Transnational environmental crime and the resilience of international law: shaping illegality in multilateral environmental treaties

A series of multilateral environmental agreements (MEAs), such as the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer and the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, follow policies and regulatory approaches that foresee restrictions on and supervision of international trade and/or transboundary movements of controlled commodities. Other MEAs, such as the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, the 2000 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, and the 2001 Stockholm Convention on Persistent Organic Pollutants, also feature international trade control measures. These are crucial to fulfil the regimes’ underlying objectives of environmental protection. Unfortunately, however, the inevitable corollary of such regulatory measures are transboundary black markets that pose a serious threat to these regimes’ effectiveness and, thus, to international environmental law.
This paper appraises the distinctive ways in which a sample of key MEAs involved in the fight against transnational environmental crime – the Montreal Protocol, the Basel Convention and CITES – are addressing issues of illegality and criminality. It evaluates how these have acquired salience on the global and/or crime and criminal justice agenda in each one of these regimes. In so doing, it also pays attention to the roles in compliance and enforcement undertaken by actors other than governments, as well as innovative network and partnership strategies adopted by governments and international organizations. Three main findings are made in this regard. First, MEAs that face significant compliance challenges through emerging black markets in environmentally-sensitive commodities have adopted a strategy of coordination and cooperation to increase their respective effectiveness. Second, inter-MEA coordination has furthered the significance of global and regional enforcement networks of practitioners as de facto norm-setting agents that have deeply influenced the regulatory development and implementation of MEAs. Third, this inter- and transnational process of cooperation has brought about a gradual criminalization of illegal trade in environmentally-sensitive commodities. This has indeed been so with the Montreal Protocol, the legally-binding provisions of which do not necessarily require a criminal law response to illegal trade in ozone-depleting substances. But it has also intensified the degree of the criminal law and justice response to illegal wildlife traffic, which is henceforth conceptualized as transnational wildlife and forest crime and which requires a broad integrated approach consistent not only with CITES, but also with the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Corruption. In terms of governance, this shift also encapsulates the gradual reallocation of the institutional centre of gravity in the fight against illegal wildlife traffic from CITES to the United Nations Office on Drugs and Crime (UNODC) and its Global Programme for Combating Wildlife and Forest Crime.
The highlighted evolution within the chosen sample of MEAs clearly hints at an increasing awareness of transnational crime for environmental regime effectiveness and for the discrete emergence of a body of transnational environmental criminal law. It also visualizes the outstanding adaptive capacity of managerial (environmental) regimes to accommodate their principles, rules and institutions to changing external conditions and challenges. More importantly, the described process of inter- and transnational cooperation against transboundary black markets in environmentally-sensitive commodities offers insight on how international law works in times of crises in a very specific field. By resorting to intra-MEA coordination and extra-systemic synergies through inter- and transnational network and partnership strategies, environmental regimes have arguably been successful in articulating incremental institutional and normative responses to existential challenges deriving from transboundary black markets. In a way, one may speak here about the resilience of international law.
In this regard, the paper argues that – somewhat counter-intuitively – the scattered institutional framework of global environmental governance and within it, the intrinsic autonomy and flexibility of the institutional arrangements of MEAs, may be seen as paramount to the problem-solving capacity of resilient systems. Indeed, the United Nations system, in which most of the MEAs’ autonomous institutional arrangements are integrated in one way or another, has a somewhat complicated and confusing track record of administrative coordination, especially in the field of environmental governance. Nevertheless, precisely the loose and decentralised network of the MEAs’ autonomous institutional arrangements has been persistently praised as allowing for bespoke responses and, where necessary, for regional or thematic clustering of treaties and institutions.
The paper concludes, however, that much of the implicit institutional and normative flexibility bears the risk of putting the process’ transparency and legitimacy at jeopardy. A careful balance, as well as ways for constant feedback among cognitive and normative processes, seems therefore desirable for the resilience of international law in times of crises.