Formal and Informal Reactions to Wildlife Victims and Offenders
Control of IWT involves both formal and informal responses. At a national and global level, formal control is exercised by way of international treaties and domestic legislation that support domestic enforcement, prosecution, and judicial response, all facilitated by a small number of key personnel. The subsequent responses put in place are complex and diverse, necessitating multi-agency cooperation (creating an overlap between formal and informal responses). Variations between case study locations are evident in both the practice and effectiveness of formal responses, with deficiencies specifically linked to limited resources and low prioritization within the CJS. Informally, considerable work is carried out by NGOs, both nationally and internationally, to help control and prevent IWT. However, variation also exists in terms of the nature of NGO involvement and their responses to the harms to victims.
Rules and Regulations
Norway (from 1976), the UK (from 1976), Colombia (from 1981), Brazil (from 1975), and the EU (from 2015) are party to CITES and, as such, are required to monitor and regulate the trade of more than 35,000 wild species through the adoption of domestic legislation that implements CITES at a national level (CITES 2016c). According to Reeve (2002), a 1973 study by Environmental Resources Management found 75 per cent of parties viewed CITES as effective in deterring IWT. However, as there is no empirical assessment of CITES, EU regulations, or EU member states’ domestic legislations, it is difficult to evaluate the effectiveness of such regulations. Reeve (2002) also provides a comprehensive analysis of CITES compliance and argues that although CITES is a flagship wildlife agreement, it is compromised by being a self-policed system with no global enforcement agency to oversee compliance. She suggests the key risks to CITES are the dissolution of borders (as this makes the permit system irrelevant, since with porous borders no permits need to be presented) and chronic underfunding, both of which are problematic in the EU. Once illegal wildlife/ products enter an EU country it becomes more difficult to identify and apprehend the offenders (see also Van Uhm 2016), due to the porous borders between countries. As there is considerable variation among member states and partnership countries such as Norway in terms of the priority given to regulating and enforcing this offence, the EU response is only as strong as its weakest state in terms of enforcement. The development of organized criminal networks poses new challenges for legal responses to and resources for IWT, the most significant being they have the ability to destroy species at a phenomenal rate and have a growing lucrative market worldwide (e.g. China, Vietnam). Furthermore, as other serious crime offences (e.g. drugs and arms) are more highly prioritized than IWT crackdowns in these illegal markets may displace organized offenders towards the high profit, low-risk IWT.
Arguably, the greatest deficiencies in CITES and related legislation are the provisions for trafficked animals’ welfare; confiscated wildlife are routinely killed. The lack of welfare facilities in Norway suggests this is not a priority there. Unfortunately, as parties are not required to record or publish outcomes for seized animals, it is impossible to establish how prevalent this problem is across the EU.
What follows is an overview of the domestic legislation regulating the IWT in each location:
- • UK CITES offences may fall under Control of Trade in Endangered Species [Enforcement] Regulations 1997 (COTES) or Customs and Excise Management Act 1979 (CEMA) and can be linked to breaches in international (e.g. Council Regulation [EC] No 1/2005 on Animal Welfare in Transportation) and national (e.g. Animal Welfare Act [AWA] 2006) laws (Her Majesty’s Stationery Office 1997, 1979). The legislation and policies in place were largely identified by UK interviewees as plentiful and adequate. For example, by including the International Air Transport Association (IATA) Live Animals Regulations (LAR) standards as part of CITES compliance, it is easier to prosecute offenders for abuse linked to trafficking, as there is no need to prove ‘suffering’ as per the AWA 2006. However, concerns were raised with regard to the timeliness of legislation updates, the clarity of legislation for enforcement purposes, and the limited protection it offers animals. UK national wildlife legislation, for example, was regarded as outdated and disjointed; COTES and CEMA require revision, while (EC) No 1/2005 uses IATA LAR standards from 2004 not 2015 (therefore offenders can be convicted of breaches by 2004 not 2015 standards).
- • Norwegian legislation contains several laws and regulations that prohibit the importation of live animals to Norway, among them Viltloven (Wildlife Law 2009 §47; Lovdata n.d.b), The Law of Biodiversity (Lovdata n.d.c) and the Animal Welfare Act (Lovdata n.d.d). Another law, often applied in CITES cases, is the law
regulating importation and exportation from 6 June 1997, with a maximum sentence of 6 months in prison. This may be used both for CITES-listed flora and fauna. The Norwegian CITES regulation, November 2002 nr. 1976 is today, in regard to animals, based on the Wildlife Law §56, with a maximum prison sentence of 2 years, but the previously mentioned law is still applied in court. The Norwegian CITES regulation was revised in 2013, based on the Law of Regulation of Importation and Exportation from 6 June 1997, the Wildlife Law, Law of Environmental Protection on Svalbard, the Svalbard Environmental Act, and the Law of Biodiversity. A suggestion for yet another revision of the regulation was sent for public consultation by the Norwegian Environment Agency on 7 May 2015. Changes suggested will impose stricter control of, and demands regarding permits for appendix II species and demands about internal chipping and labelling. With the CITES regulation based in the Law of Biodiversity, breaches of CITES can be registered as crimes rather than misdemeanours. Because several laws and regulations (frequently applied for other offences) now variously are applied for CITES crimes, specific CITES crimes often remain unaccounted for in the system, even when animals belong to CITES species.
- • In Colombia, the laws most often applied in relation to trafficking are Decreto 1608 de 1978 (Codigo Nacional de los Recursos Naturales (on natural resources), Ley 599 de 2000 (Codigo Penal [Penal Law]) articulos 328 y 329, Ley 84 de 1989 (On animal welfare), and Ley 99 de 1993, articulo 1.
- • In Brazil, federal laws that apply are Decreto 24.645 de 1934 [Decree 24.645 of 1934] and Animal Welfare Act Lei 5197 de 1967 [about protection of fauna]. The first part concerns wildlife: Lei 6938 de 1981 (regards national policy on protecting the environment] and Lei
9605 de 1998 [Law 9605 of 1998] (regards penal sanctions and administrative punishment for harmful acts against the environment). Regulation in both Columbia and Brazil are compromised by fragmented and complex legislation, which is seldom adequately enforced.