Property rights and forest management: Legal constraints for the use of various forest products in two different countries

Forest management and forest use are influenced by various factors. Besides economic, ecological, technical and cultural aspects the institutional rules and norms and political instruments are decisive for the behaviour of the user of natural resources in general and of the forest in particular. In constitutional states these limits and possibilities for owners and users are fixed in legal acts, such as constitutions, laws, decrees etc. In the context of natural resources the regulation of property is crucial: In general the owner of a resource decides on the destiny of his object! In democratic states, such as for example all western European countries, property rights are explicitly guaranteed at constitutional level. These property rights provide the owner with means of defence against private and state interventions and guarantees him or her the free use of an owned object. But property rights are not unlimited; they can be restricted by the legal system, both the private and the public law. These restrictions can differ according to objects, times and places. Property rights have a general validity and therefore they apply to forests also: Forest owners generally enjoy guaranteed property rights and they can freely dispose of them. In general, subjects of the property rights are private owners but public owners are not excluded from this constitutional guarantee. It includes not only property in a strict sense (property law or right in rem) but also other forms of possession, such as tenure or lease, and it is valid for all kind of properties, i.e. land, chattels, real rights, fortune etc. With respect to the forest a tense relationship between guaranteed property rights and the various legal restrictions implemented at different levels for public and private purposes can be observed. Together with the various forms of possession and the manifold objects belonging to a forest the so-called institutional regime of the forest becomes very complex. In this paper we are going to reduce this complexity by elaborating an analytical framework which is based on the so called user oriented institutionalism approach. It mainly consists of a distinction between private law (above all right in rem) and public law (sectoral laws such as forest, spatial planning, nature and landscape protection, water protection, hunting law etc.). These laws will be investigated with regard to the forest in general and to the various products or components (timber and non timber forest products) of the forest in particular. The analysis of the institutional regime will encompass the legislation of two different European countries, namely Italy and Switzerland. The aim is to find out similarities and differences in these countries. The findings should form the basis for an evaluation of the impacts of institutional settings on a sustainable use and management of private and public forest.