Nguyen Thi Phuong Thao[1], Nguyen Pham Hoang[2], La Thu Phuong[3]
University of Law, Vietnam National University
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| A schoolboy attends an experimental activity at Cuc Phuong national park__Photo: VNA |
Introduction
Wildlife trafficking by sea route (WTSR) remains a pressing issue for nations worldwide, posing significant threats to biodiversity, public health, and regional security, particularly for coastal countries. This illegal trade involves the smuggling and sale of wildlife, often driven by demand for exotic pets, traditional medicines and luxury goods. The COVID-19 pandemic, with its restrictions on air travel, has inadvertently driven criminal groups to shift their smuggling activities to maritime routes, establishing a new modus operandi for this illicit trade[4]. Maritime transport offers advantages to traffickers, including reduced detection risks, larger shipment capacity, and lower costs compared to air transport.
In response to the growing challenges of WTSR, various efforts and toolkits have been developed to enhance detection, prevention, interdiction and prosecution. These include legal instruments such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the United Nations Convention against Transnational Organized Crime (UNTOC), and the Convention on Biological Diversity (CBD); as well as non-legal tools like the World Customs Organization Safe Standards (WCO Safe Standards), Red Flag Indicators, and Port Monitoring and Anti-Trafficking Evaluation Tool (PortMATE). Most recently, in 2022, the International Maritime Organization (IMO) adopted new guidelines further expanding the toolkit. Vietnam serves as a significant destination and gateway within the illegal wildlife trade (IWT) supply chain, particularly for WTSR. With its numerous ports and high demand for wildlife products, Vietnam plays an important role in protecting wildlife and preventing this illegal trade. However, despite the availability of various toolkits, Vietnam’s implementation of these measures remains limited. This article delves into an analysis of key tools employed in combating and deterring WTSR, highlighting the advantages and disadvantages of each approach. Based on this analysis, this article proposes recommendations tailored to the specific context of Vietnam.
Overview of wildlife trafficking by sea route
WTSR remains a pressing keyword and is a hot issue of IWT. Within the last decade, the illegal wildlife trade has mutated from low-level, opportunistic crime to large-scale activity[5] and relies on a sophisticated global supply chain. Wildlife trafficking is threatening not only biodiversity but also ecosystems vital for climate change mitigation, domestic and international economies, and the health of people and the planet[6]. Wildlife trafficking involves illegal trading, smuggling, poaching, and capturing of endangered species of animals including the products (skin and organs) derived from them[7]. The planning, collection and smuggling demonstrate a high degree of coordination that is indicative of well-funded organized crime groups[8] due to the high demand for wildlife. There are four main categories of consumption for illegal wildlife parts, each of which implies a role for a regulatory agency of a different industrial sector: (i) Consumption of clothing and luxury items (i.e., luxury goods for display); (ii) Consumption of health and treatment of ailments; (iii) Consumption of food and beverage; and (iv) Keeping live specimens for exotic pets or zoos[9]. High-end furniture and decorative items, etc., are fueling an illegal market (in parallel with the legal market) with an estimated value exceeding USD 20 billion per year[10]; recently in the US alone, estimates place the annual value of IWT at between USD 5 billion and USD 23 billion[11].
The maritime seaport plays an essential role in IWT through its ease in the transportation of wild animals and their products between countries which is associated with corruption at the port[12], and in part, due to the low risk of interception and arrest[13]. In 2020, 798.9 million TEUs (twenty-foot equivalent units) of containers moved through the world’s ports but only 2 percent were inspected[14]. The increased port operations will potentially lead to increased cases of wildlife and other illicit trafficking through them[15]. WTSR is recognized as a lengthy process that typically involves 12 steps[16], from document preparation, container sealing, customs clearance, transportation to import, and warehousing. The parties involved include the exporter, warehouse owner, transporter, port customs, and importer. Among these, transporters are considered an information grey area for applying regulations due to the difficulty of verifying whether they have tampered with containers after sealing. Some common methods of WTSR used by traffickers include: container cargo, passenger cruise ships, ferry, ro-ro vessels, bulk cargo, and crew members[17]. Criminal networks often set up anonymous shell companies to consign and receive cargo, masking the true (i.e., beneficial) ownership of the shipment[18].
WTSR might cause many negative consequences. The outbreak of monkeypox outside Africa[19], for instance, and the outbreak of COVID-19 have also been associated with the trading of live wild animals[20]. WTSR and corruption have a symbiotic relationship: corruption enables all aspects of the illegal trade, from poaching to the final sale, and part of the profits from the trade are recycled back into bribes for corrupt officials[21]. Cases of corruption issues, including commercial extortion by shipping companies in the form of bribery, weak ethical infrastructure in port agencies, and smuggling of wildlife, have been reported[22]. Corruption enables criminals to avoid detection, seizure and arrest. The forms of corruption that are facilitating illicit trade in wildlife and the modes of operation include[23], for instance, Document fraud[24], Transport sector complicity[25], and Illicit financial flows/money laundering. While maritime transport is a vital link in moving illicit commodities to consumer markets, law enforcement efforts aimed only at trafficking will be futile if demand and supply are not addressed. Therefore, wildlife trade involves links in the chain, including supply, demand, socio-economic conditions of the communities, corruption and every other node among[26].
Vietnam is a popular destination for WTSR. The most commonly consumed products include elephant ivory, pangolin scales, rhino horn, big cat parts, donkey skins, shark fin, seahorses, and sea cucumbers[27]. According to the Education for Nature - Vietnam (ENV), between 2015 and 2023, specifically in relation to ivory, rhino horns, and pangolin scales, there has been a concerning increase in the violations of wildlife trafficking laws at seaports in Vietnam. Authorities across the country have recorded over 30 cases of violations and have seized nearly 80 tons of contraband. Prominent seaports with the highest number of violations include Tien Sa Port in Da Nang city, Cat Lai Port in Ho Chi Minh City, and Hai Phong Port[28]. On February 2-6, 2023, at Lach Huyen International Port in Hai Phong city, the authorities discovered 159 ivory tusks weighing 615kg which were mixed with cattle horns imported from Africa to Vietnam via sea routes[29].
Many efforts from international institutions have been put forth to combat WTSR. International organizations play a crucial role in coordinating efforts, sharing best practices, and implementing strategies to curb WTSR. These collective endeavors aim to protect endangered species, and preserve biodiversity and sustainable ecosystems worldwide. For instance, in July 2021, the World Wildlife Fund (WWF) and the Trade Record Analysis of Flora and Fauna in Commerce (TRAFFIC) launched the “The Red Flag Compendium for Wildlife and Timber Trafficking in Containerized Cargo” which details the warning signs of corruption, wildlife smuggling and other related crimes. The IMO’s Guidelines represent an essential step in recognizing the maritime sector’s role in tackling wildlife trafficking[30]. Also, the collaboration of five international organizations (including the World Bank, CITES, WCO, INTERPOL, and the United Nations Office on Drug and Crime) to constitute the International Consortium on Combating Wildlife Crime (ICCWC) is an effort to address IWT through various programs and supports[31]. The aforementioned efforts are implemented through a range of specialized tools, which can be categorized into legal instruments (including international conventions, treaties, agreements, and national laws) and technical tools (encompassing indicators, and guidelines).
Vietnam’s legal framework for wildlife trafficking by sea route
Regulations on wildlife protection and handling of wildlife violations
The 2017 Forestry Law regulates the management, protection, development and utilization of forests, and the processing and trade of forest products. It stipulates two main issues related to wildlife. Firstly, prohibited acts related to wildlife include illegal hunting, capturing, trading, storing, and transporting (Article 9.3). Secondly, the responsibility of competent state agencies for wildlife management and protection and the issue of listing for more effective wildlife management (Article 38).
The 2008 Biodiversity Law (Article 7.4) also prohibits the illegal trade, consumption and transportation of wild animals, including “Hunting, catching, harvesting body parts, killing, consuming, transporting, illegally buying and selling species listed in the category of endangered, precious and rare species prioritized for protection; advertising, marketing, and illegally consuming products derived from species listed in the category of endangered, precious and rare species prioritized for protection.” Moreover, it stipulates the responsibility for compensation and the level of compensation in case of causing damage to biodiversity (Article 75).
In addition, Vietnam promulgated decrees and other by-laws guiding regulations on wildlife protection or issuing additional regulations to protect specific wildlife species, e.g., Government Decree 160/2013/ND-CP and Decree 06/2019/ND-CP; Ministry of Agriculture and Rural Development’s Decision 95/2008/QD-BNN, etc. Regarding the handling of violations related to wildlife trafficking, it is regulated under Articles 234 and 244 of the 2015 Penal Code, along with detail guidelines provided by Resolution 05/2018/NQ-HDTP of the Judicial Council of the Supreme People’s Court. Accordingly, individual violators may face an imprisonment sentence of up to 12 years or a fine of VND 1.5 billion for offenses concerning the protection of wild animals classified under group IIB and CITES Appendices II and III or common wildlife species (Article 234 of the 2015 Penal Code); or an imprisonment sentence of up to 15 years or a fine of VND 2 billion for offenses involving wild animals classified under group IB and CITES Appendix I or endangered, precious and rare species prioritized for protection. The handling of violations related to the protection of wild animals is also regulated under the 2012 Law on Handling of Administrative Violations, which establishes corresponding fines for offenses, which mount to VND 400 million for individuals and VND 800 million for organizations, in pursuance to Decree 35/2019/ND-CP (revised by Decree 07/2022/ND-CP). Handling of violations related to the protection of wild animals also involves dealing with seized assets from such illegal activities. Generally, Article 10 of Ministry of Agriculture and Rural Development’s Circular 29/2019/TT-BNN on handling of wildlife as exhibits and evidence, and wildlife voluntarily surrendered to the State by organizations and individuals, introduces five prioritized methods for handling illegally traded wild animals in the following order: releasing back into the natural environment; rescue and rehabilitation; transfer to zoos, research facilities, training centers or specialized museums; sale; and destruction.
Customs regulations
Customs regulations do not directly address the protection of wild animals, but the procedures, handling processes, and criteria for identifying violations contribute to the wildlife protection and the enforcement against offenses involving them. This is exemplified through export procedures, which consist of five steps[32]. Among them, the customs clearance step is crucial, as goods are categorized into three risk levels: green channel, yellow channel, and red channel (Article 19.3 of Circular 38/2015/TT-BTC, amended and supplemented by Circular 39/2018/TT-BTC). This risk classification helps timely detect prohibited goods in general, and specifically prevents trafficking of wildlife by sea route. To classify risks, factors for consideration are provided in Article 15.2 of Decree 08/2015/ND-CP, including: (i) management policies and taxes; (ii) nature of goods; (iii) violation history; (iv) origin; (v) transportation route; and (vi) others.
Overall, the legal framework for wildlife protection in Vietnam has been carefully formulated and is relatively comprehensive, demonstrating Vietnam’s commitment to fulfilling international obligations and creating a foundation for handling violations in the protection of endangered and rare wildlife species. In particular, the regulations on WTSR are concentrated in documents related to ports and related customs procedures, but the criteria for identifying risks remain unclear, which can cause difficulties for other private parties when detecting illegal shipments. Moreover, as these regulations remain scattered and unsystematic, so there will inevitably be overlaps.
Recommendations
As analyzed above, no single tool is perfect, and countries must adapt their application to fit their specific circumstances. In the case of Vietnam, following the establishment of comprehensive regulations, effective implementation and inter-agency coordination are paramount. The authors give some recommendations below for implementing the aforementioned toolkits in Vietnam.
Firstly, strengthened public-private cooperation should be directly through ad-hoc projects as recommended by the IMO. Enterprises, especially maritime transport companies directly involved in the process of transporting goods, can early identify signs of abnormalities and timely report such to authorities, thus helping detect and prevent wildlife trafficking activities. Vietnam can utilize ad-hoc projects for swift and timely responses to urgent issues as these projects often exhibit high flexibility and can be implemented in a short period. For the Government, implementing ad-hoc projects is a way to gather additional insights from private enterprises regarding current challenges and potential solutions. The Government often faces human resource shortages in implementing measures to combat wildlife trafficking. Information and experiences from related private enterprises or organizations also assist government agencies in capturing new trends in WTSR and applying more effective prevention measures.
Secondly, specialized government agencies should issue operational guidelines based on the IMO’s Guidelines and the WCO SAFE Framework of Standards. Based on these instruments, specialized agencies tasked with wildlife protection and handling of violations related to WTSR, such as the General Department of Customs, the Police, etc., may issue various types of operational guidelines, including Guidelines on inspection and examination procedures for exported and imported goods, entry and exit procedures at seaports specifically and other border areas generally; Guidelines on procedures for resolving and handling violations related to wildlife trafficking offenses; Guidelines on risk classification criteria, and detection of violations (follow the red flag indicators); and Professional ethics guidelines for inspection officers, officials in the customs and inspection fields. Specialized agencies also need to ensure that these guidelines comply with Vietnam’s legal regulations and practical activities of specialized agencies. Guidelines need to be presented, concisely, understandable, and easy to apply. When guidelines are issued, officials and employees in related fields need to be trained to effectively apply them to their work.
Thirdly, the contents of the guidelines should be internalized into circulars and decrees. As mentioned earlier, the red flags in the “Red Flag Indicators” document serve as a sign that a vessel may be engaged in illegal wildlife trafficking activities. By recognizing these signs, relevant authorities and stakeholders can take proactive measures to prevent wildlife smuggling and intervene at an early stage. Currently, Vietnam’s circulars and decrees address some of these risks but not as clearly and comprehensively as outlined in these international documents. It is also important to add and clarify indicators so that private parties can understand and apply them to their corporate identity systems. Therefore, the authors propose adding these 15 red flags to Article 17 of Circular 81/2019/TT-BTC, along with specific descriptions and criteria for inspectors and shipping companies to easily detect violations. At the same time, it is necessary to encourage private companies to introduce red flags into the existing system.
Conclusion
The above analysis reveals that legal tools are widely applicable and enforceable but are contingent upon governmental actions and the process of incorporating international regulations into domestic law. In contrast, technical tools offer greater flexibility and durability due to their informal nature. Thus, each country or region must understand how to effectively integrate and adapt these tools based on their specific circumstances. In the context of Vietnam, three potential strategies should be considered: strengthening collaboration between the Government and the private sector through ad-hoc projects aimed at detection, developing operational guidelines based on these toolkits, and progressively integrating indicators into customs procedures. These approaches aim to enhance the effectiveness of efforts against wildlife trafficking by sea route tailored to Vietnam’s unique challenges and regulatory framework.-
[1] Email: nguyenphuongthao091101@gmail.com
[2] Email: nguyenphamhoang179@gmail.com
[3] Email: thuphuong6821@gmail.com
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[27] UNDP, Known trafficking routes, concealment methods and misdeclarations of wildlife products commonly trafficked in containerized sea cargo, 2021.
[28] Báo Thanh Tra (Inspection Newspaper), Đủ chiêu trò buôn bán động vật hoang dã vào Việt Nam (Numerous tricks to trade in wildlife into Vietnam), 2023.
[29] Báo Thanh Tra (Inspection Newspaper), Đủ chiêu trò buôn bán động vật hoang dã vào Việt Nam (Numerous tricks to trade in wildlife into Vietnam), 2023.
[30] WWF, New International Maritime Organization guidelines to combat wildlife smuggling, 2022.
[31] ICCLR, Wildlife Trafficking: Is a Fourth Protocol to UNTOC the Answer?, 2022.
[32] Savills, Thủ tục hải quan xuất nhập khẩu hàng hóa doanh nghiệp cần biết (Customs procedures for goods export and import that enterprises need to know), 2022.
