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May 07, 2021

Learning from Lacey: Structural Legal Collaboration Under the Proposed UNTOC Wildlife Crime Protocol

The United Nations Convention against Transnational Organized Crime (UNTOC) is key to the global fight against the organized criminal networks trafficking in wildlife. In this blog, Senior Staff Attorney Nicholas Fromherz and Clinical Professor and Director Erica Lyman of our Global Law Alliance for Animals and the Environment argue why it is high time for the Lacey Act to go global to protect wild animals and how an NGO supported draft UNTOC Wildlife Crime Protocol points the way.
  • Grey-breasted Mountain Toucan (Andigena hypoglauca) in Ecuador
    iStockphoto

A coalition of non-governmental organizations recently proposed a draft protocol on wildlife trafficking that would, if adopted, enter into force as the fourth protocol to the United Nations Convention against Transnational Organized Crime (“UNTOC”). As the world’s foremost treaty on transnational crime, UNTOC is key to the global fight against the organized criminal networks trafficking in wildlife, including fish and forestry products.

While the draft protocol contains many features worthy of analysis, this blog addresses just one: its inclusion of an obligation for Parties to criminalize the import, transport, sale, and possession (and other like activities) of any wildlife “knowing that the specimen was taken, possessed, distributed, transported, purchased or sold in contravention of … [a]ny applicable … foreign law concerning the protection, conservation, management, trade or use of wild fauna or flora.” Draft Art. 5(1)(b). If this verbiage sounds familiar, that’s because it derives in large measure from a U.S. law known as the Lacey Act.

Even after a century on the books, the Lacey Act continues to stand out for how it effectively blends foreign conservation laws into legal obligations binding on persons subject to U.S. jurisdiction. A hypothetical example serves to illustrate just how useful – and, some would say, unique – the Lacey Act can be. Imagine a U.S. citizen travels to Ecuador and purchases a Grey-breasted mountain toucan (Andigena hypoglauca). An Ecuadorian national had captured the toucan in violation of Ecuadorian law. The U.S. citizen travels home with the bird. This particular species is not protected under the U.S. Endangered Species Act, nor is it listed in CITES. Nevertheless, our traveller has violated the Lacey Act because she (a) engaged in regulated conduct in the U.S. (importation) that (b) involved wildlife taken in violation of another country’s law.

This hypothetical highlights the consequences for a single bird, but countless wild animals and plants similarly situated cross borders annually, often in commercial-scale shipments. Although these specimens are the product of illegal activities in source countries, once exported, transit or destination countries may not have the legal mechanisms to recognize the taint of illegality, particularly where the specimens have been cleared by customs. Under the laws of many transit and destination countries, the specimens are effectively “washed” upon export in the sense that, insofar as those countries are concerned, compliance with foreign law is irrelevant to compliance with national law. In other words, in the absence of a law that takes cognizance of illegality earlier in the supply chain, the taint of a foreign violation will not follow the specimen throughout the supply chain.

Enter the U.S. Lacey Act. Whereas traditional legislative approaches to wildlife trafficking employ what is essentially a national focus to combat a transnational problem, a Lacey-like approach deliberately responds to the multi-jurisdictional nature of wildlife trafficking. Under Lacey, an individual is subject to criminal prosecution for importing, exporting, transporting, selling, receiving, acquiring, or purchasing wildlife that was taken, possessed, transported, or sold in violation of foreign law. Stated differently, the earlier violation of foreign law—often at the hands of a completely different actor—remains legally significant as an element of the offense.

Recognizing the power of this approach, the proposal for a wildlife crime protocol to UNTOC takes the important step of directing Parties to adopt a Lacey Act-like provision in national legislation. Imagine if every country decided to criminalize the importation of wildlife “taken, possessed, distributed, transported, purchased or sold in contravention of … [a]ny applicable … foreign law concerning the protection, conservation, management, trade or use of wild fauna or flora.” Draft Art. 5(1)(b). This would mark a sea-change in global anti-trafficking law. The Lacey Act-like provision in the NGO-supported draft Wildlife Crime Protocol would force countries to enlarge the aperture of inquiry. It would infuse an element of what might be termed “structural legal collaboration,” with each country taking stock of the conservation laws of other nations. For destination and transit countries, in particular, the Lacey-inspired element of the Protocol would provide an important tool to complement the efforts of source countries—complementary work that is only appropriate in light of the roles that consumer and transit countries respectively play in driving and facilitating global wildlife trafficking.

The extinction crisis demands new and creative approaches to combating illegal wildlife trade. But new approaches can often derive from older frameworks. It is high time for the Lacey Act to go global. The draft UNTOC Wildlife Crime Protocol points the way. To learn more, check out our free on demand continuing legal education program “Learning From Lacey: Structural Legal Collaboration to Combat Wildlife Trafficking.”

 

Nick Fromherz is a senior staff attorney at the Global Law Alliance. Previously, Nick served as a Visiting Assistant Professor, teaching courses within Lewis & Clark’s Environmental, Natural Resources, and Energy Law program. Since 2015, Nick has taught Administrative Law at Lewis & Clark Law School during several summer sessions. Combining this experience with his considerable time living and working in Latin America, Nick expands the Global Law Alliance’s footprint in the Americas while building on its international wildlife practice.

Erica Lyman is the Director of the Global Law Alliance for Animals and the Environment (the Global Law Alliance), a collaboration between CALS and the #1 ranked Environmental Law Program at Lewis & Clark Law School. She is a Clinical Professor of Law at Lewis & Clark Law School. Erica’s practice has included 15 years of work advocating for wildlife within the Convention on International Trade in Endangered Species of Wild Flora and Fauna and work on-the-ground to stop wildlife trafficking.

 

The Center for Animal Law Studies (CALS) was founded in 2008 with a mission to educate the next generation of animal law attorneys and advance animal protection through the law. With vision and bold risk-taking, CALS has since developed into a world-renowned animal law epicenter, with the most comprehensive animal law curriculum offered anywhere. In addition, CALS is the only program that offers an advanced legal degree in animal law and three specialty Animal Law Clinics. CALS recently launched the Global Law Alliance for Animals and the Environment, as champions for wild animals and wild spaces, in collaboration with Lewis & Clark Law School’s #1 ranked Environmental Law Program. CALS is a fully self-funded nonprofit organization operating under the Lewis & Clark College 501(c)(3) tax-exempt status, and is only able to provide these educational opportunities through donations and grants.