“Responses to the current pandemic provide a unique opportunity for transformative change as a global community.”
Secretariat of the Convention on Biological Diversity, Global Biodiversity Outlook 5 (2020)
The FAQs elaborate on the rationale published in the Initiative’s first briefing paper, “Outline of possible amendments to wildlife trade laws”, by directly responding to some of the questions that have been raised with the Initiative by interested parties. The Initiative greatly appreciates these questions and welcome further questions and dialogue, which can be directed to email@example.com.
Background and Context
In response to the global biodiversity and climate change crises and the need to prevent future wildlife-related pandemics, the Global Initiative to End Wildlife Crime (“the Initiative”) is progressing two interrelated, but not interdependent, objectives, namely to:
1. Create a new global agreement on wildlife crime. How? Through the adoption of a fourth Protocol on wildlife crime under the UN Convention Against Transnational Organised Crime (UNTOC); and
2. Amend existing international wildlife trade laws to include public health and animal health into decision making. How? Through amending the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) to include public health and animal health criteria in its decision-making processes (a ‘One Health’ approach) or adopt a new international agreement on pandemic prevention.
The Initiative views these two objectives as critical components of the calls for transformative changes, and a shift away from “business as usual”, coming from the IPBES Global Assessment Report (2019), the IPBES Pandemics Report (2020), the CBD Secretariat Global Biodiversity Outlook 5 Report (2020) and the WWF Living Planet Report (2020). These FAQs apply to the Initiative’s second objective.
The Initiative’s proposed amendments to CITES would make it a contemporary agreement that is fit for purpose in a post COVID-19 world and leave a strong legacy for generations to come. If adopted, they would give us, and future generations, the best chance of avoiding future wildlife-related pandemics and the devastating societal and economic impacts associated with them.
1. Have proposed changes to CITES been laid out in detail?
Yes, with the help of technical and legal support from its Steering Group and a network of pro-bono legal and technical advisors, the Initiative has released a dedicated briefing paper on the process for amending CITES, and the possible content of such amendments (that would build public and animal health criteria into CITES’ decision-making processes). The paper is available online here in Chinese, English, French, Spanish and Vietnamese. The accompanying press releases, accessible on the same link, provide the broader context and rationale.
2. How would these proposed changes to CITES be achieved?
Since 1973 CITES has included a mechanism, under Article XVII, on amending the Convention. Under this Article, amendments to the Convention can be proposed by at least one third of the Parties to CITES (there are currently 183 Parties to the Convention). These proposals are then considered by an extraordinary Conference of the Parties to the Convention, convened specifically to consider the proposed changes. Ultimately, proposals to amend the Convention, and the decision on whether to accept or reject those proposals, rest with the Parties themselves. To pass, they must be adopted by a two-thirds majority of Parties present and voting (see FAQs no.5 and no.9 for more information). The Initiative is putting forward these possible amendments and encouraging Parties to consider and support them, either as proposed, or in an alternative form.
New Resolutions or Decisions, changes to existing Resolutions, additional guidance for Parties, and the establishment and strengthening of the relationships between CITES and other international bodies such as WHO, OIE, FAO and others, can be made through the established decision-making mechanisms within the Convention as is elaborated upon in the Initiative’s briefing paper and FAQ no.8.
3. Will amendments to CITES be difficult and time consuming to negotiate?
Creating new international laws, or amending or enhancing existing laws, takes time and effort; as we have seen with negotiations on agreements on biodiversity, climate change, and ozone depletion. But this is the wrong question. The question should be whether these reforms are needed to help avoid future wildlife-related pandemics. If the answer to this question is yes, then it is worth the effort. Our current system is not going to prevent the next pandemic. It could, in fact, be raising our potential exposure to zoonotic diseases. The time and effort taken to amend CITES to prevent future wildlife-related pandemics pales in comparison to the impacts of the next possible pandemic.
At the 8th IUCN Congress, held in Nairobi, Kenya, in 1963, IUCN first proposed an international agreement on wildlife trade. Almost ten years later, at the historic 1972 Stockholm Conference on the Human Environment, a call was made for these negotiations to be concluded. This call was heeded and the US Government convened a Plenipotentiary Conference in Washington, DC in 1973 at which the international agreement, known as CITES, was adopted. CITES came into force just two years later, in 1975.
Where there is political will, international negotiations can move expeditiously. We now know what needs to be done to ensure we take a ‘One Health’ approach to the trade in certain wild animals to minimise the risk to human and animal health. Now is the time to make CITES a contemporary and relevant Convention for a post-COVID-19 world.
4. Does ‘opening up’ CITES risk some countries proposing other changes that might weaken the Convention?
This is the most frequently asked question of the Initiative. The concern is not with the proposed amendments, but whether ‘opening up’ the Convention could lead to other, unrelated amendments.
International negotiations are unpredictable, and the Initiative has looked closely at this issue. In doing so, the Initiative has engaged internationally renowned CITES law and policy experts, as well as studied past practice and existing publications, and all have led to the same conclusion: that an extraordinary Conference of the Parties to CITES, convened under Article XVII of the Convention, would only be mandated to consider the amendment proposals put forward by the one third of Parties proposing them.
The Initiative is of the view that, if other Parties wanted to propose further unrelated amendments to CITES, they would not be able to ‘piggy back’ on what one third of Parties had proposed. They would have to go through the same process, as outlined under Article XVII, and secure support from at least a third of the Parties for their (different) proposals.
Further, though it is possible that Parties could offer proposed amendments to the Convention during the debate at the extraordinary Conference of the Parties, proposed amendments that are not germane to the amendments under consideration should be ruled out of order by the Chair of the meeting.
Ultimately, the interpretation of the Convention is a matter for the Parties. Any proposals submitted by Parties to amend the Convention will require a two-thirds majority vote to be carried. Any concerns about possible additional amendments being proposed should be viewed in this context.
5. Would it be safer to create a Protocol or Addendum under CITES, rather than change the existing text of the Convention?
The Initiative warmly welcomes the debate over the best way to ensure that a ‘One Health’ approach is taken to wildlife trade. Amongst those organisations and individuals active in the discussion, there is common ground that we cannot leave the system as it is. Changes are needed, and these changes must include reforms to the current international legal framework for regulating wildlife trade. This imperative was recently reinforced through the IPBES Pandemics Report and the COVID-19 Response and Recovery Policy Paper.
The suggestion that there be a Protocol to CITES has emerged in response to concerns that amending CITES to take a ‘One Health’ approach could ‘open up’ the Convention to other changes that are not seen as desirable (see FAQ no.4). The Initiative is of the opinion that only the proposed amendments submitted by one third of Parties can be considered by an extraordinary Conference of the Parties to CITES, while further noting that any amendments require a two-thirds majority to pass.
In the Initiative’s view, a Protocol is another way of seeking to amend the Convention, but without touching the Convention text itself. At first glance such a proposal appears appealing but, when examined in detail, it presents its own unique set of challenges.
First, there is no established mechanism for creating Protocols within the text of CITES (as there is, for example, in the framework Conventions on biodiversity, climate change, and ozone protection). CITES is not a framework Convention; rather, it is a technical and targeted Convention that did not anticipate Protocols.
That does not mean there cannot be an agreement called a Protocol negotiated by the Parties to CITES. The Parties could resolve to launch a negotiating process to do so, as could UNGA, or States themselves, as was the case with the creation of CITES. It would not, however, be a Protocol under the Convention, such as exist under conventions on biodiversity, climate change, and ozone depletion.
Whatever process was adopted, such a Protocol would be a separate and distinct legal instrument. As such, any Protocol would sit alongside CITES. Its interrelationship with CITES would need to be included within the Protocol.
There is no existing trigger or agreed process for such a negotiation, and it could take many years to initiate and negotiate. There would be no guarantee of buy-in from CITES Parties, and the Protocol could include provisions that go beyond taking a ‘One Health’ approach. As a stand-alone legal instrument, it may conflict with current CITES requirements, rather than integrate with them, such as the use of the existing permitting and compliance systems. This contrasts with the well-established and well-known route of amending CITES, which has a clear process and would embed the changes within the existing CITES framework.
As stated above, the Initiative welcomes all ideas for institutionalising a ‘One Health’ approach to wildlife trade. However, in its view, the Protocol option is a less effective, less efficient, and potentially more risky means of ‘amending’ CITES without the benefit of utilizing the existing CITES mechanisms of governance, compliance and accountability.
In the alternative, the Initiative is supporting adopting a new international agreement on pandemic prevention and a separate briefing is available on this option.
6. Has the Initiative considered any other options as to how to advance a ‘One Health’ approach to wildlife trade?
The Initiative has considered: i) the creation of a new Protocol under the CBD; and ii) a new Agreement under WHO. In considering these alternatives, our conclusion has been re-affirmed: the most efficient and effective way to achieve this agreed objective is through making amendments to CITES itself. CITES is the more viable option because it is a legally binding instrument regulating trade in wildlife, whereas these agreements are not.
For further rationale, please refer to the joint opinion piece published in Scientific American by the former Director of the US Fish and Wildlife Service, Dan Ashe, and the former Secretary-General of CITES, John E Scanlon AO, titled ‘A Crucial Step Toward Preventing Wildlife-Related Pandemics’.
The Initiative is supporting adopting a new international agreement on pandemic prevention, which is its current focus given Parties to CITES have not yet supported the option of amending the Convention. A separate briefing is available on this option.
7. Would these changes detract from the existing business of CITES?
Under the proposed changes, the workload of the Convention, including its Parties and Secretariat, would increase. As noted in FAQ no.3 these changes are, however, necessary to ensure we take a ‘One Health’ approach to wildlife trade to help avoid future wildlife related pandemics. Further, by amending CITES, it puts the CITES Parties in the driver’s seat, rather than having additional workload thrust upon the Parties through separate agreements or mandates.
By taking on this strengthened mandate, CITES becomes a more relevant and contemporary agreement, leading efforts to prevent future wildlife trade-related pandemics. As such, one would expect the Convention to attract new funding sources, including from health budgets, to enable such work to be carried out. Rather than fragmenting CITES, or detracting from its existing mandate or directing resourcing elsewhere, institutionalising a ‘One Health’ approach to wildlife trade within the Convention would strengthen CITES, its processes, and its financing.
Furthermore, interrelated reforms being put forward by the Initiative to embed combatting wildlife crime, including illegal wildlife trade, into the international criminal law framework (see briefing paper here for a possible new Protocol under UNTOC to address wildlife crime), would reduce some current burdens on CITES, allowing it to focus more effort on its traditional work.
A draft Resolution on ‘One Health’ will now be considered by CITES Parties at the 19th Meeting of the Conference of the Parties in November 2022.
8. Could you achieve a ‘One Health’ approach under CITES by adopting new Decisions and Resolutions, enhancing existing partnerships, and creating new ones?
Since its establishment in the 1970s, the Convention has evolved within the context of its mandate. In some cases, such as efforts to tackle ‘illegal wildlife trade’ and to address some domestic trade issues, it has stretched (but not broken) this mandate. The Parties could, and should, adopt new (or amended) Decisions and Resolutions on taking a ‘One Health’ approach to wildlife trade and enhance and further expand upon its partnerships with relevant organisations (as is outlined in the briefing paper). This could include enhancing the existing cooperative agreements with the OIE (from 2015), IATA (from 2015), and UNCTAD (from 2015), amongst others.
However, to institutionalise such an approach into CITES decision-making processes, and to make it legally binding, changes are needed to the Convention itself. It is only the Convention text, including its Appendices, that is legally binding on Parties and form part of what is often called ‘hard law’.
Resolutions interpret the Convention and the application of its provisions. Resolutions are generally intended to provide long-standing guidance while Decisions are typically time-bound actions directed to a specific CITES body, such as its Committees and Secretariat. Both are important tools for the evolution and implementation of the Convention. They are not legally binding on Parties and are regarded as being part of ‘soft law’, but there is an expectation they will be implemented.
The experience from the 2002-2004 SARS pandemic shows that memories are short, and measures taken to address that pandemic were relaxed over time. We need to institutionalise these changes to take a ‘One Health’ approach to wildlife trade to ensure they endure.
9. Didn’t the last amendment to CITES take decades to enter into force?
On a question of process, once amendments are adopted, they do not automatically come into force. Amendments enter into force once two thirds of Parties accept the amendments. At that point, the amendments come into force for those Parties that have accepted them, and they will automatically apply to any new Parties. Further, once the amendments come into effect, those Parties that accepted them will require their implementation from the other Parties they engage with (whether they have accepted them or not).
As outlined in FAQ no.2, amendments to the Convention can be proposed by at least one third of the Parties, which are then considered by an extraordinary Conference of the Parties to the Convention, convened specifically to consider the proposed changes.
There have been two such extraordinary meetings of the Conference of the Parties to CITES. The first extraordinary meeting was held in Bonn on 22 June 1979, where the CoP adopted the “financial amendment” to Article XI.3 (a). The second extraordinary meeting of the CoP took place in Gaborone, Botswana, on 30 April 1983, at which the CoP adopted an amendment to Article XXI regulating the accession to the Convention by regional economic integration organizations. These were procedural amendments, and the Gaborone amendment took close to three decades to come into force.
However, one cannot compare procedural amendments such as these to the substantive amendments being proposed in response to the worst pandemic of our lifetimes and to prevent future such pandemics. The political and public interest in such amendments is altogether on another scale. As outlined above, where the political will exists, international negotiations can move rapidly. On 3 March 1973, the CITES text was adopted. It came into force on 1 July 1975, just over two years later. By the end of the decade there were more than fifty Parties to the Convention.
CBD Convention on Biological Diversity
CITES The Convention on International Trade in Endangered Species of Wild Fauna and Flora FAO Food and Agriculture Organization
IATA International Air Transport Association
IPBES Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services IUCN International Union for Conservation of Nature
OIE World Organisation for Animal Health
The Initiative The Global Initiative to End Wildlife Crime
UNCTAD The United Nations Conference on Trade and Development
UNGA United Nations General Assembly
UNODC United Nations Office on Drugs and Crime
UNTOC The United Nations Convention against Transnational Organized Crime
WHO World Health Organisation
The FAQs elaborate on the rationale published in the Initiative’s second briefing paper, on the “Form and content of a possible Protocol on the illicit trafficking of wildlife”, by directly responding to some of the questions that have been raised with the Initiative by interested parties. The Initiative greatly appreciates these questions and welcomes further questions and dialogue, which can be directed to firstname.lastname@example.org.
FAQ #1 – #9 were published on our website November 2020, #10 to #16 were published July 2021.
Background and context
In response to the global biodiversity and climate change crises and the need to prevent future wildlife-related pandemics, the Global Initiative to End Wildlife Crime (“the Initiative”) is progressing two interrelated, but not interdependent, objectives, namely to:
1. Create a new global agreement on wildlife crime. How? Through the adoption of a fourth Protocol on wildlife crime under the UN Convention Against Transnational Organised Crime (UNTOC); and
2. Amend existing international wildlife trade laws to include public health and animal health into decision making. How? Through amending the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) to include public health and animal health criteria in its decision-making processes (a ‘One Health’ approach).
The Initiative views these two objectives as critical components of the calls for transformative changes, and a shift away from “business as usual”, coming from the IPBES Global Assessment Report (2019), the IPBES Pandemics Report (2020), the CBD Secretariat Global Biodiversity Outlook 5 Report (2020) and the WWF Living Planet Report (2020). These FAQs apply to the Initiative’s first objective.
The draft Protocol would represent a major step forward in the fight against serious wildlife crimes by embedding them into the international criminal law framework. It would signify an unequivocal recognition by States Parties of the devastating scale, nature and consequences of such crimes, of the need to scale up collaborative efforts to prevent and combat them, and provide States with the means to do so. If adopted, it would give us, and future generations, the best chance of ending wildlife crimes and thereby help prevent future wildlife-related pandemics, and the devastating societal, environmental, and economic impacts associated with them.
1. Has the proposal for the creation of a fourth Protocol under UNTOC been laid out in detail?
Yes, with the help of technical and legal support from its Steering Group, pro-bono support from the international law firm Arnold & Porter, and input from a network of independent reviewers, the Initiative has released a dedicated briefing paper entitled “Form and content of a possible Protocol on the illicit trafficking of wildlife.” The paper is available online here (and is being translated into multiple additional languages). The accompanying press releases, accessible on the same link, provide the broader context and rationale.
2. Wouldn’t the creation of a new Protocol be difficult and time consuming to negotiate?
Yes, creating new international agreements takes considerable time and effort – as we have seen with negotiations on agreements on biodiversity, climate change, and ozone depletion, as well as on transnational crime and corruption – but is that the right question? The question should be whether these reforms are needed to help avoid future wildlife-related pandemics and to bring an end to serious wildlife crimes. If the answer to this question is yes, then it is worth the effort.
The time and effort taken to negotiate and adopt a Protocol to end wildlife crime and prevent future wildlife-related pandemics pales in comparison to the catastrophic impacts of these crimes (see FAQ no.3). Further, history has shown that where there is political will, international negotiations can move expeditiously. In a post-COVID-19 world there is a clear political imperative to prevent future pandemics, a growing body of scientific reports on the links between wildlife trade (legal, unregulated and illegal) and zoonotic diseases, and a recognition of the need to shift away from business as usual.
3. Should wildlife crime reform be a priority for States at this time, given the strain COVID-19 has put on national economies?
Our current system is not going to prevent the next pandemic. It could, in fact, be raising our potential exposure to zoonotic diseases. These reforms are needed to help avoid future wildlife-related pandemics. It is worth the effort to ensure we are best placed to prevent future pandemics and thereby avoid the devastating societal, environmental, and economic impacts associated with them.
A compelling economic case for investing in preventing future pandemics, including through addressing wildlife trade issues, has been published in Science, in an article titled ‘Ecology and economics for pandemic prevention’. It explains the multiple benefits of such investments and shows that the costs of these interventions pale in comparison to the economic impacts of a pandemic.
Further, in 2019, The World Bank assessed the value of these crimes, as they affect all species of wild animals and plants being trafficked, including fish and timber species. It arrived at a figure of $1-2 trillion a year, when factoring in the impact on ecosystems, including their ability to sequester carbon, loss of government revenues and the value of the contraband itself. As such, these crimes are severely impacting countries ability to deliver on the Paris Agreement, current (and future) global biodiversity targets, and the Sustainable Development Goals.
Given the enormous consequences for people, our planet, and our health, now is the time to move forward with bold and necessary reforms. We must leave the next generation with a system that is fit for purpose in a post COVID-19 world, one that helps ensure a healthy and prosperous planet, gives us the best chance of avoiding future pandemics, and can put an end to these crimes and the severe impacts they are having on biodiversity, climate change and sustainable development.
4. Would it be better to widen the scope of the proposed Protocol to cover all environmental crimes?
The Initiative does not regard this as being an “either/or” issue: it should be both. The Initiative welcomes the recent focus on ‘environmental crimes’ through the Resolution on ‘Preventing and combating crimes that affect the environment falling within the scope of the United Nations Convention against Transnational Organized Crime’adopted at the 10th meeting of the Conference of the Parties to UNTOC (CoP10) and also recognises the importance of scaling up efforts to tackle all crimes that have an impact on the environment.
There are a wide-range of potential ‘environmental crimes’ – as diverse as trafficking in hazardous waste to minerals to fish and timber. However, there is not yet any agreement on a definition on the scope of such crimes, whilst the work on advancing this concept is still underway. Efforts to address wildlife crime specifically and ‘environmental crime’ more broadly, can be – and should be – progressed in parallel. They may take slightly different paths, but they are complimentary, mutually reinforcing, and neither prevents the other from being advanced.
The Initiative defines wildlife to include all wild animals and plants, including fish and timber species, and the draft Protocol it has prepared covers forestry and fisheries crime. Whether such an approach is included in a Protocol negotiated and adopted by States, is a matter for States to determine. Wildlife crimes are well-understood, and these crimes are possibly the most damaging of all ‘environmental crimes’.
Illicit wildlife trafficking has been addressed directly in fourthree UN General Assembly resolutions (first in 2015, with follow-up Resolutions in 2016, 2017, and 2019 and 2021), amongst others. In 2019, the UNGA encouraged “Member States to adopt effective measures to prevent and counter the serious problem of crimes that have an impact on the environment, conservation and biodiversity, such as illicit trafficking in wildlife and wildlife products, including fauna and flora as protected by the Convention on International Trade in Endangered Species of Wild Fauna and Flora, and poaching”.
Today there is an unprecedented level of awareness amongst politicians, the private sector and civil society, of the links between wildlife trade, markets and consumption and pandemics, including those that can emerge from illicit trafficking in wild animals (along with multiple other consequences, see FAQ no.3).
The time is right to move ahead with a new international agreement to combat these serious crimes. A Protocol on wildlife crime, possibly including fisheries and forestry crimes, would be an historic moment: the first time ‘environmental crimes’ of this nature are specifically embedded into international criminal law. It would signify recognition by States of the need to scale up collaborative efforts to prevent and combat wildlife crime, provide a powerful vehicle for doing so, and leave a strong legacy for generations to come.
5. Why focus on wildlife crime when we know that wildlife-related risks to human and animal health do not come solely from illicit activities, nor just from wild animals?
No single initiative will fully address the complex and multidimensional risks to public and animal health posed by wildlife (or captively-bred or domesticated animals). Preventing future pandemics will require a range of complementary initiatives.
Left as it is our system is not going to prevent the next wildlife-related pandemic. It could, in fact, be raising our potential exposure to zoonotic diseases. The Global Initiative to End Wildlife Crime is focused on addressing the risks to public and animal health posed by wildlife trade, be it legal, illegal, or unregulated, as well as through wildlife crimes more generally. It will serve to complement and mutually reinforce other measures taken to prevent future wildlife-related pandemics.
6. Why is UNTOC the best forum for a new global agreement?
UNTOC is the primary international instrument in the fight against transnational organized crime. There are 190 States Parties to the Convention, and it benefits from having the United Nations Office on Drugs and Crime (UNODC) as its guardian. The UNODC is also the guardian of the UN Convention Against Corruption, and amongst other matters it convenes the Commission on Crime Prevention and Criminal Justice and the Crime Congress. It is the natural home for convening the global community to take action to prevent and combat transnational crime.
The UNGA has in 2019 called upon Member States “to make illicit trafficking in protected species of wild fauna and flora and other crimes that affect the environment, such as trafficking in timber… a serious crime” in accordance with the UNTOC. However, wildlife crime has not yet been brought within the formal legal framework of the Convention as it has for a number of other serious transnational organised crimes, namely on trafficking in persons, smuggling of migrants, and illicit manufacturing of and trafficking in firearms.
The proposed draft Protocol includes proposals that would automatically trigger all the tools available under the UNTOC. The draft, however, goes much further. It proposes that a Protocol would:
If adopted, a Protocol with provisions such as these would represent a major step forward in the fight against these serious crimes. It would embed them into the international criminal law framework, where they belong. It would signify an unequivocal recognition by States Parties of the devastating scale, nature and consequences of such crimes, of the need to scale up collaborative efforts to both prevent and combat them, and provide States with the means to do so.
7. Don’t we have a problem with inadequate criminal justice capacity at the national level, and a poor rate of successful prosecutions? Isn’t this where we should be focussing enforcement efforts?
Implementation of international agreements is a challenge right across the board, from conventions addressing biodiversity, to climate change, to corruption, and to transnational crimes. However, issues requiring a cooperative, cross-border response, can most effectively be advanced through an agreed international framework. It is not a question of “either/or,” it is both. We need to close the gaps in the international legal framework, while enhancing national enforcement capacity, which will be given greater political attention and impetus through adopting a new international agreement containing specific commitments to prevent and combat wildlife crimes.
The Initiative advocates for the immediate scaling-up of cooperative, global enforcement efforts to tackle existing illegal activity, including through the International Consortium on Combating Wildlife Crime (ICCWC), while taking steps to make necessary changes to the international legal framework.
International agreements act as a catalyst for national plans, legislation, and action. When CITES was established in the early 1970s, relevant national legislation was almost non-existent. The Convention provided the scaffolding for a global shift in national laws and practices. The 1992 Convention on Biological Diversity has led to each Party adopting National Biodiversity Strategy and Action Plans, and the Paris Agreement of 2015, has seen Parties submitting details of Nationally Determined Contributions. An agreement on wildlife crime would create similar positive cascade effect at the national level and enhance cross-border cooperation.
Finally, negotiations being advanced by diplomats in New York and Vienna would not take resources away from national enforcement efforts. It is not one or the other. For the reasons outlined above, a successful conclusion to negotiations would lead to additional resources being deployed to national enforcement efforts to meet new agreed international commitments.
8. Wasn’t this possibility informally canvassed at the 2014 UNTOC COP?
Yes, informal discussions took place in 2014 but they predated the COVID-19 pandemic, as well as a series of global reports outlining the true scale, nature and consequences of these crimes. Solutions previously considered sufficient have now been shown to be inadequate. The right solutions are needed for the right time.
The COVID-19 pandemic of 2020 has reminded us of the catastrophic consequences of diseases spilling over from wild animals to people, including those found in illegal trade. Before now, the fragility of our natural systems and the true scale, impact and consequences of illicit trafficking in wildlife had not been elucidated so starkly, as they now have been through the release of a series of landmark publications, including the UNODC ‘UN World Wildlife Crime’ reports of 2016 and 2020, the World Bank’s ‘Illegal Logging, Fishing, and Wildlife Trade: The Costs and How To Combat It’ report of 2019, the Intergovernmental Panel on Biodiversity and Ecosystem Services (IPBES) ‘Global Assessment Report’ of 2019, the WWF ‘Living Planet Report’ 2020, the IPBES ‘Pandemics Report’ and the CBD Secretariat’s ‘Global Biodiversity Outlook’ report of 2020.
We need measures that are fit for purpose in a post-COVID world; measures that adequately reflect the known scale, nature, and consequences of these serious crimes.
9. What is the process for a fourth Protocol to be introduced, adopted, and ratified?
A Protocol will be negotiated by Member States (countries). The UNTOC provides in Article 37 that it can be supplemented by one or more Protocols, but it does not specify how such Protocols are to be developed and eventually adopted. The UNTOC currently has three Protocols, addressing trafficking in persons, migrant smuggling, and illicit manufacturing and trafficking in firearms. These Protocols were negotiated under the auspices of the United Nations (UN) and, after the text was complete, were adopted and opened for signature by the UN General Assembly (UNGA). It is expected that a similar process would apply to any further Protocols.
At this stage, States can express their support for a fourth Protocol by submitting their views to the UN Office and Drugs and Crime (UNODC) by the 32nd session of the UN Commission on Crime Prevention and Criminal Justice (CCPCJ), set to happen in Vienna in May 2023.
If enough Member States are in favour of a new Protocol, the next step in the process would be to seek a negotiating mandate from the UNGA, which would likely be asked to set up an open-ended intergovernmental ad hoc committee for the purpose of developing the full text of a Protocol. If negotiations are successful after the UN sets up the negotiations and a new wildlife crime Protocol is developed, the UNGA would review and adopt the text and then open it for signature.
Article 14 of the proposed draft Protocol contemplates that after the text is approved, it will be open to all States for signature at UN Headquarters in New York from the thirtieth day after its adoption by the UNGA up until a time to be negotiated. Like the other UNTOC Protocols, it would be subject to ratification, acceptance, or approval (each of which are methods by which nations join treaties), and instruments of ratification, acceptance, or approval will be deposited with the Secretary-General of the UN.
Article 15 of the proposed draft Protocol contemplates that it shall enter into force on the ninetieth day after the date of deposit of the fortieth instrument of ratification, acceptance, approval, or accession. This is the same formulation used for the three existing Protocols.
10. How is this different from the proposal to make ecocide an international crime?
The proposed Protocol is unrelated to the proposal to make ecocide an international crime. The latter seeks to establish a new fifth crime under the International Criminal Court (ICC), which was established by the Rome Statute. An expert panel of international lawyers convened by the Netherlands-based Stop Ecocide Foundation recently released a proposed definition of the crime of ecocide.
This ICC/Rome Statute proposal is a separate and distinct initiative from the proposed Protocol. The proposed Protocol is put forward as an international agreement that will set out agreed obligations to both prevent and combat illicit wildlife trafficking, which would then find expression in national laws and be enforced by national courts alone. The ICC would have no jurisdiction in relation to the proposed Protocol.
FAQ #4 answers the question ‘Would it be better to widen the scope of the proposed Protocol to cover all environmental crimes?’ Since posting that FAQ, at the 30th Session of the Commission on Crime Prevention and Criminal Justice, a Resolution submitted by France on ‘Preventing and combating crimes that affect the environment’ was adopted.
11. Will a new Protocol automatically be part of national law?
International law is made by States. If a new Protocol is negotiated by States it will be open to any country that is a Party to the UN Convention against Transnational Organised Crime (UNTOC) to become a Party to it. By becoming a Party, a country will have the legal obligation to put into place domestic measures and legislation compatible with the Protocol. The Protocol would not be ‘self-executing’, meaning that each country will need to adopt and enforce its own legislation to implement the Protocol.
This is the same for most Conventions, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES has 183 Parties and each country that is a Party to the Convention adopts its own national legislation to meet its obligations under the Convention. The CITES Secretariat manages the National Legislation Project, which monitors progress made by each Party in adopting legislation that meets the requirements of the Convention.
12. Haven’t there already been many international commitments on tackling wildlife crime?
There have been a series of non-binding UN General Assembly (UNGA) Resolutions dating back to 2015 on tackling illicit wildlife trafficking, the outcomes of various conferences, as well as a number of regional strategies (as set out in earlier briefings and FAQ). While not legally binding, all of these Resolutions, events and strategies have helped to raise awareness of the scale, nature and consequences of these crimes, and advance national, regional and global efforts to tackle wildlife crime.
The creation of the International Consortium on Combating Wildlife Crime (ICCWC) is a case in point. It was established in 2010 with no resources. Within 10 years, it had been recognised in several UNGA Resolutions and secured USD20M in funding to support countries’ efforts to combat wildlife crime.
Most of these Resolutions, events and strategies have, however, tended to be limited to species listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). As noted in the UN World Wildlife Crime Report 2020, wildlife crimes also affect ‘millions of species that are not listed by CITES but may be illegally harvested and traded internationally, as is frequently the case in timber and fish trafficking’.
While these various initiatives each have some value, there is no institutionalised means of following up on ad hoc non-binding Resolutions, pledges or processes, all of which are viewed by States as not being legally binding obligations. A new Protocol is significantly different to an UNGA Resolution, or the outcomes of a conference, or a strategy. If it enters into force, it would include legally binding treaty obligations, which will be enduring and reviewed through an ongoing, formal review mechanism amongst States on the implementation of the UN Convention against Transnational Organised Crime (UNTOC) and its Protocols.
Amongst these and many other initiatives, we have made progress, but it’s not enough. Given what we know today about the scale, nature and severe consequences of these serious crimes, now is the time to take our next leap forward in working together to end them.
13. Hasn’t international law failed to deliver on commitments? How will this proposed Protocol help?
Enforcing wildlife laws, as with other laws, is a national responsibility. Being fully effective requires a well-functioning judicial system, as is recognised in the Wildlife and Forest Crime Analytic Toolkit released by the United Nations Office on Drugs and Crime (UNODC). Serious wildlife crimes are transnational in nature and an effective law enforcement response also requires close international cooperation.
Questions raised about the benefits of a fourth Protocol could apply equally to the UN Convention against Transnational Organised Crime (UNTOC) and its three existing Protocols, as well as the UN Convention against Corruption (UNCAC), and international laws more generally, including those on biodiversity and climate change.
The EWC initiative acknowledges the shortcomings of international law, but we firmly believe in the importance of multilateralism, and of the benefits of collective efforts to maximise cooperation amongst States in dealing with cross border issues, be it human trafficking, migrant smuggling, or wildlife trafficking, as well as biodiversity loss and climate change. International agreements can act as a catalyst for national plans, legislation, and action. There are certain tensions between States at the present time, and it’s important that they continue to work together to strengthen international cooperation on issues of common interest.
The EWC Initiative is quite deliberately narrowly focused on international law reform, but it also fully embraces the need to strengthen national enforcement capacity, as was noted in FAQ #7. The Initiative is of the view that an agreement on wildlife crime would create a positive cascade effect at the national level and enhance cross-border cooperation, as we have seen with other international agreements, without taking existing resources away from national enforcement efforts.
It could also be the first global legally binding instrument with an agreed definition on illicit trafficking in wildlife. As with the Protocol against human trafficking, an agreed definition could facilitate convergence in national approaches with regard to the establishment of domestic criminal offences that would support efficient international cooperation in investigating and prosecuting trafficking in wildlife cases. Additionally, the effort in itself raises the global profile of wildlife crime, drawing attention to the multifaceted challenges and possible solutions.
The Initiative advocates for proceeding on both fronts, national and international, which will be mutually reinforcing. It does not see it as an either/or question, as was expressed in FAQ #7, and the Initiative’s outreach is raising awareness of the need for stronger action to tackle wildlife crime at all levels, not just the global level.
14. Does the draft Protocol target a particular region or regions?
The draft Protocol does not target any particular region or regions, it is global in its scope. It does, however, place an emphasis on the role of destination States, and the draft Protocol includes a proposed obligation to make it a criminal offence to import any wildlife, or wildlife product into a country if it has been acquired in contravention of the national laws of the source country. This would represent a remarkable expression of comity between nations, a mutual respect for one another’s laws.
It also includes proposed obligations to prevent illicit wildlife trafficking, such as raising public awareness of these crimes and on demand reduction, to sharing information, such as on known groups active in illicit trafficking, on their concealment methods, known transport routes, and on sharing forensics. And it addresses the role and responsibilities of the carriers of contraband, on the verification of documents, and on training and technical assistance. All of which are global in scope.
15. Has the proposal for a new international agreement on wildlife crime generated any support?
In May 2021, the President of Gabon, H.E. Ali Bongo Ondimba and the President of Costa Rica, H.E. Carlos Alvarado Quesada, Presidents of two biodiverse rich countries, jointly called for a new global agreement on wildlife crime, taking the form of a Fourth Protocol under the UN Convention Against Transnational Organised Crime (UNTOC). Their reasons for doing so were elaborated upon in two joint opinion pieces, including in the China Daily. Shortly after, the presidents of Angola (September 2021) and Malawi (February 2022) joined their call. The Initiative is orientating its work on the wildlife crime pillar of its two objectives, towards lending its full support to the call made by the four Presidents.
Support for a Fourth Protocol has also been expressed by the European Commission, in the EU Strategy to tackle Organised Crime 2021-2025.
A Protocol has also been supported by many speakers from across all regions, at events hosted by the Initiative and others, including by Ambassador Judi Wakhungu, Kenyan Ambassador to France and former Minister for the Environment, Dr Ji-Qiang Zhang, President of China’s Global Environment Institute, Dr. Jorge Caillaux, President of the Peruvian Environmental Law Society, Hon. Lee White, Gabon’s Minister of Water, Forests, the Sea, and Environment, Dr Jane Goodall, and Dr Tanya Wyatt, Professor of Criminology, Northumbria University, amongst many others. The Protocol enjoys wide and diverse array of support.
At the 31st Session of the UN Commission on Crime Prevention and Criminal Justice (CCPCJ), in May 2022, Angola, Kenya and Peru submitted a draft resolution inviting Member States to share their “views on on possible responses, including the potential of an additional Protocol to the United Nations Convention against Transnational Organized Crime, to address any gaps that may exist in the current international legal framework to prevent and combat illicit trafficking in wildlife”. The resolution was adopted by consensus and ultimately co-sponsored by twelve other Member States, namely Colombia, Ecuador, Egypt, Gabon, Ghana, Honduras, Malawi, Morocco, Mozambique, Paraguay, Philippines and the United States.
16. What is the status of the draft Protocol and how can I contribute to or comment on the draft?
The EWC Initiative welcomes all viewpoints on the possible benefits of an international wildlife crime agreement, including on its proposed form and content.
The preparation of the draft Protocol was led pro bono by the law firm Arnold & Porter, which was closely involved in the preparation of the 2018 Guide on Drafting Legislation to Combat Wildlife Crime by the United Nations Office on Drugs and Crime (UNODC). The draft is based upon the three existing Protocols to the UN Convention against Transnational Organised Crime (UNTOC), national legislation from across all regions, and the recommendations in the UNODC Guide. The draft has no formal status. It is a first working draft that the EWC Initiative has put into the public domain to help advance the conversation. To make it accessible to as many people, from as many regions, as is possible, the draft has been translated into seven languages, for anyone who would like to read it, comment upon it, or help make it a better draft.
If States agree to adopt a mandate to negotiate a Protocol (see FAQ #9), they will be free to consider, accept, or reject, or use any parts of the draft Protocol as they see fit.
If anyone has specific comments on the draft Protocol, or would like to directly engage with the Initiative in the review of the draft, please contact us at email@example.com