· 8 min read
The UN Convention against Transnational Organised Crime (UNTOC) and its Protocols may not have had the level of success we would have liked, but in fairness similar observations can be made about many of the multilateral environmental agreements. However, who would say today that the international community made a mistake in adopting them—and that we don’t need global treaties on Transnational Organised Crime (TOC) or on the trafficking in persons?
We need them. They put a stake in the ground. These crimes are amoral, destructive and obnoxious and must be stopped.
In 2025, the same can be said for transnational environmental crimes.
Five years ago, the Global Initiative to End Wildlife Crime (GIEWC) was launched at the House of Lords, with a core objective of advocating for a new global agreement on preventing and combatting wildlife trafficking taking the form of a Protocol under the UNTOC. It has since grown to include 45 International Champion organisations.
Two things to note about this Initiative. Firstly, it advocates for an agreement that covers wildlife trafficking. From the GIEWC’s perspective, a Protocol or Protocols can be as broad in scope as States prefer, provided wildlife is covered. Secondly, the GIEWC defines wildlife to include all wild fauna, flora and funga—animals, plants and fungi—hence covering three of the nine crimes identified by UNODC as environmental crimes.
A wild fish swimming in the ocean is as much part of its ecosystem as a tree growing in a forest or an elephant migrating across the savanna. Yet, we artificially separate fish and timber trafficking from other forms of wildlife trafficking. This unnecessary disaggregation becomes even more confusing when looking at the increasing number of commercially valuable marine and timber species listed under CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora).
Perhaps it is time to better aggregate wildlife crimes at global level?
Although the launch of the GIEWC in 2020 got a lukewarm reception from some quarters, things have changed significantly over the past five years and an intergovernmental dialogue is now well underway:
• We have seen extraordinary leadership from the Presidents of Angola, Costa Rica, Gabon and Malawi who each made a powerful call for a new Protocol on wildlife trafficking between 2021 and 2022.
• Angola, Kenya and Peru took this call one step further in May of 2022 when they presented a ground-breaking resolution to the UN Commission on Crime Prevention and Criminal Justice (CCPCJ) that mandated a process to glean States views on the possible benefits of a Protocol, and a clear majority of the States that responded were supportive or open to the idea.
• Last year, Brazil, France and Peru took a resolution to UNTOC CoP12 that will establish an intergovernmental expert group to explore the possibility, feasibility and merits of any additional protocol to the UNTOC. This mandate provides a broad scope for considering what environmental crimes could be included within a Protocol or Protocols.
There is some wind in the sails for taking bold steps to bring wildlife trafficking, and other crimes that affect the environment, within the international criminal law framework, which is where they need to be.
It is timely to now explore in more depth the possible content of a Protocol on preventing and combating the trafficking of wildlife, and possibly of other environmental crimes. The content of a Protocol or Protocols is something that States would determine through an intergovernmental negotiating process.
However, we can draw on existing resources to explore what States may wish to contemplate.
This includes, drawing upon the three UNTOC and its three Protocols, the UN Convention against Corruption, national legislation from many countries (including Australia, China, Mexico, Mozambique, and the US), the UNODC guide on drafting legislation to combat wildlife crime, and the recent EU directive and Council of Europe treaty on environmental crime.
A few observations can be made on the EU directive and Council of Europe treaty: they are both valuable, although one needs to exercise some caution in putting forward language from negotiating processes that are not universal (the EU is 27 States and the Council of Europe 46). Additionally, these European instruments also relate to domestic crimes with local impacts, not just those that are transnational in nature and involve an organised criminal group, which is the focus of the UNTOC.
Once we intrude into purely domestic issues, questions of national sovereignty will inevitably arise. We can discuss a broad suite of environmental crimes but, for a Protocol, we need to focus on those that are transnational and involve organised crime. For example, noise crime is identified by UNODC as an environmental crime, but is unlikely to be either transnational or organised.
However, these two instruments do offer some excellent forward-looking language, including on damage, penalties and statistics. They also show that—while the chapeau for the directive and treaty is environmental crime—one needs to set out specific criminal offences to be included.
The full suite of crimes cannot be addressed briefly. Instead, let's focus on wildlife trafficking, as broadly defined to include all wild animals, plants and fungi—noting that one could easily apply similar provisions to other crimes, especially to the trafficking of other natural resources, most particularly minerals.
A Protocol would automatically trigger the UNTOC, and hence its provisions need not be repeated in a Protocol. And it would trigger the global mechanism for electronic evidence exchange under the UN Convention against Cybercrime, which would also require its States parties to ensure that these crimes are criminalised when committed “online”.
Turning to the possible content of a Protocol against wildlife trafficking itself
For this, provisions could include:
• Defining wildlife trafficking for the first time. Same as with the Protocol on trafficking in persons, this would facilitate a convergence in national approaches and support efficient international cooperation
• Setting out the conduct that is to be criminalised
• Including liability of legal persons
• Requiring penalties to be related to the harm caused, and to include compensation, community service orders, fines, restoration, and restitution, as well as imprisonment. This would reflect the desirability of providing for a broader range of penalty options, including options that provide the means to rectify the damage done to the environment
• Including measures that will permit the denial of entry or revocation of visas of persons implicated in the commission of offences
• Expressly covering any species of wild fauna, flora or funga, including fish and timber producing species, that is protected under any international or, importantly, any national law
• Addressing the harvesting, taking, possession, purchase, import or export, or introduction from the sea of trafficked wildlife
• Requiring it to be 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. Doing so would represent a remarkable expression of comity between nations (mutual respect for one another’s laws). This could readily be expanded to all natural resources, including minerals
• Addressing the role and responsibilities of the carriers of contraband, be it by air, land or sea
• Verifying the legitimacy and validity of documents, including any documents suspected of being misused. This is particularly important as a lot of wildlife can be lawfully taken and traded but only with the right permits. The same comment applies to natural resources more generally
• Providing for the return of seized and confiscated contraband to the source country
It could also include provisions on:
• Cooperating, training and technical assistance
• Raising public awareness, and to take measures to discourage demand
• Sharing information, such as on known groups active in trafficking, on their concealment methods, and known transport routes, and legislative experiences and practices
• Sharing forensic samples
• Requiring the protection of environmental defenders and whistleblowers
These suggestions go well beyond the generic provisions of the UNTOC. Imagine if a protocol could capture specific obligations such as these and how it would serve to advance international cooperation.
As mentioned, a Protocol would trigger all the tools available under the UNTOC. As such, it would also trigger the implementation review mechanism under the Convention that assesses how countries are implementing the protocols. For sure this is imperfect and needs to be improved, but it exists, and work needs to be done to enhance existing processes.
Interestingly, if fish species were included within a protocol, the requirement under the United Nations Convention on the Law of the Sea (UNCLOS) Article 73.3—to have an agreement in place to include imprisonment and other forms of corporal punishment for violations of fisheries laws and regulations in the Exclusive Economic Zone—would also be satisfied.
We know of the cascading effect of the three existing Protocols on national laws and international cooperation, and the Global Analysis of Crimes that Affect the Environment shows a causal connection between the obligations found in the Basel Convention and CITES and the high number of States that have criminalised waste and wildlife violations.
A Protocol against wildlife trafficking, and possibly other crimes that affect the environment, will not be a panacea. However, based upon our current knowledge base, it is imperative that we elevate the status of these crimes and embed them into the UN framework for preventing and combating TOC, and set out in a Protocol or Protocols the specific obligations that are needed to achieve our objectives, just some of which I have explored today.
About 25 years ago, the international community put a stake in the ground to stop TOC, the trafficking in persons and other serious crimes.
We have a unique opportunity over the next 18 months to now put a stake in the ground to stop transnational environmental crimes, and the organisations I represent will do their utmost to advance this bold and critically important objective.
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