The European Union's Approach in the Fight against Wildlife Trafficking: Challenges Ahead

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Notes

1 See Convention on International Trade in Endangered Species of Wild Fauna and Flora art. VIII, 3 March 1973, 993 U.N.T.S. 243 [hereinafter CITES].

2 This research project funded by the 7th Framework Programme of the European Commission focuses on the analysis of an essential piece of the EU's environmental legislation. Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the Protection of the Environment through Criminal Law 2008 O.J. This legal instrument requires EU member states to adopt criminal sanctions for serious environmentally harmful behavior in their national legislation. Id.

3 Teresa Fajardo del Castillo, Organised Crime and Environmental Crime: Analysis of Eu Legal Instruments (2015) (Efface Report), http://efface.eu/sites/default/files/EFFACE_Organised%20Crime%20and%20Environmental%20Crime_EU%20Level.pdf; Teresa Fajardo del Castillo, Organised Crime and Environmental Crime: Analysis of International Legal Instruments (2015) (Efface Report), http://efface.eu/sites/default/files/EFFACE_Organised%20Crime%20and%20Environmental%20Crime_International%20Level.pdf; Valsamis Mitsile-gas, Malgosia Fitzmaurice, Elena Fasoli, & Teresa Fajardo del Castillo, Analysis of International Legal Instruments Relevant to Fighting Environmental Crime (2015) (Efface Report), http://efface.eu/sites/default/files/11.EFFACE_Analysis%20of%20International%20Legal%20Instruments_0.pdf.

4 Moreover, the UNEP acknowledges [t]he trade involves a wide range of species including insects, reptiles, amphibians, fish and mammals. It concerns both live and dead specimens or products thereof, used for pharmaceutical, food, pets, ornamental or traditional medicinal purposes. Illegal harvest and trade includes a range of taxa such as gorillas, chimpanzees, elephants, tigers, rhinos, Tibetan antelopes, bears, corals, birds, pangolins, reptiles, sturgeon for black caviar, and a wide range of other commercial fisheries species from the high seas and territorial waters. UN Envtl. Programme, The Environmental Crisis: Threats to Sustainable Development from Illegal Exploitation & Trade in Wildlife & Forest Resources (2014), available at http://www.unep.org/unea/docs/RRAcrimecrisis.pdf.

5 In January 2014, the UN Security Council adopted two resolutions regarding the Democratic Republic of Congo and the Central African Republic in which it considered wildlife trafficking as a threat to peace. S.C. Res. 2134 and S.C. Res. 2136 acknowledge the links between wildlife trafficking and the funding of militia groups and establish sanctions against wildlife poachers. S.C. Res. 2134, UN Doc. S/RES/2134 at 2, 10 (28 January 2014); S.C. Res. 2136, UN Doc. S/RES/2136 at 2, 4, 6 (30 January 2014). In the case of Resolution 2134 on the CAR, it establishes that all Member States shall, for an initial period of one year from the date of the adoption of this resolution, freeze without delay all funds, other financial assets and economic resources which are on their territories, which are owned or controlled, directly or indirectly, by the individuals or entities designated by the Committee established pursuant to paragraph 57 of res. 2127, or by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them, and decides further that all Member States shall ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any individuals or entities within their territories, to or for the benefit of the individuals or entities designated by the Committee.S.C. Res. 2134, ¶ 32, UN Doc. S/RES/2134 (28 January 2014). These sanctions were renewed in 2015. Press Release, Security Council, Security Council Renews Targeted Sanctions on Central African Republic, Authorizing States to Seize, Register or Dispose of Banned Items, UN Press Release SC/11747 (January 2015). See also Anne Peters, Novel Practice of the Security Council: Wildlife Poaching and Trafficking as a Threat to the Peace, Blog of the European J. of Int'l L. (12 February 2014), http://www.ejiltalk.org/author/anne-peters/.

6 Kakabadse considers that “[w]ildlife crime is only one facet of the corruption problem with regard to environmental governance and crime.” Yolanda Kakabadse, The Fight against Wildlife Crime: Enforcement v. Corruption, 41 Envtl. Policy & L. 123, 126 (2011).

7 Hickey denounces that [b]eyond the immediate impacts of liquidating wildlife that otherwise could serve as a vehicle for public and private sector investment in rural areas—think nature-based tourism—wildlife crime is leading to the proliferation of guns in exactly those areas that need less conflict, not more; it is providing money for corruption, in exactly those countries in which corruption has already stalled all pro-poor decision-making and doing business legitimately is already hard enough; and it is oiling the engine of crime and polluting efforts at good governance, democracy and transparency in exactly those communities that need more voice, not more silence. It is anti-worker, anti-women and anti-poor. Valerie Hickey, The Fight to End Wildlife Crime Is a Fight for Humanity, Voices: Perspectives on Development (11 March 2013), http://blogs.worldbank.org/ voices/Fight-to-End-Wildlife-Crime-Is-Fight-for-Humanity.

8 Regarding penalties and sanctions, the Wildlife and Forest Crime Analytic Toolkit considers that [w]ildlife and forest offences are seen by many, including investigators, researchers and, most importantly, perpetrators, as a high-profit, low-risk activity. This is because penalties for wildlife and forest offences are often lenient in relation to the crime committed. Accordingly, countries should take the measures necessary to ensure that the relevant offences [...] are punishable by effective, proportionate and dissuasive criminal penalties. Furthermore, convictions need to be followed by sentences that adequately: Punish the offender to an extent or in a way that is justified in all circumstances; Provide conditions that will help the offender to be rehabilitated; Deter the offender and other persons from committing the same or a similar offence; Make clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; and Protect the community from the offender, where necessary. UN Office on Drugs & Crime, Wildlife and Forest Crime Analytic Toolkit 135–136, (2012).

9 See Ragnhild Sollund & Jennifer Maher, The Illegal Wildlife Trade: A Case Study Report on the Illegal Wildlife Trade in the United Kingdom, Norway, Colombia & Brazil (2015) (EFFACE Report), http://ecologic.eu/sites/files/publication/2015/efface_illegal_wildlife_trade_in_united_kingdom_norway_colombia_and_brazil_0.pdf.

10 See Laura Adams, Shoot to Kill?, Savetherhino.org (2012), https://www.savetherhino.org/rhino_info/thorny_issues/shoot_to_kill. Initiatives different from measures of legitimate self-defense would be unacceptable for the EU, which has been a constant supporter of the prohibition of the death penalty. EU, EU Policy on Death Penalty, Europa.eu (9 October 2014), http://eeas.europa.eu/human_rights/adp/index_en.htm.

11 Gosling considers “[v]iolent crackdowns on poachers impacts livelihoods and the resilience of communities, and exacerbates rifts between citizens and the state and escalates the conflict” because

[f]ailure to address poverty, inequality and under-development in rural communities of certain developing countries, is a leading reason for the increase in poaching and smuggling of wildlife resources. Criminal groups have created livelihoods and political economies based around the flow of illicit resources, and these overwhelm legitimate resource flows and sustain entire communities.

Justin Gosling, The Global Response to Transnational Organized Environmental Crime 3 (2014).

12 Rep. of the UN Conference on Sustainable Development, 20–22 June 2012, 39, UN Doc. A/CONF.216/16 (20–22 June 2012).

13 For example, the European Commission offers the following figures: The number of African elephants illegally killed has doubled over the last decade, and the quantity of ivory seized has tripled, according to estimates. In 2012, poachers killed approx. 22000 elephants. More than 40 tons of illegal ivory were seized in 2013. The African elephant population, estimated to reach 500 000 individuals, is now likely to be in decline in all African sub-regions. Rhinoceros poaching has sharply escalated in South Africa. More than 1000 animals were poached in 2013 compared to 13 in 2007. In total, since 2010, about 2500 specimens have been poached in South Africa, which accounts for 80% of the whole population of African rhinoceroses. If poaching continues to increase at the same pace in South Africa, its rhinoceros population will start declining by 2016. The world's tiger population has decreased from 100 000 a century ago to less than 3500 today. Poaching accounts for 78% of the deaths of Sumatran tigers. The resale value of rhino horn is estimated at around € 40.000/kilo (current price of 1 kg gold approx. € 31.000) while raw ivory prices reach € 620/kilo on the black market. Tiger bones sell for up to € 900/kilo. It is estimated that illegal logging accounts for up to 30% of the global timber trade and contributes to more than 50% of tropical deforestation in Central Africa, the Amazon and South East Asia. It is estimated that the global value of illegal fishing is approximately € 10 billion per year, accounting for 19% of the reported value of catches.Communication from the Commission to the Council and the European Parliament: on the EU Approach against Wildlife Trafficking, (EC) COM(2014)64 final of 7 February 2014, at 3.

14 A U.S. Senate committee report has stated: Illicit trade in wildlife, timber, and marine resources constitutes an estimated $8–10 billion industry annually, endangers the environment, threatens rule of law and border security in fragile regions, and destabilizes communities that depend on wildlife for biodiversity and ecotourism. Statement for the Record, World Threat Assessment of the US Intelligence Community, Senate Select Committee on Intelligence, 8 (29 January 2014).

15 Ivory and Insecurity: The Global Implications of Poaching in Africa: Hearing before the Comm. on Foreign Relations, 112th Cong. 26 (2012).

16 See UN Secretary-General, Message on World Wildlife Day (3 March 2015), http://www.un.org/sg/statements/index.asp?nid=8429.

17 Id.

18 Id.

19 See Mitsilegas et al., supra note 3, at 9, 64.

20 Its Article VIII(1) establishes: The Parties shall take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof. These shall include measures: (a) to penalize trade in, or possession of, such specimens, or both; and (b) to provide for the confiscation or return to the State of export of such specimens. CITES, supra note 2, at art. VIII (1). CITES CoP15 specified that “[p]arties should advocate sanctions for infringements that are appropriate to their nature and gravity.” CITES CoP15, Res. Conf. 11.3 (Rev. CoP15), at 2. Additionally, the International Consortium on Combating Wildlife Crime adopted a toolkit dedicated to wildlife and forest offences to help the states to comply with these provisions. See generally UN Office on Drugs & Crime, supra note 9, at xi.

21 A UK House of Commons Environmental Audit Committee concluded in 2012 that prosecutors’ lack of expertise was one of the problems related with crime enforcement. UK House of Commons Envtl. Audit Comm., Wildlife Crime (2012), at Summary, available at http://www.publications.parliament.uk/pa/cm201213/cmselect/cmenvaud/140/14002.htm.

22 See Symposium on Combating Wildlife Crime: Securing Enforcement, Ensuring Justice, and Upholding the Rule of Law, The Proceedings, Asian Dev. Bank (2014).

23 See Draft Doha Declaration on Integrating crime prevention and criminal justice into the wider United Nations agenda to address social and economic challenges and to promote the rule of law at the national and international levels, and public participation, A/CONF.222/L.6, at 11 (31 March 2015).

24 Director-General/Executive Director of the UN Office on Drugs and Crime, Remarks at the High-level Special Event on Wildlife & Forest Crime: A Serious Crime (13 April 2015), http://www.unodc.org/unodc/en/speeches/2015/cc-wildlife-130415.html.

25 The United Nations Digest on Organized Crime acknowledged: Out of 27 countries participating in the Digest, only two, Brazil and Spain, provided cases on environmental organized crime. This must not be interpreted as a lack of awareness of this kind of crime, and it is not necessarily an indication of defective criminalization. However, in general, the criminal penalties for environmental crimes are relatively low, with the risk that important offences are excluded from the categories of organized or serious crimes for which reinforced legal tools and law enforcement resources are usually provided. The four environmental organized crime cases submitted by Brazil and Spain involved an organized criminal group dedicated to the illegal extraction, trade and export of fragments of coral reefs; two groups hunting and trading endangered animal species; and one group trafficking in rare timber extracted from protected forests for domestic and international markets. The Brazilian expert noted that environmental crimes are a significant new form of organized criminal activity alongside the traditional activities of drug trafficking. The criminal conduct in the four cases adheres to the same structure as in traditional organized crime cases, including a “business model” and the use of modern technologies. The groups’ high level of organization requires law enforcement agencies to dedicate significant time and human, financial and technological resources to combating their criminal activities. UN Office on Drug & Crime, Digest of Organized Crime Cases: A Compilation of Cases with Commentaries and Lessons Learned (2012), https://www.unodc.org/documents/organized-crime/EnglishDigest_Final301012_30102012.pdf.

26 See UN Econ. & Soc. Council, Illicit Trafficking in Protected Species of Wild Flora & Fauna & Illicit Access to Genetic Resources, UN Doc. E/CN.15/2003/8, at 10 (4 March 2003).

27 Id.

28 Report of the Strategic Meeting towards an Enhanced Coordination of Environmental Crime Prosecutions across the EU: The Role of Eurojust, 27–28 November 2013, The Hague, 9, Doc. 8101 (24 March 2014) [hereinafter Role of Eurojust Report].

29 Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law, 2008 O.J. (L 328), 27–28; see Grazia Maria Vagliasindi, Directive 2008/99/EC on Environmental Crime and Directive 2009/123/EC on Ship-source Pollution (2015) (EFAACE Report), available at http://www.ecologic.eu/sites/files/publication/2015/efface_directives_2008-99-ec_environmental_crime_and_2009-123-ec_ship-source_pollution.pdf.

30 See Debbie Banks et al., Environmental Crime: A Threat to Our Future, (2008), available at https://www.unodc.org/documents/NGO/EIA_Ecocrime_report_0908_final_draft_low.pdf.

31 This Agenda acknowledges that serious and organized cross-border crime is finding new avenues to operate, and new ways to escape detection. There are huge human, social and economic costs—from crimes such as trafficking in human beings, trade in firearms, drug smuggling, and financial, economic and environmental crime. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The European Agenda on Security, at 12, COM (2015) 185 final (28 April 2015) [hereinafter EU Agenda on Security].

32 Id. at 13.

33 See Communication from the Commission to the Council and the European Parliament on the EU Approach against Wildlife Trafficking, COM (2014) 64 final (7 February 2014), available at http://ec.europa.eu/environment/cites/pdf/communication_ en.pdf.

34 See Jennifer Maher, Ragnhild Sollund, & Teresa Fajardo, Response to the EU Commission's consultation on wildlife trafficking: Statement on behalf of the research project “European Union Action to Fight Environmental Crime” (EFFACE), available at http://efface.eu/sites/default/files/publications/EFFACE_contribution_WLT_ consultation_April2014.pdf (contributing to this consultation).

35 Id. at 7–8.

36 See EU Action Plan against Wildlife Trafficking, 2015/ENV/087 (July 2015), available at http://ec.europa.eu/smart-regulation/roadmaps/docs/2015_env_087_ action_plan_wild_trafficking_en.pdf.

37 Id.

38 Id.

39 Sollund and Maher consider that the “complicated and constantly changing regulations (CITES) results in noncompliance and difficulty with enforcement.” Rahnhild Sollund & Jennifer Maher, The Illegal Wildlife Trade: A Case Study Report on the Illegal Wildlife Trade in the United Kingdom, Norway, Colombia and Brazil Study 32 (January 2015) (University of Oslo and University of South Wales), available at http://efface.eu/sites/default/files/EFFACE_Illegal%20Wildlife%20Trade_revised.pdf.

40 EUROJUST has criticized that [t]he more instruments are in force, the more complicated the situation at national level becomes for practitioners. Indeed, from an EU perspective, the mixture of old first pillar instruments and third pillar instruments that have now, since the Lisbon Treaty, fallen under the area of freedom, security and justice, with much more weight than before, is challenging from a practical implementation point of view. For instance, only experts can determine with certainty if species found are indeed endangered, the category under which they fall, and whether a penal response to the illegal trade has been triggered. EUROJUST, Strategic Project on Environmental Crime Report 11 (November 2014), available at http://www.eurojust.europa.eu/doclibrary/eurojust-framework/casework/strategic%20project%20on%20environmental%20crime%20(october%202014)/environmental-crime-report_2014-11-21-en.pdf.

41 See Jade Saunders & Jens Hein, EUTR CITES and Money Laundering: A Case Study on the Challenges to Coordinated Enforcement in Tackling Illegal Logging (2015), available at http://efface.eu/sites/default/files/EFFACE_EUTR%20CITES%20and%20money%20laundering%20A%20case%20study%20on%20the%20challenges%20to%20coordinated%20enforcement%20in%20tacking%20illegal%20logging.pdf.

42 Role of Eurojust Report, supra note 28, at 9.

43 See European Workshop on Environmental Crime: Illegal Killing and Taking of Birds, Madrid, 11 February 2015, Recommendations to eliminate illegal killing and taking of birds. Legal perspective, available at http://www.lawyersfornature.eu/wp-content/uploads/2015/05/Recommendations-on-IKB.-ENEC-workshop.Feb_.2015_Madrid.pdf.

44 See Council Regulation (EC) No. 338/97 of 9 December 1996on the protection of species of wild fauna and flora by regulating trade therein, 1997 O.J. (L 61), available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri= CELEX:31997R0338&from=EN; European Commission, Wildlife Trade Regulations in the European Union, An Introduction to CITES and its Implementation in the EU, (2010), available at http://ec.europa.eu/environment/cites/pdf/trade_ regulations/short_ref_guide.pdf.

45 Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law, art. 3, 2008 O.J. (L 328) 28, 30, available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32008L0099&from=EN. In January 2015, Commission Regulation 865/2006 was modified through Commission Regulation 2015/56 to clarify issues related with musical instrument certificates, the import rules of hunting trophies from some species, and the legal basis for refusing the import of animals or plants when the legality of their acquisition is not sufficiently proved. Commission Regulation (EU) 2015/56 of 15 January 2015 amending, as regards the trade in species of wild fauna and flora, Regulation (EC) No 865/2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No. 338/97, 2015 O.J. (L 10) 1, 1.

46 See Commission Recommendation of 13 June 2007 identifying a set of actions for the enforcement of Council Regulation (EC) No. 338/97 on the protection of species of wild fauna and flora by regulating trade therein (notified under document number C(2007) 2551) (EC) No. 425/2007, 2007 O.J. (L 159) 45 [hereinafter Commission Recommendation (13 June 2007)].

47 Id. at 46.

48 See Tobias Garstecki, Implementation of Article 16, Council Regulation (EC) No. 338/97, in the 25 Member States of the European Union: Report commissioned by the European Commission (2006), available at http://ec.europa.eu/environment/cites/pdf/studies/sanctions_wildlife_trade.pdf.

49 The EU legal scenario is complex, as member states combine the continental law with common law systems. See Michael Faure, Christiane Gerstetter, Stephan Sina, & Grazia Maria Vagliasindi, Instruments, Actors and Institutions in the Fight Against Environmental Crime (2015) (Efface Report), http://efface.eu/sites/default/files/Instruments%2C%20Actors%20and%20Institutions%20in%20the%20Fight%20Against%20Environmental%20Crime.pdf.

50 CITES, CITES Sanction Laws, CITES.es, http://www.cites.es/en/legislacion/pages/ legislacion-sancionadora.aspx (last visited 28 October 2015).

51 EUROJUST, supra note 28, at 12.

Id.

53 EnviCrimeNet, Intelligence Project on Environmental Crime: Report on Environmental Crime in Europe 23 (Feb. 2, 2015).

54 Id.

55 It has been reported that in Central European Member States law enforcement . . . holds intelligence about ongoing OC activity but lacks the human resource capacity to launch investigations. The interviewed officials are convinced that this situation is not unique and that neighbouring countries suffer from similar problems. EnviCrimeNet, Intelligence Project on Environmental Crime: Report on Environmental Crime in Europe 23 (2 February 2015).

56 Report on the questionnaire for the identification of authorities and national strategy, regarding Action 7.10 “To identify the field for customs law enforcement cooperation such as joint operations, in the fight against environmental crime (e.g. hazardous waste, ozone, CITES, links to organized groups,” Doc. 7876/14 Limite, at 5 (21 March 2014), available at http://data.consilium.europa.eu/doc/document/ST-7876-2014-INIT/en/pdf. Interviews with NGOs, inspectors, judges and prosecutors of member states at various EFFACE meetings lead me to the conclusion that harmonization of domestic sanctions, especially in wildlife trafficking, is required.

57 The adoption on 14 March 2014 of a new directive on the freezing and confiscation of proceeds of crime in the European Union can be considered a missed opportunity since it fails to regulate environmental crime and, in particular, organized environmental crime. Thus it does not address the problem of confiscation related to illegal wildlife trafficking. See Directive 2014/42/EU, of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, 2014 O.J. (L 127) 39.

58 Commission Recommendation (13 June 2007), supra, note 47, at 45.

59 The Spanish police forces in charge have denounced that because of the lack of resources, wild animals must stay with those responsible of their illegal trafficking due to the lack of facilities to keep them with the adequate conditions.

60 It proposes three measures regarding these issues: 12. Calls on the Member States to join other CITES Parties in sending out a clear signal against wildlife trafficking and demand for illegal wildlife products by destroying their stockpiles of illegal ivory;13. [R]ecommends that Member States provide for immediate confiscation of any seized specimens, in order to better implement CITES and protect the welfare of live animals;14. Calls on the Commission to engage the CITES Standing Committee regarding Decision 16.47 from CoP on provisions to streamline the disposal of illegally traded and confiscated specimens in order to ensure coordinated approaches to information exchange and rapid rehoming of confiscated live animals. Resolution of 15 January 2014 on wildlife crime, Eur. Par. Doc. (2013/2747(RSP)) 5 (2014), available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-// EP//NONSGML+MOTION+B7-2014-0013+0+DOC+PDF+V0//EN.

61 European Parliament Resolution of 25 October 2011 on organised crime in the European Union, Eur. Par. Doc. (2010/2309(INI)), 2013 O.J. (C 131 E) 1, 79, available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C:2013:131E:FULL&from=EN.

62 European Parliament Resolution of 23 October 2013 on organised crime, corruption, and money laundering: recommendations on action and initiatives to be taken (final report), Eur. Par. Doc., at 24 (2013/2107(INI)) (2013), available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P7-TA-2013-0444+0+DOC+PDF+V0//EN.

63 I criticized this issue in a previous report for EFFACE, arguing that [d]espite the fact that the principal EU instruments dedicated to fighting organized crime do not address directly the specific organized environmental crime, they have left some room for an extensive interpretation of the goals to be achieved and have detailed in annexes the “other serious crimes” that could be addressed when required. In the case of organised crime, the EU institutions are dealing with legal problems at the domestic and international levels that have hampered the enforcement of the legal instruments fighting against this type of criminality. . . . In practice, the existing legal framework to fight against organised crime in Europe, given by the Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime has raised serious doubts about its capacity to solve the problems it was created to fight against. The domestic problems have a magnifying effect since the inability of individual Member States to cope with organized crime hinders the process to approximate this criminal offence regionally. The disparities in the implementation of this Framework Decision have triggered problems of enforcement that have led organised crime to thrive in those Member States with minor sanctions and with the lowest level of human and economic resources dedicated to fight this profitable criminal phenomenon.Fajardo, supra note 4, at 9 (footnote omitted). This problem is especially acute in the case of illegal wildlife trafficking where the member states’ different sanctions impedes cooperation and the application of other EU instruments such as the EU warrant. The Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organized crime establishes broad definitions of organized crime and criminal organization, which are limited with a criminalization technique based on a quantitative threshold. The threshold of four years’ imprisonment is not met in most EU member states’ regulations on illegal wildlife trafficking, making very difficult its prosecution as an organized environmental crime. However, both open definitions, criminal organisation and organised crime, have been much criticized and their reform has been considered by the European Parliament and academia as a precondition of further legal developments on this subject. Some of these criticisms should be considered when attempting to propose a particular offence to fight illegal wildlife trafficking or organised environmental crime. Id. at 11 (footnote omitted).

64 The EU interest in obtaining these natural resources has also influenced the negotiations of its Economic Partnership Agreements seeking to facilitate European investments in mining and forestry, among other sectors.

65 This position is, however, criticized by some authors: [P]art of the failure of states to respond to the growing illegal, unreported, and unregulated fishing crisis is a lack of effective governance by both vertical and horizontal government networks. In contrast, transnational criminal networks have functional and flexible governance networks that permit them to respond nimbly to changes in government enforcement. To address global illegal, unreported, and unregulated fishing, horizontal government networks should focus on addressing large-scale illegal, unreported, and unregulated fishing as a transnational crime problem and not as a fishery management challenge. Anastasia Telesetsky, Laundering Fish in the Global Undercurrents: Illegal, Unreported, and Unregulated Fishing and Transnational Organized Crime, 41 Ecology L.Q. 939 (2015).

66 See Presidential Task Force on Combating IUU Fishing and Seafood Fraud: Action Plan for Implementing the Task Force Recommendations 3 (2014) (discussing how the White House released a Presidential Memorandum that “established a Presidential Task Force on Combating Illegal, Unreported, and Unregulated Fishing and Seafood Fraud”); The White House, Presidential Memorandum––Comprehensive Framework to Combat Illegal, Unreported, and Unregulated Fishing and Seafood Fraud, USA.gov (17 July 2014), https://www.whitehouse.gov/the-press-office/2014/06/17/presidential-memorandum-comprehensive-framework-combat-illegal-unreporte (memorandum “establishing a Comprehensive Framework to Combat Illegal, Unreported, and Unregulated Fishing and Seafood Fraud”).

67 Mike Beke & Roland Blomeyer, Illegal, Unreported and Unregulated Fishing: Sanctions in the EU 33 (2014).

68 European Commission, EU Action Plan Against Wildlife Trafficking 2 (2015).

69 London Conference on the Illegal Wildlife Trade 2 (2014), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/281289/london-wildlife-conference-declaration-140213.pdf.

70 Camilla Adelle et al., The External Dimension of the Sixth Environment Action Programme: An Evaluation of Implementing Policy Instruments 104 (2010).

71 European External Action Service, EU Priorities for the 68th UN General Assembly, Europa. eu (19 September 2013), http://eeas.europa.eu/top_stories/2013/190913_eu_priorities_68th_unga_2013_en.htm.

72 See Conclusions of the Seminar on the Policy of Criminal Law in the Protection of Nature and the Environment in a European Perspective, held at Lauchhammer, Germany, in United Nations Resolutions on Environmental Protection Through Criminal Law 517.

73 United Nations Office on Drugs and Crime, Wildlife and Forest Crime Analytic Toolkit 13 (2012).

74 Press Release, European Commission, EU Joining CITES Convention Will Help in the Preparation of the Commission's Wildlife Trafficking Action Plan (8 July 2015), available at http://europa.eu/rapid/press-release_IP-15-5316_en.htm [hereinafter EU 2015 Press Release].

75 Mitsilegas et al., supra note 4, at 11.

76 Id.

77 Id.

78 EU 2015 Press Release, supra note 75.

79 Mitsilegas et al., supra note 4, at 38. CITES gives no guidance to States Parties as to the level of penalties that should be imposed on persons convicted of illegal trade or possession, with the result that there has been a considerable variation in the punishments inflicted.Id.

80 The EU should also support the institutional system of UNTOC. In particular, it should support upgrading the role and competences of UNODC, for this institution has a very limited operational capacity. It should be able to enhance cooperation among source states and states of demand and transit of wildlife trafficking. The UNODC mandate to fight environmental crime and organized environmental crime was given in 2011 by the Economic and Social Council through its Resolution 2011/36 on crime prevention and criminal justice responses to trafficking in endangered species of wild fauna and flora. Economic and Social Council Res. 2011/36, at 3 (28 July 2011). In the resolution, the Council requested UNODC to, inter alia, continue to provide technical assistance to states, upon request, “particularly as regards the prevention, investigation and prosecution of . . . trafficking in endangered species of wild fauna and flora,” “within its mandate [and] in cooperation with Member States, relevant international organizations and the private sector.” Id. Pursuant to that resolution, transnational organized crime threat assessments, addressing the prevalence and scope of wild fauna and flora trafficking, have been prepared in consultation with member states, partners, and international organizations. Teresa Fajardo del Castillo, Organised Crime and Environmental Crime: Analysis of International Legal Instruments 20 (2015).

81 This Article demands three elements, namely, that it is transnational, committed by an organized group, and is subject to a minimum sanction of four years’ imprisonment. Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Technical Assistance Provided to States in the Application of the United Nations Convention against Transnational Organized Crime to New Forms and Dimensions of Transnational Organized Crime, ¶¶ 3, 5–6, UN Doc. CTOC/COP/2012/7 (5 July 2012).

82 Id. at ¶ 3.

83 Id. at ¶ 30.

84 Id.

85 United Nations Office on Drugs and Crime, Organized Crime and Instability in Central Africa: A Threat Assessment 7 (2011).

86 International Scientific and Professional Advisory Council of the United Nations Crime Prevention and Criminal Justice Programme, International Organized Crime: The African Experience 22 (2010).

87 See generally Wybe Th. Douma & Steffen van der Velde, EU Environmental Norms and Third Countries: The EU as a Global Role Model? 9 (Centre for the Law of UE External Relations, Working Paper No. 5, 2013), available at http://www.asser.nl/ media/1640/cleer_13-5_web.pdf (stating that “a multitude of directives and regulations ensures that EU Member States protect Europe's environment and the health of European citizens. At times, the interests of third states are taken into account as well”).

88 See European Commission, Overseas Countries and Territories Environmental Profiles (2015), Europa.eu (16 October 2015), http://ec.europa.eu/europeaid/overseas-countries-and-territories-environmental-profiles-2015_en (containing “environmental profiles for the 25 Overseas countries and territories (OCTs) associated with the European Union”).

89 Teresa Fajardo del Castillo, Revisiting the External Dimension of the Environmental Policy of the European Union: Some Challenges Ahead, 7 J. Eur. Envtl. & Planning L. 365, 384–385 (2010).

90 See Tim Boekhout van Solinge, The Illegal Exploitation of Natural Resources, in The Oxford Handbook of Organized Crime 500, 501 (Letizia Paoli ed., 2014) (discussing natural resource exploitation in various African countries).

91 See UNEP-MONUSCO-OSESG, Experts’ Background Report on Illegal Exploitation and Trade in Natural Resources Benefitting Organized Criminal Groups and Recommendations on MONUSCO's Role in Fostering Stability and Peace in Eastern DR Congo 5 (2015) (recommending that the Mission des Nations Unies en République Démocratique du Congo “[build] on existing cooperation with national authorities, particularly the Congolese Wildlife Authority (ICCN), to safeguard protected areas and World Heritage Sites from illegal natural resources exploitation and their use as “safe havens” by armed groups”).

92 BBC News, Democratic Republic of Congo Country Profile – Overview, BBC.com (4 August 2015), http://www.bbc.com/news/world-africa-13283212; United Nations High Commissioner for Refugees, 2015 UNHCR Country Operations Profile – Central African Republic, UNHCR.org, http://www.unhcr.org/pages/49e45c156.html (last visited 16 October 2015).

93 In its preamble, the parties declare: WHEREAS the Parties shall not encourage foreign direct investment by making their domestic environmental, labour or occupational health and safety legislation and regulations less stringent or by relaxing their domestic labour legislation and regulations or regulations designed to protect and promote cultural diversity. The Parties therefore reaffirm their commitment to comply with these domestic laws or regulations or to propose to do so in order to encourage the establishment, acquisition, expansion or retention in their territory of an investment or of an investor. Council Decision 09/152, preamble, 2009 O.J. (L 57) 1, 4 (EC). In Article 15, the agreement establishes a stand still clause regarding customs that foresees an exception, the possibility that in the event of a serious public finance problem or the need for greater environmental protection, the Central Africa Party may, after consultation with the EC Party, introduce customs duties on exports for a limited number of additional goods. Id. at art. 15. In Article 60 [t]he Parties recognise that sustainable development is an overall objective of the EPA. They therefore agree to ensure that sustainability considerations are reflected in all titles of the EPA and to draft specific chapters covering environmental and social issues. Id. at art. 60.

94 See Commission Decision of 18 December 2009 on the 2009 Annual Action Programme for the Central African Republic to be financed from the 10th European Development Fund, 2009 O.J. (C 2009) 1, 4 (indicating that Annex 5 contains the Action fiche “North-East CAR fauna ecosystems project”).

95 United Nations Security Council, Letter dated 26 June 2014 from the Panel of Experts on the Central African Republic established pursuant to Security Council resolution 2127 (2013) addressed to the President of the Security Council, in S/2014/452 Report of the Panel of Experts on the Central African Republic established pursuant to Security Council resolution 2127 (2013) 1, 19 (2014).

96 Id.

97 See S.C. Res. 2136, supra note 6, at 2 (stating that “the linkage between the illegal exploitation of natural resources, including poaching and illegal trafficking of wildlife, illicit trade in such resources, and the proliferation and trafficking of arms as one of the major factors fuelling and exacerbating conflicts”); S.C. Res. 2134, supra note 6, at 10 (stating that funds “providing support for armed groups or criminal networks through the illicit exploitation of natural resources” will be limited).

98 European Commission, The EU Approach to Combat Wildlife Trafficking, Europa.eu (21 August 2015), http://ec.europa.eu/environment/cites/trafficking_en.htm. The EU is the main donor to the ICCWC, which brings together Interpol, the UN Office on Drugs and Crime, the World Customs Organisation, CITES, and the World Bank. Id.

99 Press Release, EUROPOL, Europol Supports Largest Ever Coordinated Operation against Wildlife Crime, Europa.eu (18 June 2015), https://www.europol.europa.eu/ content/europol-supports-largest-ever-coordinated-operation-against-wildlife-crime. EUROPOL participated in Operation COBRA III, which was conducted in two phases between mid-March and the end of May 2015, saw the participation of law enforcement teams and agencies from 62 countries in Europe, Africa, Asia[,] and America. Europol supported the operation across Europe by facilitating operational information exchange and coordinating the activities of police, customs, forestry[,] and other law enforcement authorities from 25 participating EU Member States. The operation was organised by the Association of Southeast Asian Nations Wildlife Enforcement Network (ASEAN-WEN)[,] and the Lusaka Agreement Task Force (LATF), and supported by numerous international agencies and organisations such as Interpol. Id.

100 See Press Release, European Commission, Environment: Funding to Boost INTERPOL Fight against Wildlife Crime, UN Press Release IP/12/1428 (21 December 2012) (stating that “[t]he European Commission is to contribute nearly two million euros to INTERPOL in support of its efforts to combat wildlife crime and protect the world's natural resources from the illegal international trade in wild flora and fauna”).

101 Id. at 1.

102 Id. at 2; European Parliament, Parliamentary Questions: Answer Given by Mr. Piebalgs on Behalf of the Commission, Europa.eu (5 May 2014), http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2014-002921&language=EN.

103 European Parliament, supra note 103.

104 I gratefully acknowledge the kind assistance provided by law enforcement officers of various EU member states.

105 See Sollund & Maher, supra note 40.

106 Regarding trafficking in endangered species, EUROJUST reported that [m]ost Member States who replied to the Questionnaire launched by Eurojust began by recognising the low number of cases they are dealing with in terms of trafficking in endangered species. They also generally recognised that the reason behind this situation is not that this type of crime does not exist (actually many of them tend to think that much more could be done at investigative and prosecutorial level in this area), but that a conjunction of factors is responsible for this situation, starting with the lack of seriousness with which these crimes are ‘labelled’ at national level. EUROJUST, Strategic Project on Environmental Crime Report 10 (2014).

107 Press Release, CITES, Secretariat Welcomes UN General Assembly

Resolution on Tackling Illicit Trafficking in Wildlife (30 July 2015), https://cites.org/eng/unga_resolution_wildlife_trafficking_150730.

108 G.A. Res. 13, at 4, UN Doc A/69/L.80 (15 July 2015).

109 See Katie Rogers, After Cecil the Lion's Killing, U.S. and U.N. Look to Take Action, The New York Times (30 July 2015), http://www.nytimes.com/2015/07/31/world/africa/after-cecil-the-lions-killing-us-and-un-look-to-take-action.html?_r=0 (discussing the investigation of Cecil the Lion's killing).

110 See David Higgins, The Dull Anger of Environmental Crime, WWF (3 December 2012), http://wwf.panda.org/?206939/david-higgins-manager-interpol-environmental-crime-programme (discussing the need to enhance the way we perceive environmental security).