Legality definition

The legality definition in each Voluntary Partnership Agreement (VPA) clearly states the aspects of a country's law for which the timber legality assurance system will systematically seek evidence of compliance. The intent of a VPA is not to repeat all of a country's legislation but to target and emphasise the subset of legal requirements that national stakeholders decide are most important.

A legality definition brings clarity, and so makes identifying legal timber clearer. The legality definition is particularly useful in cases where a country has many laws relating to the forest sector, when laws are challenging to enforce or when there are inconsistencies among laws.

Timber and timber products that comply with the laws cited in the legality definition are considered legal under the terms of the VPA. Timber and timber products deemed legal are eligible for FLEGT licences. A legality definition is thus central to a timber legality assurance system. All other technical aspects of a timber legality assurance system flow from the legality definition.

Scope of a legality definition

A legality definition should include laws relating to the whole supply chain – from the allocation of logging rights through processing and transport to export and benefit sharing.

In addition, a legality definition should reflect the concerns of national stakeholders and the elements of the country's legal framework stakeholders wish to include.

The scope of a legality definition will therefore go beyond forest law and may include aspects of laws on tax, trade, employment, social security, biodiversity conservation, freedom of information and customary law.

The EU is neutral with respect to the content of a legality definition, but expects a partner country to frame a definition around the three pillars of sustainable development – economic, social and environmental.

For a legality definition to be credible, it must have the support of all stakeholders. The EU, therefore, advocates that national stakeholders reach a consensus on a legality definition through an inclusive participatory process. A comprehensive multistakeholder dialogue on the legality definition may identify reforms that are necessary by revealing gaps, inconsistencies or overlaps in legislation.

Approaches to defining legality

Each partner country takes its own approach to choosing how to consider and define legality. In most VPA processes, approaches in partner countries have involved the steps illustrated in Figure 8. Processes are not unidirectional. Given the many stakeholders to involve and consult, there may be repeated reversals.

Figure 8. An example of a process through which national stakeholders can agree a legality definition

In most VPA processes, the first step in defining legality is a multistakeholder consultation process. In this step, each stakeholder group may also hold discussions within the group to reach a common position on priorities for defining legality.

Each stakeholder group perceives laws differently. For governments, the interest is in applying and enforcing laws. For companies, the challenge is to comply with laws. For communities, the issue is being able to depend on laws to secure rights. The multistakeholder process should result in a legality definition that meets the needs of each group, has the support of each group and is, therefore, realistic and practical to operationalise.

Stakeholders analyse existing laws in relevant sectors to decide the subset of laws that a VPA should require compliance with. Deciding the subset of laws can be a considerable task. Indonesia, for example, has more than 900 national or local laws and regulations relating in some way to the forest sector.

A legality definition does not need to include all relevant laws but must identify a subset that meets the needs of stakeholders and for which it is practical to verify compliance. Stakeholders may identify gaps or inconsistencies in laws that indicate a need for reform.

National negotiating teams draft a legality definition based on inputs from the multistakeholder consultation process. Different countries have approached drafting a legality definition in different ways. Some negotiating teams draft a definition themselves. Others create a multistakeholder working group to prepare a draft. In some countries, multistakeholder groups have appointed national experts to draft a legality definition.

Some countries refine a legality definition by field testing. Field tests are an opportunity to identify gaps or problems in the subset of laws, and how to verify compliance.

A final legality definition takes the form of a table, called a legality grid or legality matrix. The tables usually provide indicators of legality, which set out the requirements outlined in legislation and identify the evidence required to prove adherence to the requirements. The tables also describe the means of verifying compliance. Some VPAs have different legality definitions for different sources of timber, such as plantations or logging concessions.

To read more about how legality definitions vary among VPAs, see the section of VPA Unpacked on the VPA annex on the legality definition.