The Global Initiative to End Wildlife Crime (“the Initiative”) was created to address serious gaps in the existing international legal framework for combating wildlife crime and regulating wildlife trade. As part of its proposed solution to help address these gaps, the Initiative supports the adoption of a new protocol on the illicit trafficking of wildlife under the United Nations Convention Against Transnational Organized Crime (“UNTOC”), the main international instrument in the fight against transnational crime.
This second briefing paper, released by the Initiative in 2020, explores the possible form and content of such a Protocol. Its working title is the ‘Protocol against the Illicit Trafficking in Specimens of Wild Fauna and Flora’ (the “Protocol”).
If a new Protocol is negotiated and adopted by States, it would be the fourth protocol to the UNTOC, the others being on human trafficking, migrant smuggling, and illicit manufacture and trafficking in firearms.
This draft has been prepared in response to requests coming from States and organisations to offer some tangible ideas on the possible form and content of a potential Protocol and thereby help advance the discussion on this necessary reform. The draft has no formal status and it will be for States alone to negotiate the content of a new Protocol.
The United Nations General Assembly has 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.1 A new instrument on illicit trafficking in wildlife, which could include fish and timber species, would be the first international instrument that would create specific obligations for States Parties (countries) in this critically important area of criminal law.
The draft Protocol proposes to criminalise the intentional illicit trafficking of specimens of wild fauna and flora. The draft provides that States Parties to the Protocol would be agreeing to adopt legislation establishing as a criminal offence the illicit trafficking of any whole or part of a wild animal or plant, whether alive or dead, in violation of an applicable international agreement or any domestic or foreign law, together with a wide range of other matters.
Other proposed commitments in the draft Protocol include:
The draft Protocol also proposes to automatically trigger, and enhance the use of, all of the UNTOC’s provisions on international cooperation, mutual legal assistance, joint investigations, special investigative techniques such as controlled deliveries, and law enforcement cooperation provisions in tackling the illicit trafficking of wildlife.
Illicit trafficking in wild fauna and flora is often fueled by corruption, it deprives governments of revenue, has a devastating impact on wildlife, local communities, national economies, national and regional security, and entire ecosystems, including their ability to sequester carbon,2 and it poses a risk to public and animal health. Through this draft Protocol, it is proposed that States Parties would also commit to increasing public awareness of the threats of illicit wildlife trafficking and establish policies and programmes to combat this harmful practice.
Despite the severe impacts of wildlife crimes, we do not yet have a global agreement on illicit trafficking in wildlife. And as more restrictions are placed on wildlife trade, markets, and consumption that could pose a risk to public health, we will need to scale up our enforcement efforts to ensure such trade does not simply move underground.
If a Protocol containing these sorts of provisions were adopted, it would represent a major step forward in the fight against these serious 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 criminalise them, and provide States with the means to do so.
The Initiative would like to acknowledge the international law firm Arnold & Porter for its pro bono support in preparing this draft Protocol, together with several other independent reviewers. It is a working draft to help advance the discussion, and the Initiative welcomes comments and feedback on the draft.
The draft Protocol and draft offence were developed based on review of the three existing UNTOC protocols,3 Australia’s Environment Protection and Biodiversity Conservation Act,4 Canada’s Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act,5 the Forest Law of the People’s Republic of China,6 the E.U.’s Council Regulation on the protection of species of wild fauna and flora by regulating trade therein,7 the E.U.’s Timber Regulation,8 Japan’s Clean Wood Act,9 Mexico’s Federal Penal Code,10 Mozambique’s Criminal Code,11 the United States’ Lacey Act,12 Viet Nam’s Criminal Code,13 and the discussion and collection of authorities in the UNODC’s Guide on Drafting Legislation to Combat Wildlife Crime (“UNODC Legislative Guide”).14
John E. Scanlon AO
Chair, Global Initiative to End Wildlife Crime
On behalf of the Steering Group
Protocol against the Illicit Trafficking15 in Specimens of Wild Fauna and Flora, supplementing the United Nations Convention against Transnational Organized Crime
“Trafficking” shall mean the import, export, transport, sale (including by electronic means),18 receipt, introduction from the sea, acquisition, possession, purchase, delivery, movement or transfer of specimens of wild fauna and flora.19
“Illicit trafficking” shall mean trafficking in contravention of article 5 of this Protocol.
“Specimen” shall mean, but is not limited to: (a) any wild fauna or flora20 or parts thereof, whether alive or dead; (b) any seed, egg, gamete or propagule or part of any wild fauna or flora; (c) any readily recognizable part or derivative of any wild fauna or flora; or (d) any goods which contain a part or derivative of any wild fauna or flora.21
This Protocol shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of the offences established in accordance with article 5 of this Protocol, where those offences are transnational in nature.22
States Parties shall cooperate with each other and with relevant international organizations, as appropriate, so that States Parties may receive, upon request, the training and technical assistance necessary to enhance their ability to prevent, combat and eradicate the illicit trafficking in specimens, including technical, financial and material assistance in those matters identified in articles 29 and 30 of the Convention.33
At the request of another State Party, a State Party shall, in accordance with its domestic law, verify within a reasonable time the legitimacy and validity of documents issued or purported to have been issued in its name, including any documents suspected of being misused for purposes of conduct set forth in article 5 of this Protocol.34
IN WITNESS WHEREOF, the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments, have signed this Protocol.
1 U.N.G.A. Res. 74/117, U.N. Doc A/RES/74/117 (December 18, 2019). See also U.N.G.A Resolution on Tackling Illicit Trafficking in Wildlife adopted on 10 September 2019, which reaffirmed its resolutions 69/314 of 30 July 2015, 70/301 of 9 September 2016 and 71/326 of 11 September 2017 on tackling illicit trafficking in wildlife. Operative paragraph 3 of this Resolution 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;” (footnote omitted). Operative paragraph 5 called upon Member States “to make illicit trafficking in protected species of wild fauna and flora a serious crime.” U.N. Sustainable Development Goal 15.7 states “[t]ake urgent action to end poaching and trafficking of protected species of flora and fauna and address both demand and supply of illegal wildlife products.”
2 For an assessment of the full costs of illicit wildlife trafficking, see Illegal Logging, Fishing and Wildlife Trade: The Costs and How to Combat It, World Bank Group (October 2019).
3 The three protocols currently supplementing the UNTOC are the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (“Protocol Against Trafficking in Persons”), the Protocol against the Smuggling of Migrants by Land, Sea and Air (“Protocol Against Smuggling Migrants”), and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunitions (“Firearms Protocol”).
4</sup Environment Protection and Biodiversity Conservation Act, 1999 (Cth) section 303GQ.
5 Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, S.C. 1992, c. 52, section 6(1).
6 The Forest Law of the People’s Republic of China (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 29, 1998, effective Jan. 1, 1985) Article 65 (2019 Amendment).
7 Council Regulation (EC) No 338/97 (1996) on the protection of species of wild fauna and flora by regulating trade therein, Article 8.
8 Regulation (EU) No 995/2010 of the European Parliament and of the Council of 20 October 2010.
9</sup Act on Promotion of Use and Distribution of Legally-Harvested Wood and Wood Products (Act No. 48 of 2016).
10 Articles 419-20; see also General Wildlife Law (Ley General de Vida Silvestre) (2000).
11 Law No. 10 of 1999, Article 41; Law No 5 of 2017, Article 54.
12 Lacey Act, 16 U.S.C. §§ 3371–3378.
13 Law No. 12/2017/QH14 dated June 20, 2017 of the National Assembly on amending the Criminal Code No. 100/2015/QH13, Articles 232-234, 244.
14 UNODC, Guide on Drafting Legislation to Combat Wildlife Crime, 2018.
15 The term “illicit trafficking” is taken from the U.N.G.A. resolutions on tackling illicit trafficking in wildlife. G.A. Res. 69/314, U.N. Doc A/RES/69/314 (July 30, 2015); G.A. Res. 70/301, U.N. Doc A/RES/70/301 (Sept. 9, 2016); G.A. Res. 71/326, U.N. Doc A/RES/71/326 (Sept. 11, 2017); G.A. Res. 73/343, U.N. Doc A/RES/73/343 (Sept. 16, 2019). The Firearms Protocol also uses the term “illicit trafficking” to include the “import, export, acquisition, sale, delivery, movement or transfer of firearms[.]” The UNODC Legislative Guide defines “trafficking” (without the “illicit” modifier) in relation to a specimen, to mean “illegal acts by a person, whether for the benefit of themselves or another person, for purposes of importing, exporting, re-exporting, introducing from the sea, dispatching, dispatching in transit, distributing, brokering, offering, keeping for offer, dealing, processing, purchasing, selling, supplying, storing or transporting.” UNODC Legislative Guide, 13 (emphasis added). We have elected not to include “illegal acts” within our definition of “trafficking” because, standing alone, the acts of importing, exporting, selling, etc. are not themselves illegal. Rather, they only become illegal if the perpetrator intentionally did one of those acts knowing that the specimen had been illegally taken, harvested etc.
16 This language is based on Article 1 of all three protocols supplementing the UNTOC: the Protocol Against Smuggling Migrants, the Protocol Against Trafficking in Persons and the Firearms Protocol.
17 This language is based on Article 2 of the Protocol Against Trafficking in Persons. It also generally follows the pattern of the language in the Protocol Against Smuggling Migrants and the Firearms Protocol.
18 See UNODC Legislative Guide, 29.
19 This language is loosely based on the definition of “illicit trafficking” in the Firearms Protocol. It generally tracks the language of the U.S. Lacey Act. 16 U.S.C. § 3372(a)(1). The definition is also influenced by the UNODC Legislative Guide. UNODC Legislative Guide, 13.
20 This protocol does not include a specific definition for “wild fauna or flora” because, as explained in the UNODC Legislative Guide, “the concept of wildlife is viewed differently in different parts of the world.” UNODC Legislative Guide, 2. The lack of a specific definition in the protocol does not suggest that domestic legislation should not define the term. Id. On the contrary, clearly and precisely defining what constitutes “wild fauna and flora” in domestic legislation “will define the scope of the legislation and hence its effectiveness.” Id. While this protocol leaves the precise definition of “wild fauna and flora” to each State, the term as used throughout the protocol does refer to “specimens of both wild plant and animal species,” including “animals, birds and fish, as well as timber and non-timber forest products.” Id. States may include “certain captive-bred animals in their definition” to provide a wider scope of protection and clarify whether there are any fungi not covered. Id. Article VII(4) of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) affords lesser protection to species bred or propagated in captivity for commercial use.
In the U.S., the Lacey Act uses the term “fish or wildlife” defined as “any wild animal, whether alive or dead, including without limitation any wild mammal, bird, reptile, amphibian, fish, mollusk, crustacean, arthropod, coelenterate, or other invertebrate, whether or not bred, hatched, or born in captivity, and includes any part, product, egg, or offspring thereof.” 16 U.S.C. § 3371(a). This is one example of how a country could define wild fauna and flora in its domestic legislation.
21 This definition is based on the glossary of terms included in the UNODC Legislative Guide. UNODC Legislative Guide, 13.
22 All of the protocols and the UNTOC also include “involve an organized criminal group” in the scope of the application. We have not included “involve an organized criminal group” to keep the scope of the protocol broader, but this will be a decision point that should be discussed.
The decision to omit the organized criminal group requirement finds support in CITES related literature. An organized criminal group is defined under Article 2 of UNTOC as “a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences…” Illegal wildlife trafficking is sometimes carried out by informal networks. See Res. Conf. 11.9 (Rev. CoP18) (explaining that “the collection of tortoises and freshwater is carried out through an extensive informal network of trappers, hunters and middlemen.”). The proposed Protocol omits the element of “organized criminal group” in order to enhance law enforcement’s ability to police such activities.
23 Article 6 of the UNTOC requires States to establish four enumerated offences related to money-laundering. A “predicate offence,” as defined in Article 2 of the UNTOC, is “any offence as a result of which proceeds have been generated that may become the subject of an offence as defined in article 6 of this Convention.” Article 6 of the UNTOC requires that provisions concerning money-laundering are applicable to the “widest range of predicate offences,” including offences established by the Convention itself. Relatedly, Article 1(3) of this Protocol states: “[t]he offences established in accordance with article 5 of this Protocol shall be regarded as offences established in accordance with the Convention.” For that reason, offences established under Article 5 of this Protocol are predicate offences for the purposes of Article 6 of the UNTOC.
24 This language is identical to that in Article 5 of the Firearms Protocol. The language also follows a generally similar pattern as the offences in the Protocol Against Smuggling Migrants and Protocol Against Trafficking in Persons.
The offences in the UNTOC and its three protocols all require the conduct to be committed “intentionally” to be included as an offence. This is similar to Australia’s Environment Protection and Biodiversity Conservation Act which requires that “[a] person must not intentionally import a specimen if the person knows” that it was illegally exported from a foreign country. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 303GQ (emphasis added).
25 Article 5(1) is modeled after the language and structure of the UNTOC protocols and the language of UNODC Legislative Guide “Optional Addendum” to Model provision 10: Trafficking in wildlife. See UNODC Legislative Guide, 27. The language is also generally similar to that of the U.S. Lacey Act, but includes the additional terms “distributed” and “purchased.” See 16 U.S.C. § 3372(a)(1).
The Lacey Act also includes the possibility of misdemeanors for instances in which a defendant intentionally trades in specimens that he or she “in the exercise of due care should know” is prohibited. See 16 U.S.C. § 3373(d)(2). It could be quite difficult to reach an international consensus on a lower standard of “due care” for an law enforcement convention. Our recommendation is that we should track the existing agreements and the “intentional” standard in Australia’s Environment Protection and Biodiversity Conservation Act in the draft protocol.
26 This provision is based on the UNODC Legislative Guide “Optional Addendum,” which states “any international agreement binding on [insert name of the State].” UNODC Legislative Guide, 27. The language is intended to capture agreements such as CITES and the Convention on the Conservation of Migratory Species of Wild Animals
27 This language is based on the “Optional Addendum” to Model provision 10: Trafficking in wildlife in the UNODC Legislative Guide. UNODC Legislative Guide, 27. The Guide explains that “[t]he term “applicable foreign law” imports into the offence a requirement of a jurisdictional nexus between the foreign law and the act of taking, possessing, distributing, transporting, purchasing or selling[,]” but does not require or involve States having to enforce foreign laws. Id. at 26. Rather, the Guide explains that “it is the applicable foreign law that informs the illegal status of the specimen and renders the import or trafficking in the specimen illegal under domestic law.” Id. The offence focuses on “protecting the domestic market from the entry of contraband.” Id.
28 Article 5(3) is designed to extend the offence to include attempts and aiding and abetting. The draft language corresponds with Article 5(2) of the Firearms Protocol.
29 Article 6 is based on Article 6 of the Firearms Protocol and Article VIII of CITES. See also the Lacey Act’s Forfeiture Provision, 16 U.S.C. § 3374.
30 This language is based on Article 9 of the Protocol Against Trafficking in Persons and Article 15 of the Protocol Against Smuggling Migrants. Raising public awareness about the illegal wildlife trade is also a feature of multiple CITES resolutions – see e.g. Res. Conf. 11.9 (Rev. CoP18)) (re: turtles) and Res. Conf. 12.5 (Rev. CoP18) (re: tigers).
31 This language is based on Article 10 of the Protocol Against Trafficking in Persons and Article 12 of the Firearms Protocol.
32 This language is based on Article 13 of the Firearms Protocol, Article 11 of the Protocol Against Trafficking in
Persons, and Article 11 of the Protocol Against Smuggling Migrants.
33 This language is taken directly from Article 14 of the Firearms Protocol.
34 This language is taken directly from Article 13 of the Protocol Against Smuggling Migrants.
35 The language in Articles 12-18 is taken directly from Articles 19-25 of the Protocol Against Smuggling Migrants, Articles 14-20 of the Protocol Against Trafficking in Person and Articles 16-21 of the Firearms Protocol. With minor exceptions, the relevant language is identical in all three protocols.
36 The language stating that this Protocol shall enter into force on the ninetieth day after the date of deposit of the fortieth instrument of ratification, acceptance, approval or accession is based on Article 38 of the UNTOC, Article 22 of the Protocol Against Smuggling Migrants, Article 17 of the Protocol Against Trafficking in Persons, and Article 18 of the Firearms Protocol. The Convention, and each Protocol, includes a reference to the fortieth instrument.