Feathers, Fur, Fins and Fronds: Regulations Against the Illegal Trade in Wild Fauna and Flora

 

Paradoxically, the strengthening international and national regulatory regime against illegal wildlife and forest trade[i] (shortened to illegal wildlife trade in this article) has also seen the increasing demand and market for such trade. Elephant numbers have been reducing since 2010 with between 20,000 and 30,000 African elephants killed each year[ii]. The Elephant Trade Information System reports that 45 tonnes of ivory was seized each year between 2010 and 2015[iii]. The price per kilogram of rhino horn is more than the street value of cocaine and gold (approximately €60,000 per kilogram)[iv]. Illegal wildlife trade is an asymmetric problem that has fueled conflict, corruption and money laundering. This howtoregulate article examines the regulatory techniques used by jurisdictions around the world to regulate against the illegal wildlife trade, focusing on those that present useful enforcement techniques.

I. International and supranational regulatory framework

  1. United Nations (UN)

A.   At the apex of the international regulatory regime against illegal wildlife trade is the UN Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which has an impressive membership of 183 parties. The aim of CITES is to ensure that international trade of specimens of fauna and flora does not threaten its survival. It accords 3 levels of protection to more than 35,000 species of animals and plants, whether they are traded as live specimens, or dead, such as fur coats or dried herbs. The 3 levels of protection are outlined in 3 appendices and concern all species that are[v]:

  • threatened with extinction, which are, or may be, affected by trade (Appendix I). Trade in specimens of these species must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.
  • not necessarily threatened now with extinction but may become so unless trade in specimens of such species is strictly regulated in order to avoid use that is incompatible with their survival (Appendix II)
  • identified by any party as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the cooperation of other Parties in the control of trade (Appendix III).

B.   CITES requires parties to develop national regulations for permits and certificates for the trade in specimens of species relative to their level of protection. Trade includes export, re-export, import and introduction from the sea. Trade in specimens of species listed in the 3 appendices require the following to be satisfied[vi]:

  • a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species;
  • a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora, this is not a requirement for appendix III specimens;
  • a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment; and
  • a Management Authority of the State of export is satisfied that an import permit has been granted for the appendix I specimen, this is not a requirement for appendix II or III specimens.

C.   Article IX concerns state party designation of one or more Scientific Authorities and Management Authorities competent to grant permits and certificates. The competencies and standards such authorities should meet in order to deliver the CITES objectives are not prescribed and are for state parties to decide.

D.   Key exemptions for trade in protected CITES species requiring no permit includes[vii]: those in a transit state where the specimen remains in customs control; a specimen acquired before the provisions of CITES applied to that specimen; those specimens that are personal or household effects, but excludes effects (listed in appendices I and II) that are acquired by the owner outside his state of usual residence, and are being imported into that state, and for appendix II listed effects, where removal from the wild of that state occurred; those specimens bred in captivity, that have a certificate from the management authority for the breeding programme; situations where the specimen is a non-commercial loan, donation or exchange between scientific institutions registered by the management authority of that state and such specimens must be labelled in accordance with the rules of the management authority; and where the specimen forms part of a zoo exhibition, circus, plant exhibition or other travel exhibition, however, the management authority must be satisfied that any living specimen will be so transported and cared for as to minimise the risk of injury, damage to health or cruel treatment.

E.   CITES has a comprehensive regulatory toolkit to assist parties in developing their legislative framework for trade in wildlife. In the CITES Model Law on International Trade in Wild Fauna and Flora it outlines 3 options for incorporating CITES obligations into national legislation:

  • (1) amend existing provisions in various legislative texts related to wildlife, natural resources, Customs, import/export and environment, this is how the United States of America has incorporated CITES and is explained at Part II, section 3 of this how to regulate article;
  • (2) include a CITES chapter or CITES provisions in comprehensive wildlife, biodiversity or environment legislation, this is how Australia has incorporated CITES and is explained at Part II, section 2 of this how to regulate article; or
  • (3) enact CITES-specific legislation, this is how Singapore has incorporated CITES and is explained at Part II, section 1 of this how to regulate article.

CITES categorises state parties from 1 to 3 according to the four minimum requirements for adequate CITES-implementing legislation include:

  • designation of national CITES authorities, the Management Authority and the Scientific Authority, who are responsible for the implementation of CITES in accordance with Article IX, paragraph 1 of CITES
  • prohibition of trade in violation of CITES, this includes the exports, imports, re-exports, introduction from the sea, and transit and transhipment between Parties and non Parties of all specimens of all species (animals and plants, live and dead, and parts and derivatives) included in the three Appendices of the CITES and whether it provides for any annexes or schedules to be amended as necessary
  • penalisation of illegal trade, including possession, such as the import or export of CITES specimens without a permit, the use of invalid or forged permits and the possession of and trade in specimens that were illegally imported or otherwise acquired. This also requires the relevant enforcement agency to have powers to search persons, baggage and other property and vehicles; powers to search premises or, where the law requires the prior grant of a search warrant by a magistrate, to apply for such a warrant; powers to request information, to inspect documents and to take samples of specimens for identification purposes; powers of arrest; and powers to seize specimens when there are grounds to believe that they are being or have been illegally imported or otherwise obtained
  • the last is the authority to confiscate specimens illegally trade or possessed.

A CITES category 1 country has all four minimum requirements for its CITES-implementing legislation and this howtoregulate article will examine model regulatory approaches of category 1 countries in Part II. The CITES regulatory toolkit also has a useful checklist for reviewing legislation, as CITES is a ‘live Convention’ that gets updated with regulatory guidance following each annual Conference of the Parties, particularly in responding to the increasing sophistication of organised criminal networks in the illegal trade.

F.   The Convention on the Conservation of Migratory Species of Wild Animals (CMS) aims to bring together the states through which migratory animals pass, the range states, and regulates conservation measures throughout a migratory range. Similar to CITES, CMS also has appendices that accord different levels of protection for migratory species passing through the range states. Migratory species threatened with extinction are contained in appendix I, and parties are required to control factors within their borders that might endanger them. Appendix II contains species that would benefit from cooperation between CMS parties. In addition to setting obligations between parties, CMS also encourages parties to conclude regional or global agreements in migrating species.

G.   The Convention on Biological Diversity (CBD) is another important regulation concerning the conservation of biological diversity, the sustainable use of the components of biological diversity and the fair and equitable sharing of the benefits of the use of genetic resources. Where CITES regulates trade in protected specimens listed in its appendices, CBD regulates the conservation of biological diversity by requiring its parties to designate areas of biological diversity and develop plans, programmes, policies to protect its diversity. Practically, parties are required to ensure that all activities in designated areas of biological diversity have no negative impact on population numbers and numbers of diverse species and ecosystems. CBD’s connection to CITES is that the legal trade in protected specimens, could still have a negative impact on designated areas of biological diversity because each component in an ecosystem interact in complicated ways. For example it may be that an appendix III CITES protected specimen could be legally traded in numbers that prevent that specimen’s exploitation, however, those numbers traded from a particular area could have an impact on the propagation of certain plants in a biologically diverse area, an impact that could endanger that plant’s survival. CBD operates in a way to ensure that parties protect such plants by understanding how components in an ecosystem operate.

H.   The Convention against Transnational Organised Crime (CTOC) and the Convention against Corruption (CAC) are also relevant in regulating against the illegal wildlife trade because the actors involved include organised crime syndicates or in states with conflict, militia groups, and corrupt officials either authorising permits or not completing customs processes. CTOC requires parties to create criminal offences for participating in an organised criminal group (article 5), laundering of proceeds of crime (article 6), corruption (article 8) and obstructing justice (article 23). CAC criminalises bribery of national public officials and in the private sector (articles 15 and 21), bribery of foreign public officials and officials of public international organisations (article 16), embezzlement, misappropriation or other diversion of property by a public official (article 17), trading in influence (article 18), abuse of functions (article 19), illicit enrichment (article 20), embezzlement of property in the private sector (article 22), laundering of proceeds of crime (article 23), concealment (article 24) and obstruction of justice (article 25). Such criminal offences are relevant in prosecuting those involved in illegal wildlife and forest trade noting the supply chain crosses several state borders. The importance of CTOC and CAC, and its implementation and enforcement in national jurisdictions, is that it criminalises several activities in the supply chain of illegal wildlife trade.

I.   UN Security Council Resolutions 2134 and 2136 recognised that the funds from illegal wildlife and forest trade in the Central African Republic and the Democratic Republic of Congo, were fuelling the conflict. The resolutions required member states to freeze assets and restrict the travel of those involved in such trade.

J.   Most recently, the UN General Assembly (A/RES/71/326. Tackling illicit trafficking in wildlife) agreed at its 71st session on 11 September 2017 to monitor the implementation of efforts to tackle illicit trafficking of wildlife. The resolution provides a useful summary of international legal instruments and programmes in place to prevent, combat and eradicate the illegal trade in wildlife.

  1. The European Union (EU)

The EU is a party to CITES in its own right and is the only supranational organisation among CITES parties. CITES is implemented in the EU through Council Regulation (EC) No. 338/97 and Commission Regulation (EC) No. 865/2006, both make up the EU’s Wildlife Trade Regulations. Where CITES uses appendices I to III to arrange levels of species protection, the EU uses annexes A to D, which gives additional degrees of protection. In addition to implementing CITES through its Wildlife Trade Regulations, the EU has enacted additional enforcement measures, such as[viii]:

  • The EU regulations establish stricter import conditions than those imposed by CITES. Import permits are not only required for species listed in Annex A but also for species listed in Annex B. Import notifications are required for Annexes C and D.
  • Some species that are listed in Appendix II of CITES are listed in Annex A of the EU regulations and consequently cannot be traded or used for commercial purposes.
  • Live specimens of species listed in Annex A and B are only allowed to be imported into the EU if the recipient is suitably equipped to house and care for the specimens; CITES requires suitable care and housing only for imports of live Appendix I specimens.
  • The EU regulations regulate trade within and between EU Member States – considered domestic trade – as well as international trade with non-EU Member States; CITES regulates international trade only.
  • Regulation (EC) 338/97 authorises the EU Member States to suspend imports with regard to certain species and countries (negative opinions of the EU Scientific Review Group and EU import suspensions), even if trade is allowed under CITES.

The EU has also released an Action Plan against Wildlife Trafficking in February 2016, outlining measures designed to address the problem holistically around 3 priorities: (1) preventing wildlife trafficking and addressing root causes; (2) implementing and enforcing existing rules and combating organised wildlife crime more effectively; and (3) strengthening the global partnership of source, consumer and transit countries against wildlife trafficking.

  1. The World Customs Organisation (WCO) and the International Air Transport Association (IATA)

The WCO and the IATA are examples of professional bodies that, while not having legal force in a traditional sense, carry influence with their membership because the regulations developed are seen as beneficial in the industry. Therefore these bodies have been included in Part I for their regulatory response to illegal wildlife trade.

A.   The WCO is an inter-government body whose mission is to enhance the effectiveness and efficiency of state members’ customs administrations. It has signed an Memorandum of Understanding (MOU) with CITES to[ix]:

  • combat the illicit traffic in species listed in the CITES appendices, by developing measures to improve cooperation and information exchange between Customs Authorities and CITES management bodies, particularly for the purpose of detecting consignments likely to contain protected species whose trade is regulated
  • share information about the issues related to trade in wildlife and the procedures applicable for protection, and customs administrative procedures and problems
  • develop training materials jointly on combating illegal wildlife trade, including training activities and operations

The WCO has developed a Declaration of the Customs Cooperation Council on the Illegal Wildlife Trade, which encourages its members, among other measures listed, to work closely with non-government organisations (NGOs) working in the area of wildlife protection, continue to update its processes to detect illegal wildlife trade and participate in customs operation to combat illegal wildlife trade.

B.   The IATA is a trade association of the world’s airlines, consisting of 275 airlines or 83% of total schedule traffic, representing 120 countries[x]. Through it’s Annual General Meeting and World Air Transport Summit, IATA formalises industry positions on industry and public policy issues and provides a focus for emerging industry issues. Members are expected to comply with IATA’s Live Animals Regulation, which from January 2017 included an amendment for illegal trade in wildlife and wildlife products (Addendum I). Addendum I recognises that national enforcement authorities are responsible for the apprehension and prosecution of offenders of illegal wildlife trade, however, supply chain stakeholders can provide an important source of intelligence and contribute to reducing such illegal trade. IATA members are expected to implement an internal escalation process to assist in combating the illegal trade in wildlife. Practically, IATA provides training for aviation staff to be vigilant in identifying suspicious passenger behaviour, or clues that they are hiding wildlife in their personal belongings or cargo that does not match its customs documentation. IATA has signed an MOU with CITES to ensure that members comply with the safety measures in CITES for the transport of wildlife. IATA, in partnership with the WCO, has developed a Wildlife Trafficking Assessment Tool to help cut illegal wildlife shipments. The Tool helps airports assess their supply-chain security, intelligence and risk management, staff awareness, and reporting processes, alongside air cargo and passenger screening policy and procedures. This will enable them to identify weak points in procedures and practices, often exploited by traffickers, as well as ways of strengthening them.

II. National regulation

The following examination of national regulations for trade in wildlife is organised according to the 3 options for incorporating CITES obligations into national legislation explained at Part I, section E of this howtoregulate article. Following this examination, model techniques will be presented from various jurisdictions for the prevention (including education), investigation, prosecution and appropriate punishment of illegal trade.

1.   Singapore’s Endangered Species (Import and Export) Act (ESA) is a good example of how CITES option 3 operates. It is simple, easy to understand and a good example of a ‘light’ regulation that covers off on the 4 minimum requirements for adequate CITES-implementing legislation. Additionally, the ESA applies a stricter regime for trade in wildlife by[xi]:

  • Requiring an import permit for all CITES-listed species i.e. CITES exemptions for permits does not apply in Singapore;
  • CITES-listed species transiting in Singapore must be accompanied with valid CITES export and import permits, if not the ESA empowers those transit species to be seized and prosecuted. This particular power is an extremely useful enforcement technique, that even Australia (one of the world’s strictest customs regimes does not provide to its customs officials without a judicial warrant and only in circumstances related to terrorism and peace and security[xii]);
  • It is prohibited to sell or cause to be sold all specimens of all species of rhino and of the panthera tiger.
  • The ESA regulates the international trade in CITES species, but also the domestic activities that relate to CITES species. For example possessing, selling, advertising for sale, exposing a CITES species that was imported or introduced from the sea without a CITES permit is also prohibited.
  • Singapore does not allow exports of its native fauna and flora.

2.   Australia’s CITES obligations are contained in Part 13A of the Environment Protection and Biodiversity Act 1999 (EPBC) and is an example of CITES option 2. It is a comprehensive regulation, at the ‘complex’ side of the regulatory continuum. Australia strictly regulates the international movement of wildlife, and its derivative products because they pose a serious threat to Australia’s unique biodiversity and to wildlife around the world, particularly those native to Australia. Australia generally prohibits all actions (defined broadly as that which threatens their sustainable numbers or their habitat) that would harm a protected species. Australia’s CITES permits and certificate system is stricter than the minimum CITES prescribes in the following ways:

  • The African lion, cetacea (whales, porpoises and dolphins) and African elephants, are appendix II CITES-listed species, but in Australia they are listed as appendix I species, which means there is no live trade in these species and trade in items derived from these species is generally prohibited except in circumstances related to non-commercial scientific purposes between registered institutions, where the species was deceased before CITES listing accompanied with proof of origin[xiii], education and exhibition purposes to name a few examples[xiv];
  • Hunting trophies of white rhinos are allowed in CITES under the provision related to personal and household effects (see in this article Part I, subsection D for CITES exemptions), Australia does not allow any hunting trophies of any species of rhinos, and radiocarbon dating (costly test, which can damage the item) is required to conclusively prove the age of vintage rhino horn for export[xv];
  • Declared specimens[xvi] (among others listed, all specimens originating from countries not a party to CITES) may only be imported if they have been sourced from an operation that has been approved by the federal environment department, so far only 2 organisations have been approved[xvii];
  • CITES II specimens always require an import permit regardless of purpose (see in this article Part I, subsection D for CITES exemptions), therefore CITES exemption for personal and household effects is not permitted;
  • All trade in CITES-specimens to or from countries that are not a party to CITES is prohibited;
  • All commercial exports of CITES-specimens must be from an approved wildlife trade operation, which must also have an approved wildlife management planAll commercial imports of CITES-specimens must be from an approved commercial import program in line with Part 13A, Division 5, Sub-division B of the EPBC and Part 9A – International movements of wildlife specimens of the Environment Protection and Biodiversity Regulations 2000;
  • Although not related to the EPBC regulation, all wildlife products regardless of CITES-listing must be presented to customs officials on arrival whether or not such a wildlife product might otherwise be allowed by a CITES exemption. This scrutiny provides another level of enforcement to those seeking to exploit CITES exemptions or involved in wildlife smuggling.

3.   The US has implemented its CITES obligations across a number of regulations, although the principal CITES enacting legislation is the Endangered Species Act, including the Lacey Act (Injurious Wildlife), Wild Bird Conservation Act, Marine Mammal Protection Act and the Migratory Bird Treaty Act and the African Elephant Conservation Act[xviii]. US regulations for trade in wildlife is an example of CITES option 1, it is a comprehensive framework that is ‘complex’ due to the number of regulations involved. US regulations apply stricter measures for trade in CITES wildlife by:

  • Restricting trade in specimens of rainsticks and the international and domestic trade of sport-hunted trophies of African elephants, Namibian southern white rhino and southern African leopard[xix];
  • All cetaceans (whales, dolphins, and porpoises), all sirenians (manatees and dugongs) and several marine carnivores (seals, otters, walrus, and polar bears) are given additional protection regarding domestic actions of taking and selling[xx];
  • ESA Antiques Exemption from permit for trade in wildlife, provides that an item must meet all of the following criteria [seller/importer/exporter must demonstrate]: (a) it is 100 years or older; (b) composed in whole or in part of an ESA-listed species; (c) has not been repaired or modified with any such species after December 27, 1973; and (d) is being or was imported through an endangered species “antique port.”
  • Imposing a ban on commercial exports of ivory that don’t comply with the ESA Antiques exemption and increasing regulation i.e. need for permits for certain movements of ivory domestically and internationally[xxi].

4.   Another useful technique for preventing and inspecting the illegal trade in wildlife is to designate special ports for the import and export of specimens of species for commercial purposes. This enables specialists to be located in those ports, noting that identifying specimens is a complex task, and allows enforcement to be focused. The US and EU publish lists where CITES specimens may be imported or exported.

5.   In terms of investigation and prosecution of illegal wildlife trade, several national regulators have established whistle-blowing type schemes (see the howtoregulate article Whistleblowers: protection, incentives and reporting channels as a safeguard to the public interest for more detailed information about how whistle-blowing regulations operate) where persons may report illegal wildlife trade, treated on a confidential basis. Singapore and Australia encourage information about any suspected illegal wildlife trade by phone, email or in writing. Hong Kong and the US[xxii] offer a financial reward. Using information from the public is a valuable technique to broaden the vigilance and enforcement against illegal wildlife trade. Creating a right to sue against illegal wildlife trade could be useful in prosecutions where the powers of officials are insufficient or in the case of Australia, to give legal standing to environmental groups who might not necessarily have standing because they are not affected by a decision made under the EPBC Act[xxiii]. Such groups must have engaged in environmental research or activities in the previous two years, and have environmental research or protection included in its objects of association, they must also be Australian. Both techniques of whistle-blowing regulation and the right to sue in the public interest are techniques covered in the Handbook “How to regulate?”.

6.   In addition to regulatory authorities developing education pamphlets on international trade in wildlife and their regulations for protected wildlife, Hong Kong also organises competitions[xxiv] for general public awareness, and has an online game[xxv].

7.   Ensuring appropriate penalties for offences are included in regulations is important for prosecuting offences and for overall deterrence reasons. CITES does not suggest in its model toolkit what kind of penalties might be appropriate but of the jurisdictions examined in this howtoregulate article few compared with Australia’s tough penalties: maximum penalty for wildlife trade offences is 10 years imprisonment and/or a fine of AU$170,000 (~108,000€) for individuals and up to $850,000 (~540,000€) for corporations. The following penalties for illegal wildlife offences apply in the following jurisdictions:

  • Singapore: fine not exceeding SG$50,000 (~31,000€) for each scheduled species (but not to exceed in the aggregate SG$500,000 [(~314,000€)]) or to imprisonment for a term not exceeding 2 years or to both[xxvi].
  • UK: The UK’s Control of Trade in Endangered Species (Enforcement) Regulations (COTES) 1997 provides for a maximum of 5 years imprisonment and an unlimited fine.
  • In China fines are levied in relation to the value of the seized wildlife, each offence has a different levy applied but the levy is between 1 to 10 times the value of the seized wildlife or where the value of the wildlife is not applicable a fine between RMB10-50,000 (~1,280-6,400€)[xxvii].
  • China also has a penalty for public employees responsible for the protection of wildlife at all levels of the Chinese state that ‘do not make administrative approval decisions in accordance with law, do not investigate or do not investigate in accordance with law after discovering illegal activities or receiving reports of illegal activities, or exploit their authority or conduct other acts of not fulfilling duties in accordance with Law’[xxviii];
  • US: Not more than US$50,000 (~42,400€) or up to a year imprisonment under the US Endangered Species Act (16 USC 1531-1544)[xxix].

8.   It is interesting to take note of the case of Brazil and Colombia where concern and action regarding illegal wildlife trade and activities, particularly in the Amazonian rainforest, date as far back as 1934[xxx]. More recently both countries adopted specific laws in line with their CITES obligations: Colombia’s Ley 99 de 1993 adopting the necessary measures to combat illegal trade in wildlife and Brazil approving Lei 9605 de 1998 where, in its Chapter V, measures are adopted to same effect. Brazil has a strict regulatory system in place for trade in wildlife. Its Instrução Normativa Nº140 de 18 de Dezembro de 2006, regulates that licenses are mandatory for all imports, exports, and re-exports of species, products and sub products of wild Brazilian flora and fauna, regardless of their species protection in the 3 appendices of CITES. These licenses may be solicited online from the Brazilian Institute of Environment and Renewable Natural Resources’ (IBAMA) website.

9.   Another interesting regulatory tool used in Brazil is an innovative partnership between government, international cooperation agencies, and NGOs working together to conserve key portions of the Amazon rainforest in a well-managed and financially viable system of parks and reserve areas known as the Amazon Region Protected Areas (ARPA). The ARPA protects 114 areas of the Amazon rainforest, covering 59.2 million hectares (146 million acres, 1.5 times the area of California – the goal is to eventually cover an area equal to France)[xxxi]. ARPA uses a financing approach adapted from Wall Street called Project Finance for Permanence (PFP).

10.   PFP brings together the ecological, financial and institutional measures needed for long-term conservation thoroughly and all at one time. Central to PFP is a single “closing” that delivers pledged funds when conditions for permanence are met—which serves to motivate the parties and draw out new resources and commitments[xxxii]. When the PFP fund was created in 2014 public and private funders, within Brazil and internationally, committed US$215 million (€182 million) to fund the creation, consolidation and maintenance of ARPA areas over the next 25 years. The fund will slowly pay out the money—starting high and decreasing gradually until it is fully depleted—as long as the Brazilian government meets its agreed commitments[xxxiii]. Over the next 25 years, Brazil must steadily increase its own contributions until it is responsible for the full and permanent funding of the ARPA protected areas. The allocation of funds for each protected area falls under 4 categories:

  • On-the-ground protection of fauna and flora;
  • Participatory management;
  • Equipment, infrastructure, and operations; and
  • Monitoring and research.[xxxiv]

Resources allocated for protection make it possible to patrol waterways, conduct surveillance flyovers in small planes, and cover the costs of lodging and per diem for contracted guards and fire fighters. The regulatory approach of the ARPA, which protects flora and fauna, and biodiversity through effective patrolling, monitoring and research using sustainable funding, shows how an international convention such as CITES can be practically implemented locally.

III. Public consultations

The EU and the UK are currently examining its regulation of legal ivory trade to determine whether or not to introduce more restrictions on ivory trade or to completely ban ivory trade altogether. No country has implemented regulations completely banning ivory trade but some have introduced stricter regulations for trade in ivory (see Part II of this howtoregulate article). As the 2 biggest markets for ivory, the US and China have agreed to implement measures for a near complete ban of all ivory[xxxv]. In June 2016 the US completed a rulemaking process under its ESA to institute a near total ban on the domestic commercial trade of African elephant ivory, all trade in raw African ivory was already prohibited[xxxvi]. China closed 67 carving workshops and retail stores in March 2017, and 105 more will be closed by years end[xxxvii]. China updated its Wildlife Protection Law last year[xxxviii] and while not containing any specific provisions for ivory, it does strengthen penalties for public officials complicit in any illegal wildlife trade. The EU and the UK have important partnerships in Africa assisting nations with regulations and enforcement capacity building to prevent poaching of elephants and illegal ivory trade. Perhaps the above funding model for the protection of the flora and fauna and biodiversity of the Amazon rainforest used by Brazil, could be a useful tool for assisting African nations in their conservation efforts noting that most cite[xxxix] budgetary constraints as a factor affecting enforcement and prosecution measures to protect elephants.

IV. Further links

The following links contain additional regulatory practices used by other countries or suggested by non-government organisations:

CITES: https://www.cites.org/eng

STOP Ivory: http://stopivory.org/resources/

Endangered Earth: http://www.bagheera.com/endangered-species-laws/

 

This article was written by Valerie Thomas, on behalf of the Regulatory Institute, Brussels and Lisbon. Elvira Fernando provided research assistance on the Portuguese and Spanish speaking jurisdictions.

 

[i]            The illegal wildlife and forest trade is a general term used by the United Nations Office on Drugs and Crime to describe the crime of trading in specimens of species listed in the United Nations Convention on International Trade in Endangered Species of Wild Fauna and Flora.

[ii]            Statistic quoted from the EU Background Information on Ivory Trade in the EU found at http://ec.europa.eu/environment/cites/pdf/background-ivory-trade-in-EU_en.pdf.

[iii]            Ibid.

[iv]            Statistic quoted from paragraph 29 of the written submission by the International Fund for Animal Welfare to the UK parliament in 2012 found at http://ec.europa.eu/environment/cites/pdf/background-ivory-trade-in-EU_en.pdf https://publications.parliament.uk/pa/cm201012/cmselect/cmenvaud/writev/1740/wild22.htm.

[v]            Article II Fundamental Principles of CITES at https://www.cites.org/eng/disc/text.php.

[vi]            Ibid. articles III – V refers.

[vii]            Ibid. article VII.

[viii]            Wildlife Trade Regulations in the European Union: An Introduction to CITES and its Implementation in the EU http://ec.europa.eu/environment/cites/pdf/trade_regulations/short_ref_guide.pdf.

[ix]            Memorandum of Understanding between the World Customs Organisation and the CITES Secretariat signed 4 July 1996 https://www.cites.org/sites/default/files/eng/disc/sec/CITES-WCO.pdf.

[x]            http://www.iata.org/about/Pages/index.aspx.

[xi]            https://www.ava.gov.sg/legislation.

[xii]            Australia’s Customs Act 1901 at section 203DA at http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca1901124/s203da.html.

[xiii]            http://www.environment.gov.au/biodiversity/wildlife-trade/permits/pre-cites-certificates.

[xiv]            http://www.environment.gov.au/biodiversity/wildlife-trade/cites/stricter-measures.

[xv]            http://www.environment.gov.au/biodiversity/wildlife-trade/cites/stricter-measures/rhino.

[xvi]            Ibid.

[xvii]            http://www.environment.gov.au/biodiversity/wildlife-trade/trading/commercial/import-programs.

[xviii]            https://www.fws.gov/international/permits/do-i-need-a-permit.html.

[xix]            General permit procedures for the taking, possession, transportation, sale, purchase, barter, exportation and importation of wildlife and plants https://www.ecfr.gov/cgi-bin/text-idx?SID=0132e2b74bdcc96dbf9217dec8e2171b&mc=true&tpl=/ecfrbrowse/Title50/50cfr13_main_02.tpl. Application form for sport-hunted trophies https://www.fws.gov/international/pdf/permit-application-form-3-200-19-import-of-sport-hunted-trophies-of-southern-african-leopard-african-elephant-and-namibian-southern-white-rhinoceros.pdf.

[xx]            https://www.fws.gov/international/laws-treaties-agreements/us-conservation-laws/marine-mammal-protection-act.html.

[xxi]            https://www.fws.gov/international/pdf/questions-and-answers-african-elephant-4d-final-rule.pdf, and the African Elephant Conservation Act.

[xxii]            See page 36 of the US Endangered Species Act 1973 https://www.fws.gov/endangered/esa-library/pdf/ESAall.pdf.

[xxiii]            Section 487 of the Environment Protection and Biodiversity Conservation Act.

[xxiv]            http://www.afcd.gov.hk/english/conservation/con_end/con_end_pub/con_end_pub_act/con_end_pub_act.html.

[xxv]            http://www.afcd.gov.hk/english/conservation/con_end/con_end_pub/con_end_pub_online/con_end_pub_online.html.

[xxvi]            https://www.ava.gov.sg/docs/default-source/default-document-library/endangered-species-(import-and-export)-act.

[xxvii]            www.chinalawtranslate.com/2016wildlifeprotection/?lang=en.

[xxviii]            Ibid, article 42 of China’s 2016 Wildlife Protection Law.

[xxix]            Section 1540 of the Endangered Species Act https://www.fws.gov/le/USStatutes/ESA.pdf.

[xxx]            Brazil’s first law regulating the protection of wildlife and penalising illegal wildlife trade and activity was contained in Decreto 24.645 de 1934.

[xxxi]            World Wildlife Fund report Amazon region protected area: ARPA for life, Phase III Report, August 2017 found at https://c402277.ssl.cf1.rackcdn.com/publications/1090/files/original/WWF_ARPA_2017_Report_R5SprdsFinal_8.15.17.pdf?1503592187.

[xxxii]            World Wildlife Fund report ARPA for Life: Commitment to the Amazon found at https://c402277.ssl.cf1.rackcdn.com/publications/747/files/original/ARPA-for-LifeBrochure-7-29-2014.pdf?1418241007.

[xxxiii]            Ibid.

[xxxiv]            See footnote xxxi.

[xxxv]            http://www.traffic.org/home/2015/9/26/china-and-us-pledge-to-end-domestic-ivory-trade-is-huge-boos.html.

[xxxvi]            https://www.fws.gov/international/pdf/questions-and-answers-african-elephant-4d-final-rule.pdf.

[xxxvii]            https://www.theguardian.com/environment/2017/aug/29/story-behind-china-ivory-ban.

[xxxviii]            www.chinalawtranslate.com/2016wildlifeprotection/?lang=en.

[xxxix]            Many of the CITES Category 2 and 3 countries (see the list here https://cites.org/sites/default/files/eng/com/sc/69/inf/E-SC69-Inf-20.pdf) of Africa cite insufficient funding as the cause of their enforcement challenges, see biennial reports of CITES parties here https://cites.org/eng/cms/index.php/component/cp/country/MW/national-reports and Malawi’s here as an example https://cites.org/sites/default/files/reports/05-06Malawi.pdf.

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