Some groups are advocating for new international frameworks on illegal wildlife trade. What impact would this have in practice?

Some conservation groups are advocating for a new international legal framework to counter illegal wildlife trade (IWT). Foremost among these is End Wildlife Crime, a non-governmental organization chaired by John Scanlon, the former Secretary General of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which has drafted a potential new protocol to the UN Convention against Transnational Organized Crime (UNTOC), illustrating what such a new legal framework could look like.¹

This is not the first time a new wildlife-crime protocol to the UNTOC has been called for, but the issue has gained new urgency in the context of the potential role of the wildlife trade in the transmission of the coronavirus. End Wildlife Crime argues that although the pandemic demonstrates the risk to public health of zoonotic diseases, ‘current wildlife trade laws do not take account of public or animal health issues’.² In the last few years, IWT has also become more of a political priority on the international level, as evidenced by a series of political declarations and UN resolutions.³

Yet what would be the impact of a new legal framework? The GI-TOC is one of few civil society organizations that has monitored the developments of the UNTOC and assessed its impact.⁴ We also draw on interviews with a number of law enforcement investigators working in East Africa to assess if and how they see such an initiative impacting on police investigations into IWT.

The shortcomings of CITES

CITES is the currently the central node for international dialogue on wildlife trade. The primary aim of the convention is to prohibit trade in specific species when they are threatened with extinction. Because of this, experts argue that CITES does not provide the right platform or legal framework with which to counter IWT as an organized crime issue.

In the words of GI-TOC Senior Adviser John M Sellar, ‘CITES is a trade- and conservation-related agreement. It was not drafted to respond to or combat crime – especially serious or organized crime … From the prohibitionist’s perspective, CITES is awash with loopholes and weaknesses, because preventing trade was never its primary goal.’⁵

Experts working in wildlife-trade law enforcement in East Africa agree. Robert Mande, Chair of the National Anti-Poaching Task Force in Tanzania, argues that a fourth protocol for IWT under UNTOC would be very useful as it would embed tackling wildlife crime as an organized crime issue in the UNTOC framework, rather than as a trade issue, which is how it is treated under CITES.⁶ With international protocols for IWT currently largely falling under CITES, it is CITES officers who attend cooperation meetings to discuss how to tackle IWT. However, Mande argues, their mandate and expertise are typically around utilization and trade and reducing the harmful effects of trade, not around tackling the organized crime side of the wildlife trade.

A Kenya Wildlife Services ranger stands guard in front of illegal stockpiles of burning elephant tusks at the Nairobi National Park.

Photo: Carl de Souza/AFP via Getty Images

‘The counter-wildlife trafficking successes that have occurred in the region have been the result of engagement between the mandated counter wildlife crime agencies in the neighbouring countries and their law enforcement partners, not the CITES desks,’ said Mande. ‘If a fourth protocol helped to formalize these kind of engagements between neighbouring countries it would help to tackle the transnational criminals.’

A regional attaché for the US Fish and Wildlife Service based in East Africa also argues that one of the shortcomings with CITES is that the legislation has not been brought into domestic law for all countries or, where it has, it sometimes only refers to species from that country.⁷ This can give rise to situations where those found trafficking a CITES-listed species from another country have not necessarily broken any local laws. If a fourth UNTOC protocol could overcome these issues of legislative complexity, he argues, then it would be a useful initiative.

A fourth UNTOC protocol: benefits and challenges

It is a quirk of UNTOC that, though it is a broad instrument that deals with a wide variety of transnational organized crime types, it also has three specific protocols: on trafficking in persons, smuggling of migrants and trafficking in firearms. These protocols provide additional legislative and cooperation tools to countries that sign up. They also each have a standing working group, which produces recommendations that are adopted by states parties. Politically, these protocols give the three crime types a certain status as an ‘official’ form of transnational organized crime.⁸

Investigators in East Africa expressed their support for a fourth protocol on IWT, especially in terms of the opportunities for international cooperation that it could bring. Mande says that a protocol could help with international coordination and engaging with other countries on transnational organized wildlife crime networks.⁹ The US Fish and Wildlife Service attaché in Tanzania says that a key use of a protocol would be its convening power for all relevant law enforcement agencies in a country and to bring them together with counterparts from neighbouring countries.¹⁰ This would mean that wildlife trafficking (where it is carried out by organized crime groups) would not only be a wildlife agency problem, but clearly recognized as an organized crime issue.

A fourth protocol may also help overcome the legislative complexities seen as one of the drawbacks of CITES, as mentioned above. End Wildlife Crime argue that addressing gaps in the international legal framework is vital to combating ITW, and states that its proposed protocol would ‘criminalize the intentional illicit trafficking of specimens of wild fauna and flora. 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.’¹¹

But there are challenges to consider. Proposing, negotiating and adopting the protocol can in no way be taken for granted. Some countries, such as Brazil and Russia, are reluctant to single out ‘environmental crime’ for special treatment under UNTOC, making it difficult to achieve the basic (and required) consensus on the importance of the issue. Resolutions on the issue of IWT at the UNTOC conference have always been difficult and contentious for this reason. Even if consensus was achieved on starting the process, negotiating the protocol would be time- and resource-intensive, requiring a high level of political will and commitment from a broad range of countries.

There are also the strengths and weaknesses of UNTOC itself. The GI-TOC’s analysis of the impact of the convention found that it is widely seen as a flexible and useful instrument among experts.¹² It provides a template for criminalization of certain offences and a framework and platform for international cooperation in criminal matters that is adhered to almost universally around the world.

Figure 6 A history of the development of the UNTOC convention.

NOTE: A proposed protocol on illicit wildlife trade would come long after the adoption of the previous three UNTOC protocols, adopted in 2000 and 2001. As shown on the timeline, the development of the UNTOC review mechanism, a means by which the implementation of the convention is evaluated, was a long and hard-fought political process.

However, political momentum behind the convention has waned in the 20 years since its adoption. A review mechanism designed to monitor implementation was only launched in 2020 following years of diplomatic deadlock. The review mechanism is an 11-year process into which a fourth protocol would have to integrate. As the GI-TOC has commented on before, the provisions in the review mechanism on transparency and civil society engagement leave much to be desired.

White-bellied pangolins rescued from traffickers in Kampala, Uganda.

Photo: Isaac Kasamani/AFP via Getty Images

Protocol versus practice

While the wildlife crime investigators we spoke to for this article were generally of the view that a fourth UNTOC protocol could be a useful initiative, they also cautioned against seeing the fourth protocol as an end in itself, rather than as a means to support law enforcement work in the field.

In the view of an attaché for the US Drug Enforcement Agency (DEA) based in East Africa, the building blocks of effective law enforcement against organized crime – nationally and transnationally – are well known. Agencies need to undertake effective investigations and prosecute people in order to achieve maximum disruption and dismantling of the networks, he says. For this, what is needed are trusted officers working in key units, multiple sources of intelligence feeding into these units, and the use of tried and trusted investigation techniques (such as human sources, communications intercepts and surveillance). Protocols need to be followed to ensure evidentiary material is collected, then cases need to be built with support from prosecutors. Where investigators are dealing with transnational networks, trusted units in the region need to be in communication with each other, and prosecutions pursued in whichever country the criminal network is operating where the prosecution is likely to have the highest impact. While new protocols and agreements do not achieve this in and of themselves, they can help create the necessary conditions. ¹³

The need for inter-agency trust – both nationally and internationally – was repeated by others with experience of working in these investigations.¹⁴

Edward Phiri, director of the Lusaka Agreement Task Force, an inter-governmental organization leading cooperation between member states of the Lusaka Agreement, a major regional platform working to counter illegal wildlife trade, warned of the need for effective implementation. ‘There are a number of UN bodies and protocols in existence to address organized wildlife crime. But what we are lacking is enforcement and implementation. We also need to institutionalize and strengthen regional bodies to be effective in the fight against wildlife crime. Negotiating new protocols require resources and it takes time to make them functional. I would suggest that we need to explore opportunities in the existing UN bodies/protocols such as under UNTOC or CITES, revise them to be more practical in enforcement and implementation to tackle organized wildlife crime. This can also present an opportunity where regional bodies such as the Lusaka Agreement can further be strengthened, to respond to organized wildlife crime syndicates.’¹⁵

Alastair Nelson, current senior analyst with the GI-TOC and former Regional Director for Counter Wildlife Trafficking with the Wildlife Conservation Society, argues that there are examples where international agreements to counter wildlife crime have actually had a negative impact. Mozambique and Vietnam spent four years working on developing and agreeing a Mutual Legal Assistance Treaty in order to tackle organized wildlife crime between the two countries. This process included multiple memoranda of understanding and joint meetings designed to build trust and develop oppor­tunities for working together, yet has recorded little success. One key problem, according to Nelson, is that other agencies have tried to step in between the wildlife law enforce­ment agencies to act as gatekeepers on communication and information-sharing. This is an example of an agreement creating a new and unnecessary mechanism to service the agreement itself.

By contrast however, Malawi, Mozambique, Tanzania and Zambia have formed a subregional platform to combat wildlife crime and signed standard operating procedures for how they will meet, communicate and share information. This platform now meets biannually and has helped build relationships such that critical case information is also shared outside the meetings bilaterally when needed. In this instance, Nelson says, no new mechanism was created, only a platform to bring together national agencies from neighbouring countries who wanted to communicate and collaborate better but lacked the mechanism to achieve this.

Overall, the view of wildlife crime experts is that a UNTOC protocol will be useful if it is able to help build political will on wildlife trafficking; improve the legal framework to tackle the challenges of trafficking in non-native species; and convene and provide a framework for agencies to be able to work more closely together, both nationally and internationally. If it sets up new administrative bodies that need servicing and which become gatekeepers for information and communication, then it could be counterproductive.

Finally, the limitations of the UNTOC should be considered. The convention is a legally focused instrument and does not meaningfully address other issues (such as human rights, gender, livelihoods and developmental challenges) that drive and/or enable organized crime, including IWT. Accordingly, the GI-TOC argues that while the convention is a key element in combating organized crime, more holistic and coordinated responses across the multilateral system are also required.¹⁶ An additional protocol to the UNTOC may help create a legal framework for IWT, but this must also be complemented by effective and inclusive action on the ground.

Notes