There are a number of international and regional treaties, conventions and legal mechanisms which may be relevant to legal action in relation to deforestation or failure to comply with legal obligations to undertake sustainable forestry management. Generally, a country’s head of state signs a treaty or convention on behalf of their country. The country then follows an internal ratification process. The process differs from country to country but could include enacting national legislation that makes the international treaty or convention law under domestic law (e.g. section 231 of the Constitution of South Africa). Once completed, that country is bound by the particular treaty.
How the provisions of an international agreement or legal mechanism can be utilised by individuals or legal entities within that country depends on the country’s domestic legal system. For example, according to section 39(1)(b) of the Constitution of the Republic of South Africa requires South African Courts to consider international law when interpreting its Bill of Rights. This means that individuals can refer to and rely on international agreements in South African courts.
Even if international agreements cannot be relied upon in legal claims by ordinary citizens, sometimes a breach can only be alleged in actions between states.
Even where these laws and instruments cannot be relied upon directly, they may set out set out standards or obligations which can be relied upon. For example, a private citizen cannot usually bring a legal action to compel a state to observe its treaty obligations. But if there is an issue in a legal case as to whether a state’s policy is reasonable or justifiable if an action, it will be harder to justify a policy which is not consistent with the state’s international obligations, such as human rights obligations or those under the Convention on Biological Diversity.
Your legal analysis has to be supported by the evidence you have gathered. You may wish to seek legal advice. A lawyer with expertise in the relevant area should be able to provide advice on the options available to you and advise on your chances of success.
The specific content of these instruments varies. However, below are some examples of the legal obligations that may give rise to a “cause of action” to base a deforestation case on.
There are a wide range of international conventions (i.e. treaties) and other agreements that can be utilised to challenge unauthorized deforestation. The following (non-exhaustive) list of conventions and other sources of international law that may be of relevance to your situation; however, they represent only a small section of relevant international law.
Before bringing a claim under one of the following international ore regional laws, check to whether the agreement is legally binding and to see if your country has signed and ratified the relevant convention.
Whilst the CBD does not directly address forests, Article 1 states, ‘the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.’ As such, forests fall within the remit of this definition. The CBD has also directly addressed forests through its expanded programme of work on forest biological diversity. States have national reporting obligations, and the Conference of Parties to the CBD issues a number of decisions regarding liability and redress for damage to biological diversity. The CBD also has a number of Protocols for the protection of biodiversity and genetic resources that can aid in the defence of forests.
For more information about the link between biodiversity and deforestation, see Sub-Page 7 “Other Mechanisms” of this Guide.
As carbon sinks, forests play a crucial role in the mitigation of greenhouse gases and will be detrimentally affected by climate change. Whilst the UNFCCC lacks enforcement mechanisms, a state party’s obligations under the UNFCCC can be invoked to force a government to take positive action or cease activities that will have a negative climate impact (e.g. deforestation). The UNFCCC Conference of Parties also created a framework to guide the implementation of REDD/REDD+ activities in the forest sector. As such, a state has a number of obligations in respect of these projects. Finally, the Paris Agreement includes the obligation for parties to take action to conserve and enhance forests.
For more information on the connection between deforestation, climate change and REDD/REDD+, see Sub-Page 8 “Climate Change Issues” of this Guide.
The UNCCD is a legally binding international agreement which links the environment and development to sustainable land management, including forestry management. The Parties to the UNCCD have a number of obligations including to cooperate to combat desertification and drought and to restore land and soil conditions. The UNCCD can be invoked to force a signatory country fulfils the aims of these obligations in respect of their forestry management policies.
The Aarhus Convention can be invoked to ensure your country is upholding the principles of access to environmental information, public participation and access to justice in environmental matters, including matters relating to the forest sector. There are also opportunities for public involvement in compliance reviews (Article 15).
The ITTA is a trade agreement which governs the international trade of tropical timber. Members are encouraged to develop national policies aimed at the sustainable management and conservation of tropical timber producing forests. It can be invoked to protect a tropical forest where illegal logging and unsustainable forestry management are occurring within the tropical timber economy. The International Tropical Timber Organization’s governing body, the International Tropical Timber Council takes decisions and makes recommendations on forest related policies and finance field-led projects.
The main aim of CITES is to ensure that international trade does not threaten the survival of a number of listed endangered species, including endangered forest species. CITES can be invoked to ensure that your country is complying with its conservation (i.e. preventing illegal logging of protected species) and its monitoring and enforcement obligations.
The CWH provides for the protection of natural heritage, which includes physical and biological formations, physiographical formations which constitute the habitat of threated species of animals and plants, and natural sites of outstanding universal value, which extends to forests. It is a conservation treaty that can be invoked to ensure your country is fulfilling its duty to identify, protect and conserve these areas.
This section contains a non-exhaustive list of non-binding sources of international law which can be used to support your case. Whilst these agreements are not technically legally binding (i.e. they are not conventions), they may reflect emerging standards of international law and will carry a degree of legal significance in supporting a case against unauthorised deforestation.
The principles contained in the Rio Declaration can be used to demonstrate whether your country is pursuing sustainable development, including sustainable forestry management. This includes several important principles for forestry management, including:
Case Example: Wilpattu Judgement
The petitioner, a conservation and environmental justice organisation, brought a case concerning the clearing of forest land and development of displaced person settlements in the reserved forests in and nearby Wilpattu National Park in Sri Lanka.
The Court concluded that the re-settlement of displaced persons in this area violated the Forest Conservation Ordinance. In deciding what remedies were appropriate, the Court considered the Polluter Pays principle. The Court issued an order for the respondents to take action to implement a tree planting programme at their own cost.
Agenda 21 is a non-binding action plan. It contains provisions specific to combatting deforestation, management of land resources and managing fragile ecosystems. It has a number of objectives for combatting deforestation, including the need to enhance activities related to the management, conservation and sustainable development of forests. You may be able to refer to the objectives found in Agenda 21 to demonstrate whether your country is pursuing effective and sustainable forestry management.
3. Addis Abba Principles and Guidelines for the Sustainable use of Biodiversity
The Addis Abba Principles seek to prevent biodiversity decline by promoting sustainable use of biological diversity. It promotes governing frameworks that are consistent with international and national law as well as science and traditional knowledge. The principles can be used to encourage your country to strengthen its procedural and substantive approaches to forest management and conservation.
The decisions of the International Court of Justice (ICJ) can be a useful source for determining a state’s obligations of international law. It has dealt with a number of cases relevant to development activities causing transboundary environmental harm. The general principles of international law outlined in these decisions may be used to establishing state responsibility for sustainable development, e.g. sustainable forestry management.
This case concerned the construction of two dams in Slovakia and Hungary. The treaty governing the construction of these dams addressed the environmental impact of the project and noted that the water in the Danube river should not be degraded as a result of the development and operation of the dams.
Hungary eventually abandoned its dam due to the environmental impacts, but Slovakia did not immediately do so. Hungary argued that states must take action to prevent transboundary environmental harm on the basis of the precautionary principle. The principle of sustainable development was also discussed in a separate opinion to this case, with the Judge noting that development and the environment must be balanced.
These principles can be applied to projects that are causing significant environmental damage to the territory another state through deforestation or are causing forest degradation through transboundary environmental harm (e.g. pollution).
Case Example: Nicaragua/Costa Rica
Costa Rica brought a case against Nicaragua for environmental harm done to wetland vegetation located at the mouth of the San Juan River. The ICJ had previously ruled that Nicaragua had violated the sovereignty of Costa Rica through a land dispute. The ICJ ordered Nicaragua to compensate Costa Rica for this environmental damage.
For general information on international law and environmental harm, see the A4J Environment Module.
In recent years, the ICC has widened its remit to investigate environmental destruction cases. It will now also adjudicate on environmental crimes, such as illegal deforestation. It will have the power to prosecute both individuals and governments. There have also been recent proposals for the ICC to recognise ecocide as a crime.
Currently, under the Rome Statute of the ICC (Article 8(2)(b)(iv), the list of war crimes in international armed conflicts includes intentionally launching an attack in the knowledge that such attack will cause widespread, long-term and severe damage to the natural environment, which would be clearly excessive in relation to the concreate and direct overall military advantage anticipated.
Environmental destruction that is linked to inhumane acts that intentionally cause great suffering or serious injury to bodily, mental or physical health can also fall within the ICC crimes against humanity.
In 2014, a communication was submitted to the ICC prosecutor’s office according to Article 15 of the Rome Statute concerning widespread instances of land grabbing (illegal land transfers), including of forest land, in Cambodia.
It was argued the continued land grabbing amounted to a crime against humanity, per Article 7 of the Rome Statute. The decision of the office of the prosecutor to accept land grabbing and environmental destruction as falling within the ICC’s mandate opens the remit of the ICC up to deforestation cases that cause significant harm.
In 2019, the Brazilian Human Rights Advocacy Collective and the Dom Paulo Evaristo Arns Human Rights Commission delivered a report to the ICC, calling for an investigation into President Bolsanaro for the incitement of genocide of Indigenous People (for fires fires and environmental damage) and attacks on their land related to the expansion of logging, mining and agricultural industries.
The ICC recently confirmed that it is reviewing the petition to assess whether it is under the Court’s jurisdiction.
4. International Economic Agreements
Some international economic organisations have created agreements that either explicitly or implicitly incorporate forestry management and sustainable economic development into international trade laws.
Whilst forests are not explicitly mentioned, the GATT text notes the importance of the world’s natural resources and the need for promoting sustainable development through the regulation of international trade.
The WTO dispute panels and Appellate Body have the power to hear disputes regarding the interpretation of WTO rules. The rules and past interpretations of WTO dispute bodies are broadly relevant to the trade of timber, proof of legality and combatting illegal logging in international trade.
For more information on these issues, see Sub-Page 9 “Supply Chains” of this Guide.
Regional courts can also be used to combat unauthorised deforestation and enforce your states obligations regarding sustainable forest management. Check to see which regional court has jurisdiction over your country.
Case Example: European Commission v Poland (Poland/EU)
The European Commission launched a legal cause against Poland after the Polish government tripled logging limits in the Białowieża Forest, despite scientific warning that it would negatively impact biodiversity, endangered species and forest fire prevention. The Court of Justice of the European Union ruled that Poland broke EU environmental law. The increased logging limits were held to be illegal for a number of reasons, including the fact they endangered protected species within the Białowieża Forest ecosystem.
 This guide is outdated but a useful summary of international law re: forests https://policy-powertools.org/Tools/Engaging/docs/law%20for%20forests2.pdf
Human rights are the rights and freedoms held by every human being without discrimination. Human rights protect our basic needs and freedoms. Human rights are contained in international human rights instruments, such as:
The Vapsten Sami reindeer herding community practice traditional reindeer herding. Members of this Indigenous community have petitioned the CERD, arguing that Sweden’s grant of mining concessions in their traditional territory have violated their convention rights to property, to equal treatment before tribunals and organs of justice, and to effective protection and remedies. The CERD concluded that the petitioners’ rights to property had been violated and recommended that Sweden provide an effective remedy to the community by revising the mining concessions after an adequate process of free, prior and informed consent.
The IACtHR held that the obligation for States to guarantee (i.e. protect) rights under the American Convention on Human Rights included an obligation to prevent significant damage to the environment which would interfere with other rights. This obligation includes:
A duty to regulate activities that threaten to cause environmental damage which impact other rights;
A duty to supervise and control such activities; and
A duty to mitigate environmental damage that is occurring.
Key Case: Case of the Saramaka People v. Suriname
The Saramaka, a Maroon and Indigenous Peoples living in Suriname, had their customary lands handed out to mining and logging companies without any regard for their rights. The Saramaka claimed they had the right to use and possess the territory for their cultural, religious and economic activities. They asserted they have a right to use and enjoy the natural resources that lie on and within their traditionally owned territory.
The Inter-American Court of Rights found a violation of Article 3 (Judicial Personality); Article 21 (Right to Property) and Article 25 (Right to Judicial Protection) of the American Convention of Human Rights. The Court asked Suriname to delimit and demarcate the territory to the Samaraka people in accordance with their customary laws, and through effective and fully informed consultations.
Deforestation and associated degradation pose a serious threat to the enjoyment and exercise of our human rights. As deforestation is intimately connected to rising greenhouse gas emissions and levels of carbon in the atmosphere, many of the threats posed by deforestation are also related to climate change.
See Sub-Page 2 of this Guide for the human rights most clearly affected by deforestation and degradation.
Governments have an obligation to respect, protect and fulfil their human rights obligations related to forests.
In deciding which rights to base a forests defence litigation claim on, you need to consider:
After you have gathered evidence about the impacts of deforestation and degradation in your country or region, think about the impacts outlined in the Introduction to this Guide and the list of rights above. Then narrow down the most relevant rights to your factual situation.
For example, if you are a member of an Indigenous community and deforestation has forcibly displaced you from your land, the right to land, property and related territorial rights may be most relevant.
After you have identified the most relevant human rights, you need to check which ones are legally enforceable in your country. Although human rights are universal in principle, they may not all be recognised in a law that you can enforce.
These rights will be contained in an international or regional human rights treaty which is directly enforceable in your country.
Key Example: African Charter on Human and People’s Rights
54 states in Africa have signed and ratified the African Charter, making it directly enforceable in these countries. For example, Article 14 establishes a right to property and Article 24 states ‘all peoples shall have the right to a general satisfactory environment favourable to their development’.
Once you have identified a relevant and legally enforceable right, you need to argue that the government has violated that right. This means that it has breached the human rights obligations it owes you.
For this argument to be successful, you usually need to show:
This treaty guarantees implementation of the rights of access to a number of procedural human rights relating to the environment. Its objectives contribute to the protection of the right of present and future generations to live in a healthy environment and to sustainable development.
Individual Complaints to Regional Human Rights Courts and Commissions
Regional human rights courts and commissions can enforce regional human rights treaties when available domestic mechanisms (courts or other) have failed to protect your human rights.
When could a complaint to a regional human rights court or commission be right for me? Bringing a claim to a regional or international court could be helpful in the following cases:
When Could I Bring a Complaint to a Regional Human Rights Court or Commission?
You may have the option of bringing an “individual complaint” (i.e. a case) to a regional or international human rights body if:
(i) Your case is being brought against the government
For this reason, complaints to regional human rights courts or commissions are most relevant to mitigation claims, adaptation claims or challenges to government licensed projects.
(ii) Your case is based on human rights law
These complaints are only relevant to claims where you are arguing that a human right that is protected in the relevant international human rights treaty has been violated. For this reason, it’s important you check what rights are protected in the relevant treaty.
(iii) Your country has signed and ratified a regional human rights treaty which gives a regional human rights court or commission jurisdiction to hear human rights complaints regarding your country.
These bodies can launch investigations into your case, facilitate negotiations between you and the government, declare that your government has violated your human rights, and order the government to give you a remedy and change its laws or policies.
Key Example: The Ogiek Case in Kenya
The Ogiek people have lived in the Mau Forest, their ancestral lands. They were evicted from a large part of their lands on the basis that the forest constituted a reserved water catchment zone and part of government land.
Following an eight-year legal battle, in 2017 the African Court found that the the Ogiek were Indigenous People and that the Kenyan government violated seven separate articles of the African Charter, including rights to property including land, rights not to be discriminated against, right to development and rights to practise traditional religion and culture, as the Ogiek had a close link with their forest environment. The conservation of the Mau Forest could not be used as a justification to evict the Ogiek, nor were the Ogiek responsible for their degradation (a key point in relation to conflict between conservation and Indigenous Peoples’ rights)
(iv) Your claim is considered admissible by the regional human rights court or commission
For your claim to be admissible, you generally must show:
Individual Complaints to UN Human Rights Treaty Bodies
There may be the possibility to enforce your state’s human rights obligations through individual complaints before UN human rights treaty bodies.
While these aren’t courts, they have individual complaints mechanisms which hear individual complaints like a court.
Case Example: Länsman et al v Finland
A permit was granted by Finland’s Central Forestry Board to a private company to quarry stone from the Etela-Riutusvaara mountain. Indigenous members of the Muotkatunturi Herdsmen argued that the quarrying and transportation of stone through their reindeer herding territory would violate their right to culture under Article 27 of the International Covenant on Civil and Political Rights.
The UN Human Rights Committee concluded that because the quarrying was limited to a small area, it did not ‘substantially’ infringe the community’s rights. However, it noted that future approval of mining activities in the area may violate the herdsmen’s right to culture. The Committee also stressed the importance of consultation before undertaking these activities (though the requirement of the community’s consent was not expressly addressed).
To access these bodies, your country must:
(i) Be a party to the relevant international human rights treaty
(ii) Have accepted the competence of the treaty body to receive complaints against the state; this may be in the optional protocol to the treaty
(iii) You must have first tried to bring your claim before national courts – this is often referred to as the “exhaustion of local remedies”
Here you can find information on:
What countries have signed and ratified different human rights treaties
The different treaty bodies that exist
Guides for how to submit a complaint
Past cases and examples
Submitting Shadow Reports to UN Treaty Bodies and other UN Human Rights Bodies
UN Treaty Bodies have a role in monitoring the human rights compliance of countries under UN human rights treaties.
As part of this role, UN Treaty Bodies issue concluding observations every few years about each country’s human rights record.
The concluding observations are based on:
Key Resource: Indigenous and Human Rights NGOs Report to UN Committee on the Elimination of Racial Discrimination (CERD)
A group of NGOs in Indonesia prepared this submission, which focused on the destruction of customary forests on Indigenous lands for the development of roads, logging, palm oil plantations and mining projects and the resulting harm to local Indigenous populations. The NGOs called on the CERD to urge Indonesia to take action to suspend the expansion of these operations and enact legislation to protect the rights of Indigenous Peoples. They also called for remedial action for the ongoing rights violations in existing palm oil plantations.
If your country is due to report to a relevant UN Treaty Body and want to put deforestation on the agenda, the resources here and below may be a useful starting point:
Complaints to UN Special Rapporteurs
UN Special Rapporteurs are independent experts which focus on specific human rights issues. As part of their mandate, they can receive complaints from individuals.
For example, complaints can be submitted to the Special Rapporteur on the Rights of Indigenous Peoples under the special procedures mechanisms. The Special Rapporteur’s thematic reports and recommendations can be a helpful resource for protecting Indigenous rights and their forest homes from logging or other activities which threaten them.
The Special Rapporteur was concerned at the increasing number of threats faced by Indigenous Peoples, especially in respect of large-scale development projects such as logging, agribusiness and extractive industries.
This report contains a number of recommendations for stakeholders who are seeking to prevent violations and improve protection of Indigenous rights.
There are a number of useful sources of international law that uphold the rights of Indigenous Peoples and recognise the important role that Indigenous knowledge and cultures play in protecting forests across the world.
Whilst there is significant overlap between Indigenous rights and international human rights law, there are a number of legal instruments that are specific to the protection of Indigenous rights, which can be used in tandem with general human rights law.
Although the UNDRIP as a whole is instrumental in protecting Indigenous rights, several provisions relate directly to the protection of the environment and Indigenous land rights and can therefore be invoked to show that deforestation has infringed upon Indigenous rights.
Article 3: Indigenous peoples have the right to self-determination…
Article 19: States must obtain free, prior and informed consent between adopting or implementing measures that may affect Indigenous Peoples
Article 29(1): Indigenous peoples have the right to the conservation and protection of the environment and productive capacity of their lands or territories and resources…
This is a major, binding international convention concerning Indigenous and tribal peoples which provides measures for safeguarding Indigenous Peoples and their institutions, property, labour, cultures and environment of the peoples concerned.
The Nagoya Protocol covers access to genetic resources (i.e. trees and any food, medical, research etc. benefits arising from their use) and the equitable sharing of benefits arising from the utilisation of these genetic resources. It is a highly important instrument for the protection of Indigenous knowledge and the rights of Indigenous peoples over the genetic resources they hold. The Nagoya Protocol can be utilised to enforce a state Party’s obligations to enact legislation to promote equitable access to these resources and share the benefits arising from their use with local communities.
For further information on the protection of Indigenous environmental and land rights, see Sub-Page 5 “Acquisition of Forest Land/Rights in Forest Land” in this Guide and more generally, the A4J Environment and Land Modules.
There has been a movement towards greater corporate violations of human rights in respect of the environment.
Usually, human rights claims can only be brought against the State. But in some countries, there are “due diligence laws” that allow individuals to take human rights claims directly against businesses when they do not take reasonable steps to prevent human rights abuse in their operations.
The Framework is based on three pillars:
- The State duty to protect human rights;
- The corporate responsibility to respect human rights (the Guiding Principles recommend human rights due diligence as a central approach); and
- Access to remedy where human rights are violated.
Human rights due diligence entails a company’s responsibility to:
Identify and assess human rights risks;
Prevent and mitigate adverse human rights impacts; and
Account for how it addresses human rights impacts.
Key Resource: The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights in Practice: Extraterritorial Obligations in the Context of Eco-Destruction and Climate Change
The 2011 Maastricht Principles provide a useful framework for protecting human rights in the face of harmful acts and omissions outside of a State’s territory.
This resource provides useful information on the operation of the Maastricht Principles in respect of environmental harm and climate change, including the extraterritorial obligations pertaining to tropical forests, climate change and forests, and illegal logging.
It also addresses the risks posed by environmental destruction to non-state actors, Indigenous Peoples and environmental defenders.
There is also currently a draft treaty entitled ‘Legally Binding Instrument to Regulate in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises’. This draft treaty aims to prevent and mitigate the occurrence of human rights abuses in the context of business activities. In the current version of the draft treaty, human rights abuses specifically includes any direct or indirect harm in the context of business activities to any person or group of persons that impedes their full enjoyment of human rights, including the right to a safe, clean and sustainable environment (Article 1(2)).
Even if human rights are not directly enforceable against corporations in your country, human rights principles and standards, such as the UN Guiding Principles on Business and Human Rights, could be used to support a case based on tort law or another legal basis. For more information on the human rights responsibilities of businesses, see the Action4Justice Business and Human Rights Guide.
In order to bring a claim through the international legal instruments, you must have “standing” (the legal right to bring a claim).
For example, to bring an individual complaint to the regional bodies and the UN Treaty bodies, you must prove that you have been harmed by your government’s actions or omissions and that you have exhausted all domestic remedies in your country.
For claims based on international law, the appropriate defendant could be:
For further information, see “Who Can I Bring Legal Action Against” in the A4J Going to Court Guide.
The evidence required will depend on the type of claim you are bringing.
For further information on evidence, including the scope of evidence you will need to provide, see the section on “Evidence and Information” in Sub-Page 11 of this Guide. [link]
For general information on evidence, see the section on “How Can I Prove My Case” in the A4J Going to Court Guide.
If you bring a successful claim against a state or corporation, you may be entitled to one or more of the below “remedies”. The outcome of a successful case will depend on the cause of action and specific claim:
If you have brought a successful case under Indigenous Peoples’ rights you may be granted the above remedies as well as:
It is important to remember that the affected individuals and communities should lead on deciding which remedies are appropriate, as opposed to NGOs or lawyers. Consider the community impacts of each possible remedy.
For more information, see our general page, “What Remedies Are Available?” in the A4J Going to Court Guide.
Winning in court is only the start of the process. Many successful court judgements are either not enforceable or are not enforced in practice.
Example: Ogiek Case
Three years after the landmark decision, Kenya has yet to implement the African Court on Human and Peoples’ Rights’ judgment in the Ogiek case. Although the government started an implementation Task Force, the government did not consult with the Ogiek community or include community representatives to the Task Force. The original Task Force did not issue any recommendations, but a second one was created one year later. The second Task Force also lacked community representatives and although it engaged the community more than the first, it has yet to publish a final report on implementation.
You may be able to go back to court and ask for the judgement to be defined and enforced. See the general page on “How Can I Enforce a Court Order” in the A4J Going to Court Guide.
In addition to all the factors above, there are further practical issues you need to consider.
One set of issues relates to the resources you will need by way of general support for you, and the case, legal and expert advisers, finance, logistics (such as transport), translation and printing.
Another set of issues is on the safety and security of you, witnesses and your information.
For general guidance on these, see the relevant headings in Sub-Page 11 “Going to Court” of this Guide.