1rst ICPP 2013

Grenoble – 26-28 June 2013

Local and Multilevel Governance

Panel: Polycentric Public Policy and the Environment

Chairs

Benjamin Cashore, Yale University’s School of Forestry and Environmental

Studies, Benjamin.Cashore@yale.edu

Steven Bernstein, University of Toronto, steven.bernstein@utoronto.ca

Iben Nathan, University of Copenhagen, in@life.ku.dk

The EU FLEGT Action Plan to Counter Illegal Logging: Recentralization

of European Rule Making, International Cooperation and Privatized

Global Forest Governance

Author:

Yves Montouroy

Associate researcher

Centre Emile Durkheim

IEP Bordeaux, France

Email : yves.montouroy@gmail.com

Summary:

In 2001, the G8 Forest Law Enforcement and Governance (FLEG) Declaration announced

initiatives to counter illegal logging to enforce national forest laws by strengthening

international cooperation and national authorities. Building on this declaration, the EU

approved in 2003 the Forest Law Enforcement, Governance and Trade (FLEGT) Action Plan.

In so doing, the EU regulation could look like it deeply perturbs the global governance of

forest management and wood trade. Indeed, with the incapacity of states to stop forest

deforestation, the absence of an international forest treaty, and a weak international regime

(Smouts, 2001; Humphreys, 2006), such governance had progressively been privatized

(Pattberg, 2005; Falkner, 2008). In sum, this new public instrument appears to challenge

private rulemaking. These are no longer recognized as proof of legality but become legal only

after an evaluation by FLEGT Voluntary Partnership Agreements (VPAs) negotiations

between the European Union and timber exporting countries.

As regards these instrumentation, I argue that recentralization of power in the regulation of

the sector, both at (sub)national and global scales, has lead to a contentious relationship with

private rulemaking.

This thesis is grounded in my PhD work. There I demonstrated how the EU FLEGT

regulation had emerged as part of a change in the governance of the sector amounting to a

recentralization of power (Hassenteufel, 2011). Consequently, private actors had to legitimize

their practices and instruments through undertaking, at multiple scales, the political work

(Jullien and Smith, 2008) of problematization (Rochefort and Cobb, 1994) and politicization

(Lagroye, 2003) regarding their territorialised forest issues (Carter and Smith, 2008). I also

showed that polycentric governance has to be studied by combining IR theories and the public

policy literature. From this perspective, I follow actors’ representations of ‘problems’, and

how they built interests and political work across scales of regulation, and this in order to

understand how policy instruments were defined. I grounded my work in qualitative

methodology by using material drawn from scientific and expert’s literature and interviews

with stakeholders representatives and employees in charge of the FLEGT action plan within

the EU’s institutions.

Key words: regulation, illegal logging, EU, FLEGT, industry, instruments, certification

schemes, political work.

Introduction

Illegal logging and associated trade refer to situations where timber is produced in

contravention of national and international laws on cutting, processing, transporting or

exporting wood (EFI, 2012). Even though it is an old, destructive and costly phenomenon for

governments and the world economy – it deprives governments from 15 billiards US$ in

revenue per year according to the World Bank (2005) – it was not raised as an issue for

international politics until the mid 1990s and the G8 Action Programme on Forests

(Humphreys, 2006).

Although it was fixed as a sectoral problem by the signatories of the first International Timber

and Trade Agreement in 1983, it progressively disappeared from the international agenda

under the pressure of both timber exporting countries and importing countries whom

industries were dependent on imports. But, despite such a recognition, illegal logging

appeared in the 1994 ITTA as “undocumented wood” (art. 27.1 al. c). Then, following US

positions adopted under the pressure of prejudiced domestic firms, consumers associations

and NGOs (Global Forest Policy Projects and Global Witness), the UNO and the

Intergovernmental Panel on Forests (IPF) (Humphreys, 2006) but, in 1996, in facing the

resistance of targeted developing countries, no tools were defined. In 1997, following the US,

British and Canadian delegations, the G8 members turned their attention to the illegal logging

issue and published the Forest Law Enforcement and Governance (FLEG) declaration.

Ambitious initiatives were announced to counter illegal logging by enforcing national forest

laws, strengthening international cooperation as well as national authorities. In so doing

illegal logging was defined as an international issue (Petiteville and Smith, 2006) which

demanded dedicated policies at both international and national scales. Following this

declaration, the USA added illegal logging to the Lacey act on prohibited importation (2008)

and the EU published (2003) the Forest Law Enforcement, Governance and Trade (FLEGT)

action plan. With this new instrument the EU thus pursued the objective of enforcing

policymaking in forest management and globalized wood trade. In 2010, the Timber

regulation defined new rules for EU timber importers according to two sets of legality. First,

the Voluntary Partnership Agreements (VPAs) is a bilateral agreement signed between a

voluntary non EU timber exporting country and the EU. It aims to guarantee that the wood

exported to the EU comes from legal sources and to support partner countries in improving

their own regulation and governance of the sector. It foresees emission conditions of FLEGT-

licenses timber to cover such legality. On the other hand, where VPAs are not signed, due

diligence from EU importers is required and they have now the responsibility of the wood

legality proof from the local timber area to the EU customs and Common market. In March

2013, when the Timber regulation entered in force, six countries have signed VPA with EU

(Cameroun, Ghana, Centrafrican Republic, Congo Republic (Brazzaville), Indonesia and

Liberia), six were in negotiations (the Democratic Republic of Congo, Gabon, Guyana,

Honduras, Malaysia and Vietnam). They together represented 40% of EU imported wood.

The EU foreign policy (Petiteville, 2006) to counter illegal logging aims at producing effects

in the countries where the sectoral problem has arisen (Petiteville et Smith, 2006, p. 362). In

so doing, since EU is a major timber and wood importer, this Timber regulation is a

recentralization of public action that could be seen as deeply perturbing the global governance

of forest management and wood trade with bilateral agreements and policy transfers

(Dolowitz and Marsh, 2000; Delpeuch, 2009). Indeed, we could observe a complex global

forest governance (Bernstein and Cashore, 2012) that contains both public and private rule

making to challenge deforestation issues which efficacity could be questioned: The

multilateralism unachieved bargains, the absence of a world forest convention, the weak

international regime (Smouts, 2001; Humphreys, 2006) are progressively replaced by a

privatized governance with soft law and market driven instruments to influence themselves

domestic policies and firm practices (Pattberg, 2005; Falkner, 2008). With FLEGT licenses-

timber and due diligence regulation, these two pathways of influence are no longer parallel

with their own causal logic but these new public instruments appear to challenge private

rulemaking in embedding it in a predefined role in VPAs. These are no longer recognized as a

proof of legality but only become legal after an evaluation during VPAs negotiations.

In so doing, the EU FLEGT AP has to be studied as a strong public decision – the Timber

regulation and VPA binding agreements– and from its implementation – with the VPAs

negotiations and implementation in third countries and the Due diligence on markets – at both

international and national levels.

It thus appears as a policy change in the European government of forest sector (Smith, 2010)

by the modifications of its objectives and tools (Hall, 1993). According to sociology of public

action, the study of this change cannot be sequenced in independent steps with, on the one

hand, the decision and, on the other hand, the implementation and its effects, because actors

hybridize the public agenda (Fontaine and Hassenteufel, 2002). Thus, since 2001 at the

international scale, and its transfer to EU agenda-setting and the implementation of the

Timber regulation, we could have observed a progressive change with new objectives and

tools. But such a change could not only be studied according to an analysis of incrementalism

or path dependency but as a policy rupture to which private actors try to resist.

Thus, the treshold effect (Pierson, 2004) is crossed by various decisions to define VPAs

implementation in signatory countries, the due diligence systems in MS and industries and the

place of private rule in this new Timber regulation. Moreover, this latter regulation has to be

understood not only as a decision (Smith, 2012) but also as a collective definition of problem

by actors in interaction whose aim is to influence domestic and EU policies at both European

and exporting countries scale. Each actor is grounded on, first, its representation of the

problem and its solutions and, second, the effects on his sectoral practices and his attempts to

control them (Hassenteufel, 2011). In sum, in facing a collective and polycentric forest

governance in which rules and their implementation are coproduced by both public and

private actors (Fouilleux, 2013), I argue that the recentralization of power in the regulation of

the sector, both at (sub)national and global scales, has led to a contentious relationship with

private rulemaking.

Using on the one hand an analytical framework grounded in constructivism, institutionalism

and political sociology, I show how the EU FLEGT regulation has emerged as part of a

change in the governance of the sector amounting to a recentralization of power

(Hassenteufel, 2011). Consequently, private actors had to legitimize their practices and

instruments by undertaking, at multiple scales, the political work (Jullien and Smith, 2008) of

problematization (Rochefort and Cobb, 1994) and politicization (Lagroye, 2003) regarding

their institutionalised (Jullien and Smith, 2008) and territorialised forest issues (Carter and

Smith, 2008). I also show that complex forest governance has to be studied by combining IR

theories and the public policy literature. From this perspective, I analyse actors’

representations of ‘problems’, and the way they build interests and political work across

scales of regulation. This allows a better understanding of how policy instruments were

defined and what were their effects on sectoral actors and on the distribution of power (Smith,

2012). I grounded my work in qualitative methodology by using material drawn from

scientific and expert’s literature and interviews with stakeholders (especially with timber,

trade and paper firm representatives) and employees in charge of the FLEGT action plan

within the EU’s institutions.

On the first part, I draw the European policy frontiers in following the political work of public

and private actors involved in this recentralization of policy making and on the second one I

demonstrate how private actors from the industry try to control the effects of the Timber

regulation on their sectoral relations.

The European policy change: the public-private interactions in the

recentralization of regulation

This section aims at demonstrate how the EU representatives recentralized the EU action to

counter illegal logging within a globalised wood economy and transnational actors. Grounded

on the presentation of their redefinition of European action, I then describe an analytical

framework of the policy change that follows actors within the change, the regulation and the

power redistribution.

The frontiers of the European policy: the collective problematization

of the EU new regulaitons to counter illegal logging

The description of collective action regarding these issues allows to follow actors implied in

the collective definition of the EU public problem and in so doing the EU policy making and

decisions to address, in 2013, an issue which have been denounced since the years 1980.

The G8 FLEG declaration has occurred as a policy window (Kingdon, 2003) for

representatives of both NGOs and EU to transfer the illegal logging and trade issues in the EU

public agenda.

On the one hand, the NGO Forests and the European Union Resource Network (FERN), the

Royal Institute of International Affairs (Chatham House), but also Greenpeace and WWF, get

into action to make EU institutions to define a new regulation to address illegal logging issue.

From now on, they no longer name and blame States and transnational firms involved in

illegal logging but they want to shame them into stopping it with tools designed according to

the FLEG Declaration and sustainable forest management principles.

On the other hand, from 2002, representatives of the Commission Environment Directorate-

General (DG Env), DG Trade and DG Development (DG Dev) have embarked on the

definition of actions EU could adopt to counter illegal logging. Thus, an international

workshop is hold in Brussels on forest law, governance and trade. Then, at the World Summit

on Sustainable Development held in Johannesburg, the Commission representative announced

the EU engagement to counter illegal logging grounded on diplomacy with timber and wood

exporting countries and the regulation of EU timber and wood imports. Such an EU policy

involves experts, stakeholders from civil society and firms and representatives of MS and

exporting countries in order to define coercive and incentive instruments to norm global trade

and forest management in third countries and their circulation within scales of regulation from

sector to national and supranational one (Montouroy, 2012). Following its international

discourse, the FLEGT AP is adopted in 2003. The custom timber regulation adopted in 2010

is its last step in being grounded on the diplomacy and the VPAs (2005) and the due Diligence

regulation (2008) that enacted what is waited from private actors where VPAs were not

ratified.

As a tool of foreign policy and diplomacy, the VPAs aim at sustain cooperation on timber

trade but also in sustainable forest management. Grounded on the existing domestic legal

framework, negotiations are dedicated to its clarification and its implementation with the

involvement of stakeholders and public authorities. In VPAs negotiations, EU and exporting

country government representatives fixed the conditions under which FLEGT licensed-timber

could be issued. It is important here to point out that such bilateral agreements on trade and

forest management are inescapable for EU because of the WTO regulations on the

discriminative behavior and technical barriers to trade. So, unless EU has signed a bilateral

agreement, it could not force exporting countries to pay attention to domestic forest law and

sustainable forest management. Moreover, in order to sustain FLEGT certificates where VPAs

are not signed, the due diligence of EU operators is required in having the charge of imported

wood legality. Due diligence regulation had been adopted in 2010 after the rapporteur

Caroline Lucas, from the Parliamentary group Vert/ALE, had relieved this lack in FLEGT AP

regarding the Lacey Act and the Chatham House report (Brack, 2007). Following it a public

consultation was held by the Commission in 2007. Indufor (Finnish firm specialized in forest

consultancy) was charged to implement some of them (Report to the Commission, December,

12th

2007).

Grounded on various instruments both coercitive and incentive, the FLEGT AP

implementation occurred at sectoral, European and international scales. Moreover, the VPAs

negotiations were lead within three collective arenas: the first one in the exporting country

with government representatives (ministers in charge or concerned by forest law and

management) and EU representatives (DG Dev). The second one occurred in the EU within

the institutions and with the MS. The third one is with the representatives of national sector at

both European, national and sectoral scales. Across these three scales of action, it is possible

to observe intermediaries (Nay and Smith, 2002). They represent their specific interests and

representation of the problem in the implementation of FLEGT AP and VPAs negotiation at

both national and European scale. Because the exporting countries voluntary engage the VPA

negotiation regarding their own forest law, each negotiation is specific and intermediaries and

stakeholders have to each time defend their interests. Such an attention is essential because

negotiations are opened to stakeholders’ participation at the sole first stage of it. After it,

public representatives only negotiate on forest law and private practices which have been

previously declared. Not only the stabilized private practices and unilateral regulation are

challenged but also the certifications schemes and normalization are to. So, the impacts on

public and private actors are manifold. Consequently, private actors had to legitimize their

practices and instruments through undertaking the political work (Jullien and Smith, 2008) of

problematization (Rochefort and Cobb, 1994) and politicization (Lagroye, 2003) with EU and

exporting countries representatives.

At the European scale, each government named special representatives for FLEGT1 in charge

to examine the VPAs negotiations and their potential effects on the national sector. As public

intermediaries between the government and the sector but also with the other MS and the

exporting country, they assume the responsibility to pursue the FLEGT action plan objectives

1 Phone interview with a Ministère de l’agriculture représentative, octobre 2011.

and sustain national sectors efforts to be ready in March 2013, when the VPAs and the Timber

Regulation run. However, MS perceived differently the interests to implement the FLEGT or

its consequences for their national sector2. So, it could be observed that the MS already the

most engaged in cooperation on protection of forests were the leaders on the implementation

of the FLEGT. France, Holland, Great Britain had invested and transfer among 608 millions

of euros (EU/EFI, 2011, p. 58), co financed with the European Fund for Development.

The various MS positions on FLEGT face the European Commission and the Parliament. On

the one hand, the Commission is perceived as a weak leader by various MS representatives

and, on the other hand, Parliament Rapporteur was not reelected in 2010. Despite the new

timber regulation, the statu quo could be the consequence with, on the one hand, VPAs drawn

on private practices and instruments and the weak involvement of Commission and MS and,

on the other hand, the due diligence regulation which lay on private regulation and existing

public instrument which are not enforced neither monitoring. Such a statu quo risk threatened

the Commission and MS to be exposed to a referee from the European Court of justice.

Despite such procedural questions on the EU action, it placed public authority at the core of

the process with coercive instruments in the sector regulation which appears as a policy

breakdown.

The European policy breakdown by recentralization

Facing collective actions (lobbying, advocacy, expertise) on many various participative and

technical issues(Manin, 1996 ; Gunningham and Grabosky, 1998 ; Lascoumes, 1998), forest

global governance and European studies have emphasized on the withdrawal of public

authorities and their learning process to innovate in defining instrument of public action

(Lascoumes, Le Galès, 2004). But European public instrumentation against illegal logging

took in charge the sectoral issue and recentralized public action and governance by

embedding it in a constitutive and regulatory policy (Lowi, 1972) with the enforcement of the

2 In April 2009, the day before the EU Parliament vote, the French Prime Minister Office send a mail to

Eurodeputees to denouced a too heavy FLEGT instrument for firms.

control and the public orientation (Hood et al. ; 2001). Moreover, the agenda setting was

clearly sequenced to forbid any reproblematisation after the VPAs ratification and any gap in

the implementation of the decision. In sum, the FLEGT action plan is a politicized,

identifiable and operational instrument to control sector and its member practices and private

regulation.

According to Pierre Lascoumes and Patrick Le Galès (2004, p. 358), such an instrumental

innovation illustrates the tensions between public and private authorities and the way

following which States have to adapt to globalization, the multilateralism weaknesses and the

privatization of governance. As a bilateral agreement, VPAs aim to produce a “symbolic

effect of authority” in order to label the return of public authorities in forest management and

its following “efficacity purpose”, law and the administrative competence in sectoral

regulation. So, VPAs symbolize the State modernization with new public instruments, not by

the deregulation of markets but by a new command and control task. Grounded on my

qualitative methodology, I could moreover show that public representatives have learnt from

the private experience in normalization and non state market driven instrument (Cashore,

2009), their collegial definition of standards and indicators, their legitimization and evaluation

(Cadman, 2011). Otherwise, instead of private actors legitimatized by NGOs, collegial

definition of action and the normalization, public interest on public goods is now pursued by

States and the use of labels defined in VPAs to constrain market operators. Therefore, the

policy capture risk of public interest and decision by private interests is lowered by rules of

participation.

Table 1 : European recentralisation européenne on wood trade regulation

Dynamics

Scopes

State withdrawal

< 2003

Recentralization of public action

> 2003

Orientations Private regulation FLEG

Regulatory and procedural policy

Cooperation

Actors Transnational actors (NGOs, private

norms)

International Organisations (FAO-

COFO) + States (foreign policy,

cooperation, policy transfer)

Etats producteurs

DG Com, Env et Dév + EM

OI + Transnational actors (under

participative conditions of VPAs)

Institutional framework Certification schemes

Exporting/importing countries

(national forest laws, customs)

FLEGT Action Plan

Individual choices/state bypass

Instruments Customs rules

Private regulation

>2013 : Timber regulation (VPAs/

FLEGT certificates or due diligence)

Figure 1 Authority displacements in the complex global governance

Centralisation

International

Public targets

Independant private actors

Transnational

Decisionmakers Delegation/PPP

States + IOs

Privateactors

•FLEGT/VPAs

•FNP/Forest law

Non state market-driven instruments•Normalization (ISO)•Forest certification schemes (FSC, PEFC)

• UNCED Forest Principles• G8 FLEG

Source: Montouroy (2012), from Pattberg (2005) and Cadman (2011)

• self regulation industry programs

National scale

FLEGT/DD

Grounded on the Hassenteufel analytical framework of change (2011) (table 1) and on the

continuum of governance (Pattberg, 2005) and authority (Cadman, 2011) (figure 1), I show a

displacement of power and authority from private actors to public authorities and the

balancing between private and public norms. Such a recentralization is grounded on a legal

matrix negotiated between DG Dev and exporting countries representatives and then ratified

in both EU and third country.

Facing such a change in regulation, members of sectors have to relieve many challenges: with

the timber regulation occurs many uncertainties on the ways and impacts of change on their

stabilized practices within operators and forest management.

The FLEGT action plan effects on private actors: uncertainties on self

regulation and public-private coproduction of rules

The implementation of FLEGT action plan involves studying individual strategies of

adaptation to change in order to internalize it. Thus, each category of private actors is

impacted. On the one hand, firms self regulation could no longer be the proof of the legality

and sustainability of their practices but they have to be part of the VPAs or recognized in due

diligence. On the other hand, certification schemes enter in competition with VPAs and could

not be a proof per se. In so doing, the private instrument would not be more useful for firms

and market operators where VPAs are.

In reaction, these actors try to fit in the change in order to control its effect on their practices

in making them converge. In other words, in VPAs negotiations, they aims to make them

recognized. In DD situations, they aim to know precisely what enter in or not. In that

perspective, both firms and private authorities of certifications schemes legitimate their

instrument regarding new public tools regarding their previous behaviour.

The relegitimatization of certification schemes

Governance of forest issues literature is nowadays focused on firms (Falkner, 2008 ;

Compagnon et Orsini, 2011), NGOs (Keck, Sikkink, 1998 ; Haufler, 1995) or certification

schemes (Pattberg, 2005 ; Auld et al., 2009 ; Cadman, 2011), corporate responsibility

(Cadman, 2013), private-social networks (Delmas, Young, 2009) and accountability regime

change (Chan et Pattberg, 2008). Four reasons are advanced to explain such a privatization:

Firstly, since the Summit of Rio held in 1992, the failure of multilateralism (Smouts, 2001 ;

Humphreys, 2006) and domestic governance had lead representatives of civil society to draw

new instruments grounded on market mechanisms, voluntary involvement and private

authority which one is legitimated by collegial decision and/or audit from a third private

independent authority. Secondly, unless all States are targeted, according to the WTO rules,

one State is not allowed to define any discrimination for environmental reason. So voluntary

market driven instruments are an alternative defined as a post sovereign instrument

(Karkkainen, 2004). Thirdly NGOs are now powerfull transnational actors grounded on

expertise and both vertical and horizontal networks which ones challenged States and firms in

the problem definition and instrumentation at any scale of regulation. Fourthly, certification

schemes allowed actors to connect the forest and land management issues to markets

mechanisms and consumers choices on various countries and scales. In sum, certifications

schemes and privatized regulation appear as a useful tool to relieve the forest sustainable

management challenges at the various scales of action (Young, 2000 ; Chan et Pattberg,

2008).

Facing this private authority, EU denounced a mitigated assessment regarding the part of

forest certified, its efficacity restricted to the only forest concessions. Regarding such critics,

private authorities have to maintain in the government of the sector. Their political work aims

at legitimize their contribution in solving illegal logging as they politicize their involvement ti

improve their function in sustainable forest management and wood trade regarding

international environmental agreements like CITES (the Convention on International Trade in

Endangered Species of Wild Fauna and Flora) and negotiations on new multilateral

mechanisms like REDD+ (Reduce emissions from deforestation and forest degradation).

Two certification schemes, the Forest Stewardship Council (FSC) promoted by NGOs to

protect forest ecosystems and the Pan European Forest Certification (PEFC) defined within

the European processus Forest Europe in order to help European forest owners in adopting

sustainable forest management schemes and then to recognize non European national

certification scheme, both dominate the globalized forest management and trade. But, as

market-driven instruments they were the only tools to relieve the challenges of sustainable

forest management. With the FLEGT as a new state driven instrument, their authority and

utility are challenged. So, their representatives involved a political work to legitimate their

authority in revising their standards and in problematizing synergies between public and

private rules in order to no longer be a depoliticized instrument of the policy capture but to

appear inescapable in the ways to solve the various issues of forest areas protection and

management.

Thus, on the one hand, according to an UNECE/FAO report (2009, p. 149), PEFC revised its

governance principles in 2008 and created a “stakeholders forum” including IOs. Moreover,

the PEFC International general assembly, in preparing the following Rio+20 conference in

June 2012, launched in 2010 the Rio forest certification Declaration with a set of principles to

promote forest certification and the role of State in the involvement of forest policies.

Following this declaration, PEFC is presented as a public action tool on which States could

lay the forest policy and the control of the globalized chain of custody in finding many

synergies and not in opposition with public authority denounced as failed. In so doing, PEFC

is legitimated with technical argument (expertise, normalization of globalized and local

practices) but also with symbolic ones (The PEFC Rio forest certification declaration is

launched in Rio (where the CNUCED was held and the Forest principles adopted and then

presented in the Rio+20 conference in 2012). Moreover, facing criticism on the controversial

sources, the chain of custody standards are revised in order to include requirements of CITES.

Finally, PEFC International participated in a transnational network composed with the

Confederation of European Forest Owners (CEPF), the International Family Forestry

Alliance (IFFA) and the International Alliance of Indigenous and Tribal People of the

Tropical Forests (IAITPFT) which had organized a workshop in sustainable forest

management and certification. The network members aim at presenting the role of forest

owners and local stakeholders in forest management. Grounded on such international

background, PEFC International representatives participated in the first stage of VPAs

negotiations and before it organized workshop on the further VPAs negotiations.

On the other hand, FSC, grounded from 1991 on the network Global Forest and Trade

Network, is implementing a new communication strategy in order to improve its diffusion

among local communities, forest owners and firms. FSC representatives legitimate this

market-driven instrument by its efficacity and the possible synergies with multisectoral issues

like climate change or biogas (UNECE/FAO, 2009 : 151). Regarding FLEGT

implementation; FSC had published in 2007 a work document on synergies between FSC

certification scheme and FLEGT certificates in the collective definition of legality and with

the « controlled wood » label in the traceability in the chain of custody which maintains FSC

standards for non-FSC certified material used in FSC mix products.

However, such a public-private conflictual relation has to be qualified with unexpected

effects. Thus, if certification schemes had been developed to face a weak international regime

and the failure of national forest governance, VPAs bilateral agreement could be a new

resource for their development. Indeed, on the one hand, the enforcement of forest law would

clarify the non States market-driven instruments. For example, the failures of the Pan African

Forest Certification or with PEFC Russia were due to the weakness of authorities in

implemented forest law and monitoring it. In return, the FSC successes in these regions could

be explained with its definition at the only scale of the concession. In sum, facing an

unfocused law and its weak implementation, forest certification schemes could only be

effective in the concession. VPAs could be a ground to mutual recognition between PEFC and

national forest scheme. On its side, FSC will be defined following VPAs rules. Moreover,

such a legal framework allows clear negotiations and implementations for forest certifications

use.

Such modalities of non state market-driven instruments implementation highlight two

unexpected effect in the privatization of governance: On the one hand, if privatization was

due to the failure of public regulation its implementation is strongly dependant on the

previous State capacity to establish, firstly, a legal framework on forest management with

concessions, management plan and monitoring, second, the transport and custom documents,

the effectiveness of forest law and/or third, with the State retreat modalities. Each modality of

public action required the capacity to domestic authorities to monitor it according to good

governance standards and prescription without which the certification schemes could not

arise. On the other hand, according to operators interviewed, another unexpected forest

certification schemes effect is their capacities to become a “forest management as usual

standard” that allow operators to better knowing the stocks in forest and the wood trade. As

firms had firstly invested in certification schemes to face NGOs criticism on the sustainability

of their practices they have since progressively turned their attention to their capacity to be an

effective standard to rationalise management. From a marketing investment it is now a

business model in which NGOs, firms, experts and auditors have together learnt.

Within the members of the sector, FLEGT action plan challenges not only certification

schemes but all the stabilized sectoral practices, especially the firm self regulations. Their

interests to participate in the collective definition of VPAs, their implementation or in the due

diligence ones aim to withstand or integrate the policy change in their relationship within the

chain of custody.

Interest groups in complex governance of the forest resource: the

coproduction of EU forest policy against illegal logging

In the FLEGT Action plan, two matrix of legality were defined. The first one is the VPA

which fixes the forest law, its implementation and the authorities (public and private) that

provide FLEGT-licenced timber to firms. The second one is the due diligence system. In

absence of VPAs, the DD EU regulation refers to both public and private instruments which

firms refers to in order to demonstrate the legality of timber and wood. The both impacted

international forest management and wood trade in strengthening EU customs regulation. If

the first one is a coercive law that enacted which practices are legal in order to obtain FLEGT-

licenced timber, the second one could appear weaker in enacting a large set of documents that

firms could provide to EU customs.

The both also challenge firm stabilized relationships to forestry. With VPAs, from a country

to another, firms could no longer adopt the same certification scheme. With the due diligence

regulation, they have to provide themselves all the evidence of legality from the forest

concession to consumers without any standardized system and self regulation is not an

evidence of legality per se. So, firms have to question their investments and the definition of

their stabilized management and trade practices. In sum, these new regulations generate

uncertainties that firms have to face in defining process and requirements to operators.

Facing such industrial issues and changes, collective action by the interest groups lobbying

did not aim at reproblematize the illegal logging issue but at make converge new regulations

with their stabilized practices. I focus here on three intermediaries from forestry (the Inter

African Forest Industries Association – IFIA), trade (Le Commerce du Bois – LCB) and paper

industry (Confederation of European Paper Industries – CEPI). Facing uncertainties, they

inform their members on the change, define together transindustriel links and politicize their

perceived interest in EU institutions and third countries.

Figure 2: The intermediaries role in FLEGT Action Plan

First, the CEPI is not a major non European wood importer (89% of imported wood is from

EUMS (CEPI, 2012. p. 29) but its major non European imports are from Russia which is

regularly denounced by NGOs as a source of illegal logging (WWF, 2009). As FLEGT-

licenced timber today only concern tropical forest countries, CEPI members have to adapt

their practices already grounded on certification schemes to VPAs and especially to the due

diligence regulation. Paper industry was early targeted by NGOs on the forest sustainability.

From 1990’ firms have been defining self regulation with codes of conducts, adopting

certifications schemes (in 2011, 61% of wood consumed is PEFC or FSC certified, 23

millions of ha with FSC schemes and 60 millions of ha in PEFC and 96.3% of market pulp

production capacity is covered by chain of custody certification (2008: 90%) (Sustainability

report, 2012, p. 30) and lobbying for a universal certifications schemes mutual recognizing

system (in order not to have to invest in different schemes following standards of countries of

production and the one waited in consumer’s countries). But, in 2011, PEFC recognition of

Russian national certification schemes was suspended because of nonpayment. Previously,

there were already many problems with Russian authorities and Russian firms on the national

Russian certification scheme and forestry. Since 2006, CEPI members have implemented a

code of conduct in order to clearly define practices regarding timber, wood and pulp trade and

legality, diligence on source, the proof of legality and which documents they are required to

procure to customs and operators in the chain of custody. Interviews with CEPI representative

highlighted the lack of transparency of many non EU imports. Such a lack could only be

Information and negotiations with

European, MS and third countries

public authorities

• On the effets on firms

• Role of private regulation

• Clarify the implementation

Information to members and

transindustrial links

• On the effects

• Implementation

• Concerted adaptation

challenge by the knowledge of operators and the stabilized trade relationship with foresters

and traders. Moreover, forums with public authorities are held to promote their practices and

the implementation of the code of conduct. Then, an annual report is published to promote

efficacity and results of this unilateral regulation. In sum, such a code of conduct aims a

improve members practices in trade source and legality in order to avoid any legal

disapproval in situation of failure of forest governance and governability. In 2012, CEPI could

affirm that 95% of its members have the relevant documentation relating to the origin of non-

certified purchasing (Sustainable report, 2011, p. 2).

As CEPI, IFIA aimed to make EU and public authorities to recognize their member practices

in order to avoid any proliferation of control on timber legality in both VPAs signatories’

countries and due diligence on imports3. They problematize (Rochefort and Cobb, 1994) such

recognition by the previous investments and progress in forest sustainable management, in

broad and multilevel governance (Bernstein and Cashore, 2012) regarding international

debate on forest, investment in certification schemes and the forest code. Such a

problematicization is grounded on information to public authorities (Racewood forum) and on

collaboration (Recapwood forum) in order to make them clearly evaluating the FLEGT action

plan impacts on members and private sector. Such on continuous process of information aims

at fix IFIA members as inescapable actors of forestry regulation legitimated by their stabilized

relationship to forest territory they have built (Carter and Smith, 2008). IFIA politicizes it as

an intermediary with the French Ministry of agriculture and its office in charge of FLEGT. In

so doing, on the one hand, it allows its members to know and implement the new regulation

and, on the other hand, it brings sectoral and technical information to the Ministry but also

information on the impacts on the member practices in the third countries. To enforce its

politicization, IFIA work together with LCB, the representative association of French wood

importers in order to coordinate the positions of industries in the chain of custody.

LCB, on its own side, value member investments in private regulation. Like CEPI or IFIA,

LCB has defined a code of conduct in 2006, the Environmental Charter. Nevertheless, this

one is non unilateral but collectively defined in a public-private-social partnership (Delmas

and Young, 2009) with NGOs (WWF, Friend of the Earth, consumer associations, the

3 Entretien avec un représentant de l’IFIA, Paris, mai 2011.

Ministry of agriculture) and is evaluated by three external auditors: FCBA, SGS and Veritas4.

It was recognized by the French Prime Minister in 2008 as a guideline for green public

procurements. From 2011, the Charter is no longer voluntary but coercive. As an ISO

standard, members have to yearly improve their sustainable practices. Six members did not

agree such a new constraint and quitted LCB5. The next step is to be recognised as a licensing

authorities recognised by MS and Commission in FLEGT VPAs-licensed timber

implementation.

The LCB political work aimed at problematise its member stabilised practices regarding

FLEGT action plan and the investments in certification schemes. As these non States market

driven instruments are already evaluated by an independent authority, it was argued that

public authorities have to refer to them as standards on which they could lay public action

against illegal logging and not in enforcing the traditional States command and control power

by embedded these private instrument in the sole first step of VPAs negotiation. Thus, it was

shown that the illegal logging issue has not to be challenged in certified forest concessions in

VPAs or non VPAs signatories’ countries but outside them in order to control the efficiency,

the efficacity and the quality of forest governance where public authorities are failed.

Following this problematization, LCB’s politicization occurred not only in VPAs negotiations

but within MS and EU arenas, in multi stakeholder forums and in the chain of custody by

transindustriel links with foresters and consumers. Following this political work grounded on

the Environmental charter and the certification schemes, LCB aimed at make its members

progress in sustainable forest management regarding the global and EU agendas on forest. It

also provided a FLEGT evaluation platform in which LCB is a stakeholder but also an expert-

auditor which aimed to be recognized by the Commission (COM(2008) 644 final, art 5.1) as a

FLEGT accreditation organism. In so doing, it could focus on certification scheme in due

diligence system measurement.

In sum, whereas FLEGT Action plan appeared as a strong command and control instrument

from EU authorities with the centralization of the public problem definition and

instrumentation, implementation was constrained by collective actions of lobbying and the

definition of trans industrial links. Grounded on the observations and interviews I could

4 Entretien avec un représentant de LCB, Paris, avril 2011.

5 Entretien avec un représentant de LCB, Paris, avril 2011.

demonstrate the importance actors gave to their stabilized practices in forestry and between

operators of the chain of custody. Then, such an instrument and its implementation

highlighted the interactions between EU and national authorities in charge of FLEGT action

plan and the intermediaries from the timber, trade and paper sectors.

From a political economy perspective, such collective action could be explained following a

path dependence approach on the previous investments in certification schemes to enter in

private-social forestry and trade regulation but also to lock in. as its members and the chain of

custosdy operators had also locked in it, LCB problematicized it as an excess momentum to

maintain such a regulation within the public instruments in being a recognized authority in the

wood global trade legality evaluation. But, although the CEPI and the IFIA are intermediaries

who try to inform their members on the changing policy, its implementation in sharing

experiences and exchanging with public authorities, LCB may have too much anticipated on

the FLEGT success in defining a new tool of sector government. Such definition could appear

earlier for various observers like DG Dev or for the FLEGT office of the French ministry of

agriculture because many implementation choices were not enacted6.

Conclusion

With the FLEGT AP, VPAs, FLEGT-licensed timber and due diligence regulation, forest

governance is made more and more complex. The complex of global forest governance

contains both supra and transnational authorities with direct access to domestic policy

processes, discourses and norms on sustainable forest management as a paradigm (Hall, 1992)

or as a global and sectoral reference (Muller, 2003) regarding Forest principles (1992) and the

NGOs (Keck and Sikkink, 1998) and epistemic/knowledge communities (Haas, 1992;

Smouts, 2001) advocacy which guide forest policy, ideas and behaviours or to denounce

unsustainable practices. Such an evolution points the circulation of norms and the policy

transfer. But such a result from international studies has to be added with the Public Policy

Analysis in order to explain how transferred norms and rules are translated and implemented.

6 Phone interview with Ministry of agriculture representative in charge of FLEGT, October 2011.

Interview with DG Dev representative, Brussels, December 2010.

Moreover, despite the enhancement of international cooperation and rules, the policy transfer,

how this new instrument can face failed governance at both infranational and local level? As

research could note, the systemic and targeted abuse of small, poorly regulated logging

permits by logging companies facilitated quick access to forests for commercial logging, in

spite of tighter regulations and oversight. These ‘shadow permits’ are allocated in secret and

subject to few controls over their operations. Their characteristics typically include low

taxation, poor consultation with local people and minimal environmental requirements

(Global Witness, 2013).

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