Chapter 15: Multilateral environmental agreements and illegality
A series of multilateral environmental agreements (MEAs), such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the Montreal Protocol on Substances that Deplete the Ozone Layer and the 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. These are crucial measures to fulfil the regimes’ underlying objectives of environmental protection. Unfortunately, however, the inevitable corollary of such regulatory measures is transboundary black markets, which need to be addressed from a global, collective perspective. The aforementioned MEAs feature provisions establishing, inter alia, prior informed consent procedures or licensing systems for imports and exports of controlled commodities. Nevertheless, the degree of explicitness with which these MEAs’ provisions address the issue of illegality and, especially, that of criminalization of illegal trade, varies. Whereas the Montreal Protocol does not mention the issue directly, hence leaving it to the discretion of its implementation committee and the states parties in the Meeting of the Parties (MoP), CITES (Article VIII(1)) requires states parties ‘to penalize trade in, or possession of, [CITES-listed] specimens, or both’. The Basel Convention (Articles 2(21), 9(1)), in turn, provides a specific definition of ‘illegal traffic’ and makes the normative assertion that any instance of illegal traffic in hazardous wastes or other wastes is to be considered as criminal (Basel Convention Article 4(3)). While some consider this particular wording as ‘fairly rhetorical’ (Kummer 1999, p. 70), in actuality states must enact implementing legislation – inter alia, criminal measures – and ‘seek enforcement vis-à-vis private parties that act in contravention of the provisions of the convention (or, rather, in contravention of the national provisions that give effect to the convention)’ (Nollkaemper 2002, p. 170; Basel Convention Article 4(4)).
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