· 7 min read
It is encouraging to see two intergovernmental processes explore a possible additional protocol under the United Nations Convention against Transnational Organised Crime (UNTOC) on crimes that affect the environment (CAE) over the past three years – first in 2022 under the UN Commission on Crime Prevention and Criminal Justice (CCPCJ) resolution that was focused on illicit trafficking in wildlife, and then by the 2024 UNTOC COP 12 resolution that established a process on CAE more broadly, which is ongoing and is the focus of this article.
This UNTOC process has created an Intergovernmental Expert Group (IEG) chaired by Peru that is, inter alia, exploring the ‘possibility, feasibility and merits’ of any additional protocol to the UNTOC. There is some momentum building for considering an additional protocol, or protocols, on CAE because of these two intergovernmental processes initiated in 2022 and 2024.
A focus on the UNTOC
As a starting point, as far as I can tell, no State is suggesting going outside of the UNTOC, such as we saw with the UN Convention against Cybercrime that derived its mandate from the UN General Assembly (UNGA) and was negotiated as a stand-alone agreement.
Hence, we are all focused on the UNTOC. But what would an UNTOC protocol, or protocols, look like? There are several elements to this question.
UNTOC protocols provide a trigger
It is first worth noting that, as a protocol to the UNTOC, it will automatically trigger all of the tools available under the UNTOC itself, as well as the review mechanism. It will also trigger certain provisions of the Cybercrime Convention. As an aside, if a protocol includes fisheries crime, it will also satisfy the requirements of the UN Convention on the Law of the Sea (UNCLOS). I address these issues in more detail in my presentation ‘To be or not to be? Will there be a new Protocol to the UNTOC on environmental crimes – and will it help the planet?
Sources to draw from
When looking to the content of a protocol, or protocols, there are multiple sources one can draw inspiration from, including the UNTOC and its three existing protocols, especially the protocol against the trafficking in persons, national legislation from several countries, UN Office on Drugs and Crime (UNODC) legislative guidelines, the European Union (EU) Directive on CAE, the Council of Europe Convention on CAE, and many resolutions and decisions coming from a wide range of intergovernmental entities, including multi-lateral environmental agreements (MEAs) (see my presentation referred to above for details).
Should we have a definition of CAE?
Despite all this activity, there is no definition of CAE, nor any attempt to define the term. I do not think there is any need to define CAE. It is a chapeau or umbrella term under which many specific crimes can fall.
What crimes to include?
States do need to define what crimes to include, determine the conduct to criminalize, and to set out a range of penalties. This goes to the very core of a protocol or protocols.
As we are working within the scope of the UNTOC, our attention is on crimes that are transnational and organized, which do not include all crimes that may affect the environment, such as noise crime (being one of the nine crimes analyzed by the UNODC in its report ‘Global Analysis on Crimes that Affect the Environment’).
There exists a long yet non-exhaustive list of CAE. This list is not agreed upon. We can refer to the many resolutions and decisions on CAE, the Council of Europe Convention, and the UNODC reports on CAE to see what crimes have been identified.
Without looking to mention them all, they include:
• Illicit wildlife trafficking, often including timber and forest products, which is referred to most often and has attracted the most support. Under a protocol, it could cover both nationally and internationally protected species.
• Unlawful movement of hazardous and other wastes.
• Unlawful pollution.
• Trafficking in precious metals and other minerals.
Much less frequently, one finds references to Illegal fishing, other than trafficking in species listed under the ‘Convention on International Trade in Endangered Species of Wild Fauna and Flora’ (CITES).
What form should a protocol, or protocols, take?
Once States land on the crimes to include, what form will the protocol, or protocols, take? To date, the discussion has been around either one protocol with general provisions and articles on specific crimes, like the approach taken in the Council of Europe Convention, or having multiple separate protocols with each one addressing a different crime.
There is perhaps another way forward that sits between the two, namely, to have one protocol with a series of annexes on different crimes. One could start with a limited number of annexes, but make provision for additional annexes to be adopted in the future. One could consider whether to allow a State to enter a reservation against specific annexes when joining the protocol, and for the protocol to allow States Parties to not accept future annexes.
This approach is modelled on the UN Convention to Combat Desertification (UNCCD), which includes the general framework text followed by a series of regional annexes for the implementation of the Convention, which outline region-specific approaches and priorities.
The UNCCD allows for additional annexes to be adopted. There are currently five annexes, one of which was adopted since the entry into force of the Convention. The UNCCD does not allow for any reservations, but Parties can choose not to accept new annexes (for more detail see the publication referred to above).
This may offer an alternative way forward for States to consider.
Possible content of a protocol or protocols
What could be the specific content of a protocol or protocols? There will be general and specific provisions. The Global Initiative to End Wildlife Crime (EWC) prepared a draft protocol on illicit wildlife trafficking at the request of several States four years ago to help stimulate a discussion around that crime. It is a rough draft largely modelled on the protocol against trafficking in persons, and when looked at again today, there are a number of additions and changes I would make to it. But it has helped stimulate the discussion.
In this article, I am just providing a glimpse into what is possible, but a protocol(s) on CAE (possibly using annexes) would address both preventing and combating CAE, and it could include, amongst others, the following articles:
• Purpose of the protocol.
• Specific crimes covered by the protocol.
• Conduct to be criminalized.
• Liability of legal persons and the responsibilities of carriers.
• Range of Penalties, which should relate to the harm caused and include a full range of penalty options, including community service orders, compensation, fines, restitution, and imprisonment.
• Cross-border cooperation, including sharing forensics, permits, information on known criminal groups and routes, etc.
• Protection of environmental defenders and whistleblowers.
• Demand reduction, including raising awareness.
• Technical cooperation.
• Provisions that may be more relevant to crimes affecting natural resources, such as a mutual respect of each other’s laws, with destination States to criminalize the import of natural resources acquired in contravention of national laws of source States, often called comity, (which has gone to the core of the work of the EWC since its inception), and on the repatriation of illegally traded natural resources, including wildlife.
That is all I have time for in this short article, but there are many more articles and other published works from the EWC and by me on all these issues.
We stand ready to support the Chair of the IEG, the IEG process, and States in advancing this critically important work.
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