation109, they promote and support research and development110, they encourage members to support tropical timber reforestation111 and they encourage information sharing112. Despite having some similar aims as the other instruments, for instance the aim to encourage trade from sustainably managed sources, ITTA is more focused on achieving a broader aim with more guiding principles that need to be worked out further to lead to concrete actions, while CITES and the EU FLEGT framework have a more tangible aim and a more concrete and workable method or way of achieving that aim.

108 Article 4 under 1 of CITES. 109 Article 1 under b ITTA. 110 Article 1 under f ITTA. 111 Article 1 under j ITTA 112 Article 1 under o ITTA.

38 6.3. Interplay of the principal legislative efforts 6.3.1. Interplay ITTA and CBD On both Decembers 15th, 2009, and on March 2nd, 2010, a Memorandum of Understanding (MoU) was signed by the Secretariat of the ITTO and the Secretariat of the CBD in view of the International Year of Biodiversity in 2010 and the International Year of Forests in 2011. The aim of this first MoU was to jointly strengthen the conservation and sustainable management of tropical forest resources. One of the key purposes of this first MoU is to identify, develop and implement targeted joint activities on forests and biodiversity. The aim of the second MoU was to strengthen the implementation of an expanded program of work on forest biodiversity of the CBD in tropical forests. Both governing bodies implemented decisions to make programs possible on a legal basis; the CBD implemented Decision X/36113 and the ITTO implemented ITTC Decision 6 (XLVI)114. This collaboration resulted in the Joint ITTO/CBD Initiative to Enhance Conservation and Sustainable Use of Biodiversity in Tropical Forests.115. Although this collaboration is mostly focused on the conservation and safeguarding of tropical forest biodiversity, trade of tropical timber is also a part of this collaboration. There are four key objectives in this initiative: - Enhance local capacity for biodiversity conservation in production forests; - Improve conservation and management of protected forest areas; - Safeguard tropical forest biodiversity in forestry interventions; - Conserve biodiversity and use natural resources sustainably to improve the welfare of indigenous and local communities.116 During the 12th meeting, the achievements to date of this joint initiative were analyzed by the COP to the CBD117 showing that eleven projects in 26 countries were implemented in the tropical regions of the world on the basis of this joint initiative. Moreover, the specific Thai component focused on the prevention of illegal logging, illegal trading and the collection of wild plants.118 What this initiative shows is that it is needed to set up projects like these in order to get closer to the source of the illegality and to achieve their aims, also including the Aichi Targets.

113 COP to the CBD, 2010. 114 ITTC, 2010. 115 CBD and ITTO, 2011. 116 CBD and ITTO, 2011. 117 COP to the CBD, 2014. 118 COP to the CBD, 2014, p. 6.

39 6.3.2. Interplay ITTO, CITES (and EU FLEGT) The International Tropical Timber Organization and the Secretariats of CITES set up a joint program that aims at ensuring that the international trade in species that are listed in one of the appendices of CITES complies with the requirements of sustainable management and conservation. The European Union, and other actors, finance this program, because a CITES- license can complement a VPA-license from FLEGT.119 The aim of this program is to help Range States120 of CITES Appendix II species with the implementation of the requirements of CITES, for instance by making non-detriment findings.121 Another aim of this mechanism between the ITTO and CITES is to promote the sustainable trade itself.122 This is, because the incentives to trade illegally and to log illegally are so high in tropical timber regions, merely because they offer profits that are much higher than legal logging and trade, and there is a low risk to doing it.123 This is the result from corruption that occurs in all stages of the government in combination with a decentralized structure of government.124 In order to counter this, initiatives have been set up between ITTA, CITES and local law enforcements. CITES offers the possibility to stop the illegal international trade in tropical timber legally, however, ways must be found to make this possibility work and to get closer to the source.

6.3.3. Interplay EU FLEGT and CITES To continue, Regulation 995/2010 on the establishment of EUTR mentions CITES in its preamble and states that ‘…timber of species listed in Annex A, B or C to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein should be considered to have been legally harvested provided it complies with that Regulation and any implementing provisions.’. The EU became a party to CITES in 2015 after an amendment of CITES made it then possible for regional economic integration organizations to join CITES. In spite of that, the EU already implemented CITES in the EU framework through the Wildlife Trade Regulation.125 Another Commission Regulation lays down more detailed measures with regards to the

119 Pirlot et al., 2018. 120 A Range State has its territory within the natural range of a species. 121 A non-detriment finding is a statement that exporting a certain species is not detrimental to the survival of that species. Only if a non-detrimental finding has been done, export (and in some cases for Appendix I species also import) of that species is allowed. 122 INTERPOL Environmental Crime Programme, 2012. 123 Idem. 124 Idem. 125 Council Regulation (EC) 338/97 on the protection of species of wild fauna and flora by regulating trade therein. (1996). Official Journal of the European Union L061, p. 1-69.

40 implementation of CITES in the EU framework.126 Yet, the European Union added an extra safeguard for more protection of the species, by laying down stricter measures in these Regulations.127 In October 2018, a guidance document was published by the EU named: ‘Guidance document on steps to be taken by EU Member States in the case of doubts as to the legality of timber from CITES-listed species imported into the EU’128. In this document, guidance is given when there exist doubts by the competent authorities of the Member States in relation to the legality of the timber that is being imported into the EU, even though there is an export permit by the country of origin. Several elements must be considered by the competent authorities if they should consult the exporting country or not. 129 These questions are for instance: is there information from reliable sources that seem to indicate that the shipment might not come from legal sources or is there a high risk of corruption in the country. Next, information should be requested from the exporting country. This information could be about the system that verifies whether the legislation has been complied with or about the question if all operators along the supply chain have been identified or not. Next, a few guidelines are given to label the information from the exporting country as satisfactory. If not satisfactory, additional actions can be taken, for instance that the Commission itself contacts the exporting country to convey the concerns about the legality of the shipment. In conclusion, several initiatives have been set up between the different key legislative efforts. However, what becomes clear is that many of these joint initiatives focus on the sustainable management of tropical timber forests and not necessarily on countering the specific problem of illegal international trade in tropical timber. The problem of illegal international trade in tropical timber is seen as an added problem in relation to the problem of for instance illegal logging. A change in attitude is necessary towards the illegal international trade in tropical timber and the international and European framework still lacks in being able to counter the illegal trade in tropical timber.

126 Commission Regulation 865/2006. 127 Keittunen, 2018. 128 Commission Notice, 2018. 129 Commission Notice, 2018.

41 7. Chapter 7: Conclusion In the introduction, the suggestion was given to use the existing international and European legal framework to its fullest ability to counter the illegal trade in tropical timber and the question was posed whether this complete framework would provide enough protection from illegal international trade in tropical timber to occur. The key international and European legislative efforts each focus on a different area. To sum up, the CBD mainly combats the illegal international trade in tropical timber through focusing on the problem at its root, which is the illegal logging of tropical timber, and targets the sustainable management of tropical forests. CITES aims to regulate the international trade in specimens to the point that international trade does not threaten the survival of the species in the wild. This means that only species of tropical timber that are protected under CITES find protection under CITES. Furthermore, the ITTA promotes the expansion and diversification of international trade in tropical timber from sustainable managed and legally harvested forests and promotes the sustainable management of tropical timber itself. ITTA combats the problem of illegal international trade in tropical timber by promoting the legal international trade in tropical timber by designating objectives for the States party to the Agreement. Finally, the EU FLEGT Action Plan only allows FLEGT- licensed products from countries that have VPAs with the European Union to enter the European Union. Illegal trade is excluded, because only FLEGT-licensed products may be imported in the EU. What became apparent from this research is that the answer to the question above must be a ‘no’. First of all, regarding the international key legislative efforts, what has become clear from this research is that not one of them completely and directly focuses on the illegal international trade in tropical timber. However, CITES is the Convention that comes closest to the problem of illegal international trade in tropical timber, but the problem with CITES remains is that the species first need to be listed in either Appendix I or II to the Convention in order to fall under the international protection mechanism of CITES. Only species of tropical timber for which trade must be regulated in order not endanger their survival, are listed. This means, that tropical timber species that are not directly threatened with extinction through illegal trade, cannot be protected under CITES. Regarding the European framework, this framework directly aims at combatting the illegal international trade in tropical timber through for instance the Voluntary Partnership Agreements. However, there are also some loopholes or gaps in this framework. To begin with, only when the European Union has a Voluntary Partnership Agreement with a timber exporting country, illegal trade in tropical timber is unable to enter the European Union. This in turn holds

42 that when there is no VPA in place between the European Union and a timber exporting country, the FLEGT-licensing scheme is not effective and illegally traded tropical timber can still enter the European Union. On top of this, the European Union is the only actor that has a framework in place that is this rigid in countering the illegal trade of tropical timber. This means that the possibility arises that the illegal trade in tropical timber would not enter the EU, but instead it would enter different markets. This is not effective in countering the illegal international trade in tropical timber from a global perspective. The joint initiatives on the other hand are a way of partly solving the first problem mentioned, that there remain gaps in the legal framework. By jointly countering, the more specific problem of illegal trade in tropical timber in relation to illegal logging could be focused on. More opportunities for better protection of legal international trade tropical timber and eradicating or minimizing the illegal international trade in tropical timber must be found. Future research could for instance focus more on the joint initiatives, as they bring the international framework closer to the actual source of the problem. Finally, the limitations of this thesis need to be addressed. The primary limitation is the lack of complete data and information regarding the exact scale of illegal international trade in tropical timber. This results in the complication that it is unclear whether or not increased attention towards combatting the illegal trade in tropical timber makes a positive difference on the legal international trade in tropical timber and has decreased the illegal international trade in tropical timber. The question to what extent these legal instruments effectively countered the illegal international trade in tropical timber thus remains unanswered. Moreover, most of the research that is used in this thesis has focused on timber and not specifically on the category of tropical timber. This is most likely because there is not necessarily a need to separate the bigger category of timber from the smaller category of tropical timber when in relation to combatting the illegal trade in either of those categories. All in all, there is a framework that combats the illegal international trade in tropical timber in place through the CBD, CITES, ITTA and EU FLEGT. However, there is unquestionably room for improvement regarding the ways in which the international legal instruments directly combat the illegal international trade in tropical timber. Changes in attitudes are necessary and the attention given to the problem of illegal international trade should keep on growing.

43 References Books and articles Bisschop, L. (2012). Out of the woods: the illegal trade in tropical timber and a European trade hub. Global Crime, 3(13), 191-212. Boekhout van Solinge, T. (2008). Eco-Crime: The Tropical Timber Trade. In Organized Crime: Culture, Markets and Policies (pp. 97-111). CITES. (2019). Reservations entered by Parties in effect from 26 November 2019. Geneva, Switzerland. CITES Conference of the Parties 15. (2010). Resolution Conference 14.7 (Revisited in CoP 15): Management of nationally established export quotas. Doha, Qatar. Commission of the European Communities. (2003). Communication from the Commission to the Council and the European Parliament - Forest Law Enforcement, Governance and Trade (FLEGT) - Proposal for an EU Action Plan /* COM/2003/0251 final */. Convention on Biological Diversity. (2005). Development of Case-Studies on the Effects of Insufficient Forest Law Enforcement on Forest Biological Diversity Progress Report. Montreal. Convention on Biological Diversity and International Tropical Timber Organization. (2011). ITTO/CBD Collaborative Initiative for Tropical Forest Biodiversity. COP to the CBD. (2010). Decision X/36 Forest Biodiversity. Nagoya, Japan. COP to the CBD. (2014). Joint ITTO - CBD Collaborative Initiative for Tropical Forest Biodiversity: Achievements to Date. Pyeongchang, Republic of Korea. del Gatto, F. (2003). La producción forestal no controlada en Honduras. ¿Qué es? ¿Cuánta es? ¿Y cuánto cuesta? Unas respuestas preliminares. Consultancy report for the project Illegal Logging in Central America - Tackling its Impacts on Governance and Poverty. REMBLAH-FEHCAFOR-NICAMBIENTAL-FAO-ODI. Delegation of the European Union to Liberia. (2011). Fight against illegal logging: the European Union and Liberia sign Accord to ensure legal origin of imported wood products to the EU. Press corner European External Action Service. Dlamini, C., & Paterson, A. (2015). The EU FLEGT scheme: A critical analysis of its potential for promoting effective and equitable forest governance in Africa. University of Cape Town. Eikermann, A. (2015). Forests in International Law: Is There Really a Need for an International Forest Convention. Springer.

44 FLEGT Independent Market Monitor. (2016). FLEGT VPA Partners in EU Timber Trade 2014 to 2016 Main Report. FLEGT Independent Market Monitor. (2017). VPA countries in EU timber trade during 2017. Foreign Agricultural Service. (2019). International Illegal Logging: Background and Issues. Congressional Research Service. Gan, J. &. (2016). Quantifying Illegal Logging and Related Timber Trade. In Illegal Logging and Related Timber Trade – Dimensions, Drivers, Impacts and Responses. A Global Scientific Rapid Response Assessment Report (Vol. 35, pp. 38-58). International Union of Forest Research Organizations (IUFRO). Gulbrandsen, L. H., & Humphreys, D. (2006). International Initiatives to Address Tropical Timber Logging and Trade. The Fridtjof Nansen Institute. Hansen, E., Panwar, R., & Vlosky, R. (2013). The Global Forest Sector: Changes, Practices and Prospects. CRC Press. Hoare, A. (2015). Tackling Illegal Logging and the Related Trade: What Progress and Where Next? London, United Kingdom: Chatham House, The Royal Institute of International Affairs. Huang, W., & Sun, X. (2013). Tropical hardwood flows in China: Case studies of rosewood and Okoumé. Washington D.C.: Forest Trends. International Union of Forest Research Organizations. (2016). Fighting wildlife crime by fighting the illegal timber trade. INTERPOL. (2019). Global Forestry Enforcement: Strenghtening Law Enforcement Cooperation Against Forestry Crimes. INTERPOL Environmental Crime Programme . (2012). Green Carbon, Black Trade - Illegal Logging, Tax Fraud and Laundering in the World's Tropical Forests. UNEP, INTERPOL. Norway: Birkeland Trykkeri AS. INTERPOL, RHIPTO & The Global Initiative Against Transnational Organized Crime. (2018). The Environmental Crime Crisis. World Atlas of Illicit Flows. ITTC. (2010). Decision 6 (XLVI)/21 ITTO/CBD Collaborative Initiative to Conserve Tropical Forest Biodiversity. Yokohama, Japan. Ituarte-Lima, C., Dupraz-Ardiot, A., & McDermott, C. (2019). Incorporating international biodiversity law principles and rights perspective into the European Union Timber Regulation. International Environmental Agreements: Politics, Law and Economics, 19(3), 255-272.

45 Jaakko Pöyry Consulting. (2005). Overview of illegal logging. Report prepared for the Australian Department of Agriculture, Fisheries and Forestry. Melbourne: Jaakko Pöyry Consulting. Jonsson, R., Giurca, A., Masiero, M., Pepke, E., Pettenella, D., Prestemon, J., & Winkel, G. (2015). Assessment of the EU Timber Regulation and FLEGT Action Plan. Joensuu: European Forest Institute. Keittunen, M. (2018). Biodiversity: Strong Policy Objectives Challenged by Sectoral Integration. In C. Adelle, K. Biedenkopf, & D. Torney, European Union External Environmental Policy: Rules, Regulation and Governance Beyond Borders (pp. 147- 165). Cham, Switzerland: Springer Nature. Keong, C. (2006). The role of CITES in combating illegal logging - current and potential. TRAFFIC International, Cambridge, United Kingdom. Kleinschmit, D., Mansourian, S., Wildburger, C., & Purret, A. (2016). Illegal Logging and Related Trade - Dimensions, Drivers, Impacts and Responses. International Union of Forest Research Organizations (IUFRO). Oldfield, S. (2003). Regulation of the Timber Trade. In R. Sharp, The Trade in Wildlife: Regulation for Conservation (pp. 121-131). Pirlot, P., Delreux, T., & Farcy, C. (2018). Forests: A Multi-sectoral and Multi-level Approach to Sustainable Forest Management. In C. Adelle, K. Biedenkopf, & D. Torney, European Union External Environmental Policy - Rules, Regulation and Governance Beyond Borders (pp. 167-187). Cham: Springer Nature. Rosendal, K. (2006). The Convention on Biological Diversity: Tensions with the WTO TRIPS over access to Genetic Resources and the Sharing of Benefits. In S. Gehring, & T. Oberthür, Institutional Interaction in Global Environmental Governance. Synergies and Conflicts Among Interantional and EU Policies (pp. 79-102). Cambridge: The MIT Press. Schloenhardt. (2008). The illegal trade in timber and timber products in the Asia-Pacific region. Australian Government. Australian Institute of Criminology. Tacconi, L. (2012). The Problem of Illegal Logging. In L. Tacconi, Illegal Logging: Law Enforcement, Livelihoods and the Timber Trade (pp. 1-16). London, United Kingdom: Earthscan. The World Bank. (2016). Forest area (squared kilometers) 1990-2016.

46 UN Environment World Conservation Monitoring Centre. (2019). The interplay between CITES and EUTR/FLEGT - A discussion document for the Joint EUTR/CITES Expert Group meeting. UNEP-WCMC and CITES Secretariat. (2020). Species+. Retrieved from https://speciesplus.net/#/taxon_concepts/23851/legal UNEP-WCMC and CITES Secretariat. (2020). Species+. Retrieved from https://www.speciesplus.net Vanclay, J., & Nichols, J. (2005). What Would a Global Forest Convention Mean for Tropical Forests and for Timber Consumers? Journal of Forestry, 103, 120-125. Wells, A., del Gatto, F., Richards, M., Pommier, D., & Contreras-Hermosilla, A. (2012). Rural Livelihoods, Forest Law and the Illegal Timber Trade in Honduras and Nicaragua. In L. Tacconi, Illegal Logging: Law Enforcement, Livelihoods and the Timber Trade. London, United Kingdom: Earthscan.

Treaties and Regulations Commission of the European Communities. (2003). Communication from the Commission to the Council and the European Parliament - Forest Law Enforcement, Governance and Trade (FLEGT) - Proposal for an EU Action Plan /* COM/2003/0251 final */. Commission Notice – Guidance document on steps to be taken by EU Member States in the case of doubts as to the legality of timber from CITES-listed species imported into the EU. (2018). Official Journal of the European Union C 376, p. 107. Commission Regulation (EC) 865/2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein. (2006). Official Journal of the European Union L166, p. 104-167. Commission Regulation (EC) 1024/2008 laying down detailed measures for the implementation of Council Regulation (EC) No 2173/2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community. (2008). Official Journal of the European Union L277, p. 23-29. Commission Delegated Regulation (EU) 262/2012 on the procedural rules for the recognition and withdrawal of recognition of monitoring organisations as provided for in Regulation (EU) No 995/2010 of the European Parliament and of the Council laying down the obligations of operators who place timber and timber products on the market. (2012). Official Journal of the European Union L115, p. 12-16.

47 Commission Implementing Regulation (EU) No 607/2012 on the detailed rules concerning the due diligence system and the frequency and nature of the checks on monitoring organisations as provided for in Regulation (EU) No 995/2010 of the European Parliament and of the Council laying down the obligations of operators who place timber and timber products on the market. (2012). Official Journal of the European Union, L177, p 16-18. Convention on Biological Diversity, opened for signature on 5 June 1992, entered into force on 29 December 1993. Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature on 3 March 1973, entered into force on 1 July 1975. Council Regulation (EC) 338/97 on the protection of species of wild fauna and flora by regulating trade therein. (1996). Official Journal L061, p. 1-69. Council Regulation (EC) 2173/2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community. (2005). Official Journal of the European Union L347, p.1-6. International Tropical Timber Agreement, opened for signature on 27 January 2006, entered into force on 7 December 2011. Regulation (EU) 995/2010 of the European Parliament and of the Council laying down the obligation of operators who place timber and timber products on the market. (2010). Official Journal of the European Union L295, p. 23-34.

48 Appendix I Relevant Articles from the Convention on Biological Diversity

Article 8 In- Each Contracting Party shall, as far as possible and as appropriate: situ (a) Establish a system of protected areas or areas where special measures Conservation. need to be taken to conserve biological diversity; (b) Develop, where necessary, guidelines for the selection, establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity; (c) Regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use; (d) Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings; (e) Promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas; (f) Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies; (g) Establish or maintain means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health; (h) Prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species; (i) Endeavour to provide the conditions needed for compatibility between present uses and the conservation of biological diversity and the sustainable use of its components; (j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and

49 practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices; (k) Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations; (l) Where a significant adverse effect on biological diversity has been determined pursuant to Article 7, regulate or manage the relevant processes and categories of activities; and (m) Cooperate in providing financial and other support for in-situ conservation outlined in subparagraphs (a) to (l) above, particularly to developing countries. Article 10 Each Contracting Party shall, as far as possible and as appropriate: Sustainable (a) Integrate consideration of the conservation and sustainable use of Use of biological resources into national decision-making; Components (b) Adopt measures relating to the use of biological resources to avoid or of Biological minimize adverse impacts on biological diversity; Diversity. (c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements; (d) Support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced; and (e) Encourage cooperation between its governmental authorities and its private sector in developing methods for sustainable use of biological resources.

50 Appendix II Relevant Articles from the Convention on International Trade in Endangered Species of Wild Flora and Fauna Article II 1. Appendix I shall include all species threatened with extinction which are Fundamental or may be affected by trade. Trade in specimens of these species must be Principles subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances. 2. Appendix II shall include:

(a) all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival; and

(b) other species which must be subject to regulation in order that trade in specimens of certain species referred to in sub-paragraph (a) of this paragraph may be brought under effective control. 3. Appendix III shall include all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other Parties in the control of trade.

4. The Parties shall not allow trade in specimens of species included in Appendices I, II and III except in accordance with the provisions of the present Convention. Article III 1. All trade in specimens of species included in Appendix I shall be in Regulation of accordance with the provisions of this Article. Trade in Specimens of 2. The export of any specimen of a species included in Appendix I shall Species require the prior grant and presentation of an export permit. An export permit Included in shall only be granted when the following conditions have been met: Appendix I (a) a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species;

51 (b) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora;

(c) a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment; and

(d) a Management Authority of the State of export is satisfied that an import permit has been granted for the specimen.

3. The import of any specimen of a species included in Appendix I shall require the prior grant and presentation of an import permit and either an export permit or a re-export certificate. An import permit shall only be granted when the following conditions have been met:

(a) a Scientific Authority of the State of import has advised that the import will be for purposes which are not detrimental to the survival of the species involved;

(b) a Scientific Authority of the State of import is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and

(c) a Management Authority of the State of import is satisfied that the specimen is not to be used for primarily commercial purposes.

4. The re-export of any specimen of a species included in Appendix I shall require the prior grant and presentation of a re-export certificate. A re-export certificate shall only be granted when the following conditions have been met:

52 (a) a Management Authority of the State of re-export is satisfied that the specimen was imported into that State in accordance with the provisions of the present Convention;

(b) a Management Authority of the State of re-export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment; and

(c) a Management Authority of the State of re-export is satisfied that an import permit has been granted for any living specimen.

5. The introduction from the sea of any specimen of a species included in Appendix I shall require the prior grant of a certificate from a Management Authority of the State of introduction. A certificate shall only be granted when the following conditions have been met:

(a) a Scientific Authority of the State of introduction advises that the introduction will not be detrimental to the survival of the species involved; (b) a Management Authority of the State of introduction is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and (c) a Management Authority of the State of introduction is satisfied that the specimen is not to be used for primarily commercial purposes. Article IV 1. All trade in specimens of species included in Appendix II shall be in Regulation of accordance with the provisions of this Article. Trade in 2. The export of any specimen of a species included in Appendix II shall Specimens of require the prior grant and presentation of an export permit. An export permit Species shall only be granted when the following conditions have been met: Included in (a) a Scientific Authority of the State of export has advised that such export Appendix II will not be detrimental to the survival of that species; (b) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; and

53 (c) a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment. 3. A Scientific Authority in each Party shall monitor both the export permits granted by that State for specimens of species included in Appendix II and the actual exports of such specimens. Whenever a Scientific Authority determines that the export of specimens of any such species should be limited in order to maintain that species throughout its range at a level consistent with its role in the ecosystems in which it occurs and well above the level at which that species might become eligible for inclusion in Appendix I, the Scientific Authority shall advise the appropriate Management Authority of suitable measures to be taken to limit the grant of export permits for specimens of that species. 4. The import of any specimen of a species included in Appendix II shall require the prior presentation of either an export permit or a re-export certificate. 5. The re-export of any specimen of a species included in Appendix II shall require the prior grant and presentation of a re-export certificate. A re-export certificate shall only be granted when the following conditions have been met:

(a) a Management Authority of the State of re-export is satisfied that the specimen was imported into that State in accordance with the provisions of the present Convention; and

(b) a Management Authority of the State of re-export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.

6. The introduction from the sea of any specimen of a species included in Appendix II shall require the prior grant of a certificate from a Management Authority of the State of introduction. A certificate shall only be granted when the following conditions have been met:

54 (a) a Scientific Authority of the State of introduction advises that the introduction will not be detrimental to the survival of the species involved; and

(b) a Management Authority of the State of introduction is satisfied that any living specimen will be so handled as to minimize the risk of injury, damage to health or cruel treatment. 7. Certificates referred to in paragraph 6 of this Article may be granted on the advice of a Scientific Authority, in consultation with other national scientific authorities or, when appropriate, international scientific authorities, in respect of periods not exceeding one year for total numbers of specimens to be introduced in such periods.

Article V 1. All trade in specimens of species included in Appendix III shall be in Regulation of accordance with the provisions of this Article. Trade in Specimens of 2. The export of any specimen of a species included in Appendix III from Species any State which has included that species in Appendix III shall require the Included in prior grant and presentation of an export permit. An export permit shall only Appendix III be granted when the following conditions have been met:

(a) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; and

(b) a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.

3. The import of any specimen of a species included in Appendix III shall require, except in circumstances to which paragraph 4 of this Article applies, the prior presentation of a certificate of origin and, where the import is from a State which has included that species in Appendix III, an export permit.

55

4. In the case of re-export, a certificate granted by the Management Authority of the State of re-export that the specimen was processed in that State or is being re-exported shall be accepted by the State of import as evidence that the provisions of the present Convention have been complied with in respect of the specimen concerned. Article XV 1. The following provisions shall apply in relation to amendments to Amendments Appendices I and II at meetings of the Conference of the Parties: to (a) Any Party may propose an amendment to Appendix I or II for Appendices I consideration at the next meeting. The text of the proposed amendment shall and II be communicated to the Secretariat at least 150 days before the meeting. The Secretariat shall consult the other Parties and interested bodies on the amendment in accordance with the provisions of sub-paragraphs (b) and (c) of paragraph 2 of this Article and shall communicate the response to all Parties not later than 30 days before the meeting.

(b) Amendments shall be adopted by a two-thirds majority of Parties present and voting. For these purposes "Parties present and voting" means Parties present and casting an affirmative or negative vote. Parties abstaining from voting shall not be counted among the two-thirds required for adopting an amendment.

(c) Amendments adopted at a meeting shall enter into force 90 days after that meeting for all Parties except those which make a reservation in accordance with paragraph 3 of this Article.

2. The following provisions shall apply in relation to amendments to Appendices I and II between meetings of the Conference of the Parties:

(a) Any Party may propose an amendment to Appendix I or II for consideration between meetings by the postal procedures set forth in this paragraph.

56 (b) For marine species, the Secretariat shall, upon receiving the text of the proposed amendment, immediately communicate it to the Parties. It shall also consult inter-governmental bodies having a function in relation to those species especially with a view to obtaining scientific data these bodies may be able to provide and to ensuring co-ordination with any conservation measures enforced by such bodies. The Secretariat shall communicate the views expressed and data provided by these bodies and its own findings and recommendations to the Parties as soon as possible.

(c) For species other than marine species, the Secretariat shall, upon receiving the text of the proposed amendment, immediately communicate it to the Parties, and, as soon as possible thereafter, its own recommendations.

(d) Any Party may, within 60 days of the date on which the Secretariat communicated its recommendations to the Parties under sub-paragraph (b) or (c) of this paragraph, transmit to the Secretariat any comments on the proposed amendment together with any relevant scientific data and information.

(e) The Secretariat shall communicate the replies received together with its own recommendations to the Parties as soon as possible. (f) If no objection to the proposed amendment is received by the Secretariat within 30 days of the date the replies and recommendations were communicated under the provisions of sub-paragraph (e) of this paragraph, the amendment shall enter into force 90 days later for all Parties except those which make a reservation in accordance with paragraph 3 of this Article.

(g) If an objection by any Party is received by the Secretariat, the proposed amendment shall be submitted to a postal vote in accordance with the provisions of sub-paragraphs (h) , (i) and (j) of this paragraph.

(h) The Secretariat shall notify the Parties that notification of objection has been received.

57

(i) Unless the Secretariat receives the votes for, against or in abstention from at least one-half of the Parties within 60 days of the date of notification under sub-paragraph (h) of this paragraph, the proposed amendment shall be referred to the next meeting of the Conference for further consideration.

(j) Provided that votes are received from one-half of the Parties, the amendment shall be adopted by a two-thirds majority of Parties casting an affirmative or negative vote.

(k) The Secretariat shall notify all Parties of the result of the vote.

(l) If the proposed amendment is adopted it shall enter into force 90 days after the date of the notification by the Secretariat of its acceptance for all Parties except those which make a reservation in accordance with paragraph 3 of this Article.

3. During the period of 90 days provided for by sub-paragraph (c) of paragraph 1 or sub-paragraph (l) of paragraph 2 of this Article any Party may by notification in writing to the Depositary Government make a reservation with respect to the amendment. Until such reservation is withdrawn the Party shall be treated as a State not a Party to the present Convention with respect to trade in the species concerned.

58 Appendix III Relevant Articles from the International Tropical Timber Agreement Article 1 The objectives of the International Tropical Timber Agreement, 2006 Objectives (hereinafter referred to as "this Agreement") are to promote the expansion and diversification of international trade in tropical timber from sustainably managed and legally harvested forests and to promote the sustainable management of tropical timber producing forests by: (a) Providing an effective framework for consultation, international cooperation and policy development among all members with regard to all relevant aspects of the world timber economy; (b) Providing a forum for consultation to promote non-discriminatory timber trade practices; (c) Contributing to sustainable development and to poverty alleviation; (d) Enhancing the capacity of members to implement strategies for achieving exports of tropical timber and timber products from sustainably managed sources; (e) Promoting improved understanding of the structural conditions in international markets, including long-term trends in consumption and production, factors affecting market access, consumer preferences and prices, and conditions leading to prices which reflect the costs of sustainable forest management; (f) Promoting and supporting research and development with a view to improving forest management and efficiency of wood utilization and the competitiveness of wood products relative to other materials, as well as increasing the capacity to conserve and enhance other forest values in timber producing tropical forests; (g) Developing and contributing towards mechanisms for the provision of new and additional financial resources with a view to promoting the adequacy and predictability of funding and expertise needed to enhance the capacity of producer members to attain the objectives of this Agreement; (h) Improving market intelligence and encouraging information sharing on the international timber market with a view to ensuring greater transparency and better information on markets and market trends, including the

59 gathering, compilation and dissemination of trade related data, including data related to species being traded; (i) Promoting increased and further processing of tropical timber from sustainable sources in producer member countries, with a view to promoting their industrialization and thereby increasing their employment opportunities and export earnings; (j) Encouraging members to support and develop tropical timber reforestation, as well as rehabilitation and restoration of degraded forest land, with due regard for the interests of local communities dependent on forest resources; (k) Improving marketing and distribution of tropical timber and timber product exports from sustainably managed and legally harvested sources and which are legally traded, including promoting consumer awareness; (l) Strengthening the capacity of members for the collection, processing and dissemination of statistics on their trade in timber and information on the sustainable management of their tropical forests; (m) Encouraging members to develop national policies aimed at sustainable utilization and conservation of timber producing forests, and maintaining ecological balance, in the context of the tropical timber trade; (n) Strengthening the capacity of members to improve forest law enforcement and governance,and address illegal logging and related trade in tropical timber; (o) Encouraging information sharing for a better understanding of voluntary mechanisms such as, inter alia, certification, to promote sustainable management of tropical forests, and assisting member s with their efforts in this area; (p) Promoting access to, and transfer of, technologies and technical cooperation to implement the objectives of this Agreement, including on concessional and preferential terms and conditions, as mutually agreed; (q) Promoting better understanding of the contribution of non-timber forest products and environmental services to the sustainable management of tropical forests with the aim of enhancing the capacity of members to develop strategies to strengthen such contributions in the context of

60 sustainable forest management, and cooperating with relevant institutions and processes to this end; (r) Encouraging members to recognize the role of forest-dependent indigenous and local communities in achieving sustainable forest management and develop strategies to enhance the capacity of these communities to sustainably manage tropical timber producing forests; and (s) Identifying and addressing relevant new and emerging issues. Article 2 For the purposes of this Agreement: Definitions 1. "Tropical timber" means tropical wood for industrial uses, which grows or is produced in the countries situated between the Tropic of Cancer and the Tropic of Capricorn. The term covers logs, sawnwood, vene er sheets and plywood; 2. “Sustainable forest management” will be understood according to the Organization’s relevant policy documents and technical guidelines; 3. "Member" means a Government, the European Community or any intergovernmental organization referred to in article 5, which has consented to be bound by this Agreement whether it is in force provisionally or definitively; 4. "Producer member" means any member situated between the Tropic of Cancer and the Tropic of Capricorn with tropical forest resources and/or a net exporter of tropical timber in volume terms which is listed in annex A and which becomes a party to this Agreement, or any member with tropical forest resources and/or a net exporter of tropical timber in volume terms which is not so listed and which becomes a party to this Agreement and which the Council, with the consent of that member, declares to be a producer member; 5. "Consumer member" means any member which is an importer of tropical timber listed in annexB which becomes a party to this Agreement, or any member which is an importer of tropical timber not so listed which becomes a party to this Agreement and which the Council, with the consent of that member, declares to be a consumer member; 6. "Organization" means the International Tropical Timber Organization established in accordance with article 3;

61 7. "Council" means the International Tropical Timber Council established in accordance with article 6; 8. "Special vote" means a vote requiring at least two thirds of the votes cast by producer members present and voting and at least 60 per cent of the votes cast by consumer members present and voting, counted separately, on condition that these votes are cast by at least half of the producer members present and voting and at least half of the consumer members present and voting. 9. "Simple distributed majority vote" means a vote requiring more than half of the votes cast by producer members present and voting and more than half of the votes cast by consumer members present and voting, counted separately; 10. "Financial biennium" means the period from 1 January of one year to 31 December of the following year. 11. "Freely convertible currencies" means the euro, the Japanese yen, the pound sterling, the Swiss franc, the United States dollar, and any other currency which has been designated from time to time by a competent international monetary organization as being in fact widely used to make payments for international transactions and widely traded in the principal exchange markets. 12. For purposes of the calculation of the distribution of votes under article 10, paragraph 2(b), "tropical forest resources" means natural closed forests and forest plantations located between the Tropic of Cancer and the Tropic of Capricorn. Article 4 There shall be tw o categories of membership in the Organization, namely: Membership (a) Producer; and in the (b) Consumer. Organization Article 6 1. The highest authority of the Organization shall be the International Composition Tropical Timber Council, which shall consist of all the members of the of the Organization. International 2. Each member shall be represented in the Council by one representative Tropical and may designate alternates and advisers to attend sessions of the Council.

62 Timber 3. An alternate shall be empowered to act and vote on behalf of the Council representative during the latter's absence or in special circumstances. Article 28 1. The Council shall publish an annual report on its activities and such other Annual information as it considers appropriate. Report and 2. The Council shall biennially review and assess: Biannial (a) The international timber situation; and Review (b) Other factors, issues and developments considered relevant to achieving the objectives of this Agreement. 3. The review shall be carried out in the light of: (a) Information supplied by members in relation to national production, trade, supply, stocks, consumption and prices of timber; (b) Other statistical data and specific indicators provided by members as requested by the Council; (c) Information supplied by members on their progress towards the sustainable management of their timber-producing forests; (d) Such other relevant information as may be available to the Council either directly or through the organizations in the United Nations system and intergovernmental, governmental or non-governmental organizations; and (e) Information supplied by members on their progress towards the establishment of control and information mechanisms regarding illegal harvesting and illegal trade in tropical timber and non-timber forest products. 4. The Council shall promote the exchange of views among member countries regarding: (a) The status of sustainable management of timber-producing forests and related matters in member countries; and (b) Resource flows and requirements in relation to objectives, criteria and guidelines set by the Organization. 5. Upon request, the Council shall endeavour to enhance the technical capacity of member countries, in particular developing member countries, to obtain the data necessary for adequate information-sharing, including the provision of resources for training and facilities to members. 6. The results of the review shall be included in the corresponding Council session reports.

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