Should we regulate forests through free trade agreements?

Abstract

The international forest regime—if there ever was such a thing—traditionally developed on the fringes of various environmental treaty regimes. In recent years, however, the regime’s boundaries have conquered new, historically hostile territories. The last two decades have indeed witnessed the emergence, and then proliferation, of a new generation of free trade agreements that incorporate commitments pertaining to forests. These commitments have developed along two lines: either through the establishment of linkages to pre-existing forest-related obligations enshrined in multilateral environmental agreements or through the creation of new forest commitments. To the extent that such trade-forest commitments have now become part and parcel of the international law governing forests, their existence raises important policy choice questions that have not been addressed yet. This article aims to fill this gap by answering the following question: should we, for the sake of the protection of our forests, welcome such a development or, on the contrary, oppose it? Using a legal-dogmatic approach, this article provides, based on a cross-study analysis of a selection of trade agreements including forest-related provisions, a doctrinal evaluation of the fitness of these commitments to achieve forest protection and identifies the opportunities and risks associated therewith. In so doing, this article debates the adequacy of international trade law for regulating forests.