The United Nations Convention against Transnational Organized Crime (UNTOC), was opened for signature in December 2000 and entered force on 29 September 2003. Pursuant to Article 1, '[t]he purpose of this Convention is to promote cooperation to prevent and combat transnational organized crime more effectively'. Since its entry into force, UNTOC has enjoyed a high level of adherence; 190 States are party to the Convention as of June 2019.
The Convention does not explicitly define 'organized crime'; rather, it sets out four offences: corruption (Article 8), money-laundering (Article 6), obstruction of justice (Article 23), and participation in an organized criminal group (Article 5). Furthermore, the Convention defines the actors involved in the commission of organized criminal activities and, in doing so, it introduces a concept that is central for the delimitation of its scope of application: the concept of "serious crime".
In Article 2(a), UNTOC defines an 'organized criminal group' 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 established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.
The concept of 'serious crimes' is defined in Article 2(b) as 'conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty'. As mentioned, this criterion is essential to the definition of the scope of application of the Convention since, when specific offences reach this threshold, State parties can invoke the international cooperation provisions contained in this international legally binding instrument.
There are two additional elements that are crucial in defining the scope of application of the UNTOC, both specified in Article 3: the element of transnationality and the involvement of an organized criminal group. In other words, the Convention covers only transnational crimes, which are planned, executed, or have effects across national borders - thus providing a broad definition of transnationality - and involving a group with the characteristics defined in Article 2(a). In this context, it is also important to stress that, while the Convention covers only transnational crimes, in article 34(2), it also specifies that the transnational element and the involvement of an organized criminal group are not to be considered elements of the relevant offences in domestic legislation for criminalization purposes. This provision was included with a view to avoiding loopholes in domestic legislation (on this issues, please also see Module 1 of the UNODC University Module Series on Organized Crime).
Transfering this reflection to the application of UNTOC to wildlife trafficking, it depends on whether the relevant offences are criminalized under national legislation and whether the penalty attached to them is punishable by a maximum deprivation of liberty of at least four years (i.e. whether the offences constitute a "serious crime"). Some wildlife trafficking activities may fall within the definition of an 'organized criminal group' (Strydom, 2016; Slobodan, October 2014).
States parties to UNTOC have been urged by the UN Economic and Social Council and the CITES Conference of the Parties to make wildlife trafficking a serious crime, as defined under the Convention (E/RES/2013/40; Resolution Conf. 11.3 (Rev. CoP17)). Few States, however, deem offences relating to wildlife trafficking to be 'serious crimes' within the meaning of UNTOC. In a review of 131 States in 2015, only 26 percent of these States punished violations of CITES with a maximum deprivation of liberty of four years or more; 31 percent of States punished violations through use of fines only (UNODC, 2016; Elliott, 2016).
Available tools provided by UNTOC that are relevant to combating wildlife trafficking - and can be used when such crimes reach the necessary threshold - include provisions regarding cooperation between States parties (Article 27), extradition (Article 16), transfer of sentenced persons (Article 170), mutual legal assistance (Article 18), joint investigations (Article 19), transfer of criminal proceedings (Articles 12, 13), and confiscation and seizure (Article 12), among others.
While UNTOC has been praised as an effective and necessary legal framework in the fight against wildlife trafficking (UN General Assembly, 16 June 2016), some commentators have discussed the benefits of a new Protocol to the Convention covering wildlife trafficking or environmental crime more broadly (Slobodan, October 2014; Global Initiative Against Transnational Organized Crime & WWF, 2015).
Regional perspective: Pacific Islands
Example: Niue, Terrorism Suppression and Transnational Crimes Act 2006
Niue acceded to the United Nations Convention against Transnational Organized Crime on 16 July 2012. The requirement to criminalize participation in an organized crime group under Article 5 of the Convention has been implemented in Niue through section 35 of the Terrorism Suppression and Transnational Crimes Act 2006. Under section 35:
A person commits an offence and is liable to conviction to imprisonment for a term not exceeding 7 years, who participates (whether as a member, associate member, or prospective member) in an organised criminal group, knowing that it is an organised criminal group, and
(a) Knowing that his or her participation contributes to the occurrence of criminal activity, or
(b) Reckless as to whether his or her participation contributes to the occurrence of criminal activity.
The term ‘organised criminal group’ is defined in section 3 of the Act, using similar terms as Article 3(a) of the Convention:
‘organised criminal group’ means a group of at least 3 persons, existing for a period of time, that acts together with an objective of obtaining material benefits from the commission of offences that are punishable by a maximum of at least 4 years imprisonment.
Corruption is a major enabler of wildlife trafficking (UNODC, 2016; Nellemann et al, 2014). The United Nations Convention against Corruption (UNCAC), which criminalizes corruption and sets out various measures to combat it, is complementary to broader efforts to combat wildlife trafficking under the other international instruments discussed in this Module. UNCAC was adopted on 31 October 2003 and entered into force on 14 December 2005. As of June 2018, the Convention had 186 States parties. It contains provisions on criminalization, prevention, cooperation, asset recovery, and technical assistance and information exchange. The Convention's purposes, as stated in its Article 1, are
(a) To promote and strengthen measures to prevent and combat corruption more efficiently and effectively;
(b) To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery;
(c) To promote integrity, accountability and proper management of public affairs and public property.
The Convention contains several criminalization provisions that may be relevant to combating wildlife trafficking. It requires criminalization of bribery of national public officials (Article 15), bribery of foreign public officials and officials of public international organizations (Article 16), embezzlement (Article 17), money-laundering (Article 23), and obstruction of justice (Article 25). It further encourages criminalization of trading in influence (Article 18), abuse of functions (Article 19), and bribery in the private sector (Article 21).
The role of the Convention in preventing and combating wildlife trafficking is emphasized in numerous international materials. In 2013, the UN General Assembly stated that 'coordinated action is critical to eliminate corruption and disrupt the illicit organized criminal groups that drive and enable trafficking in wildlife' (UN General Assembly, 14 February 2014). In July 2015, the General Assembly called on States to 'prohibit, prevent and counter any form of corruption that facilitates illicit trafficking in wildlife and wildlife products' (UN General Assembly, 19 August 2015). The CITES Conference of the Parties published a Resolution in 2016 concerning Prohibiting, Preventing, Detecting and Countering Corruption, which Facilitates Activities Conducted in Violation of the Convention, which reaffirmed 'that the United Nations Convention against Corruption (UNCAC) constitutes an effective tool and an important part of the legal framework for international cooperation in fighting illicit trafficking in endangered species of wild flora and fauna' (CITES Resolution Conf. 17.6, p. 1).
There is an 'emerging international consensus that wildlife trafficking and corruption must be addressed together and that their respective regimes, whilst distinct, are complementary' (Ivory, 2017, p. 416).
Regional perspective: Pacific Islands
The UN Convention against Corruption (UNCAC) provides a global framework for the criminalization of corruption and related conduct, as well as providing guidance on preventive measures. There are now 189 States Parties to the Convention, including the vast majority of Pacific Island nations. UNCAC can be a valuable touchstone for stakeholders working domestically or transnationally on issues that involve or are exacerbated by corruption. As an example, in the Papua New Guinean context, various NGOs found it helpful to draw on UNCAC obligations to combat corruption in their campaigns against environmental crime, where government corruption plays a facilitative role. (Harris, 2019)
Law enforcement is traditionally a matter of national legislation. Due to the international dimension of wildlife trafficking, international cooperation in criminal matters is crucial. Most jurisdictions have legislation that sets out the requirements and mechanisms for mutual legal assistance in criminal matters (UNODC, 2018; UNODC, 2012). These frameworks are essential for international cooperation in the enforcement of wildlife and forest offences.
Bilateral treaties may be in place to make requests or take requests from particular countries. While there is, at present, no specific international treaty to prevent and suppress wildlife trafficking, instruments such as the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Corruption serve as platforms to seek assistance in matters involving organized crime or corruption linked to wildlife trafficking.
Regional perspective: Eastern and Southern Africa
Examples of international cooperation and treaties from Eastern and Southern Africa
The Arusha Declaration on Regional Conservation and Combating Wildlife / Environmental Crime, 2014
Countries of the Eastern African Community (EAC) and the Southern African Development Community (SADC), in 2014, signed the Arusha Declaration on Regional Conservation and Combating Wildlife / Environmental Crime. The Declaration includes a comphrensive list of 20 activities designed to strengthen transborder collaboration on combating environmental crimes and to foster conservation.
UNODC SHERLOC Portal, ‘The Arusha Declaration on Regional Conservation and Combating Wildlife / Environmental Crime’
SADC Protocol on Wildlife Conservation and Law Enforcement, 1999
The Southern African Development Community (SADC) passed the Protocol on Wildlife Conservation and Law Enforcement in 1999, which entered into force in 2003. It serves as a framework for conservation and sustainable use of wildlife. The Protocol promotes the harmonization of legal instruments from different Member States in the region. Signing Member States agreed to legal, policy and administrative measures.
Furthermore, the Protocol addresses ‘community based wildlife management’, and imposes obligations on Parties to introduce mechanisms to integrate technques derived from indigenous knowledge systems into policies.
UNODC SHERLOC Portal, ‘SADC Protocol on Wildlife Conservation and Law Enforcement’
The Lusaka Agreement and Task Force
In 1994, the Lusaka Agreement on Co-operative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora has been adopted at a Ministerial meeting in Zambia. Ten countries signed or ratified the treaty between 1994 and 2005, although only seven are parties to the agreement. The objective of the Lusaka Agreement ‘is to reduce and ultimately eliminate illegal trade in wild fauna and flora and to establish a permanent Task Force for this purpose’.
The Lusaka Agreement Task Force (LATF), is a permanent inter-governmental task force to foster cross-border wildlife enforcement. It investigates violations of wildlife laws, gathers intelligence and engages in joint invstigations in collaboration with national bureaus.
UNODC SHERLOC Portal, ‘Lusaka Agreement on Co-operative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora’
East African Community Protocol on Environment and Natural Resources Management
In 2006, the governments of Uganda, Kenya and Tanzania signed the Protocol on Environment and Natural Resources Management. This Protocol obligates its partners to cooperate in management of conservation of wildlife resources.
While the Protocol intends to set social and economic incentives for conservation, it has not entered into force as Tanzania has not yet ratified it (as of November, 2019). As such, it is not yet a legally binding document. (East African Community, 2019)
UNODC SHERLOC Portal, ‘East African Community Protocol on Environment and Natural Resources Management’
The Revised African Convention on the Conservation of Nature and Natural Resources
The Revised African Convention on the Conservation of Nature and Natural Resources is a content-wide instrument concerned with modern approaches to the management of biological diversity and natural resources. It was signed by a total of 55 countries (May 2019) and encompasses topics such as research, capacity building and training, compliance and cooperation.
The Revised African Convention on the Conservation of Nature and Natural Resources was signed in Maputo in 2003 and is therefore known as the Maputo Convention. It supersedes a former Convention signed in Algiers (the Algiers Convention) from 1968, which in turn had superseded the Convention Relative to the Preservation of Fauna and Flora in their Natural State of 1933. (Revised African Convention on the Conservation of Nature and Natural Resources, 2017)
UNODC SHERLOC Portal, ‘African Convention on the Conservation of Nature and Natural Resources’
SADC Law Enforcement and Anti-Poaching (LEAP) Strategy
This strategic paper seeks to reduce the level of poaching and illegal wildlife trade in fauna and flora by focusing on law enforcement capacity. The LEAP Strategy was outlined for a four year time frame until 2021. Enhancing legislation and judicial processes, field protection and integration of people and nature are the focus.
UNODC SHERLOC Portal, ‘SADC Law Enforcement and Anti-Poaching (LEAP) Strategy’
INTERPOL, the International Criminal Police Organization, headquartered in Lyon, France, has established a range of specific tools to combat wildlife trafficking. The Environmental Security Programme (ENS), for instance, has been set up for information and intelligence management, capacity building, operations, investigations, communication, advocacy, and network-building in relation to environmental crime (INTERPOL/UNEP, 2016; Tomkins, 2005). INTERPOL's Environmental Crime Programme was established in 1992 to assist Member States in the effective enforcement of national and international environmental laws. The INTERPOL Wildlife Crime Working Group seeks to share experiences and build the expertise of law enforcement officials in relation to poaching, trafficking, and possession of legally protected wild fauna and flora. Participation in the Working Group is open to all INTERPOL Member States and regional representatives, as well as observers from the CITES Secretariat and the WCO (UNODC, 2012; see alos, INTERPOL, 2018; INTERPOL/UNEP, 2016; Wyatt, 2013).
One of INTERPOL's projects works towards the conservation of Asian big cats and other wildlife species. The greatest threat to tigers and other Asian big cats comes from killings due to the high black-market value of their fur and the perceived medicinal powers of their body parts. This immensely lucrative illegal trade spans across countries and continents. 'Project Predator' works closely with many Asian countries, international organizations and NGOs. The project aims to enhance governance and law enforcement capacities for increased communication, coordination, and collaboration between different levels of enforcement experts. Main activities include analysis of relevant intelligence and implementation of activities designed on the basis of assessments, investigative support, providing access to INTERPOL's policing capabilities and promoting partnerships. Between 2010 and 2015, 'Project Predator' facilitated nine operations that resulted, inter alia, in the seizure of 100 tigers or leopards, 56 tiger and leopard skins, and hundreds of kilograms of cat bones.