Can non-state governance 'ratchet up' global environmental standards? Lessons from the forest sector

Review of European Community and International Environmental Law

Volumn 16, Issue 2, 2007, Pages 158-172

  Cashore, Benjamin ^a   Auld, Graeme ^a   Bernstein, Steven ^b   McDermott, Constance ^c,d  

^a YALE UNIVERSITY   (United States)

^b UNIVERSITY OF TORONTO   (Canada)

^c UNIVERSITY OF WASHINGTON   (United States)

^d UNIVERSITY OF BRITISH COLUMBIA   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL PLANNING; FOREST MANAGEMENT; POLICY MAKING; STANDARD (REGULATION); SUSTAINABLE FORESTRY;

EID: 34548523620     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2007.00560.x     Document Type: Article

References (69)

1. D. Humphreys, Logjam: Deforestation and the Crisis of Global Governance (Earthscan, 2007), chapters 2-6.
2. D. Humphreys, Forest for the Future: National Forest Programmes in Europe - Country and Regional Reports, COST Action E19 (European Science Foundation, 2006).
3. R.S. Dimitrov, 'Hostage to Norms: States, Institutions and Global Forest Politics', 5:4 Global Environmental Politics (2005), 1.
4. See, e.g., A. Prakash and M. Potoski, The Voluntary Environmentalists (Cambridge University Press, 2006) and V. Haufler, A Public Role for the Private Sector: Industry Self-Regulation in a Global Economy (Carnegie Endowment for International Peace, 2001).
5. B. Cashore, 'Legitimacy and the Privatization of Environmental Governance: How Non'State Market'Driven (NSMD) Governance Systems Gain Rule-Making Authority', 15:4 Governance - An International Journal of Policy and Administration (2002), 503.
6. S. Bernstein and B. Cashore, 'Can Non'State Global Governance be Legitimate? A Theoretical Framework', Regulation and Governance (forthcoming, 2007).
7. D. Vogel, Trading Up: Consumer and Environmental Regulation in a Global Economy (Harvard University Press, 1995), at 259-260.
8. R. Leakey and R. Lewin, The Sixth Extinction: Biodiversity and its Survival (Doubleday, 1995); S.L. Pimm and T.M. Brooks, 'The Sixth Extinction: How Large, How Soon, and Where?', in P. Raven (ed.), Nature and Human Society: The Quest for a Sustainable World (National Academy Press, 2000), 62.
9. Food and Agriculture Organization, 'Incentives to Curb Deforestation Needed to Counter Climate Change: Two Billion Tonnes of Carbon Enter Atmosphere Each Year due to Forest Loss', FAO Newsroom (FAO, 2005); and C.V. Barber et al., The State of the Forest: Indonesia (Forest Watch Indonesia, Global Forest Watch, World Resources Institute, 2002).
10. C.C. Gibson, M.A. McKean and E. Ostrom (eds), People and Forests: Communities, Institutions and Governance (MIT Press, 2000).
11. C.L. McDermott, B. Cashore and P. Kanowski, Global Environmental Forest Policies: An International Comparison (Earthscan, forthcoming).
12. International Tropical Timber Agreement 1983 (Geneva, 18 November 1983).
13. F.P. Gale, The Tropical Timber Trade Regime (St Martin's Press, 1998).
14. D. Humphreys, 'Hegemonic Ideology and the International Tropical Timber Organization', in J. Vogler and M. Imber (eds), The Environment and International Relations: Theories and Processes (Routledge, 1996), 214.
15. P. Dauvergne, Shadows in the Forest: Japan and the Politics of Timber in Southeast Asia (MIT Press, 1997); and P. Dauvergne, Loggers and Degradation in the Asia Pacific: Corporations and Environmental Management, Cambridge Asia'Pacific Studies (Cambridge University Press, 2001).
16. Agenda 21 Programme for Action (UN Doc. A/CONF. 151/26/Rev. 1, 14 June 1992), available at .
17. United Nations, Non'Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (A/CONF.151/26 (Vol. III), 14 June 1992).
18. D. Humphreys, 'National Forest Programmes in Europe: Generating Policy'Relevant Propositions for Formulation and Implementation', in D. Humphreys, n. 2 above.
19. E. Meidinger, 'Look Who's Making the Rules: International Environmental Standard Setting by Non'Governmental Organizations', 4:1 Human Ecology Review (1997), 52; and L. Gulbrandsen, 'Overlapping Public and Private governance: Can Forest Certi' fication Fill the Gaps in the Global Forest Regime', 4:2 Global Environmental Politics (2004), 75. The Ten Principles relate to: (1) compliance with laws and the FSC; (2) tenure and use rights and responsibilities; (3) indigenous peoples' rights; (4) community relations and workers' rights; (5) benefits from the forest; (6) environmental impacts; (7) management plans; (8) monitoring and assessment; (9) maintenance of high conservation value forests; and (10) plantations. See Forest Stewardship Council, FSC Principles and Criteria (Forest Stewardship Council, 1999).
20. J. Domask, 'Chapter Eight: From Boycotts to Partnership: NGOs, the Private Sector, and the World's Forests', in J.P. Doh and H. Teegen (eds), Globalization and NGOs: Transforming Business, Governments, and Society (Praeger, 2003).
21. T. Bartley, 'Institutional Emergence in an Era of Globalization: The Rise of Transnational Private Regulation of Labor and Environmental Conditions', 113:2 American Journal of Sociology (2007).
22. See T. Bartley, 'Certifying Forests and Factories: States, Social Movements, and the Rise of Private Regulation in the Apparel and Forest Products Fields', 31:1 Politics & Society (2003), 1; S. Courville, 'Social Accountability Audits: Challenging or Defending Democratic Governance', 25:3 Law and Policy (2004), 269.
23. See B. Cashore, n. 5 above.
24. B. Cashore, G. Auld and D. Newsom, Governing Through Markets: Forest Certification and the Emergence of Non'State Authority (Yale University Press, 2004).
25. See S. Bernstein and B. Cashore, above n. 6.
26. Because these systems change over time, not all five features apply to all of these systems all of the time. The point here is to focus public policy and international relations scholarship towards this unique form of governance, whose authority underpinnings and compliance incentives challenge assumptions held by State'based policy analysis.
27. E.E. Meidinger, 'The Administrative Law of Global Private-Public Regulation: The Case of Forestry', 17:1 The European Journal of International Law (2006), 47.
28. N. Gunningham, P.N. Grabosky and D. Sinclair, Smart Regulation: Designing Environmental Policy, Oxford Socio-Legal Studies (Oxford University Press, 1998), at 137-266.
29. For an earlier assessment of legitimacy and forest certification, see S. Bernstein and B. Cashore, 'Non'State Global Governance: Is Forest Certification a Legitimate Alternative to a Global Forest Convention?', in J. Kirton and M. Trebilcock (eds), Hard Choices, Soft Law: Combining Trade, Environment and Social Cohesion in Global Governance (Ashgate Press, 2004), chapter 2, at 33-64.
30. See S. Bernstein and B. Cashore, n. 6 above.
31. This is a very different question from asking why firms that purchase products, but whose behaviour is not governed by the certification system's rules, would develop 'pro'certification' purchasing policies. This is because it is much easier, and much less costly, for a Home Depot or IKEA to announce its commitment to support an NSMD certification system, such as the Forest Stewardship Council (either through membership or giving 'preference to' FSC certified products) than to a logging company, whose practices would be subject to, and constrained by, FSC rules.
32. See B. Cashore, G. Auld and D. Newsom, n. 24 above, at 25.
33. Ibid.
34. These questions must, ultimately, be linked to an assessment of whether, and how, Phase I and II dynamics might facilitate the development of a Phase III in which the NSMD governance systems become so engrained as a globally legitimate authority across a range of relevant actors and communities, that '...subjects [are] willing to substitute the regime's decisions for their own evaluation of a situation'. See D. Bodansky, 'The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?', 93:3 American Journal of International Law (1999), 596. See also S. Bernstein and B. Cashore, n. 6 above, who hypothesize that given NSMD's structural features that focus on market activity, it is impossible to reach Phase III without passing through Phases I and II.
35. This draws on the work of B. Cashore, G. Auld and D. Newsom, n. 24 above. See also B. Cashore et al. (eds), Confronting Sustainability: Forest Certification in Developing and Transitioning Societies (Yale School of Forestry and Environmental Studies, 2006).
36. See B. Cashore, G. Auld and D. Newsom, n. 24 above.
37. The lumping together in one chamber those economic interests (i.e. companies and non'industrial forest owners) that must actually implement SFM rules with firms along the supply chain that might demand FSC products, as well as with consulting companies created by environmental advocates, has been the source of much controversy and criticism. Along with concerns about the FSC being overly prescriptive, these governance procedures have negatively affected forest owners' evaluations of the FSC and encouraged the development of 'FSC alternative' certification programmes offered in all countries in North America and Europe where the FSC has emerged. See E. Rametsteiner, 'The Attitude of European Consumers toward Forests and Forestry', 50:196 Unasylva (1999), 42; and R.P. Vlosky, 'What do Non'Industrial Private Forest Landowners in Louisiana Think about Third Party Certification', 59:6 Forest Landowner (2000), 45.
38. The SFI was created following the association's failed efforts to limit governmental environmental restrictions in the US Pacific Northwest in the early 1990s.
39. See B. Cashore, G. Auld and D. Newsom, n. 24 above, chapter 4.
40. Ibid. See also F. Gale and C. Burda, 'The Pitfalls and Potential of Eco'Certification as a Market Incentive for Sustainable Forest Management', in C. Tollefson (ed.), The Wealth of Forests: Markets, Regulation and Sustainable Forestry (UBC Press, 1997).
41. J. Lawson and B. Cashore, 'Company Choices on Sustainable Forestry Forest Certification: The case of JD Irving, Ltd.', in L. Teeter, B. Cashore and D. Zhang (eds), Forest Policy for Private Forestry: Global and Regional Challenges (CABI Publishing, 2003). See also B. Cashore and J. Lawson, 'Comparing Forest Certification in the U.S. Northeast and the Canadian Maritimes', 53 Canadian-American Public Policy (2003), 1.
42. G. Auld, 'Choosing How to be Green: An Examination of Domtar Inc.'s approach to Forest Certification', 3 Journal of Strategic Management Education (2006), 37.
43. E.N. Sasser et al., 'Direct Targeting as an NGO Political Strategy: Examining Private Authority Regimes in the Forestry Sector', 8:3 Business and Politics (2006), 1.
44. See B. Cashore, G. Auld and D. Newsom, n. 24 above; C. Elliott, Forest Certification: A Policy Network Perspective (Centre for International Forestry Research (CIFOR), 2000).
45. B. Cashore et al., 'Revisiting Theories of Non'State Market Driven (NSMD) Governance: Lessons from the Finnish Forest Certification Experience', 7:1 Global Environmental Politics (2007), 1.
46. See B. Cashore, G. Auld and D. Newsom, n. 24 above, chapter 7.
47. See B. Cashore et al., n. 45 above, at 14.
48. The PEFC expanded to house the FSC competitors under one umbrella, and renamed itself, as of 2002, the Program for the Endorsement of Forest Certification, housing scores of national certification programmes designed to compete with the FSC, including those in Brazil, Australia, Canada and the USA.
49. P. Paschalis'Jakubowicz, 'Forest Certification in Poland', in B. Cashore et al., n. 36 above.
50. See B. Cashore, G. Auld and D. Newsom, n. 24 above.
51. These FSC competitor programmes originally emphasized organizational procedures and discretionary, flexible performance guidelines and requirements. However, each of these has changed, and continues to change in response to market pressure. For instance, the SFI originally focused on performance requirements, such as following existing voluntary 'best management practices', legal obligations and regeneration requirements. The SFI later developed a comprehensive approach through which companies could chose to be audited by outside parties for compliance to the SFI standard, and developed a 'Sustainable Forestry Board' independent of the AF&PA with which to develop ongoing standards.
52. See B. Cashore et al., n. 35 above.
53. B. Cashore et al., 'Forest Certification in Developing and Transitioning Countries: Part of a Sustainable Future?', 48:9 Environment (2006), 6.
54. Ibid., at 6.
55. Ibid., at 6.
56. T.K. Rudel, Tropical Forests: Regional Paths of Destruction and Regeneration in the Late Twentieth Century (Columbia University Press, 2005).
57. See C.L. McDermott, B. Cashore and P. Kanowski, n. 11 above.
58. P. Glück, J. Rayner and B. Cashore, 'Changes in the Governance of Forest Resources', in G. Mery et al. (eds), Forests in the Global Balance - Changing Paradigms (IUFRO, 2005).
59. J.C. Ribot, A. Agrawal and A Larson, Recentralizing while Decentralizing: How National Governments Re'appropriate Forest Resources paper presented at the Conference on Globalization and Self-Determination' (Yale University, 14-15 May 2004).
60. A. White et al., China and the Global Market for Forest Products Transforming Trade to Benefit Forests and Livelihoods (Forest Trends, 2006).
61. See D. Vogel, n. 7 above.
62. See N. Gunningham, P.N. Grabosky and D. Sinclair, n. 28 above.
63. See D. Vogel, n. 7 above.
64. E.R. DeSombre, Domestic Sources of International Environmental Policy: Industry, Environmentalists, and U.S. Power (MIT Press, 2000).
65. Seneca Creek Associates and Wood Resources International, Summary: 'Illegal' Logging and Global Wood Markets: The Competitive Impacts on the U.S. Wood Products Industry (American Forest and Paper Association, 2004).
66. See A. White et al., n. 60 above, at 6 and 11.
67. FERN, Illegal Logging, and the Global Trade in Illegally Sourced Timber: A Crime against Forests and Peoples (Arbeitsgemeinschaft fur Regenwald und Arenschutz, Down to Earth, Environmental Investigation Agency, Fern UK'Brussels, Friends of the Earth France, Friends of the Earth Netherlands, Friends of the Earth England Wales and Northern Ireland, Global Witness, Green Movement Estonia, International Fund for Animal Welfare, Rainforest Foundation UK, World Wide Fund for Nature (WWF), 2002).
68. EA'FLEG Task Force, East Asia Forest Law Enforcement and Governance Follow'up to the September 2001 Bali Ministerial Declaration (Asia Forest Law Enforcement and Governance, 2002); and N. Scotland and S. Ludwig, Deforestation, the Timber Trade and Illegal Logging, paper presented at the EC Workshop on Forest Law Enforcement, Governance and Trade (European Commission, Brussels, 2002).
69. G. Dodge, Environmental Investigation Agency: An FSC Ally for Stopping Illegal Logging (Forest Stewardship Council US, 2007).