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Enforcement Edge
October 21, 2020

Possible UNTOC Protocol on the Illicit Trafficking of Wildlife

Enforcement Edge: Shining Light on Government Enforcement

Last week, the Global Initiative to End Wildlife Crime released a draft for a new proposed protocol on the illicit trafficking of wildlife under the United Nations Convention Against Transnational Organized Crime (UNTOC), the main binding international legal instrument in the fight against transnational crime. Drafted with the assistance of Arnold & Porter,1 the Protocol against the Illicit Trafficking in Specimens of Wild Fauna and Flora (Protocol) would address serious gaps in the existing international legal framework for combatting wildlife crime and regulating wildlife trade. Although the United Nations General Assembly has called upon Member States to enact criminal statutes directed against illicit trafficking in wild flora and fauna, including timber, this new instrument would be the first binding international instrument that creates specific obligations for States Parties in this critically important area of international criminal law. If adopted, the proposed Protocol would be the fourth protocol to the UNTOC, joining the protocols against human trafficking, migrant smuggling, and the illicit manufacture and trafficking in firearms.

Adopting what can be described as a "Lacey Act"-type approach to fighting wildlife trafficking, the proposed global agreement would require States Parties to adopt legislation criminalizing the illicit trafficking of any living or dead wild animal or plant (or any part of one) in violation of an applicable international agreement or any domestic or foreign law, together with other areas of international cooperation. Other commitments under the Protocol would include (i) increasing the exchange of information between States Parties (including on known organized groups suspected of taking part in illicit trafficking and means of concealing illicit goods, and through sharing of forensic samples verifying the validity of documents); (ii) enhancing border controls; (iii) providing training and technical assistance; (iv) encouraging cooperation between States Parties; and (v) taking measures to discourage demand for illegal animals or plants. Once it enters into force, the Protocol also would automatically trigger all of UNTOC's provisions on international cooperation, mutual legal assistance, joint investigations, special investigative techniques (such as controlled deliveries), and law enforcement cooperation in tackling the illicit trafficking of wildlife.

At this point, the draft Protocol is a proposal meant for international discussion as a basis for negotiation. It would only enter into force after its text had been agreed upon and it had been ratified by a sufficient number of nations. The draft Protocol would represent a major step forward in the fight against these destructive activities by embedding them into the international criminal law framework. It would signify an unequivocal recognition by States Parties of the devastating scale, nature, and consequences of such conduct and the need to scale up collaborative efforts to prevent and criminalize them—and it would provide States Parties with the means to do so.

For questions about the draft Protocol or broader wildlife trafficking issues, please reach out to the authors or any of their colleagues in Arnold & Porter's Anti-Corruption or White Collar Defense & Investigations practice groups.

*Nora Ellingsen. 

Ms. Ellingsen is a graduate of Harvard Law School and is employed at Arnold & Porter's Washington, DC office. Ms. Ellingsen is admitted only in California. She is not admitted to the practice of law in Washington, DC.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.
  1. Marcus Asner, Sam Witten, Julia Kindlon, and Nora Ellingsen comprised the Arnold & Porter team that provided legal advice and assistance.