Honourable Chief Justices, Justices, Attorney’s General

Distinguished guests
Friends and colleagues

 

It is a great honour to be back in Nairobi to participate in the first UN Environment Assembly, which represents a major milestone in the evolution of international environmental governance, and it is particularly pleasing to be invited to join today’s Global Symposium on Environmental Rule of Law.

 

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Over the past few years we have heard a lot about illegal wildlife trade or illicit wildlife trafficking [1]- but what makes such trade illegal?

 

For domestic or international trade in wildlife to be described as illegal or illicit, it must contravene either domestic or international law or both. If not, it is legal. 

 

 

The need for a convention to regulate international wildlife trade was first identified in a decision of the IUCN General Assembly held in Nairobi back in 1963. The 1972 UN Conference on the Human Environment, held in Stockholm, called for negotiations on a convention to be concluded as soon as possible [4] and the US Government heeded this call by hosting a Plenipotentiary Conference in 1973 [5].

 

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Today 180 States have joined CITES (known as Parties), which was adopted in 1973 and came into force in 1975. CITES regulates international trade in over 35,000 species of plants and animals to ensure that any such trade is not detrimental to the survival of the species. It obliges States that are Party to the Convention to (inter alia) take appropriate measures to enforce the Convention and to prohibit trade in violation thereof, including measures to penalize such trade. 

 

For some species (Appendix I [6]) commercial international trade is generally prohibited, and for others commercial international trade is subject to strict regulation to be sure it is legal, sustainable and traceable (Appendix II [7]). Some commercial international trade is regulated only to ensure legal origin (Appendix III [8]), leaving the issue of sustainability to measures already taken at the national level. 

 

Consequently, illicit wildlife trafficking under CITES includes trading commercially in wild-taken specimens of Appendix I listed species and failing to obtain the necessary permits or certificates to trade in Appendix I, II or III listed species. 

 

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CITES sets the agreed multilateral measures to regulate international wildlife trade – or the ‘rules of the game’ - and CITES decisions and compliance processes underpin the global effort to combat illicit wildlife trade. 

 

The CITES regime has harmoniously coexisted with the World Trade Organization (WTO) (and its predecessor, the General Agreement on Tariffs and Trade or the GATT) for over 40 years. Without CITES, international trade in wildlife would be regulated only by national laws, where they exist, (or through bilateral and regional agreements), whose application could well lead to disputes under the WTO. 

 

The Lacey Act of the USA dates back to 1900 and is perhaps the most well-known example of a national law to regulate wildlife trade across internal and international borders. Since CITES came into force, it is an Act that incorporates international obligations under CITES as well as stricter domestic measures that go beyond CITES. 

 

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States – as distinguished from individual ministries – become Parties to a convention, and it is the State, through its executive, legislative and judicial bodies, that takes the measures that are necessary to implement a convention. In the case of CITES, Parties are obliged to establish at least one Management Authority and one Scientific Authority to carry out functions relating to the determination of legal acquisition and biological sustainability, the issuance of appropriate CITES permits and certificates, the enforcement of relevant laws (in cooperation with general and specialized enforcement authorities) and the submission of periodic national reports. 

 

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Leaving aside timber and marine products, it is estimated that the annual value of wildlife crime is up to USD 20 billion and it has often been regarded as a high-profit low-risk crime - although this is changing as States recognize the negative economic, social, environmental and security impacts of these crimes.

 

The UN Conference on Sustainable Development (Rio+20) has explicitly recognized the “economic, social and environmental impacts of illicit trafficking in wildlife, where firm and strengthened action needs to be taken on both the supply and demand sides” and has emphasized “the importance of effective international cooperation among relevant multilateral environmental agreements and international organizations. [9]” 

 

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Illicit wildlife trafficking increasingly involves transnational organized crime and in some cases rebel militia and rouge elements of the military, which has changed the dynamics of combating this highly destructive criminal activity, in particular as it relates to some mega-fauna. 

 

As a result, illicit wildlife trafficking should be treated as a serious crime [10] and States need to engage with Customs, the police, rangers or inspectors, the judiciary, and sometimes the military to implement CITES effectively, which may necessitate intervention from the highest political level. The nature of wildlife crime also requires increased effort to combat transnational crime and corruption.

 

As a consequence, international organizations that deal with Customs, the police, the judiciary, and related conventions dealing with corruption and transnational organized crime, become an essential part of the architecture for implementing CITES and combating illicit wildlife trafficking. The ultimate objective is for such entities to include the combating of illicit wildlife trafficking in their core programmes and as a part of their daily work. This is already the case with INTERPOL, the UN Office on Drugs and Crime, the World Bank and the World Customs Organization, as well as the UN Commission on Crime Prevention and Criminal Justice.

 

We have also recently seen the United Nations Security Council adopt two Resolutions [11] on UN sanctions targeting armed groups in the Central African Republic and the Democratic Republic of the Congo financed by the illegal exploitation of natural resources, including poaching and illicit wildlife trade. Individuals or entities involved will be subject to travel bans and asset freezes. Such measures are critical when dealing with States where there is a breakdown in law and order and where armed groups are operating.

 

CITES Parties have recognized the need to ‘mainstream’ wildlife crime in calling for all States to consider becoming Parties to the UN Conventions against Corruption and Transnational Organized Crime. Some States have also informally suggested a Protocol be developed under the Convention against Transnational Organized Crime dealing expressly with illicit wildlife trafficking, similar to the protocol on trafficking in persons.

 

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Notwithstanding all of these international agreements, law enforcement action remains a national responsibility and current international efforts are focused on strengthening cross-border cooperation amongst source, transit and destination States, as well as supporting relevant bilateral, regional, and cross-regional enforcement efforts. 

 

In addition, there is a strong international focus on building the capacity of all States to effectively enforce their international commitments at national level across the entire enforcement chain, as this is where ‘the rubber hits the road’. This includes deploying the same sorts of techniques to combat illicit wildlife trafficking as are used to combat narcotic or human trafficking.

 

Some academics and non-governmental organizations have called for international enforcement powers to combat illicit wildlife trafficking [12]. This could only occur under the existing international legal regime if the jurisdiction of the International Criminal Court were expanded to cover illicit wildlife trafficking. 

 

To do so, such offences would need to be regarded by the international community as one of “the most serious crimes of concern to the international community as a whole”, such as the crime of genocide [13], and included in the Rome Statute of the International Criminal Court. It is highly unlikely that such a step will be taken, at least in the foreseeable future.

 

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CITES is an international agreement that connects international commitments with national action. Its success relies upon the contributions and ongoing commitment of, and collaboration between, multiple organizations and staff coming from a wide range of disciplines.

 

While combatting illicit wildlife trafficking presents major challenges, we are witnessing encouraging progress both at national and international level in response to the changing dynamic of these highly destructive crimes.

 

Judges, prosecutors and Attorneys General play a critical role in treating illicit wildlife trafficking seriously and I warmly welcome your interest in the issue as is evident from your participation in today’s event.

 

 

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[1] The adjective illicit is sometimes used in connection with ‘wildlife trafficking’ and sometimes not. It is arguably unnecessary as it is presumably illicit but it is included here to ensure consistency with various UN resolutions.

 

[2] And a few species-specific agreements that are also relevant, such as the Fur Seal Convention and the International Convention for the Regulation of Whaling.

 

[3] This remains the case with species that are not CITES-listed and therefore many States have increasingly turned to CITES to assist them in regulating international trade in high value timber.

 

[4] See: http://uncsd.iisd.org/guest-articles/cites-from-stockholm-in-%E2%80%9872-to-rio20-back-to-the-future/

 

[5] The US government’s own figures on imports into the US in 1969, figures that were openly shared at the Plenipotentiary Conference, are nothing short of staggering. They included the import of just under 8,000 leopard skins, close to 1 million live birds and over 1.4 million live reptiles. But these numbers pale in comparison with the import of almost 99 million live fish.

 

[6] About 3%

 

[7] About 96%

 

[8] About 1%

 

[9] For more see: http://uncsd.iisd.org/guest-articles/cites-from-stockholm-in-%E2%80%9872-to-rio20-back-to-the-future/

 

[10] As defined in the UN Convention against Transnational Organized Crime.

 

[11] Resolutions 2134 (2014) and 2136 (2014) adopted on 28 January and 30 January, 2014 respectively, see: /eng/news/sundry/2014/20140203_un_sanctions.php

 

[12] The main academic debate is on whether the crime of ecocide should be included, see for example: http://sas-space.sas.ac.uk/4830/1/Ecocide_research_report_19_July_13.pdf

 

[13] Article 5