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THE FORESTRY CRISIS AS A CRISIS OF THE RULE OF LAW

CHAPTER ONE

INTRODUCTION

The abstract global ideas of sustainable development1 and of the rule of law2 meet in the forests of the tropics, where the absence of viable community forest management institutions is driving deforestation and, therefore, the larger legal and ecological stability of the region. This interaction needs to be better understood by rule of law theorists seeking to discover and implement proper legal structures for development.3 The rule of law effort can be seen either narrowly, as a “thin” program focused on improving the mechanics of courts as well as legislative and administrative bodies, or as a “thick” conception rooted in the belief that such improvements will lead toward a stronger civil society and democracies rooted in the human rights tradition.4 Such improvements are assumed to be integral to sustainable development—the process of improving the welfare of poor nations without damaging their long-term ecological sustainability.5 The tools developed for use in the international rule of law effort can be usefully applied to problems of sustainability inherent in the deforestation crisis. In this Note, I show how the process of colonial state consolidation in the tropics has led to a juridical state but an empirical vacuum, as it has replaced complex indigenous forest management systems with simplified central state governments geared toward exploitation. As the nations of the tropics now attempt to restore control to forest communities and manage for sustainability, they are confronted with what is, in essence, a rule of law problem: how to either rebuild or create a legal and social management system in a political and social space of considerable disruption. After generations of exploitation by undemocratic colonial and postcolonial states, the world’s forests are in grim shape. One-third of the world’s surface (3.54 billion hectares) is forested; an average of 1.3 million hectares was cleared annually between 1980 and 1995.6 At this rate of harvest, few tropical forests will survive intact far into this century.7 Regionally, the data are stark: Haiti, for instance, lost half of its remaining forests in the 1980s, the Philippines forty percent, and Ecuador twenty percent.8 This loss is catastrophic, as it increases flood frequency, speeds soil erosion, displaces communities, foregoes the economic possibilities inherent in sustainable forest management, and presents major threats to global biodiversity.9 The result is a downward ratchet of increasing poverty and degradation as poor communities must further degrade surrounding forests to survive, kleptocratic governments capture forest wealth for themselves through corrupt concession-awarding processes, and the chances of forest recovery grow ever slimmer. While the causes of deforestation are complex and country-specific, similar drivers appear globally. The deforestation problem can be disaggregated into two separate but related crises: one of abusive central government and the other of abused villagers and peripheral districts. In the least democratic tropical states, dictatorial governments can award lucrative forestry concessions to political allies and foreign corporations without local checks. In the Philippines under President Ferdinand Marcos, for instance, the forests were treated as resources to be liquidated.10 Logging companies were encouraged to clear-cut forests in the name of efficiency.11 Similarly, the Burmese ruling junta invested heavily in destructive logging in mountainous border areas both as a source of profit and as a way of controlling rebellious minority groups in these outlying regions.12 The forest is seen as a source of capital and political control, not as a natural resource worth preserving. At the other end of the crisis, local communities may be deeply concerned about the forest as a resource but may nonetheless participate in its destruction as a result of economic and social factors beyond their control. Their helplessness results from a century or more of exploitation by central governments motivated by the possibility of political and economic gain that have devoted themselves to limiting community control over forest resources and to dismantling traditional patterns of shifting agriculture.13 This effort, combined with massive population increases in hinterland areas, has resulted in a syndrome of poor communities, stripped of traditional forest management institutions and