This is a guest post by Elizabeth Boomer, an international law consultant in the Global Legal Research Directorate. Elizabeth has previously written for In Custodia Legis on numerous topics, including Technology & the Law of Corporate Responsibility – The Impact of Blockchain, 30th Anniversary of the United Nations Convention on the Rights of the Child, United Nations Day – A Time to Reflect on the Potential Role of the International Court of Justice, Facebook’s New “Supreme Court” – The Oversight Board and International Human Rights Law, and Reflecting on 10 Years of the United Nations Guiding Principles on Business and Human Rights. 

Recently, two individuals were charged by U.S. federal prosecutors with several years in prison for their roles in the illegal smuggling of protected reptiles and birds from Mexico to the United States. As reported by the Washington Post, they were apprehended where nearly a third of all wildlife seizures in the United States between 2007 and 2017 were made: El Paso, Texas, right across the border from the Mexican city of Ciudad Juárez. They had, among other attempts to try to evade authorities, taped the beaks of six adult toucans shut, as toucans are notorious for their loud squawk.

Toucan. Photo by Flickruser Mathias Appel. Jan. 24, 2016. Used under creative commons license https://creativecommons.org/licenses/by-nc/2.0/.

Generally, cooperation between Mexican law enforcement agents and the United States federal agents in seizing illegally smuggled protected species is enabled by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES has 183 contracting parties and provides varying degrees of protection to more than 37,000 species of animals and plants, as listed in its three appendices:

• Appendix I lists the most endangered species among CITES-listed animals and plants, per article II, paragraph 1 of the Convention. CITES prohibits international trade in species threatened with extinction for commercial purposes. International trade in these specimens may be exceptionally authorized, however, through the provision of both an import and export permit, generally for scientific research.
• Appendix II lists species that are not currently threatened with extinction but may become so if trade is not closely controlled. International trade in Appendix-II species may be authorized by the granting of an export permit if the relevant authorities of the exporting state are satisfied that export will not be detrimental to the survival of the species in the wild, per article IV of the Convention.

• Appendix III lists species that are requested for inclusion by a party to CITES because the party already regulates trade in the species, and needs the cooperation of other countries to prevent unsustainable or illegal exploitation of the species, per article II, paragraph 3 of the Convention. International trade in Appendix-III species is only allowed with proper permits or certificates from relevant authorities, per article V of the Convention.

CITES is a framework convention, whereby contracting parties are bound to implement the convention through domestic legislation. For example, in the United States, the U.S. Fish & Wildlife Service may issue permits to allow imports of birds protected by the U.S. Wild Bird Conservation Act, when applicants meet certain criteria. In addition, the USDA’s Animal and Plant Health Safety Inspection Service (APHIS) works closely with other federal agencies, states, foreign governments, industry, professional and other groups to ensure that imports and exports of animals and animal products comply with federal regulations, including imports of birds. However, the Wild Bird Conservation Act also provides civil and criminal penalties for the importation of birds protected by the Act, which for its part prohibits the importation of birds protected by CITES.

Internationally, many organizations are engaged in the prevention of illegal and illicit smuggling of endangered species.

United Nations Office on Drugs and Crime

The United Nations Office on Drugs and Crime (UNODC) began producing the World Wildlife Crime Report in 2016, following the UN General Assembly’s unanimous adoption of resolution A/RES/69/314 “Tackling Illicit Trafficking in Wildlife” in 2015. Resolution 69/314 calls on member states to make illicit trafficking of protected species of wild fauna and flora involving organized criminal groups a serious crime under national legislation and in accordance with article 2 (b) of the United Nations Convention against Transnational Organized Crime (190 parties), adopted in 2000.

In its 2020 World Wildlife Crime Report, the UNODC was able to identify important trends in illegal and illicit smuggling of endangered species. However, the UNODC notes that estimates of the monetary value of global wildlife crime – which the United Nations Environment Programme (UNEP) estimates is $23 billion annually – suffer from a lack of understanding of the financial flows behind wildlife crime. Further, data on illegal and illicit smuggling of endangered species is difficult to track due to a lack of an internationally recognized definition of the crime (there are species illegally traded that are not regulated by CITES).

UNODC also works closely with the CITES Secretariat, the International Criminal Police Organization (INTERPOL), the World Bank, and the World Customs Organization (WCO) through the International Consortium on Combating Wildlife Crime (ICCWC) to design coordinated strategies to prevent and combat illegal trade in wild animals and plants.

The International Trade in Endangered Species and Other International Fora

In addition to the international criminal law initiatives undertaken by the UNODC, INTERPOL, and through their collaboration at the ICCWC, the United Nations Conference on Trade and Development (UNCTAD) and the Organisation for Economic Cooperation and Development (OECD) have also developed fora for member states and stakeholders to engage in dialogue regarding illicit trade in wildlife. UNCTAD held the first-ever Illicit Trade Forum in 2020 to, among other things, address the impacts of illicit trade on achieving the Sustainable Development Goals (SDGs). The OECD launched its Task Force on Countering Illicit Trade (TF-CIT) in 2013, to increase understanding of the ways trade routes of wildlife trafficking are shaped, and on the related governance gaps that enable them, including corruption.

COVID-19 and Illicit/Illegal Trafficking in Birds

While toucans may (to some) be a highly sought after pet, and certainly a profitable enterprise for the smugglers (if they are not caught), the COVID-19 pandemic, and the avian flus that preceded it (e.g. H5N1 and SARS), should be a cautionary tale regarding the global trade in wildlife, and birds in particular. While the intrinsic value of international treaties and cooperation agreements to protect wildlife and their well-being may be the primary purpose of these international instruments, there is a powerful argument that seriously combating illicit and illegal trafficking in birds could prevent the outbreak of yet another global pandemic – and global shutdown.