Earlier this year, Vietnam’s prime minister called for a ban of the wildlife trade in the country in response to the Covid-19 pandemic. Several months later, the government released a directive on the wildlife trade.
Hailed as a ban in some media coverage, the move fell short of that, as the directive did not introduce any new laws or regulations; instead it called on a number of ministries and government agencies to work on improving enforcement of existing rules and handing down stricter punishments for violations.
This misunderstanding is not surprising, as Vietnam’s system of government is not common. The country’s socialist system means the relationship between the central government and provinces is different than in many other countries. The system can also be opaque.
Legislation related to conservation is no different, and it is worth taking a look at these laws and how they are enforced given Vietnam’s status as a biodiversity hotspot and also a major transit point for wildlife trafficking routes.
We want a clear law on which species can be farmed based on their viability for farming, which we don’t have. In the past, we saw pangolins being farmed, and they can’t handle that stress, so they would die in captivity.
Bui Thi Ha, vice director, Education for Nature Vietnam
Management and punishment
“If we talk about key laws, I separate them into what I call management law and punishment law,” said Bui Thi Ha, vice director of Education for Nature Vietnam (ENV) and a leading expert on conservation law. “For example, management law will regulate how legal activities can be conducted, such as farming an endangered species.”
Laws related to punishment, on the other hand, are related to legal violations, such as illegally transporting a tiger or macaque.
There are three key overarching laws covering the management of wildlife conservation, namely the 2017 Law on Forestry, 2017 Law on Fisheries, and 2008 Law on Biodiversity Conservation. The 2014 Law on Investment also covers ground related to which wildlife species can be traded or invested in at farms and other commercial facilities.
Additionally, there are a number of decrees and circulars under each of these laws that give more detailed guidance on implementation of broader regulations, while Vietnam is also a signatory of CITES, the international convention on the endangered wildlife trade.
For example, Decree 26/2019/ND-CP details issues related to the fishery law, organizing 186 aquatic species considered endangered or rare into two groups. Group I includes 126 species prohibited from exploitation for commercial purposes, while the 60 Group II species can be used commercially.
Decree 160/2013/ND-CP, meanwhile, is attached to the Law on Biodiversity and “stipulates criteria to determine species and the regime of managing species under lists of endangered, precious and rare species prioritised [for] protection; promulgates lists of endangered, precious and rare species prioritised [for] protection.”
“The laws tend to be high-level, and thus more general, such as covering every aspect of forests,” said Josh Kempinski, Vietnam country director for Fauna & Flora International. “Decrees then break down and give more details to specific parts of the law, followed by specific circulars on how these laws or decrees are to be actually implement[ed].”
A directive, such as the one on the wildlife trade mentioned above, “comes from the Prime Minister and is more intended to ‘direct’ the actions of government, i.e. line ministries and other agencies, defining their role and responsibilities,” Kempinski said.
Then there is the enforcement side of the laws.
“In terms of punishment, if this is a criminal offense, there is the Penal Code,” Ha said. “If it is considered an administrative violation, there are decrees for that.”
Depending on the species there can be overlap between the Law on Fisheries, which “deals with fishery activities; rights and responsibilities of organizations and individuals involved in fisheries and state administration of fisher[ies],” and the Law on Forestry, which “deals with management, protection, development and use of forests; [and] forest products, processing and trade.”
“One thing to note about wildlife conservation is that most wild animals in Vietnam are considered either fishery or forest species,” Ha said. “However, some species overlap between them, like softshell turtles.”
There can also be confusion over who is in charge of overseeing which law, as both the Ministry of Agriculture and Rural Development (MARD) and the Ministry of Natural Resources and Environment (MONRE) manage conservation and wildlife issues.
Neither ministry responded to requests for comment on this subject.
“Both are in charge of wildlife protection and there is some overlap in their functions, which impacts the law,” Ha said. “If you read the Law on Forestry, you will see some areas that are also regulated by the Law on Fisheries and the Law on Biodiversity Conservation. They can look the same, so there is some conflict and overlap, which can make it difficult for law enforcement agencies, especially when dealing with violations related to wildlife.”
For example, 86 animal species are included in both Decree 64 (link in Vietnamese), which was proposed by MONRE, and Decree 6, proposed by MARD. According to Ha, these lists include significant, often critically endangered species such as the Asian elephant, Indochinese tiger, king cobra and great hornbill.
These two decrees, despite covering some of the same wildlife, have different objectives. Decree 64 prioritises the species listed in it for protection, meaning no commercial exploitation, while Decree 6 splits species into two groups: those that cannot be exploited for commercial use, and those that can under certain regulations.
Both pieces of legislation are currently in force, meaning law enforcement agencies have two separate lists with differing protection priorities to take into consideration when prosecuting a wildlife crime case.
Kempinski and Ha both agreed that, on paper, Vietnam’s conservation laws are sufficiently powerful when it comes to addressing violations.
“In terms of punishment law, it’s quite strong now, and I’ve talked to experts in other countries who told me that Vietnam has very strict punishment levels,” Ha said. Punishment is also where these laws, which are created at the top and sent down to provinces, become less centralised, as individual provincial governments and courts can work to enhance the application of the penal code.
“Vietnam is now very decentralised, and I think the legal system is something like the United States, with state and federal laws,” Kempinski said. “This means the provinces do regularly make their own decisions, and this can indeed relate to forests, land use and wildlife.”
Ha provided an example of how this punishment system works, at least in theory: “Poaching in a restricted area is considered an aggravating circumstance, so your crime would be considered much more serious, for instance,” she said. “Usually, the punishment for wildlife violations related to fully protected species depends on the number of animals. So if you are caught with one pangolin, the first punishment would be one to five years in prison, while three pangolins would be in the second punishment bracket of five to 10 years in prison.”
If someone were to poach a pangolin in a national park or other protected area, the crime would immediately jump into the second punishment bracket.
Shortcomings and loopholes
Ha and Kempinski noted that some of the biggest issues with these laws relate to the listing of specific species, which can be inconsistent and confusing.
“If we can really address the conflict in management between the two ministries [MARD and MONRE], the major remaining problem is having one species belonging to so many lists that it’s hard for agencies because the lists keep changing and they don’t know which rules to apply,” Ha said.
“There are some issues with the lists of species, which are incomplete for some taxa and in need of constant updating,” Kempinski added.
Ha further noted regulatory confusion around conservation facilities and farms, an area that experts have been working on for years.
“Right now we do have general principles for the management of conservation facilities and non-commercial facilities that keep animals,” she said. “These may be zoos or rescue centers or other types of facilities that exhibit wildlife, and don’t raise or sell it. We don’t, however, have detailed regulations on how to categorise these facilities and how to manage them according to their purposes.”
There are no laws on their operations, or regulations stipulating if a species can be bred at a facility, or what conditions should be in place if a species is being bred. “If we don’t control that, we can have tigers being bred for no conservation value, which is an issue,” Ha said.
Commercial wildlife farms, meanwhile, can be used as cover to launder wild-caught animals, as it is relatively easy to establish a farm. “We want a clear law on which species can be farmed based on their viability for farming, which we don’t have,” Ha said. “In the past, we saw pangolins being farmed, and they can’t handle that stress, so they would die in captivity.”
And, as with any law, enforcement at ground level is just as important as what is actually codified, which is where problems can also arise.
“In general, Vietnam has a strong foundation and legal basis for biodiversity conservation,” said Benjamin Rawson, conservation and program development director at WWF-Viet Nam. “The key now however is [to] ensure proper, effective enforcement of all of the relevant decrees, decisions and laws. Lack of resources for on-site monitoring and enforcement are weaknesses that have contributed to undermining the effectiveness of conservation laws.”
Rawson noted several shortcomings specific to marine conservation laws as well. “For example, the fisheries law forbids harvesting undersized fish,” he said. “But there are no other laws guiding how to treat violations post-harvesting, meaning violations can only be fined when fishermen are fishing, while any transaction post-harvesting is difficult to penalise.”
In more positive news, recent analysis by ENV found that the revised Penal Code, which came into effect in January 2018, has led to stricter punishment for wildlife crimes. Among other changes, the update raised the maximum fine for major offenses to $86,000 from $21,500 previously. The maximum prison sentence, meanwhile, increased from seven years to 15 years.
For comparison, in Indonesia, another biodiversity hotspot in Southeast Asia, the maximum sentence for trafficking protected species is only five years, though such punishments are rarely handed out. In October 2018, two men in Aceh province were sentenced to four years in jail for attempting to sell the pelt of a critically endangered Sumatran tiger.
The impact of the updated Penal Code in Vietnam is hard to ignore.
From the start of 2018 to the end of 2019, ENV found a 44 per cent increase in wildlife trafficking seizures, while in the first half of 2020, 97.2 per cent of trafficking cases resulted in arrests, compared to 86.7 per cent from 2015 to 2019.
Furthermore, 83.6 per cent of criminal trafficking arrests in 2018 resulted in prosecution, a figure expected to rise to 88 per cent for 2019, though 19 cases are still pending at the time of writing. This May, three men in Ca Mau, a province in the Mekong Delta, were sentenced to 13, 12 and 10 years in prison for transporting hundreds of pangolins and huge amounts of pangolin scales.
Such developments have heartened Kempinski: “The government at all levels, mirroring changes in society in general, are increasingly aware and concerned about the drastic and rapid loss of biodiversity. There is still a lot of work to do, particularly at the ground level, but the trends are reason for cautious optimism.”
As a guide for the work that remains to be done, ENV recently published 10 critical actions that it considers necessary to continue the fight against illegal wildlife trafficking. These include taking down the leaders of wildlife criminal networks, eliminating corruption, implementing a clear ban on all forms of the commercial trading of endangered species, and strengthening management of conservation facilities.
Corruption across levels of government is a persistent issue in Vietnam that hampers many types of law enforcement, and wildlife conservation is no exception. “Criminals rely on the cooperation of corrupt officials to help them circumvent the law,” ENV notes. “Corruption takes many forms, ranging from issuance of commercial wildlife farm permits that provide a cover for criminal laundering operations, to letting criminals go instead of arresting them, to facilitating clearance through airports, seaports, and along our land borders.”
While rooting out corruption and resolving other issues in national conservation laws will take time and much more effort, Kempinski said the Vietnamese government is willing to work with conservation organizations to improve, a positive sign for the future.
“There remain some gaps, and also legal overlaps, but the recent Law on Forestry, for example, helped on much of that,” he said. “There is work now taking place on a new Environment Law, and after that the Law on Biodiversity will be revised and updated, so it’s a continuous process, while the government is very open and welcomes input from experts and civil society on these revisions and drafting processes.”
This story was published with permission from Mongabay.com.
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