Legality Definition
Legality definition
A FLEGT VPA commits two parties, the EU and a timber exporting country, to only trade legal timber. The first step is therefore to agree a definition of legal timber so that there is clarity on which set of laws will be enforced and monitored within the context of the agreement.
The legality definition is one of the elements of the VPA Legality Assurance System (which also includes specifications on how the timber will be tracked, on government legality controls, and on systems to verify the legality of the timber), and it is outlined in detail in one of the annexes of the VPA.
What does a legality definition cover?
Legality definitions must be based on the laws of the FLEGT partner country, which is the country that will be exporting timber and timber products to the EU market. Definitions should be based on principles of socially just and environmentally sound forest management, and therefore incorporate social, economic and environmental requirements throughout the entire production chain (pre harvest, forest management, transformation and trade).
Once the laws are agreed, the definition is transcribed in the form of a ‘legality grid’ or grids. These grids are templates that allow the assessor to know what needs to be checked when assessing the legality of timber and of forestry operations. They clearly define the regulatory reference that justify the requirement, as well as indicators and verifiers to clarify what which are the laws whos enforcement will be monitored. The development of a legality grid, though complex, should pave the ground for a definition that is easy to implement and to check.
For timber from the Republic of Congo to be legal, it must comply with all legislation applicable to the Congolese’s forest and/or plantation sectors (including forestry, land ownership, environment, human rights, labour and trade) and international agreements, such as the Convention on Biological Diversity (CBD) ratified by the Congo. Two separate ‘legality grids’, one for timber coming from forests and one for commercial plantations, were developed.
What process to come up with the definition of legality?
One of the key objectives of FLEGT VPAs, as outlined by the 2003 EU Council Conclusions on FLEGT, is to “strengthen effective participation of all stakeholders, notably of non-state actors and indigenous peoples, in policy-making and implementation.” To that aim, national consultations processes must be set up so that the legality definition identifies gaps and inconsistencies in the legal framework and integrate the concerns and interest of a wide variety of stakeholders and rights holders. Multi stakeholder processes are central to getting an agreement on a legal basis that, while being realistic and operational, is backed up by the different constituencies that will be taking part of forest management. This backing ensures VPA credibility, and credibility in the markets where VPA timber will be sold.
Before the Legality Definition becomes operational, a third party field test it to assess its operation ability.
The Definition of Legality provides the basis (and is integral part) of the Legal Assurance System (LAS) of the VPA.
Challenges
Through multi stakeholder discussions around the legality grid, most countries engaging in VPAs soon find out that there are weaknesses and inconsistencies in the legal frameworks that must be addressed. At this point, VPAs must foresee how these shortcomings are to be addressed within the VPA.
Both the Ghana and Cameroon VPAs have agreed to address those weaknesses through law reform in the medium-term, and have decided to still issue FLEGT licenses before the changes take place. This is likely to create a negative incentive towards setting up the Legal Assurance System and forgetting about the complicated governance reform processes outlined in the agreement. The Republic of Congo VPA has taken a more pragmatic approach. The Republic of Congo-EU VPA commits Congo to pass a detailed list of regulations before FLEGT licenses are operational, therefore de facto linking this commitment to the operationalisation of the agreement. It is yet too early to say which process will deliver better governance results.