Novel practice of the Security Council: Wildlife poaching and trafficking as a threat to the peace

On 12 and 13 February 2014, heads of states will meet at a London summit on the trafficking of endangered species convened by British Prime Minister David Cameron. The background to this initiative is the increasingly acknowledged link between wildlife poachers, traffickers, and armed conflict in some regions of Africa. According to the WWF, over 20,000 elephants are killed each year for their ivory tusks, many of them in central African conflict zones.

In two recent resolutions of January 2014, on the Central African Republic (res. 2134), and on the Democratic Republic of the Congo (res. 2136), the Security Council (SC) authorized targeted sanctions against poachers, wildlife product traffickers, and against persons and entities pulling the strings. The resolutions were primarily designed to target a number of armed rebel groups operating in the eastern region of the Democratic Republic of the Congo and in the Central African Republic. The United Nations (UN) suspects various armed groups, such as the Lord’s Resistance Army, Somalia’s Al-Shabaab Islamist militant group and Sudan’s Janjaweed militia, to use the illegal ivory trade as a source of generating finances or otherwise to benefit from the illegal wildlife trade. With these resolutions, the Council de facto qualified wildlife poaching and trafficking as a threat to the peace. Although this statement is at least implicit in the resolutions, the rationale remains anthropocentric, as will be shown in this post.

Res. 2134 and 2136: targeted sanctions against wildlife poachers

Under res. 2134 and 2136 states must adopt sanctions, namely freezing assets and restricting travel, on any individual or entity found to be involved in wildlife trafficking. Practically speaking, the resolutions mean that traffickers must be targeted by officials from different government agencies such as interior and finance ministries, and customs.

The financial sanctions are described, in the resolution on the CAR, in the following way. The Security Council decides:

 “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” (res. 2134, para. 32).

 As for the travel bans, the Council decides that “all Member States shall take the necessary measures to prevent the entry into or transit through their territories of individuals designated by the Committee; (…)” (res. 2134, para. 30; see with regard to the DR Congo (Democratic Republic of the Congo), res. 2136, paras 3-4).

 These Council resolutions build on a number of prior reports, recommendations, and decisions. A key document with regard to the Central African Republic (CAR) is res. 2127 (2013) of 5 December 2013. Here, the UN Security Council, acting under Chapter VII, authorized the African-led International Support Mission to the Central African Republic MISCA (Mission internationale de soutien à la Centrafrique sous conduite africaine) for a period of twelve months (paras. 28 set seq.). Res. 2127 further requested the Secretary-General to establish a UN trust fund to support MISCA (paras. 41 et seq.). It also authorized French forces to take all necessary means to support MISCA (paras. 49 et seq.). Finally, SC res. 2127 imposed an arms embargo (paras. 54 et seq). As mentioned, the sanctions regime was subsequently extended to travel bans and asset freezes in res. 2134 of 28 January 2014 (see quotes above).

“Absence of the rule of law” in the Central African Republic as a threat to the peace

The key resolutions examined in this post (res. 2127 and 2134 on the CAR and res. 2136 on the DR Congo) are based on Chapter VII, and explicitly state a threat to the peace. The finding of a “threat to the peace” is important because this constitutes the principal door opener for coercive measures under Chapter VII of the UN Charter.

 In res. 2127 (concerning the CAR), the Security Council for the first time considered the “total breakdown in law and order” in a state, and “the absence of a rule of law” (preamble, 3^rd indent; see also paras. 14-15) as a “threat to international peace and security“ (preamble, last indent). The resolutions on CAR built on the report of the Secretary-General on CAR of 15 November 2013 (UN Doc. S/2013/677, referred to in the preamble of res. 2127, 11^th indent). That report had deplored “the near-total absence of State administration and services across the country. (…) [J]ustice and corrections institutions are absent throughout the country, contributing to a state of lawlessness and creating an environment of impunity for human rights violations.” (ibid., para. 8) and the “pervasive breakdown in law and order” (ibid., para. 9).

The Security Council’s approach builds on and extends previous Council practice. As it is well known, the Security Council has, since the end of the Cold War, continuously expanded the concept of a “threat to the peace” and moved beyond the “classical” threat in form of inter-state armed conflict.

The new practice began with res. 688 (1991) on northern Iraq which found that the danger of large refugee flows across the border, which was triggered by oppression of Kurds in Iraq, might constitute a threat to the peace. With regard to Somalia, res. 794 (1992) qualified the “human tragedy”, i.e. massive violations of International humanitarian law (IHL), as a threat to the peace. With regard to Rwanda, res. 955 (1994) qualified the genocide and systematic and widespread violations of IHL as a threat to the peace. In res. 1529 (2004) the Council invoked “the deterioration of the political, security and humanitarian situation in Haiti” and determined “that the situation in Haiti constitutes a threat to international peace and security, and to stability in the Caribbean” (res. 1529, preamble; see also res. 1780 (2007); and similarly res. 1727 (2006) and 1782 (2007) on Côte d‘Ivoire). Finally, res. 1368 (of 12 September 2001) qualified the attacks of 9/11 on the World Trade Center “like any act of international terrorism, as a threat to international peace and security” (see in this sense also res. 1735 (2006) on Al-Qaida and Taliban, and res. 1757 (2007) on Lebanon).

 Some of these constellations appear on their face as purely domestic ones. However, in most instances, some transboundary features were present, if only in the form of a danger of a potential outflow of persons across state boundaries.

 It is consistent with this practice that, in res. 2127 as well, the concern is not only the internal lawlessness of the CAR, but also “concern about the consequences of instability in the CAR, on the central African region and beyond”, as the Council highlights right at the start of the resolution (preamble, 3^rd indent). It is this danger of a spill-over which founds, according to the Security Council, “the need for the international community to respond swiftly” (ibid). Overall, the Charter’s expanded and “positive” notion of peace does not seem to be devoid of any transboundary element yet.

Poaching and trafficking as a threat to the peace

The more innovative element in the new Council resolutions is their focus on wildlife. UN SC res. 2136 on the Democratic Republic of the Congo (30 January 2014) imposed financial and travel measures, inter alia, against “individuals or entities supporting armed groups in the DRC through illicit trade of natural resources, including gold or wildlife as well as wildlife products; (…)” (para. 4 lit. g).

The Council here:

“reiterates its call to the DRC and States in the Great Lakes region to require their customs authorities to strengthen their control on exports and imports of minerals from the DRC, and to cooperate at the regional level to investigate and combat regional criminal networks and armed groups involved in the illegal exploitation of natural resources, including wildlife poaching and trafficking (…).“ (para. 24, emphasis added).

The resolution’s preamble recalled:

 “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 in the Great Lakes region of Africa”,

and encourages the continuation of the regional efforts of the International Conference of the Great Lakes region and the governments involved “against the illegal exploitation of natural resources, (…)” (preamble, 10^th indent).

 With regard to the Central African Republic, a line of Council resolutions dealt with the illegal exploitation of “natural resources”, which meant in the first place the so-called blood-diamonds (which have been the object of a number of Council resolutions) and elephant tusks.

SC res. 2121 (2013) of 10 October 2013 for the first time mentioned poaching and trafficking: “Condemning the devastation of natural heritage and noting that poaching and trafficking of wildlife are among the factors that fuel the crisis in the CAR, (…)” (preamble, para. 13).

In res. 2127, under the heading of “Protection of natural resources”, the Security Council “[c]ondemns the illegal exploitation of natural resources in the CAR which contributes to the perpetuation of the conflict, and underlines the importance of bringing an end to these illegal activities, including by applying the necessary pressure on the armed groups, traffickers and all other actors involved; (…)” (res. 2127, para 16). Also, the Council is “reiterating its condemnation of the devastation of natural heritage and noting that poaching and trafficking of wildlife are among the factors that fuel the crisis in the CAR” (ibid., preamble, 10^th indent).

Then, res. 2134 (2014) on the CAR is “expressing concern that diamond smuggling and other forms of illicit natural resource exploitation, including wildlife poaching, are destabilizing forces in CAR, and encouraging the Transitional Authorities and the State Authorities to address these issues through all possible avenues, (…)” (preamble, 7^th indent, emphasis added). In the operative part of res. 2134, the Council “decides in this regard that the measures contained in paragraphs 30 and 32 [namely a travel ban and the freezing of assests] shall also apply to the individuals and entities designated by the Committee as: (…) (d) providing support for armed groups or criminal networks through the illicit exploitation of natural resources, including diamonds and wildlife and wildlife products, in the CAR; (…)” (ibid., para. 37, emphasis added).

UN findings on living “natural resources“ as a reason for ongoing conflict

Previous UN documents have, at least since 2013, mentioned “natural resources“ (including living resources) as a reason for ongoing conflict in various regions of Africa. The report of the Secretary-General on the activities of the United Nations Regional Office for Central Africa and on the Lord’s Resistance Army-affected areas (UN Doc. S/2013/297) of 20 May 2013 had mentioned that, in the region of central Africa “illegal ivory trade may currently constitute an important source of funding for armed groups, including LRA [Lord’s Resistance Army]. Also of concern is that poachers are using more and more sophisticated and powerful weapons, some of which, it is believed, might be originating from the fallout in Libya. The situation has become so serious that national authorities in some countries, such as Cameroon, have decided to use the national army, in addition to law and order enforcement agencies (police and gendarmerie) to hunt down poachers.” (para. 9, emphasis added). “Poaching and its potential linkages to other criminal, even terrorist, activities constitute a grave menace to sustainable peace and security in Central Africa.” (para. 74, emphasis added). In this regard, the Secretary-General urged “Governments of the subregion to consider the issue of poaching as a major national and subregional security concern requiring their concerted and coordinated action.” (para. 74, emphasis added; see also Findings and recommendations by the United Nations multidisciplinary mission to the Central African Republic, 21-26 August 2013, Annex to S/2013/557, para. 19).

The ensuing report of the Secretary-General on CAR of 15 November 2013 (S/2013/677), noted that “[p]orous borders, the absence of State authority, opportunities for the illegal and lucrative exploitation of natural resources and the remoteness of many parts of the country provide an environment that is conducive to transnational criminal activity, such as the flow of arms and mercenaries, as well as a potential breeding ground for radical networks.” (para. 12, emphasis added).

The nexus between the (illegal) exploitation of natural resources in Africa and armed conflict (partly over those resources) is well known and has long been tackled (more or less successfully) by the United Nations, by governments, and business itself through international, national, and self-regulation (certification schemes such as the Kimberley process for diamonds). What is new is the extension of this approach to living resources, notably ivory.

CITES

The protection of living resources has so far been dealt with mainly in international environmental law. A core regime is the one established by the Convention Against Trade in Endangered Species (CITES).

The CAR has been a party to CITES since 1980, and also a party to the Convention on Biological Diversity since 1995. CITES operates by means of a permit system. It basically prohibits international trade in specimens of endangered species, subject to a few exceptions, depending on the listing status of the species. Its Conference of the Parties (CoP) meets regularly and has the power to place species in the Appendixes. The Convention also requires the State Parties to establish Management and Scientific authorities.

Appendix I includes “all species threatened with extinction which are or may be affected by trade”. Trade in Appendix I-species may be authorized only in “exceptional circumstances” (Art. II (1) CITES). Appendix II lists less endangered species, and subjects trade in specimens of those species to a more lenient system of permits.

In 1989, after numerous states had adopted national moratoriums on ivory importations, the elephant was moved by the CoP from Annex II to Annex I. Since then, Appendix I lists “Elephas maximus (Loxodonta Africana)”, with the exception of the populations of Botswana, Namibia, South Africa and Zimbabwe, which are included in Appendix II only.

Art. III CITES prohibits export of “specimens” in Appendix I without the prior grant and presentation of an export permit. A permit will only be granted, if a Scientific Authority of the export state determines, inter alia, “that the export will not be detrimental to the survival of that species.” (Art. III (2) (a) CITES). Art. I b (ii) CITES defines “specimen” as “any readily recognizable part [of the species] or derivative thereof.” Elephant tusks hence are specimens and therefore subject to the trade prohibition. But CITES has been construed as governing only raw ivory, not worked ivory (Michael J. Glennon, “Has international law failed the elephant?” AJIL 84 (1990), 1-43 (12)).

The entire trade control system of CITES is currently not able to effectively prevent the trafficking of specimens of endangered species, for example the smuggling of elephant tusks. In weak states such as the CAR which is characterized, in the words of the Secretary-General, by “lawlessness”, obviously no Scientific Authority in terms of CITES is functioning, nor can the state control poaching. The destination of the tusks is mainly Asia. It is estimated that about 90 percent of the ivory in China’s ivory market stems from illegal sources.

Anthropocentric motivations

The Security Council resolutions are an important step in fleshing out the emerging field of global animal law. It must, however, not be forgotten that the entire political and legal process leading to them is dominated by anthropocentrism. The focus is on organized crime, on the proliferation and trafficking of arms, funding of armed groups, and on the emergence of radical networks. Tellingly, the meeting of the Security Council which prepared the resolutions on the CAR (S/2013/677, 7069^th Meeting on 25 November 2013 on the situation in the Central African Republic, report of the Secretary-General on the Central African Republic pursuant to paragraph 22 of SC res. 2121 (2013)), did not even raise the issue of wildlife trafficking. Nevertheless, two weeks later, the link between wildlife trafficking, armed conflict, and human rights violations was made in res. 2127 (2013).

Along that line, the WWF species programme managerWendy Elliott highlighted that wildlife traffickers “are funding the armed groups that are causing the human rights violations, but it is still treated as an environmental issue and that is just not going to work out.”

CITES, too, seeks first of all to conserve biodiversity, as the CITES “vision statement” conveys: “Conserve biodiversity and contribute to its sustainable use by ensuring that no species of wild fauna or flora becomes or remains subject to unsustainable exploitation through international trade, thereby contributing to the significant reduction of the rate of biodiversity loss and making a significant contribution towards achieving the relevant Aichi Biodiversity Targets.” (CITES Strategic vision 2008-2020).

Biodiversity itself is sought for anthropocentric reasons. The usual grounds given for saving endangered species are the desired option of exploiting genetic characteristics, possible chemical and medical uses, the development of new products, indigenous peoples’ use of food and shelter, pollution control, tourism, and the like.

Arguably, if human needs and interests were not in the foreground, the Security Council would not have taken any robust action at all. From that perspective, the central African elephants can be said to benefit from the anthropocentric approach. It would thus be wrong to pit human security against animal security, because both are ultimately in the same boat. In the long run, however, an ecocentric approach to peace and security seems more appropriate to guarantee a sustainable peace for all living beings on earth.

Conclusion

The novel, eco-sensitive practice of the Security Council is in line with its previous practice on climate change. Since 2007, the Security Council recognizes that climate change is relevant for peace and security (see most recently the statement of the Security Council (SC/10332) and the statement of the SC President (S/PRST/2011/15), both dated 20 July 2011). However, the Council has not outrightly qualified climate change as a threat to the peace in an operative decision – unlike what happens now with regard to the living natural resources.

The new Security Council decisions of January 2014 are a welcome prolongation and extension of previous practice of the Security Council on an “enlarged” and “positive” concept of peace. It is hoped that taking into account not only human security, but also the integrity of nature, the survival of species and the well-being of animals will be an increasingly relevant factor in global law and politics on peace and security.