Legal Protection of Forests as Natural Resources

by Vladan Joldžić ^[1]

article published in Danubius 3-4/1997

In the years of the rapidly developing industry and growing number of planetary population, we have a more and more expressed need for oxygen, from the simple reason of the air contamination, mostly by CO2, sulfur and other byproducts of the highly developed economies. Also, we have a growing need for wood as the raw material for lumber products – this means: for lumber industry, as the growing part of the economies into many states. Of course: to satisfy a need of the growing population. This is not possible to do by simple engagement of companies. From those reasons modern states treat this problem not only by their economic policy but also by the legislation's and at the level of international law. Treat with norms primarily formulated to regulate positive relation against forests, as well as to protect from the possible negative. Yugoslavia, as all the states from the Danube region, constantly develops efforts in this direction. In the actual moment we can say that our state has really complex set of norms oriented at the sustainable use of woods as well as the legal protection.

In the Republic of Serbia legal protection of forests generally is based on The Law on Protection of the Environment, as well at lex spetialis: Law on Forests.

The Law on Protection of the Environment establishes few categories of forests, especially: 

1. Forests that protect land from the erosion
2. Forests that directly protect water sources for human use, as well as sources of mineral waters,
3. Forests located at the high boundaries of vegetation or at high mountains
4. Forests that protect water accumulations, railroads or human settlements
5. Forests that protect agricultural land, as well as
6. Forests that protect levees made for the protection of floods

Law on Protection of the Environment as the specially protected category establishes woods in national parks. Law on Forests, as lex spetialis, treats woods primarily as the economical value, but value with ecological functions as well - functions precisely formulated by the Article 33 of the Law on Protection of the Environment, numbered with the previously mentioned categories of woods. Law on Forests clearly regulate that no one subject can exploits woods at the way that can degrade wood, as well as the land of the forests, to the level at which wood can not self restore continuously, or at the way that weak the generally useful functions of forests, or prevent the continual lumber production.

The Law on Protection of the Environment and Law on Forests are materially legal base for the criminal norms, especially norm that incriminate raging of the forests. Norms formulated for the protection of the forests not only as the economical value but also as the ecological one. Such legal construction is present in many European as well as in USA and Canadian laws.

Having in mind useful functions of forests, between them function of the protection of many categories of waters, we specially point at the moment of international law protection of woods, protection indirectly achieved by:
The protection of air as medium by which forests can be attacked, as well as
Through protection from many kinds of diseases, and
From plant's and forest's pests.

First legal construction, pointed at the protection of few values, between them air and forests, formulated at the level of international law, clearly bilateral international law agreement, as we know, has been made by USA and Canada. We are talking about the Trail Smelter Arbitration Between Canada and the United States. After the establishing the damages made by fumes from Canada at the agricultural land and woods as the property of U.S. citizens (as well as at the health), U.S. started negotiations with Canada. Product of the negotiations was and still is a kind of arbitration: U.S. - Canada International Joint Commission. This commission has been formed under principles of international law. Product of her work has been principle that "No State has the right to use or permit to use of its territory in such a manner as to cause injury by fumes in or to the territory of another." As can be clearly seen, this rule formulated the genesis of avoiding (or preventing) the environmental harm principle. In our time this principle is general rule of many conventions, between them, for example: International Plant Protection Convention that has been ratified by Yugoslavia at November 2, 1952, and included in the positive legislation at the year 1955, as well as in the Convention on Long-range Transboundary Air Pollution.

International Plant Protection Convention possesses rules that are clearly pointed at the avoiding the environmental harm, by adequate protection of the plant's diseases and pests. The rules from this convention have been included in Yugoslav law by the Law on the Plant Protection from Diseases and Pest that Imperil All the State.

Convention on Long-range Transboundary Air Pollution, has the same principle of preventing the environmental harm built in articles:

• No2. That establishes general protection of the man and the environment,
• No6. Which establishes duty for the contractual side to:
  1. Control quality of the air, and
  2. Establish measures of protection,
• No7. That formulates duty for states to make and use the model of controlling the Transboundary air pollution, and
• No9. That establishes duty of participation in the program of environmental - air pollution monitoring in European countries.

As we can see Convention on Long-range Transboundary Air Pollution is multilateral, global and legislative contract formulated at the level of international law. All the rules from this text have been built in the Yugoslav positive law by the Law on the Ratification of the Convention on Long-range Transfrontier Air Pollution. The principle of avoiding the environmental harm, of course the harm at the forests and waters also, as clearly can bee seen, have been reflected and built into the many documents of the international law. This principle has been also used as the base to formulate the principle of consultation, that establish duty for states, as contractual parties, to discus planed activity which can produce Transboundary environmental harm. Precisely: to consult itch other "in good faith and over a reasonable period of time." This obligation of consultation is often connected with the another one: the obligation to get prior informed consent from potentially affected state. This principle is present into few relatively new legal conventions, for example: Basel Convention that treats Transboundary transport of hazardous wastes, Convention on Environmental Impact Assessment in a Transboundary Context, and Convention on Protection and Use of Transboundary Watercourses and International Lakes.

We think that is for Yugoslavia, for the protection of forests and waters, really needed to sign and ratify those three legislative conventions. Especially Convention on Environmental Impact Assessment in a Transboundary Context, that give to the agreement sides possibilities to protect the environment, what means: forestry and waters also. Those possibilities are obtained by the Appendix I, of the Convention, that especially regulate duty for the side at which territory is resource of the pollution or harm, to give all needed information about the resources and the type of pollution to the targeted side.

Third text for which we think that is useful to be ratified, Convention on Protection and Use of Transboundary Watercourses and International Lakes, as the legislative text of the international law, establishes, for the contractual sides, duties to:
Do all adequate measures to protect from any Transfrontier impact,
Do ecologically adequate measures in the using of the water resources (of importance for woods also),
Respect and use in legal ways the polluter pays principle,
Develop monitoring system, and
Use ecologically adequate technologies.

Act of the ratification of those three conventions will give Yugoslavia the position and possibility to demand from the other states, that ratified them, to respect all the rules from those legislative texts and by this way the possibility to effectively protect woods and waters at the state territory. This is the reason way we, at the end of our text, suggest the act of their ratification.

Bibliography

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, supra note 52, at Article 6. See: 28 I.L.M. 657, March 22, (1989).

Convention on Environmental Impact Assessment in a Transboundary Context, UN Economic Commission for Europe, Geneva, February 25, 1991, 30 I.L.M. 800 (1991).

Convention on Protection and Use of Transboundary Watercourses and International Lakes. Document: I.L.M. 1392 (1992), (Helsinki, Mart 17 1992).

Criminal Law of the Republic of Serbia.

Decree on the ratification of the International Plant Protection Convention, Official Register of the Federal Peoples' Republic Yugoslavia, No 7/1955.

Joldžić Dr. Vladan & Miličević Gordana: The Environment and International Agreements of Importance for the Federal Republic of Yugoslavia, p. 50-51, Belgrade, (1995)

Law on Forests, Official Messenger of the Republic of Serbia, No. 46, (1992) and 54, (1993).

Law on the Plant Protection from Diseases and Pest that Imperil All the State, Yugoslav Official Register No. 74, (1989).

Law on Protection of the Environment, Official Messenger of the Republic of Serbia, No. 66/1991. And 83/1992.

Law on the Ratification of the Convention on Long-range Transboundary Air Pollution, Yugoslav Official Register - International Agreements, No. 11/1986.

Montreal Rules of International Law Applicable to Transfrontier Pollution, September 4, 1982, Report of the Sixtieth Conference of the International Law Commission 1-3 (1982).

US. Versus Canada; III R.I.A.A. 1911, 1965, (April 16, 1938).

[1] Research Fellow at the Institute for Sociological and Criminological Researches, Belgrade, SCG
Environmental law expert on the list of the CEDAR-CEED (Expert profile No. 309) and the Regional Environmental Experts Database (REED), as well on the list of UN ECPD
phone: +381 11  762266
e-mail: vladanj@gef.bg.ac.yu

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