Environmental Law

19/11/2016

Reflections on the Wildlife Justice Commission and its Public Hearing concerning Wildlife Trafficking in Vietnam

The illegal trade in wildlife is currently the fourth largest global illegal trade (following the illegal trade in narcotics, the trade in counterfeits, and human trafficking) and is resulting in drastic declines in the populations of many species, in addition to being strongly linked to other crimes such as corruption and fraud. While most countries have enacted laws to regulate the trade of wildlife specimens, both the strength and the enforcement of such laws vary considerably from one country to the next. This blog post briefly considers the role of a relatively new innovation – the Wildlife Justice Commission (WJC) – in improving this situation through a combination of investigative techniques, public dialogue, and international pressure.

The WJC is an NGO established in 2015 with the objective of contributing to the disruption of transnational organized crime involving wildlife, timber and fisheries. The Commission seeks to achieve this end, firstly, by sharing intelligence and working with domestic law enforcement agencies, thereby assisting governments to enforce the law. In instances in which governmental cooperation is not forthcoming, the WJC produces a ‘Map of Facts’ (essentially a case file based on the Commission’s on-the-ground investigations, which maps out criminal networks and their illicit activities) and engages in diplomacy in an attempt to convince national authorities to act on the information provided. Where this too yields unsatisfactory results, a Public Hearing may be held with the purpose of allowing experts and the public to consider fact-based evidence and pressuring the relevant government to take legal action.

Although still in its infancy, the WJC has already involved itself in several investigations, one of which has culminated in a Public Hearing, held in The Hague on 14-15 November 2016. The Hearing focused on the trafficking of specimens of various species that are listed on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) in Nhi Khe, Vietnam. Whilst not a legal trial, the first portion of the Hearing followed a trial-like format, with an attorney presenting an overview of the case’s Map of Facts through the questioning of witnesses, supported by photographic and video evidence. On its second day, the Hearing involved a series of discussions with, and presentations by, academic experts and representatives of conservation-related NGOs, aiming primarily to suggest means of combating illegal wildlife trade, both in Nhi Khe specifically and as a broader global problem. The Vietnamese government was invited to participate, but elected only to send an observer.

The WJC Accountability Panel (Photo: M. Lewis)

The Hearing was held before an independent ‘Accountability Panel’, comprising an impressive lineup of international experts, including, inter alia, current/former judges from the International Criminal Court, Inter-American Court of Human Rights, and East Africa Court of Justice. Throughout the process, members of the Panel were able to question witnesses and other speakers, as was the Director of Proceedings (the position of which was filled by an international broadcast journalist). Questions from the Accountability Panel in particular highlighted the various limitations of the WJC’s approach and what an organization of this nature is able to do from a legal and practical perspective. The WJC has, on several occasions over the past year, sent undercover investigators to Nhi Khe (see further the Al Jazeera documentary ‘The Poacher’s Pipeline’). However, these persons – being representatives of an NGO rather than law enforcement officials – were unable to purchase wildlife products without themselves infringing the law. Thus, although they were able to demonstrate that large amounts of what appeared to be genuine wildlife specimens (as identified by experts on the basis of photographs) were being offered for sale in Nhi Khe, they were unable to prove the actual occurrence of transactions, obtain physical samples, or create opportunities for working their way to other links in the wildlife trafficking chain. They were further unable to investigate private sector involvement in the relevant organized crime networks by, for instance, subpoenaing the bank accounts into which sellers indicated that payments could be made; and did not explore the prevalence of public sector corruption through the direct investigation of government officials.

Despite these constraints, the Panel was ultimately prepared to confirm the conclusions in the WJC’s Map of Facts, finding, inter alia, that Nhi Khe is a major hub for the illegal processing and retail distribution of wildlife; that the various persons of interest identified in the Map of Facts have been actively involved in illegal wildlife trade and ancillary crimes; and that these activities have occurred openly within local and provincial police jurisdiction. While the Panel acknowledged that the Vietnamese government has taken a number of positive actions towards curbing the illegal wildlife trade, it also identified various failures in Vietnam’s approach and enumerated a series of surprisingly detailed recommendations. These included measures to enforce existing laws (for instance, use of the WJC’s Map of Facts to conduct an investigation targeting individuals and networks operating in Vietnam, the pursuit of criminal prosecutions where sufficient evidence is available to support these, and the allocation of resources to detect illegal trade on social media); as well as measures to address inadequacies with the laws themselves (for instance, amending organized crime and corruption statutes to incorporate the maximum number of ancillary crimes, enacting laws to address civil asset forfeitures, and ensuring the prompt entry into force of a new penal code addressing the illegal killing and trafficking of wildlife). The Panel stressed that implementation of the recommended actions would contribute to Vietnam’s compliance with its international commitments under CITES, the UN Convention against Transnational Organized Crime, and the UN Convention against Corruption. It further encouraged the other Parties to these Conventions to take appropriate measures to support Vietnam and called upon the CITES Standing Committee to take note of its recommendations and to consider imposing trade sanctions on Vietnam.

(Photo: M. Lewis)

Of course, the recommendations of the WJC’s Accountability Panel are in no way legally binding, and the above process was not conducted under the banner of any particular treaty or intergovernmental organization. Nevertheless, the process does appear to offer several advantages. It is considerably quicker and cheaper than bringing a case before an international tribunal, such as the International Court of Justice, and does not hinge upon states’ acceptance of jurisdiction. Unlike the compliance mechanisms that have emerged under various environmental treaties, its recommendations need not be endorsed by a body that is made up of states Parties and thus inherently political (such as a Standing Committee or Conference of the Parties), but are instead issued by a panel of independent and internationally respected experts. Further, while many treaty compliance mechanisms fail to allow NGOs to either trigger non-compliance proceedings or participate in the functioning thereof, WJC Public Hearings are arranged by an NGO and rely heavily upon public participation. Apart from giving NGOs and the broader public the opportunity to inform the Accountability Panel’s case-specific recommendations, this approach enabled the Vietnam Public Hearing to act as a platform for both shining a spotlight on the seriousness of illicit wildlife trafficking (this being an issue which often fails to receive high priority in countries’ law enforcement agendas) and exchanging ideas about how this challenge can be combated. Discussions highlighted not only the need for aggressive enforcement in consumer countries, but also a variety of other necessary measures, such as focusing on demand reduction; working with communities in supplier countries to address human-wildlife conflicts and create alternative sustainable livelihoods; and supporting collaborative, evidence-based investigations between countries in order to build intelligence along the entire trafficking chain. They further emphasized the role that states’ national laws can play in (i) pressuring other countries to address wildlife crime by providing for the imposition of sanctions against countries that undermine the effectiveness of international wildlife treaties (see, e.g., the Pelly Amendment to the US Fishermen’s Protective Act, the use of which played an important role in pressuring Taiwan to control trafficking in rhinoceros horn and tiger bone); and (ii) ‘internationalizing’ the laws of other countries by making it an offence to trade in wildlife taken/possessed/sold in violation of any foreign law, thereby enhancing states’ ability to dismantle transnational organized crime networks (see, e.g., the US Lacey Act).

Vietnam has recently engaged in a flurry of activities aimed at demonstrating its commitment to combating wildlife trafficking (including its hosting this week of the Hanoi Conference on Illegal Wildlife Trade). However, it remains to be seen whether these activities will be sustained over time and will extend to include implementation of the recommendations from the WJC’s Public Hearing. It will also be interesting to see how these recommendations are treated (if they are acknowledged at all) by future meetings of the CITES Standing Committee and Conference of the Parties, given that they did not emanate from a procedure agreed to by governments. At the very least, the WJC has demonstrated that it has a useful role to play in collecting and verifying information, as well as encouraging the international community to take a serious interest in efforts to combat illicit wildlife trade. Hopefully, the Commission’s Public Hearing procedure will also prove to be an effective catalyst for action by governments and other stakeholders.