The Illegal Wildlife Trade in Southeast Asia

4.  Legal frameworks to deter and combat the illegal wildlife trade in Southeast Asia

Abstract

This chapter discusses domestic and international legal frameworks in place across the four focus countries and within the region. The chapter highlights some of the major gaps in implementation and effectiveness of a number of relevant laws and international conventions necessary to deter criminal syndicates and ensure the adequate protection against illegal wildlife trade and related offenses.

Introduction

Legal Frameworks set forth a set of rules that forbid specific acts and relate these prescriptions to the achievement of clear policy objectives. To prevent, deter and prosecute illegal wildlife trade, governments must implement an effective and comprehensive legal framework. Within such a framework, the institutional arrangements in place must also be organized and co-ordinated in such a manner to hold all persons (public and private) and institutions accountable to these laws, and provide for agency and oversight. The Legal frameworks must reflect the broader international legal standards and norms prescribed through international agreements. Finally, a fully functioning legal framework must be concise and clear, accessible and understood by the public with respect to what actions may be legal or illegal, and avoid overlaps or loopholes that might enable illegal wildlife trade to persist un-punished.

This chapter conducts a review of the various international and domestic legal frameworks in place, and identifies current loopholes and gaps in these frameworks that affect institutional capacities to counter illegal wildlife trade. As this chapter will demonstrate, the various loopholes detailed in this chapter can lead to open markets of illegal wildlife trade, illicit captive breeding schemes, and the ‘laundering’ of illegal wildlife trade products from illicit markets into grey markets or legal channels.

International Legal Frameworks

A number of relevant international treaties and conventions make up the international legal framework for wildlife crime. This framework enables law enforcement and relevant institutions to harmonize standards, approaches and sets the groundwork for international co-operation on matters related to wildlife crime. International conventions also tie wildlife crime to a range of other criminal offenses (such as corruption, transnational organized crime and others).

In 2018, ASEAN-Wildlife Enforcement Network undertook a legal review of ASEAN countries’ respective legislation on wildlife crime. This comprehensive review provides a comparative framework of analysis of relevant laws and their application to countering illegal wildlife trade. The below table summarizes the key findings of this report, highlighting some of the relevant laws with respect to enforcing CITES related laws. As the table below highlights, the countries studied have ratified or acceded to a number of relevant international treaties, including the UN Convention against Corruption, and the UN Convention on Transnational organized crime1.

Table 4.1. Relevant International Legal Frameworks and tools

Year of Accession

	Indonesia	Singapore	Thailand	Viet Nam
Convention on International Trade in Endangered Species (CITES)	1979	1987	1983	1994
2000 UN Convention on Transnational Organized Crime (UNTOC)	2009	2007	2013	2012
2003 UN Convention Against Corruption (UNCAC)	2006	2007	2011	2009
ASEAN Mutual Legal Assistance for Law Enforcement	2008	Signed not ratified	2013	2008

Source: (ASEAN-WEN, Freeland, 2016[1])

CITES

Each of the four countries are Party to the Convention on International Trade in Endangered Species (CITES), which is the foremost legal framework establishing rules and prohibitions for the trade in endangered fauna (and flora). CITES covers over 5,600 species of Animals. CITES Parties designate an enforcement authority, and regulate the trade and sale in these products through a system of permits and licenses. The four focus countries have CITES Management Authorities that are responsible for permitting and enforcement of aspects relating to the Convention. Regionally, the ASEAN group of nations has also established a recently created an ASEAN CITES enforcement group (formerly ASEAN Wildlife Enforcement Network (WEN). Under CITES, there is no requirement for the harmonization of standards or penalties. Parties must decide on what national controls and penalties are to be implemented to enforce the Convention (i.e. criminal or civil penalties).

The CITES Secretariat co-ordinates annual meetings of the Conference of the Parties (CoP), and the review mechanism for implementation and enforcement of CITES. Reporting standards including notably the CITES annual reports, in addition to reports on national legislation projects, review of significant trade and enforcement matters (CITES, 2012[2])

UNTOC

The Convention on transnational crime is the principle international legal framework for organized crime across borders. The legally binding instrument contains several provisions that require Parties to create of domestic criminal offences in conjunction with international crimes “(participation in an organized criminal group, money laundering, corruption and obstruction of justice); the adoption of frameworks for extradition, mutual legal assistance and law enforcement cooperation; and the promotion of training and technical assistance for building or upgrading the necessary capacity of national authorities” (UNODC, 2000[3]).

There are several protocols of the UNTOC that focus on specific transnational crimes, including human trafficking, illicit arms trafficking, and migrant smuggling. While there are no specific protocols for wildlife crime, Resolution E/2013/30 in the Economic and Social Council of the UN:

“Encourages Member States to make illicit trafficking in protected species of wild fauna and flora involving organized criminal groups a serious crime, as defined in article 2, paragraph (b), of the United Nations Convention against Transnational Organized Crime, in order to ensure that adequate and effective means of international cooperation can be afforded under the Convention in the investigation and prosecution of those engaged in illicit trafficking in protected species of wild fauna and flora; (UN, 2013[4])

The UN resolution also encourages all member states to:

“(…)strengthen, where necessary, their national legal and criminal regimes, judicial capacity (…) to ensure that relevant criminal laws including appropriate penalties and sanctions, are available to address illicit trafficking in protected species of wild fauna and flora” (UN, 2013[4]).

For the purposes of the UNTOC convention, “serious crime” is defined as a crime with a maximum penalty of at least four years. As noted in the overview of the legal framework below, each of the countries, with the exception of Singapore, meets this requirement.

The evaluative framework of the Convention is the Internal Review Mechanism (IRM) which is a peer process, occurring every five years within the secretariat of the UNODC.

UNCAC

The UNCAC is a legally binding international anti-corruption instrument. The Convention covers five key areas: preventive measures, criminalization and law enforcement, international cooperation, asset recovery, and technical assistance and information exchange (UNODC, 2003[5]). The UNCAC sets a series of minimum standards that are to be met under the framework and overseen by a review process.

UNODC notes “corruption is one of the most critical factors facilitating every aspect of wildlife and forest crime.” (UNODC, 2019[6]). While not providing any specific items within the text on wildlife crimes, the provisions of the UNCAC stand for all forms of criminality that may be facilitated by corrupt actors. UNCAC provisions can therefore by invoked for the development of a more stringent framework of laws and measures to counter illegal wildlife trade.

corruption is one of the most critical factors facilitating every aspect of wildlife and forest crime.

The evaluative framework for the UNCAC is the implementation review mechanism, set in 2009 over two five year cycles with two chapters reviewed per-cycle (cycle 1: Chapters III and IV on criminalisation of law enforcement and international co-operation; cycle 2 on chapters II and V on preventive measures and asset recovery). Parties must submit a self-assessment which is submitted for peer review by two other countries. Country visits are not mandatory, and neither is the publication of the integral text for or review by third-parties (U4, 2010[7]).

ASEAN Mutual Legal Assistance for Law Enforcement

All four of the select countries are members of the regional inter-governmental organisation ASEAN, and partake actively in the several working groups under the aegis of the ASEAN Secretariat. ASEAN also co-ordinates regional international frameworks for co-operation, including extradition agreements and Multi-lateral Mutual Legal Assistance Treaties (MLATs).

Assessing the International legal frameworks

International conventions such as CITES, the UNTOC and the UNCAC are legally binding, and ratifying countries must accede to these conventions through the adoption of the provisions by integrating these into national law. In order to achieve the objectives of each international convention, it is first necessary achieve technical compliance with the relevant provisions of these instruments and secondly, to ensure the effectiveness of their implementation. Below is an overview of these two key pillars and the assessment of how legal frameworks are met:

Technical Compliance with International Legal Frameworks

Technical compliance is the implementation of specific requirements under the international legal frameworks that enable a country to satisfy enforceable means, the existence of powers and procedures of competent authorities. These generally comprise the legislative, institutional and supervisory framework in place to meet the standards in a manner consistent with prevailing toolkits and guidelines. The four focus countries of Indonesia, Singapore, Thailand and Viet Nam largely meet the standards of technical compliance with the international legal frameworks (with some reservations). All four countries have ratified the UNTOC, UNCAC and CITES, and have integrated the provisions of these international legal frameworks into domestic laws.

In the case of the UNTOC and the UNCAC, peer-review mechanisms are in place to monitor the uptake of relevant provisions. However these reviews do not contain analyses of crime-specific actions. Therefore, these conventions are not assessed vis-à-vis wildlife crimes in a way to justifiably determine their effectiveness.

Effectiveness of Current Implementation to Stop Wildlife Crime:

The implementation of specific legal provisions in line with international conventions does not guarantee that international legal frameworks will be effective in achieving their intended objective. The effective application of measures determined or guided by these conventions is equally, if not more important, than the simple ratification of conventions and treaties. For example, while the implementation of the MLAT agreement is considered to be met by the ASEAN Agreement to Co-ordinate through Mutual Exchanges of Evidence, the actual effectiveness of this convention is measured in the number of exchanges and subsequent successful prosecutions that have benefitted from evidence received or transmitted through MLAT requests in a timely manner. Similarly, the UNTOC’s effectiveness can be measured by the number of cases that have benefitted from joint investigations and joint operations related to serious transnational organized crime syndicates involved in wildlife trafficking.

The evidence that has been explored in this report suggests that the international conventions in place are largely acceded to and implemented (see table 4.1). For example, with the exception of Singapore, focus countries treat wildlife crime as a serious offense under the UNTOC definition, with maximum penalties in excess of four years (UNODC, 2000[3]). However, responses from interviewees and reviews of the literature suggest that the effectiveness of the international conventions vis-à-vis wildlife crime deterrence, investigation and prosecution is not highly effective. For example, the authors have found that very few corruption and bribery cases have been prosecuted in pursuit of wildlife crimes, and MLAT exchanges are rare and not prioritized for wildlife crime cases. Furthermore, no joint wildlife enforcement operations or investigations have taken place in any of the four countries – a key provision of the UNTOC. While this report has not compiled a systematic assessment of the evidence to determine the effectiveness of international legal frameworks, the below table highlights what such an analysis could compile for indicators of i) implementation ii) effectiveness and iii) evidence to establish a performance metric for the uptake and use of international legal frameworks:

Table 4.2. International Frameworks: Technical Compliance, Effectiveness and Indicators

Below are some examples of technical compliance indicators, and measurements of effectiveness that could be used to assess the overall implementation and use of international legal frameworks:

International Framework	Examples of Indicators of Technical Compliance	Effectiveness Indicators	Example of Measureable:
UNCAC	Establish the following as criminal offenses: -bribery -trading in influence -abuse of functions -illicit enrichment -obstruction of justice	-Bribery and related offenses are effectively investigated during course of investigation into wildlife crime. -Investigations -Officials are prevented from engaging in corrupt practises to commit wildlife related offenses	-Change in the number of bribery or corruption cases related to wildlife crime -Change in the number of investigations of wildlife crimes. -Decrease in reports of corruption related offenses facilitating wildlife crimes, increase in reports of failed attempts at bribery or corrupt practises.
UNTOC	National laws criminalizing: -Organized crime -Obstruction of justice Adoption of measures and frameworks for Mutual legal assistance and cooperation among law enforcement	- International cooperation delivers appropriate information, criminal investigations and prosecution of wildlife crime -Organized crime gangs are charged in multiple jurisdictions. -International criminal syndicates are prevented from entering into the country.	-Number of joint-investigations -Number of Joint operations -Number of successful arrests and prosecutions based on information exchanged from partner law enforcement agency.
CITES	-Adopt a general policy framework to protect endangered species -Take necessary measures for the identification, protection, classification of endangered species -Creation of CITES Management Authorities	-CITES Management authority effectively monitors and regulates wildlife markets and successfully identifies trafficking cases, fraudulent CITES certificates, while working in co-operation with relevant authorities -CITES listed species are interdicted inland and at national entry points	-Number of illegally traded CITES listed species that are successfully identified along illicit trade chain. -Number of fraudulent CITES certificates identified -Number of investigations undertaken or assisted with
ASEAN Mutual Legal Assistance for Law Enforcement	-Signing MLATs between all member countries	-International exchanges of evidence between competent authorities deliver appropriate information and necessary evidence to effectively prosecute wildlife crimes	-Number of exchanges of evidence received and sent -Service standard or average time to process and fulfil MLAT Requests -Number of cases that have relied on information obtained through MLATs

National Legal Frameworks

The legislative framework for illegal wildlife trade in the four focus countries is composed of relevant laws, their implementation and their enforcement. The international legal frameworks highlighted above are implemented by the adoption of relevant corresponding national legislation. Table 4.3 summarizes the relevant national legislation for the implementation of CITES to prohibit the trade of illegal wildlife trade within each country, the penalties, and the implementing authority.

Table 4.3. Key Provisions from Wildlife Laws and Relevant Laws

Provisions, Maximum Sentences and Fines

	Indonesia	Singapore	Thailand	Viet Nam
Criminalization of Wildlife Trafficking	Yes	Yes	Yes	Yes
Length of Penalty	10 years	2 years2	7 years	15 years
Principle Legislation for illegal wildlife trade trafficking and/or possession	acts, No.5/1990 on ‘Conservation of Living Resources and their Ecosystem’, as well as the Government Regulation No. 7/1999, ‘Preservation of Plants and Animal Species’	Endangered Species (Import and Export) (Act Chapter 92A, 2006, revised in 2008	Thailand Wildlife and Animal Protection Act as amended B.E. 2557 (2014) (WARPA), Ivory Trade Act B.E. 2558 (2015)	Law No. 12/2017/QH14 dated June 20, 2017 of the National Assembly on amending the Criminal Code No. 100/2015/QH13
Implementing Authority	Ministry of Environment and Forestry	Agriculture and Veterinary Authority	Ministry of Natural Resources and Environment	Ministry of Agriculture, and Rural Development
Wildlife Trafficking a Serious Crime	Yes	No	Yes	Yes
Maximum Penalty ($USD)	790,000	370,000	1,100*	600,000
Criminalisation of Possession of ALL non-native CITES species	No	Yes	No	Yes
Penalty / GDP per Capita Ratio	228	6.7	31	24.5
IWT a predicate offense	Yes	Yes	Yes	Yes
Money Laundering Penalty	20 years	10 years	10 years	15 years
Corruption Offenses (accepting a bribe)	15 years	5 years	Life	Life

Note: * Thailand penalty for Ivory possession is up to 6 million baht, or $USD 181,000 under 2015 Ivory Act.

Source: Freeland, ASEAN-WEN; UNODC; OECD Research; ENV Viet Nam

With the exception of Singapore, the focus countries treat illegal wildlife trade as a serious crime according to the UNODC definition (which stipulates that serious crimes must involve sentences of no less than 4 years)3. Penalties for associated crimes, such as money laundering and corruption are greater in duration and monetary fines than the penalties for illegal wildlife trade in all of the countries studied, suggesting that additional punitive tools, particularly asset seizure and civil penalties, are available in the case of wildlife crime. In addition, all of the legal systems studied make additional consideration for transnational organized crime (TNOC) in some way to either increase the length of the penalty or to charge a separate offense (ASEAN-WEN, Freeland, 2016[1]).

It is noteworthy that the implementing authority for relevant wildlife laws is not necessarily the principal enforcement body for illegal wildlife trade along the trade chain. For example, the enforcement of illegal wildlife trade related laws at the border falls to the customs administration to regulate imports. Inland, national or regional police agencies are also tasked with enforcement of relevant wildlife laws or organized criminal activities dealing with illegal wildlife trade. CITES management agencies themselves may also have investigation and enforcement powers, but these are often limited in scope. From this initial overview of legislation, implementation and enforcement, the delegated responsibilities are already spread over a range of institutions, hinting at the institutional challenges that lie ahead for co-ordination, resourcing and capacities.

Legal gaps between implementation and enforcement of laws enable the sale and circulation of illegal wildlife trade

It is noteworthy that both international legal frameworks and national legal frameworks are not a metric for performance in enforcing and prosecuting illegal wildlife trade. The treaties and agreements signed at an international level, and the laws in force in each country are a range of tools (i.e. de jure) that are available to relevant authorities to be able to conduct complex investigations and prosecute serious crimes. The actual use of these tools (i.e. de facto) is measurable only in number of prosecutions and the length of sentences undertaken using relevant legal frameworks. The OECD could not ascertain the number of relevant cases and prosecutions that have made use of tools or co-ordination under these legal frameworks. There are a number of important barriers and gaps that prevent the effective implementation of such laws and frameworks.

Open Sale and Consumption of Smuggled illegal wildlife trade Products

Legal provisions for the enforcement of CITES that criminalize wildlife trafficking are generally robust in the four countries of focus, but only at the national entry points. In all four countries, it is illegal to smuggle any illegal wildlife trade product as this would contravene customs laws, relevant quarantine laws and CITES laws with clearly ban the trade in endangered species without a permit. However, once the illegal wildlife trade product is successfully smuggled into the country by criminal networks, a number of factors come into play that can pose challenges for enforcing wildlife laws, and the legal framework is considerably weaker due to gaps between implementation and enforcement. Interviews undertaken by the OECD researchers, analysis of relevant laws and supporting research suggests that there are a range of obstacles that prevent the full implementation of these laws.

In the four countries studied, discussions with experts and relevant agencies confirm that there are extensive legal and grey markets for a range of wildlife products that fall under CITES Appendix I (the most endangered under CITES categories of species). These legal markets offer opportunities for criminal elements to “launder” illegally killed or taken animals into a parallel legal market. An overview of the practical implementation of laws suggests that authorities are restricted in the use of relevant national legislation which leads to a complex and potentially conflicting interpretation of laws which prevents effective and practical enforcement.

In Thailand, and Indonesia, CITES Appendix I, II and III species are only subject to relevant controls at national border. Within the economy, wildlife officials have not criminalized the keeping of CITES species unless they are contained on a list of nationally recognized endangered species. In Thailand, this separate list is prescribed under the Thailand Wildlife and Animal Protection Act (WARPA) (see example below). In Indonesia, the internal trade and sale of wildlife is regulated by Government Regulation No. 7/1999, ‘Preservation of Plants and Animal Species’. In both these cases, the national laws do not explicitly criminalize non-endemic endangered wildlife for sale and possession, which contributes to large thriving markets for endangered species (see examples below).

Box 4.1. Laundering’ of Illegal Wildlife Products

Thailand’s Markets for Exotic Pets and Animals thrive off legal loopholes

In Thailand, legal gaps offer ambiguity on the status of endangered species that are trafficked against international conventions. Chattuchak Market next to Bangkok is one of the best-known examples of the open and legal trade in endangered animals. Markets such as this one are recognized as a global hub for illegal wildlife trade in the region, and also as a market for illegal wildlife trade consumed as far as Europe and the United States (UNDP, 2017[8]).

According to the Thailand Wildlife and Animal Protection Act as amended B.E. 2557 (2014) (WARPA), CITES controlled species are not protected unless specified on a list of endangered species prescribed Department of National Parks and Wildlife (DNPW). This DNPW administered list of “protected” species contains only 12 non-native endangered species (UNODC, 2017[9]). All non-listed endangered species can therefore be sold in markets (since there are no practical means to provide evidence that these animals were not captive-bred). Experts have noted that these loopholes not only create a large market for illegal wildlife trade, but also offers strong incentives for smugglers to bring illegal wildlife trade across the Thai border and into the economy (GA-3, 2018[10]).

Indonesia’s legal loopholes allow the trade of non-native CITES products

The acts, No.5/1990 on ‘Conservation of Living Resources and their Ecosystem’, as well as the Government Regulation No. 7/1999, ‘Preservation of Plants and Animal Species’ define the conditions for the legal and illegal keeping of wildlife, and how a list of protected species is determined, respectively. According to these laws, consultations with scientific authorities and a Ministerial decree specify which animals are on such a list. To-date, non-native species are not featured on this list. This legal loophole allows the trade of any non-endemic animal poached illegally abroad. The sale of foreign poached illegal wildlife trade trafficked In Indonesia’s markets is documented by the wildlife NGO TRAFFIC. For example, surveys of species of turtles and tortoises for sale in Jakarta’s markets found that non-native species made up 77% of all animals advertised (TRAFFIC, 2018[11]). The species of turtles and tortoises observed came from Africa, Asia, Europe, Madagascar, and North and South America. Nearly half of the species observed were categorized as near extinction, and several featured on CITES Appendix I, indicating that international trade is prohibited without certificates.

Early in 2018, the government launched a revision of the Natural Resources Conservation Law of 1990 (No.5/1990). Some aspects of the draft law target illegal wildlife trade more effectively – such as banning the trade in species regulated by CITES. However, the law also purportedly weakens other existing provisions, such as the new self-defence clause that waives criminal charges for killing protected wildlife. The law offers what critics say is a less clear definition of wildlife crime that could make it harder to crack down on traffickers (Gokkon, 2018[12]).

The gaps between implementation and the enforcement of laws is particularly visible in the case of the ivory trade. In the four focus countries, ivory can be considered legal if it is “vintage” (pre-CITES) or sourced from legal stocks. While ivory can be tested for age by systems that include carbon dating (APCEL, 2018[13]) there are no practical verification methods available on a cost-effective basis that enable the rapid differentiation between ivory that may be classified as legal or illegal (GA-3, 2018[10]). A number of examples below highlight the way in which the loopholes and gaps facilitate the sale of illegal wildlife trade products throughout all of the economies in the region.

Box 4.2. The Legal and Open Trade of Ivory Across Southeast Asia

Thailand’s Domesticated Elephant Ivory Trade

Thailand is home to about 43,000 wild forest elephants, and approximately 1,250 domesticated tusk-bearing elephants. The latter are used for tourism purposes and moving heavy objects, and are subject to a different set of wildlife laws. For example, the animals themselves, and the ivory from domesticated “beasts of burden” can be bought and sold openly for commercial trade purposes if it has been registered with the DPNW.

Prior to 2015, all ivory goods purported to be from beasts of burden could be marketed and sold openly without necessary documentation. This resulted in the widespread open sale of illegal ivory products. A 2014 survey in Bangkok identified over 14,000 pieces of ivory for sale in open markets in over 100 retail storefronts. Meanwhile, “the maximum quantity of ivory that the country's domesticated elephants could produce is estimated at 650 kg annually, a quantity that is considerably less than what was observed in Bangkok markets” (TRAFFIC, 2014[14]). The Ivory Trade Act B.E. 2558 (2015) introduced a number of provisions to regulate the domestic ivory market. The Act criminalizes the sale of wild domestic or foreign African elephants and elephant products. Under the new law, all existing elephant ivory must be registered under a reporting scheme, and any new ivory sold must be accompanied by proof of provenance.

Since the implementation of the 2015 Ivory Trade Act, the number of ivory products openly for sale had fallen from 14,000 to an average of 2,000 by 2016 (TRAFFIC, 2016[15]). The 2015 Act is a step forward in closing one of the loopholes that allow the sale of illegal ivory products. However, a number of risks persist, namely sales in other marketplaces, such as online sales and in informal networks of buyers and sellers.

Open Ivory Markets in Singapore

In 2016, the wildlife NGO WWF set up a website in purporting to sell a wide variety of ivory pieces to a Singaporean clientele. Reactions to the website included widespread condemnation. However, as the wildlife NGO later pointed out, the domestic sale of ivory online would have in fact been legal. Under existing laws, if ivory is claimed to be “vintage” or pre-CITES (i.e. imported into Singapore before 1990), it can be openly bought and sold in Singapore. Indeed, according to one recent survey, ivory was openly sold in 40 storefronts across Singapore and is available for purchase online (WWF, 2018[16]).

Given that there are no distinguishing features or systems to quickly analyse or date ivory without professional forensic investigation techniques, the open and unregulated sale of “vintage” ivory creates important gaps that can enable the trafficking of illegally obtained, recently killed elephant ivory. Furthermore, there are no official statistics on the stock of pre-CITES ivory, and it is not possible to assess what quantity of ivory could be bona fide “vintage” and what quantity has been illegally imported and sold (WWF, 2018[16]).

Captive breeding and the trade in live animals in illegal zoos

In the case of domestically occurring wildlife, one of the main concerns raised by respondents related to the illegal killing of protected wildlife, which is then exported live, or in parts and pieces. Respondents raised questions over the existing legal and regulatory frameworks that define the capture, farming and consumption of animal parts from zoos, farms, sanctuaries and other captive schemes.

Several cases were raised where wildlife traffickers in the region used licensing schemes for zoos, farms and wildlife sanctuaries. In several of the countries studied, criminals obtain permits, often through legal means, and then abuse these schemes to sell wildlife into black markets. Animals involved include domestically occurring species, but also internationally trafficked animals. For example, Asian big-cats (such as tigers) and bears are bred across Southeast Asia, and are sold into exotic pet trades or farmed for animal parts (Thailand AMLO, 2018[17]) (ENV Viet Nam, 2018[18]). In other cases, illegally imported animals such as tortoises are smuggled into farms to masquerade as domestically farmed when they are in fact poached from the wild (UNODC, 2017[9]).

Box 4.3. Zoos and Sanctuaries Facilitating the illegal wildlife trade

Fewer than 4,000 tigers remain in the wild, but as many as 8,000 are in captivity across Laos, China, Cambodia, Thailand and Viet Nam (Stoner et al., 2016[19]). A number of zoos and facilities in the region are licensed to operate for educational and research purposes, but responses from experts and previous research and investigations suggest that these schemes are being abused across the region. These farms feed a strong demand for tiger parts as a luxury good and for traditional medicines (Thailand NACC, 2018[20]) (National Geographic, n.d.[21]) .

Research on tiger farms across the region suggests that many of these captive breeding facilities are part of a wider chain of illegal wildlife trade and smuggling networks and some of the tigers in such facilities are in fact laundered wild-caught animals. Many of the big cats in the captive breeding zoos or sanctuaries are then killed and smuggled throughout the region to feed consumption among other South East Asian countries, including China and Viet Nam (WJC, 2016[22]).

The “grey market” loophole for tiger farming in Viet Nam

In Viet Nam, owning a tiger and trafficking is a criminal offense under the penal code. However, the law governing captive breeding, the ‘Decree of Management of Export, Import, Transit, Breeding and Artificial Propagation of Rare, Endangered Wild Fauna and Flora’ (Decree 82/2006/ND-CO), enables possession with a license. Provisions of this law require persons to register with the CITES authority, MARD. MARD may delegate responsibility for oversight to provincial and municipal levels.

The Provisions of the Decree on Management of Endangered, Precious and Rare Species (Decree No. 32/02006/ND-CP), stipulates the conditions for breeding of animals, particularly critically endangered species:

“Exploitation of endangered, precious and rare forest plants and animals of (CITES) Group I (…) shall be exploited only for scientific purposes of research”

However, the law also notes that:

“It is permitted to process or trade (…) for commercial purposes: endangered, precious and rare forest animal species originating from artificial breeding, and products thereof.”

The decrees above illustrate the legal provisions which restrict but also permit commercial legal trade in captive-bred CITES Category I species. This provides an important incentive for illegal wildlife trade traffickers to obtain such licenses and maintain these under false pretences other than “scientific research”.

Respondents cited several examples of the abuse of these “grey areas” under such existing laws for the licensing schemes. For example respondents highlighted a case where the spouse of a convicted high-level wildlife trafficker is in possession of a license to keep over a dozen tigers for a “conservation and education” (ENV Viet Nam, 2018[18]). One other responding organisation argued that this particular case highlighted how the MARD process of granting licenses was effectively an administrative step that was undertaken without cooperation with other agencies or consideration of the resources needed to conduct necessary verifications (IO-1, 2018[23]).

Legislative reforms and amendments

In December 2018, the Singapore government held a public consultation to introduce a total ban on the sale of ivory, which would potentially also include pre-CITES pieces (WildAid, 2018[24]). A similar ban has been considered and discussed in Viet Nam as well.

Early in 2018, the government launched a revision of the Natural Resources Conservation Law of 1990. Some aspects of the draft law target illegal wildlife trade more effectively – such as banning the trade in species that are regulated by CITES, the main international treaty on endangered animals and plants. However, it also purportedly weakens the existing law, such as the new ‘self-defence’ clause that waives criminal charges for killing protected wildlife. A less clear definition of wildlife crime that could make it harder to crack down on traffickers.

Thailand has amended the Ivory Act to integrate a mechanism of verification and regulation that closes a gap on the open sale and display of ivory products without appropriate documentation. The ivory act amendment is noted to be effective in the reduction of listed illegal wildlife trade products. However, the regulation of the sale of ivory does not prevent the open wearing and display of ivory products. As noted by one official, “telling the difference between African and Asian elephant’s ivory, once it is carved is next to impossible” (GA-3, 2018[10]). The impact of this reform be limited as goods may be illegally imported and sold on other networks, including in thriving online marketplaces. There are also further complications with respect to documentation requirements for the export of ivory, which is not covered by the reformed Act. (GA-3, 2018[10]).

Legal Markets Put Added Pressure on National Entry Points:

In all four countries studied, there are only partial bans on the sale of ivory. Therefore, there are strong incentives to ensure that illegal wildlife trade products enter the economy into relatively free circulation. The stark contrast between border enforcement and free inner-market mobility can create a choke point dynamic for illegal wildlife trade products. This leads to even greater strain and pressure on customs officials and other relevant officials posted along border checkpoints, airports and seaports to detect and target illegal wildlife trade, among an already long-list of other contraband products that must be identified (e.g. narcotics, counterfeits, customs fraud, etc.). This adds to a risk that border crossings become a corruption and smuggling hot-spot for traffickers who will dedicate more resources and attempt to co-opt or corrupt officials with larger sums to gain entry into the country (as the goods are “home-free” once smuggled in). As explored in greater depth in the chapter on corruption and illegal wildlife trade, this same pressure also applies to persons employed privately and other officials with authorities at crossing points.

Conclusions

At first glance, in the four countries studied, the international legal framework and national laws put in place harsh penalties and high monetary fines. In all but one case, wildlife trafficking alone is a serious crime. However, illegal wildlife trade related laws could be circumvented with relative ease by criminal networks with the right means and resources. Several of the cases highlighted above illustrate how legal loopholes can be abused for domestic consumption of CITES listed species and for facilitating the transfer of animals into the broader illegal wildlife trade supply chain in the region. For example, the abuse of licensing schemes for farms creates a necessary parallel legal market, which not only facilitates the illegal production of illegal wildlife trade, but also offers the social acceptability of wearing, display and consumption of illegal wildlife trade parts that actually come from poached or illegally farmed animals. As this chapter has also explored, these gaps, oversights and challenging enforcement scenarios put a number of increased pressures on officials posted at national entry-points, and help to maintain illegal wildlife trade as a low-risk, high reward crime.

Recently amended laws, such as those increasing penalties and registering and restricting sale and possession of certain products highlight a changing attitude within the region on the open sale of wildlife products (particularly ivory). However, proposed reforms still fall short of closing a number of legal loopholes and gaps in enforceability. For example, in several cases, experts have advocated for product marking schemes and the use of forensic identification tools to ensure that the legally marketed products are bona fide (GA-3, 2018[10]) (Indonesia AGO, 2018[25]). The impact of forensic testing for ivory would be limited to only one form of illegal wildlife trade (ivory) and would not address the broader legal loopholes for other products. Product marking schemes would be challenging, as a single piece of ivory can be carved, re-shaped and broken-down into hundreds of individual pieces, suggesting that this undertaking would be nearly impossible without significant investment and innovation. These findings suggest that broader reforms to laws and regulations, as well as enforcement frameworks are necessary.

References

[13] APCEL (2018), Meeting with Asia-Pacific Center for Environmental Law, Faculty of Law, National University of Singapore, October 16, 2018.

[1] ASEAN-WEN, Freeland (2016), ASEAN Handbook on Legal Cooperation to Combat Illegal Wildlife Trade.

[2] CITES (2012), CITES Compliance andEnforcement Regime.

[18] ENV Viet Nam (2018), Interview with Education for Nature (ENV), Hanoi, Vietnam, August 20, 2018.

[10] GA-3 (2018), Interview with Government Agency 3, Bangkok, Thailand, August 23, 2018.

[12] Gokkon, B. (2018), Environmental Advocates Take Aim at Proposed Revisions to Indonesia’s Conservation Act - Pacific Standard, Pacific Standard, https://psmag.com/environment/new-criticism-of-indonesia-conservation-law (accessed on 13 December 2018).

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[23] IO-1 (2018), Interview with Inter-Governmental Organisation 1, August 20, 2018.

[26] Nam, E. (2016), The Penal Code Revision: A wildlife protection milestone for Vietnam, http://www.envietnam.or (accessed on 27 November 2018).

[21] National Geographic (n.d.), Exclusive Investigation Shows Tiger Farms Linked to Trafficking in Southeast Asia, 2018, https://www.nationalgeographic.com/animals/2018/07/wildlife-watch-news-captive-tiger-farms-trafficking-investigation-vietnam-laos/ (accessed on 30 November 2018).

[19] Stoner, S. et al. (2016), Reduced to Skin and Bone: An analysis of Tiger seizures from 13 range countries from 2000-2015, http://d2ouvy59p0dg6k.cloudfront.net/downloads/reduced_to_skin_and_bones_re_examined_full_analysis.pdf (accessed on 11 December 2018).

[17] Thailand AMLO (2018), Interview with Thailand Anti-Money Laundering Authority, Bangkok, Thailand, July 5, 2018.

[20] Thailand NACC (2018), Interview with Thailand National Anti-corruption Commission, July 5, 2018.

[11] TRAFFIC (2018), Slow and Steady: The Global Footprint of Jakarta’s Tortoise and Freshwater Turtle Trade, http://static1.1.sqspcdn.com/static/f/157301/27865373/1521988425807/Jakartas-Tortoise-and-Freshwater-turtle-trade-web.pdf?token=pcanRKCjUQWp67U%2FakdZK5EB%2BzA%3D (accessed on 29 November 2018).

[15] TRAFFIC (2016), In Transition: Bangkok’s Ivory Market An 18-month survey of Bangkok’s ivory market, http://www.trafficj.org/publication/16_In_Transition_Bangkok's_Ivory_Market.pdf (accessed on 28 November 2018).

[14] TRAFFIC (2014), Polishing off the Ivory: Surveys of Thailand’s Ivory Market, https://www.traffic.org/site/assets/files/8410/thailand-market-survey-report.pdf (accessed on 28 November 2018).

[7] U4 (2010), UNCAC in a nutshell: A quick guide to the United Nations Convention against Corruption for embassy and donor agency staff, https://www.cmi.no/publications/file/3769-uncac-in-a-nutshell.pdf.

[4] UN (2013), E/RES/2013/40: Crime prevention and criminal justice responses to illicittrafficking in protected species of wild fauna and flora, https://www.unodc.org/documents/commissions/CCPCJ/Crime_Resolutions/2010-2019/2013/ECOSOC/Resolution_2013-40.pdf.

[8] UNDP (2017), Combating Illegal Wildlife Trade, focusing on Ivory, Rhino Horn, Tiger and Pangolin in Thailand.

[6] UNODC (2019), Corruption and wildlife and forest crime, https://www.unodc.org/unodc/en/corruption/wildlife-and-forest-crime.html.

[9] UNODC (2017), Criminal justice response to wildlife crime in Thailand: A Rapid Assessment, http://www.dariopignatelli.com/ (accessed on 8 November 2018).

[5] UNODC (2003), United Nations Convention against Corruption, https://www.unodc.org/unodc/en/corruption/tools_and_publications/UN-convention-against-corruption.html.

[3] UNODC (2000), UN Convention on Transnational Organized Crime.

[24] WildAid (2018), Singapore Government Proposes Ban on Sale of Elephant Ivory, https://wildaid.org/singapore-government-proposes-ban-on-sale-of-elephant-ivory/ (accessed on 30 November 2018).

[22] WJC (2016), Operation Ambush, https://wildlifejustice.org/wp-content/uploads/2018/08/WJC-Ambush-Briefing-Public.pdf (accessed on 30 November 2018).

[16] WWF (2018), Interview with WWF, Singapore, October 16, 2018.

Notes

← 1.  Singapore has not ratified the relevant ASEAN MLAT or the FATF treaty.

← 2.  In Singapore, although recent legal reforms have enhanced the financial penalties from IWT from a maximum of USD $36,000 to over $360,000 and up to two years in jail, some argue that these penalties remain insufficient to effectively deter IWT trafficking, This is particularly the case for high volume, or high value products such as ivory or rhino products, or other environmental crimes involving forestry products, whose value can exceed tens of millions of dollars.

← 3.  In Viet Nam, as of January 2018 the penal code was amended, increasing the penalties for conviction of IWT related offenses from 7 years to 15 years and new fines up to $USD 600,000 (Nam, 2016[26]).