Legal Solutions to Help Save the Vaquita from Extinction

LEGAL SOLUTIONS TO HELP SAVE THE VAQUITA FROM EXTINCTION

MAY 2021

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TABLE OF CONTENTS

TABLE OF CONTENTS 4

FOREWORD 5

ACKNOWLEDGEMENTS 8

GLOSSARY 10

SUMMARY AND OVERVIEW 11

UN ASSET RECOVERY AND INTER AGENCY PROGRAMME 14

SENTENCING GUIDELINES AND JUDICIAL EXCHANGE 24

DEVELOPING DUE DILIGENCE LAWS 36

LOOPHOLES IN EXISTING WILDLIFE TRAFFICKING LAWS 53

FOREWORD

Harry Wright CEO of The Conservation Project International

It has been a joy to work with the team at Kennedys Law and all the law participants from Vaquita Hacks in compiling this legal White Paper. The legal White Paper highlights new dynamic legal solutions to protect the critically endangered vaquita and to tackle the insidious criminal syndicates behind the illegal Totoaba trade. Over the course of two days in December at Vaquita Hacks, lawyers and law students from around the world came together to draft five new legal solutions (encompassing criminal, civil and international law) for the Vaquita and all the marine life in the Sea of Cortez. The results were remarkable and by working together in a spirit of collaborative determination we have shown that lawyers from different sectors, jurisdictions and experience can play a vital role in developing new legal approaches to protect endangered wildlife. I want to thank all the participants for their enthusiasm, creativity, and ingenuity and now look forward to working with Kennedys Law to implement the findings of this White Paper.

Andrea Crosta Executive Director of the Earth League International

The vaquita is the rarest and most endangered marine mammal in the world, and the reasons are crime and greed. It is now a global symbol for environmental protection, a symbol of what we are doing to Earth. But the vaquita's story is also a case study that shows where wrong strategies and poor knowledge can lead us: to an epic failure of conservation. It is vital to find more effective legal solutions as soon as possible, not only to protect the vaquita, but all the marine life in the Sea of Cortez, threatened by the international criminal organizations trafficking totoaba. On behalf of the vaquita and all the marine life of the Sea of Cortez, I would like to thank all the participants and especially Kennedys Law for all of their hard work in putting together this legal White Paper.

Shamini Jayanathan Barrister-at-Law Senior Prosecution Advisor, United Nations Office of Drugs and Crime

A bitter twist of fate for many countries enjoying a rich diversity of wildlife is that they suffer with fundamentally weak rule of law. Numerous international conventions that demand commitment towards protecting the planet’s biodiversity and addressing organised crime and corruption have yet to result in sustainable and long term impact in countries where the delivery of criminal justice is weak. Despite declarations and resolutions passed over the last 10 years that call for wildlife trafficking to be tackled with the same vigour as governments approach drugs, arms and human trafficking, we continue to watch the planet’s biodiversity decline at a rate that suddenly places our own human existence into question. In order to deter such crimes, criminal justice must deliver strong prosecutions, trial without delay and proportionate and consistent sentencing. Wildlife crime can provide a softer platform for initiatives that can be piloted in this narrow context whilst creating solutions that can bleed out to the entire criminal justice system for the benefit of all. The current unpredictability that exists in so many criminal courts around the world is exploited by criminal elements who corrupt, intimidate or simply -and without consequence – evade the system. This white paper comes at a time when the planet has never been more alive to the damage caused by humankind’s insatiable appetite for wildlife. Drawing on initiatives delivered across Africa – initiatives that have raised the implementation of criminal justice for all crimes, not just wildlife, this white paper offers surgical solutions that can be scaled up to deliver a stronger criminal justice system as a whole. The Vaquita is in danger of joining the 160 species declared by IUCN as extinct in just the last decade. As Mexico rescinds so many of the protections afforded to the Vaquita, the urgency of this work cannot be overplayed. New ideas and innovative thinking are key to preventing the demise of this – and other species. It was a privilege to engage with such passionate and lively minds in designing the concepts outlined in this paper that identify practical and achievable interventions that have had demonstrable impact in other jurisdictions. For so many species, time has run out. We must not allow the Vaquita to fall victim to the same fate.

Lewis McAuley-Jones Associate at Kennedys Law

The vaquita is now the most endangered marine mammal in the world. We cannot sit and watch. We must act now. Extinction of a species is irreversible. With thanks to Harry Wright and The Conservation Project International, the Vaquita Hacks event allowed like-minded lawyers and law students to come together, express their shared passion for wildlife, and put forward solutions to help save the Vaquita from extinction. Despite current estimates that only 5 to 10 Vaquita remain, genetic analysis has shown little sign of inbreeding. We have scientific evidence to show that it is possible for the Vaquita population to recover, however, appropriate human intervention must be taken for the Vaquita to stand a chance. This White Paper and the proposed solutions contained herein focus on saving the Vaquita from extinction, however, it is also put forward in representation of what the Vaquita represent – the decline of one of the richest ecosystems on Earth in desperate need for immediate human intervention. With appropriate action, there is still time to save the Vaquita and the Gulf of California’s ecosystem. I hope that the contents of this White Paper and the success of the Vaquita Hacks event encourages others to step forward and engage in these important issues.

ACKNOWLEDGEMENTS

This paper was prepared following the Vaquita Hacks event held in December 2020. The hackathon, launched by The Conservation Project International, was the world’s first hackathon dedicated to finding innovative, technological and artificial intelligence solutions to save the vaquita from extinction. The hackathon was delivered in partnership with global experts from Earth League International, Earth Hacks and the Countering Wildlife Trafficking Institute. Vaquita Hacks attracted over 100 participants including lawyers, students and early career conservationists from across the world.

The purpose of Vaquita Hacks was to work with students and early career conservationists to help develop new technological solutions to assist with Earth League International's investigatory work in disrupting the totoaba cartels' illicit supply chain and to help save the vaquita from extinction. The technological learnings from the hackathon are now being applied to other wildlife trafficking projects around the world.

Vaquita Hacks organiser, content overview and editor: Harry Wright – The Conservation Project International

Vaquita Hacks sponsors: Microsoft Kennedys Law The University of the West of England Plymouth University Earth League International

Submissions analysis and content drafting: Lewis McAuley-Jones (Team Lead) – Kennedys Law Amy Childs – Kennedys Law Carita Hui – Kennedys Law Grace Davies – Kennedys Law Jonah Kelly – Kennedys Law Olivia Allbright – Kennedys Law Pilar Giraldo Leon – Kennedys Law Shefa Begum – Kennedys Law William Hanwell – Kennedys Law

Vaquita Hacks mentors: Beatrice Galelli Rossana Tenerelli

Vaquita Hacks participants: Amy Childs Beth Foster Carita Hui Cristiana Roppo Daniel Eid Daniel Marsh Ethan Franks Francesco Venuti Gabriela Orejarena Grace Davies Grazia Di Vona Guy Hooper Harry Wright Jacqueline Chan Jedrzej Klimaszewski Jim Pettipher Jonah Kelly Julie Luanco Kayleigh Daniels Laura Goode Lewis McAuley-Jones Maria del Pllar Giraldo Leon Max Ingram Nadia Cheng Nathalie Lockton Olivia Allbright Phoebe Girling Rossana Tenerelli Ruta Parfijanovic Sammy King Shefa Begum Volcy Boilevin Zaneta Sedilekova

GLOSSARY

AML Anti-Money Laundering

ARINSA Asset Recovery Inter-Agency Network for Southern Africa

ARIN-AP Asset Recovery Inter-Agency Network for Asia and the Pacific

CARIN Camden Asset Recovery Inter-agency Network

CBD CoP15 Fifteenth meeting of the Conference of the Parties to the Convention on Biological Diversity

CDD Customer Due Diligence

CIRVA Comité Internacional para la Recuperación de la Vaquita (International Committee for the Recovery of the Vaquita).

CITES The Convention on International Trade in Endangered Species of Wild Fauna and Flora

CNBV Comisión Nacional Bancaria y de Valores

CONSAR Comisión Nacional del Sistema de Ahorro para el Retiro

EIA The Environmental Investigation Agency

ELI Earth League International

FATF Financial Action Task Force

FIU Financial Intelligence Unit

GAFILAT Financial Action Task Force of Latin America

HMRC Her Majesty's Revenue and Customs

IATA The International Air Transport Association

ICCWC The International Consortium on Combating Wildlife Crime

IMO International Maritime Organisation

IUCN The International Union for Conservation of Nature

NPC China’s National People's Congress

PROFEPA Attorney General’s Office of Environmental Protection

SEMARNAT The Ministry of Environment and Natural Resources

SHCP Secretaría de Hacienda y Crédito Público

SME Subject Matter Expert

TCM Traditional Chinese Medicine

UN The United Nations

UNODC The United Nations Office on Drugs and Crime

WCO The World Customs Organization

SUMMARY AND OVERVIEW

THE VAQUITA

The vaquita (Phocoena sinus) is a small porpoise that lives exclusively in the northern Gulf of California (Sea of Cortez) in Mexico.

The Gulf of California comprises 244 islands, islets and coastal areas Source – Google Maps and is located in north- eastern Mexico. The of California in porpoise found in area is home to 695 addition to the critically warm waters. Vaquitas vascular plant species endangered vaquita. are known to be shy and 891 different types and elusive – of fish species, totalling The vaquita is something which has 39% of the world’s commonly called the added to the total number of species ‘sea panda’ due to the complexities of the of marine mammals, as striking dark rings conservation projects well as one third of the around their eyes and is that have been carried world’s marine the only species of out to-date. cetacean species.

Further, the 900 mile area is home to more than 170 seabirds and five species of marine turtles that feed or nest there. A number of endangered and vulnerable species are also present in the Gulf Source – Wildfor.life

The life expectancy of will soon be extinct CAUSES OF THE vaquitas is estimated to unless action is taken. VACQUITA’S be around 20 years and DECLINE the age of sexual Vaquita are important maturity is thought to to the wider ecosystem The vaquita population be between the ages of in the Gulf of has dramatically and 3 and 6.1 California, foraging on declined due to the use a variety of fish species, of gillnets. They are Unfortunately, the crustaceans and squids also indirectly plight of cetaceans seen and are prey to threatened by illegal globally and the fragile members of the shark wildlife crime that ecosystem in the Gulf family. A healthy involves the catching of California is vaquita population and international trade exemplified by the supports the ecosystem of another critically rapid decline of the by balancing the endangered species – vaquita. Current populations of other the totoaba. estimations suggests species in an that only 5-10 interdependent food The totoaba (Totoaba individuals remain. The chain. macdonaldi) is a species International Union for of marine fish which is Conservation of also endemic to the Nature (IUCN) listed Gulf of California. It the conservation status has been illegal to catch of the vaquita as totoaba since 1975 - the Critically Endangered in 1996. The dramatic decline of the vaquita

700 The population of the vaquita was estimated 600 to be approximately 500 600 in 1997, 100 in 400

2014, 60 in 2015, 30 in 300

2016 and between 5 200 and 10 today. Since Estimated population 100 1997, the vaquita has seen a 92% population 0 decrease. The vaquita 1997 2014 2015 2016 2021

1 "Life history of the vaquita, Phocoena sinus (Phocoenidae, Cetacea)". Journal of Zoology. 239

same year that it was The drastic decline of continues to catch placed on the Mexican the vaquita is also the animals for many years Endangered Species result of the illegal use after the equipment has List. Despite the laws of gillnets. Gillnets been abandoned. against fishing for dangle from the water’s Despite government totoaba, they continue surface and are either regulations - including to be illegally caught anchored in place or a partial gillnet ban in and traded. Sadly, allowed to drift. As fish 2015, a gillnet exclusion totoaba is considered a attempt to pass though, zone in 2017 and a ban delicacy in Chinese the netting gets caught on night fishing, there cuisine and their meat in their gills and traps continues to be illegal and swim bladders are them. Gillnets are fishing in the vaquita’s erroneously thought to entirely nonselective – habitat commonly have medicinal value by meaning that they often involving the use of improving blood ensnare species other gillnets to target circulation, boosting than those being totoaba. fertility and curing targeted. Vaquita (and arthritis. No studies many other species SAVING THE have proven these native to the Gulf of VAQUITA claims to be true. Dried California) are caught totoaba swim bladders in gillnets. Once Despite the small are commonly referred caught, most vaquita population and rapid to as the “cocaine of drown in the struggle to decline of the vaquita, the sea” or “fake gold” escape and die there is hope. In recent due to their value in entangled in the gillnet. years, two vaquita illegal markets, and are After being pulled to calves have been known to be valued at a the surface, their spotted in the Gulf of price similar to or corpses are discarded California and genetic greater than gold per into the sea. analysis of the vaquita kilogram. For Furthermore, gillnets has found little sign of comparison, the value are commonly lost or inbreeding or other of gold per kilogram abandoned at sea, risks often associated reached $50,000 in leading to ‘ghost with small 2020. fishing’ – a term used populations.2 to describe discarded fishing equipment that

2 Reference genome and demographic history of the most endangered marine mammal, the vaquita. Molecular Ecology Resources, 2020

UN ASSET RECOVERY AND INTER AGENCY PROGRAMME

INTRODUCTION OVERVIEW Amendment in the US, and the Wildlife The creation of a UN The purpose of Protection Law 2018 in Asset Recovery Inter- introducing an Inter- China, the legislation is Agency Network in the Agency Network (“the inconsistent and has Gulf of California that Network”) is to target various loopholes. In includes member states international totoaba addition, the legislation such as USA, Mexico, supply chains and tends not to be China, and countries eliminate illegal enforced with that form part of the trafficking of the sanctions that are illegal totoaba totoaba fish from the significant enough to trafficking routes Gulf of California. The deter those involved in between Mexico and sharing of information illegal wildlife China, will help tackle between the Network trafficking. In some the issues threatening will disrupt criminal cases, the legislation is extinction of the activities and often not enforced at vaquita. encourage the all. The Network will confiscation of the encourage member Furthermore, strategies totoaba being states to adopt a co- that encourage the trafficked, confiscate ordinated approach, exchange of the proceeds of selling leading to information and model totoabas, and penalise synchronisation of legislation in asset companies or legislation and forfeiture, confiscation organisations who have enforcement actions in and money laundering engaged themselves relation to wildlife between member states directly or indirectly in crime. will help to reduce the the illegal wildlife trade. financial incentives for Additionally, member and increase the risk to Although there is states would be those who poach and existing legislation in encouraged to use the traffic the totoaba fish. these countries to Network to make protect wildlife, such as formal money the General Wildlife laundering requests Law in Mexico, the under Article 6 of the Lacey Act and the Pelly United Nations

Convention against HOW DO OTHER workshops (including Transnational UN ASSET training on tracking Organized Crime. 3 RECOVERY AND proceeds from wildlife This may be INTER AGENCY and forestry crime, particularly useful for PROGRAMMES money laundering, states such as Mexico, OPERATE? exhibit handling and where the Mexican financial intelligence). Government are The UN already has ARINSA also runs a reluctant to take action several Asset Recovery mentorship due to local distrust and Networks in operation programme where may therefore across the world, most experienced financial appreciate international prominently in Africa, investigators work with assistance. where there are member countries to networks for West, help them establish Considering the vital East and South Africa. their asset forfeiture role that the Gulf of For example, the Asset regimes and other legal California plays as a Recovery Inter-Agency regimes to improve the habitat to a wealth of Network for Southern law enforcement endangered and Africa (ARINSA) responses of members vulnerable wildlife, works to establish the in relation to anti- there is a strong exchange of money laundering argument for it be information and good regimes. In addition, given additional practice, establish a ARINSA runs a protection in the form network of contact Prosecutor Placement of a UN Asset points and act as an Programme which is Recovery and Inter advisory group to designed to give Agency Programme. appropriate prosecutors with authorities.4 limited experience a more developed Activities of ARINSA understanding of asset include holding annual confiscation practices general meetings, by placing them in an steering committee experienced meetings and running confiscation legal team

3 https://www.unodc.org/documents/middleeastandnorthafrica/organised- crime/UNITED_NATIONS_CONVENTION_AGAINST_TRANSNATIONAL_ORGANIZED_CRIME_AN D_THE_PROTOCOLS_THERETO.pdf 4 United Nations Office on Drugs and Crime (UNODC) Asset Recovery Inter-Agency Network Southern Africa (ARINSA) - Fitz-Roy Drayton. http://www.cicad.oas.org/apps/Document.aspx?Id=4038

for a short time period cases increased by 35% totoaba trafficking and (1 month). ARINSA in 2015 to 2017; help protect species, are planning on including the vaquita. running a similar (iv) The number of placement programme new preservation order HOW CAN WE for investigators.5 cases increased by DRAW ON THE 200% from 2015 to SUCCESSES OF SUCCESSES OF 2017; ARINSA IN THE OTHER ASSET GULF OF RECOVERY AND (v) The number of MEXICO? INTER AGENCY new confiscation order PROGRAMMES cases increased by To draw on the 500% from 2016 to successes of ARINSA ARINSA’s 2019 report 2017; and and replicate them in reveals that since the the Gulf of Mexico, the Network’s inception in (vi) The ARINSA Network should have March 2009: Network has helped to three tenets: target criminal activity (i) A number of including corruption, (a) Upskilling - member countries had wildlife crime, illegal Upskilling should be established asset logging and forestry provided through forfeiture crime, extractive training, mentorship funds/management industries and illegal and placements – for units; fishing as well as other investigators and criminal activities in relevant border and (ii) The number of Africa.6 customs staff in new money laundering countries where the cases being brought by It is hoped that a relevant authorities are member states had similar model less experienced or increased by 69% from protecting the Gulf of effective. This may be 2016 to 2017; California could particularly effective provide the same for countries like (iii) The number of protection and help Mexico, which have new asset forfeiture reduce the impact of struggled in the past to wildlife crime such as enforce compliance

5 https://www.unodc.org/southernafrica/en/arinsa-members-sign-the-dar-es-salaam-declaration-on-strengthening- asset-forfeiture-for-development.html) 6https://www.unodc.org/documents/southernafrica//Publications/TransnationalOrganisedCrime/ARINSA_Ann ual_Report_2020_Final.pdf

with its wildlife laws (b) Connecting - government agency for and the influence of The Network should each member state. cartels. 7 In addition, seek to enable more the Network should regular and more (ii) A Steering help relevant countries efficient exchange of group, attended by key set up effective asset information and best seniors to assist in the recovery units to practice, and to identify preparation of the ensure assets are specific areas of annual conference effectively seized, concern (both thematic agenda and identify helping to remove the and geographical) for areas to explore by incentives for those further work. Given separate working who engage in wildlife that the trafficking of groups. This Steering trafficking. illicit wildlife occurs group would select a across multiple president from its Examples of how borders, this proposal members to act as host upskilling could be would seek to foster and to be responsible achieved include use of ongoing cooperation for external international between multiple communications on workshops (to facilitate national authorities. behalf of the group. discussion and the general upskilling of To help enable this, it (iii) Working groups investigators/prosecut would be useful to (set up by the Steering ors), national/regional identify three key group) to be attended workshops (to target points of contact in by relevant specific issues in a each member state, to practitioners to country/region as act as representatives examine and report on identified in working and SMEs in various practical, legal, groups and bringing on functions (as outlined investigative issues and board subject matter below). This would present experts (SMEs) to involve having: recommendations. train/facilitate discussions of best (i) Two (iv) An Annual practice), and practitioners (one General Meeting to be mentorship and prosecutor and one held between all points placement programmes investigator) as well as a of contacts to foster similar those facilitated sponsoring senior relations. by ARINSA. within a relevant

7 Elephant Action League, Wildlife Crime Division - ‘Operation Fake Gold’

(v) Engagement already possible, it is provide Fishermen with other Asset hoped that the with gillnets; Recovery and Inter Network described Agency Networks such above will provide a (b) Sea of Cortez- as ARINSA.8 framework to Fishermen poach encourage and inform totoaba and remove the (c) Influencing - the wider uptake of swim bladder (maw); Given the necessary such measures by concentration of SMEs member states. (c) San Felipe/Puerto in the Network, it Peñasco, Mexico- the should also be able to FOCUS swim bladder is sold to act as an advisory JURISDICTIONS the first buyers, who group to appropriate prepare the bladder to authorities seeking The supply chain of the be transported and sold advice, as well as totoaba begins in the to a second buyer; seeking to influence Upper Gulf of less amenable member California, where the (d) Mexico (Mexicali, state governments totoabas are Tijuana, Ensenada, through the provision commonly taken to San Calexico, Mazatlán, of relevant data and Felipe in California, Puerto Peñasco, best practice USA, or Puerto Guaymas or La Paz) – arguments. Peñasco in Sonora, after being purchased, Mexico, to be sold and the swim bladder is This could be put in moved to a drying dried and moved. It is place for the Gulf of location.9 also common for the Mexico by presenting swim bladder to be sold recommendations to One of the common to Chinese traffickers policy makers through routes for the illegal who organise sponsoring seniors in trafficking of totoaba is international shipment. each member state. as follows: Criminals and local Although Mutual Legal (a) Baja California, fishermen in Mexico Assistance requests and Mexico - criminals play a substantial part informal assistance working for cartels in the organisation, between agencies are capture, selling, and

8 https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/workinggroup2/2018-June-6- 7/V1803851e.pdf) 9 Wildlife Crime Division EAL Operation Fake Gold July 2018

transportation of the multiple stops are taken shipping agent located totoaba and therefore by traffickers to avoid in Hong Kong, through Mexico would be a airport controls, whom trafficked goods crucial member of the including in the USA, are transported to Network. Hong Kong, Japan, Guangdong, China. Beijing or Vietnam. Other investigations In addition, multiple identified that totoaba other countries are also There is also evidence swim bladders were present in the of attempted smuggling transported via small trafficking routes of the of the totoaba to South packages in luggage, totoaba swim bladder Korea, Venezuela, and through countries such and as such would also Puerto Rico. Hong as Japan, Malaysia, be valuable members Kong in particular Vietnam and South of the Network. appears to be a vital Korea. point in the supply For example, chain for the purchase Additionally, the EIA Investigations by the of large quantities of found that the USA Environmental the totoaba swim also has strong links to Investigation Agency bladder11. the illicit totoaba trade. (EIA) between 2015- Not only is there an 2018 uncovered that Moreover, information important trafficking Taishan city in regarding trafficking hub on the US border Guangdong’s Jiangmen routes was published (Baja California State), plays a central role in following an but there are also the trafficking of the investigation investors in the trade of totoaba, with conducted by EIA in totoaba swim bladders connections to many June 2017, when the located near San Diego. criminals based in EIA looked into the Mexico.10 operation, trading and transportation of Further, totoaba swim totoaba. The bladders are commonly investigation identified smuggled into China that a cartel in Sinaloa via air routes. Along State dominated the these air routes, often totoaba trade via a

10 CITES’s Last Chance: Stop the Illegal Totoaba Trade to Save the Vaquita August 2019 https://eia- international.org/wp-content/uploads/EIA-report-citess-last-chance-single-pages-for-print.pdf 11 Wildlife Crime Division EAL Operation Fake Gold July 2018 https://earthleagueinternational.org/wp-content/uploads/2018/07/EAL-Operation-Fake-Gold-Final.pdf

Source – ELI (Operation Fake Gold, Crosta et al. 2018)

In order for the to ensure that they are best prepare for Network to be able to transport the criminals establishing effective, then, those bladders. For example, further or alternative countries discussed evidence has shown routes, other above and which are that the Chinese surrounding countries otherwise present on authorities often warn can form part of the totoaba trafficking traffickers before Network, including the routes should form part checks are undertaken Philippines, Colombia, of it. However, at borders, which Indonesia and criminals have allows the traffickers Thailand. developed multiple time to hide the trafficking routes and totoaba swim bladders The suggested list of are known to bribe to pass them through countries to be invited those at border control customs.12 In order to to join the Network is therefore as follows;

12 https://www.theguardian.com/environment/2017/may/16/chinese-appetite-totoaba-fish-bladder-threatens-rare- vaquita

Mexico, China, the Wild Fauna and Flora (g) International Anti- USA, Hong Kong, (CITES), Corruption Japan, Vietnam, South INTERPOL/StAR Coordination Centre. Korea, Venezuela, Global Focal Point Malaysia, the Network, the United Government officials Philippines, Colombia, Nations Office on from the suggested Indonesia and Drugs and Crime member countries and Thailand. (UNODC), the World their UN Bank and the World representatives should KEY Customs Organization also be considered key STAKEHOLDERS (WCO); stakeholders.

It is imperative that key (b) Camden Asset In addition, it would be organisations that Recovery Inter-agency beneficial to have already contribute to Network, known as assistance from the assistance of (CARIN); organisations that have protection of wildlife already established and asset recovery are (c) Asset Recovery Asset Recovery Inter- part of the Network, as Inter-Agency Network Agency Networks. their assistance and for Asia and the Pacific expertise will be highly (ARIN-AP); As previously valuable. We have mentioned, the UN has therefore identified the (d) Financial Action several successful Asset following organisations Task Force (FATF) Recovery Networks that should be invited already in operation. to be members of the (e) Financial Action CARIN is a reputable Network: Task Force of Latin example of this and has America (GAFILAT); existing knowledge (a) The International which may assist in Consortium on (f) Red de helping develop Combating Wildlife Recuperación de protection for the Crime (ICCWC), Activos de GAFILAT; vaquita.13 comprising The and Convention on Engaging with the International Trade in ICCWC would also be Endangered Species of valuable due to their

13 Directory of Asset Recovery Networks Stolen Asset Recovery Initiative 4 June 2018 https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/workinggroup2/2018-June-6- 7/V1803851e.pdf

experience in by Article III of the since 1981 and in 2018 facilitating the CITES Convention, issued its own wildlife organisation and CITES would be a protection laws. cooperation between useful member to have Additionally, CITES their stakeholders that on board due to their CoP18 Briefing have helped to combat extensive knowledge Document from crime.14 on this issue.16 August 2019 noted in relation to the vaquita It may also be useful UPTAKE BY that “[a]t SC69 for the Network to PROPOSED information from Mexico, work with MEMBER China and the USA was INTERPOL/StAR COUNTRIES considered and the countries were encouraged to continue Global Focal Point While most of the collaboration and Networks to look at proposed member implement measures agreed how they have countries have an at August 2017 Trilateral established a secure existing interest in meeting.”17. communication combating wildlife network for law crime, mainland China In addition, recent EIA enforcement officers has not formed part reports show that known as Focal any other Asset China is strengthening Points. 15 Focal Points Recovery Inter-Agency enforcement efforts in works by allowing Networks (unlike the response to wildlife stakeholders to form, other proposed crime, including share and exchange member countries) and making further seizures information related to given this, it is unclear of assets and making wildlife crimes and whether China would further arrests which in asset recovery. choose to join the turn is leading to more Network. prosecutions of those Further, as the engaged in wildlife international trade of Despite this, China has crime. The EIA reports the totoaba is governed been a party of CITES also reveal that China is

14 ICCWC Strategic Programme 2016-2020 https://cites.org/sites/default/files/eng/prog/iccwc/ICCWC_Strategic_Programme_2016-2020_final.pdf 15 Directory of Asset Recovery Networks Stolen Asset Recovery Initiative 4 June 2018 https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/workinggroup2/2018-June-6- 7/V1803851e.pdf 16 https://cites.org/eng/disc/species.php> 17 EIA Briefing Document: CITES CoP18 https://eia-international.org/wp-content/uploads/EIA-Briefing- Document-CITES-CoP18.pdf

looking at its sentencing.18

Further, in light of recent events due to the COVID-19 pandemic, China is reviewing its wildlife protection legislation in the hope of strengthening its current laws.19 As such, these activities suggest that China may be willing to join the Network if invited.

While it is desirable that all invited member countries would join the Network, some of these countries may choose not to. Even in this instance we would hope that the Network would have a positive impact by disincentivising participation in the illicit totoaba trade at several points along the supply chain.

18 CITES’s Last Chance: Stop the Illegal Totoaba Trade to Save the Vaquita August 2019 https://eia- international.org/wp-content/uploads/EIA-report-citess-last-chance-single-pages-for-print.pdf 19 https://globalinitiative.net/analysis/china-wildlife-covid/

SENTENCING GUIDELINES AND JUDICIAL EXCHANGE The suggested between the locations solutions put forward INTRODUCTION where the illegal gear in this section are was found and vaquita twofold: The judicial framework habitat. 21 Net removal that currently operates teams are facing violent 1. Introduce a in Mexico provides a attacks from illegal judicial exchange basis for wildlife fishers, further programme between protection yet the curtailing their success. the UK and Mexico judicial system has a whereby members of low number of Despite there being a the UK judiciary, such prosecutions and fails basis for wildlife as Judges and to deter those involved protection in Mexico, it Prosecutors, are able to in the illegal totoaba has proved difficult to train their Mexican fishing trade. secure nature counterparts to better conservation outcomes deal with wildlife crime Mexican enforcement in Mexico. Mexico’s offenders; and efforts have been geographic and ineffective in geopolitical position 2. Implement a addressing illegal makes it an ideal series of sentencing fishing. Incredibly, the country of transit for guidelines for Mexican latest CIRVA report those seeking to profit judges to implement, noted a “clear increase from trade in following consultation in illegal fishing for endangered species. with international totoaba”, based on the 18.9% of illegal wildlife judges and industry number of illegal shipments intercepted experts to ensure gillnets removed from at U.S. ports between proportionate and the area.20 In 2018, 659 2005 and 2014 were consistent sentencing pieces of fishing gear exported from of wildlife criminals. were removed, 67% of Mexico.22 which was active illegal totoaba gear. A high correlation was shown

20 Totoaba macdonaldi. CITES Appendix 1 21 Report of the Eleventh meeting of the Comite Inernacional para la Recuperacion de la Vaquita (CIRVA), 2019. 22 Alejandra Goyenechea, Trends in Wildlife Imports from Latin America Denied Entry to the U.S (Washington D.C.: Defenders of Wildlife, May 2016).

CURRENT LEGAL enforcement chamber for FRAMEWORK IN ineffective 24 with a environmental matters; MEXICO survey in 2017 finding however, definitive that only 7% of rulings from In 2008, Mexico Mexicans expressed a administrative tribunals adopted an adversarial high level of trust in the can be challenged in the criminal justice system police.25 judiciary. however, the reform to this system from a Enforcement of Unfortunately, wildlife ‘mixed inquisitorial’ general wildlife crime crime is not pursued system was only law falls under the with the same vigour as complete in 2016. jurisdiction of the drug-related crimes, so There have been Federal Agency of much so that it is very numerous critics of this Environmental rare for wildlife crimes change. According to Protection. These to be prosecuted at all. the Mexican Ministry crimes are handled Cases are not reaching of the Interior’s 2012 either through a judicial the prosecution stage, survey of the Criminal process or an leaving sentencing Justice System, only 6% administrative review. guidelines somewhat of Mexicans surveyed The judicial process redundant. A study expressed confidence means that the crime conducted in the Selva in the system and would be investigated Maya tropical forest responders said the by the police and then revealed that the local main problems were reported to a public Attorney General’s that criminals are not prosecutor to take to Office of held accountable, the Court. The Environmental system is corrupt, the administrative process Protection judicial process is slow goes directly through (PROFEPA) only and the service from its Judicial Area Sub- transferred 2% of public servants is Delegation. The main illegal wildlife harvest poor. 23 Furthermore, federal administrative and trade cases to corruption in Mexican tribunal is the Federal public prosecutors - an federal agencies, state Tribunal for incredibly low rate.26 Governments and local Administrative Justice, authorities render law which has a specialised

23 https://nccriminallaw.sog.unc.edu/comparing-criminal-justice-system-mexicos/ 24 Crosta et al 2018 25 https://www.visionofhumanity.org/failing-justice-mexicos-institutional-weaknesses/ 26 Akella & Cannon (2004)

The main statutes Federal Organised Environmental which govern Crime Act 2003.27 This Protection. environmental crime in is the first time charges Mexico include The of this nature have When a defendant is General Wildlife Act; been applied in relation sentenced for an The General Law of to this piece of environmental offence, Ecological Equilibrium legislation, with Mexico’s Federal Penal and Environmental authorities identifying Code stipulates a range Protection; The the charges as falling of sentences, however, Mexican Official under the category of they are usually short, Standard NOM-059- ‘Crimes Against the and in most cases are SEMARNAT-2010; Environment’. In no longer than seven and The Regulations of addition to legislation, years’ imprisonment. the General Wildlife there are a number of Additionally, the actual Act. In November administration and time of incarceration is 2020, thanks to the enforcement bodies usually three-fifths of Earth League including The Ministry the sentence – International’s of Environment and assuming good Confidential Natural Resources behaviour. Intelligence briefs, (SEMARNAT); Furthermore, those Mexican authorities Directorate General for sentenced for under arrested six suspected Wildlife; and The five years’ totoaba traffickers Attorney General’s imprisonment may under the Mexico Office of avoid further time in jail by a payment of a bond. This is of particular concern when considering the substantial amounts of money involved in environmental crimes. Article 417 imposes a penalty of one to nine years’ imprisonment and a fine. This can be Source – increased by an extra Dreamstime.com three years if the

27 https://earthleagueinternational.org/2020/11/27/vaquita-mexico-arrests/

offence was committed of Chinese labourers in As with Mexican in a protected natural the United States. traders, the Chinese area. Additionally, Chinese people settled traders use corruption there are specific mostly in Mexicali and as a means to smuggle sentencing for sea Tijuana. Chinatowns in totoaba swim bladders. animals equating to both cities have The swim bladders’ nine years developed, forming an transfer between the imprisonment. There important cultural and Mexican traders and are options outlined in economic hub for the Chinese traders Article 70, where it Chinese residents. occurs mostly in becomes possible to Today, an estimated Mexicali and Tijuana, substitute sentences 5,000 Chinese people though it also occurs in with fines or work live in Mexicali and Ensenada, Calexico, within the community 15,000 in Tijuana. In Mazatlan, Puerto if the sentencing 2008, direct flights Peñasco, Guaymas, La guidelines are under from Tijuana to Paz, and Mexico City. four years. It should be Shanghai were noted this could be launched, resulting in The Chinese totoaba used to assist tackling an increase of the network is well the implications of Chinese population in established and arresting fishermen and Tijuana. organised. They use the trouble this causes smugglers to transport in terms of turning Chinese traders are the totoaba swim communities against commonly wholesale bladders to China via the efforts to stop buyers of totoaba swim air routes, taking trafficking. bladders within the indirect flights to avoid totoaba cartels. customs controls in CHINESE Chinese traders are also China. ELI’s TRADERS responsible for the investigation reveals preparation of the that the Chinese Mexico saw two major swim bladders for traffickers are also Chinese immigration transit (both to China involved in human waves in the 1880s and and the USA). The smuggling and money in the 1940s. The first USA is both a transit laundering. The one was fostered by the and a demand country, Chinese traffickers Chinese Immigration although it is thought keep a relatively low Act of 1882, which that the majority of the profile compared to prohibited the entrance demand is from China. Mexican traffickers.

Although criminal bladder is not enough. JUDICIAL gangs in Mexico that Instead, there must be EXCHANGE form part of the greater assistance in PROGRAMMES totoaba supply chain providing support to have responded to prosecutors and judges There is a problem with police efforts with to interpret the law and wildlife crime and the violence, it appears less to know when it is criminal justice likely that the Chinese appropriate to take pathway in Mexico; the residents of Mexican these matters to court. current system does cities will respond with Mexico is recorded as not effectively deter violence due to the having significantly wildlife crime. legitimate businesses fewer judges per Cooperation between that they own (and 100,000 inhabitants the defendant, would face losing). than the average nation prosecutor and and therefore needs judiciary is poor and ANALYSIS solutions that will not contributes to delaying just affect Mexico’s the criminal justice On the face of it, approach to wildlife pathway. Risks are Mexico’s General crime, but approach to currently low for those Wildlife Law may be crime as a whole. involved with wildlife considered “the most Solutions include an crime; they know they comprehensive wildlife increased and are probably not going legislation ever enacted in effectively distributed to get caught. The Mexico”. 28 However, it judicial budget and prosecutors (often is not enough. With severe penalties evidence collectors like only 2% of cases being enforced upon those the police) might not passed to public who fail to uphold the understand the prosecutors in 2004 29 rule of the law or significance of the and similar findings of maintain their judicial crime or have access to “prosecutions for these independence. laws relevant to wildlife crimes rarely ensue” in crime, leading to the 2010 and in 2017.30 31 prioritisation of other Simply enacting a piece legal cases. This results of legislation to outlaw in wildlife crime being the totoaba swim put to the back of the

28 Valdez et al (2010) 29 Akella & Cannon (2004) 30 Valdez et al (2010 31 C4ADS 2017

training, the Mexican Government will be better equipped to fight the existing and future wildlife trafficking issues.

The exchange will increase Mexico’s legal reputation globally and Source – FindLaw.com improve and consolidate international relations prosecution queue trafficking’s serious through a collaborative despite conservation criminal convergence judicial exchange and wildlife issues with other organised platform. This will aid being recognised as a crime could drastically in helping to achieve global concern. improve prosecution global conservation rates, conviction rates objectives by The progression of and sentence lengths in addressing prevalent trials is plagued with the Mexican judicial wildlife trafficking adjournments, leading system. Combined with issues in Mexico, such to the loss of important improved sentencing as the totoaba. exhibits, witness guidelines, this will fatigue, and allows time deter wildlife criminals It is proposed that for corruption and and disrupt the criminal visits would be intimidation from pipeline at the source reciprocal of Mexican those prosecuted to of the criminal supply judiciary to UK or UK influence those chain. The incentive to judiciary to Mexico, to involved in the criminal fish totoaba and use provide justice trial. gillnets will decline and recommendations. The hopefully give the UK delegation should Building Mexico’s vaquita a fighting be made up of senior prosecutorial capacity chance of survival. prosecutors, judges and through a UK-Mexico With an amended judicial trainers from judicial exchange legislative framework the judicial college with training program and in wildlife crime and significant experience recognition of wildlife Mexican judicial of criminal justice and

wildlife crime. If the an exchange would enable exchange programme programme that takes participants to occurred in the UK, the place in the UK, the familiarise themselves visiting Mexican UK will have to with a judicial system delegation should go demonstrate its other than their own; through a selection experience and high procedure similar to level of expertise in the (b) Specialised the one highlighted in wildlife crime legal exchanges would allow the European Judicial area. Similarly, to specialised judges and Training Network encourage a UK prosecutors to extend exchange guide that is delegation visit to their expertise on a organised by an Mexico, (a potentially specific area of law established National contentious task) the (wildlife crime); Contact Point, UK will have to be able particularly if Mexico to provide evidence of (c) Exchanges for court has several institutions high-quality legal presidents and chief that are responsible for consultancy and prosecutors would the training of judges. demonstrate achievable allow judicial leaders to benefits for Mexico. shape Further, with the recent Furthermore, the their leadership and developments in virtual scheme should management skills; communications, it recognise the mutual would be possible for benefits to both (d) Exchanges for meetings to take place countries and should judicial trainers would remotely, in the form be carried out in a way allow participants to of video calls or that respects Mexico’s become familiar with conferences. This will culture, systems and the training allow meetings to take judicial knowledge. A methodologies and any place more frequently UK based exchange training initiatives and enable more could run through a which apply in the host regular contact number of different country; between the parties formats and will involved. depend on the (e) Long-term training jurisdictional needs of periods would allow The UK has neither the Mexico. For example: participants to become number nor severity of acquainted with the wildlife crime cases of (a) General two-week work, procedures and Mexico. To encourage or one-week exchanges

decisions of the hosting event on the UK (a) The judicial bodies; and/or Mexico Judicial environment and Exchange programme requirements of judicial (d) Remote meetings though a website systems of the host would allow for more (designed similarly to country; regular contact and can the google document be used as catch-up on the EU Taiwan (b) The in-country meetings between Judiciary Exchange technical assistance to those taking place in website 32 ). The the Mexican judiciary, person. programme could seek including review on to organise specialist laws; development of During the communication with judicial training Programme, the two the Mexican public in methodologies and delegations can work Baja California to gain curriculums; and the together in a series of further insight into the recommendations on workshops, covering wildlife trafficking specific subject-matter prescriptive case issues surrounding the areas (totoaba and studies, sharing totoaba. It would also wildlife trade); and criminal court be beneficial for the experiences relating to UK delegation to have (c) The implementation trials on the a series of meetings of judicial cooperation environment and with elected and tools and instruments. wildlife trafficking. appointed officials Workshops and from relevant The UK and Taiwan seminars will be Government held a judicial exchange centred around the departments and other meeting 4 years after criminal justice key stakeholders the EU Taiwan judicial pathway, wildlife crime including, for example, exchange in 2014. The and the wildlife crime the secretary of states 2018 exchange worked sentencing guidelines for the Environment to further promote used in the UK and Security. bilateral judicial judiciary system. exchanges and gain a Participants of the deeper understanding It would be beneficial judicial exchange of Britain’s sentencing in Mexico for members would be able to, system. Whether this of the public to be able observe, compare and was a continuation of to register to attend the learn about: the EU Taiwan deal or

32 https://www.gov.uk/government/news/2014-eu-taiwan-judicial-exchange-programme

a separate exchange Obrador, leader of the in the exchange programme is unclear. National Regeneration programme have a However, one would Movement. He sufficient assume that the promised to help the understanding of meetings were poor and eradicate wildlife crime so that successful, as during corruption at all levels. they are able to direct the visit, the Taiwan With Mexico’s new investigations and delegation met with the leadership, one could understand when a case sentencing council and expect Mexico to agree should be brought to the criminal case review to a judicial exchange Court. There is a clear system to exchange programme with the risk of corruption views on the UK’s UK. within the prosecuting sentencing system, officials considering judicial reform and It is hoped that the amounts of money enhancing bilateral following a successful that are involved in the judicial ties for the judicial exchange illegal trade of wildlife, future. program an effective however, this should link would have been only motivate the Given Mexico’s history created between training of Mexican of corruption, one Mexican and UK prosecutors further. If might expect the judges which would we are unable to agreement of a lead to further convince prosecutors judiciary exchange communication. There to charge an offence programme with the are several endangered and take it to Court, UK to be a contentious species in Mexico there is no use in task. In 2018, Mexico which would also training judges or witnessed a historical benefit from a implementing moment in politics strengthened criminal sentencing guidelines. whereby the justice system. If a A well-informed Institutional precedent could be prosecutor will be able Revolutionary Party established to help save to ensure that judges (PRI) that had the vaquita, then this are well-aware of their governed Mexico for can be repeated for powers, ensure that the 70 years was removed. similar success in other investigations are Pena Neto, the former wildlife issues. effective and be president of Mexico, familiar with the was replaced by Andrés It is paramount that appropriate Manuel López prosecutors taking part punishments to

members of the given to fishermen who aggravating and judiciary that accept catch totoaba, a mitigating factors as bribes. facilitator in possession well as circumstances of a totoaba swim which indicate higher As an alternative, if bladder or a trafficker culpability which Mexico were unwilling attempting to cross a sentencing judges or to partake in a judicial land border. This magistrates must look exchange program, it creates an air of out for in order to could be proposed that uncertainty and reach their final a judicial committee is confusion which is easy decisions. These established purely for to exploit for criminals. factors are extremely the communication of important and it is wildlife crime issues Sentencing guidelines imperative that experts amongst judicial provide consistency on the topic of wildlife figures. Despite the and clarity among crime are consulted amount of money and convictions in a when these are drafted. effort that the Mexican jurisdiction. It is For example, as with Government has impossible to deter a drug and trafficking assigned to solving the potential offender if it crimes, offenders who issue of declining is not guaranteed that appear higher up in the numbers of vaquita, they shall be punished organisation of the they have been accordingly. It also can crime receive larger unsuccessful. demotivate police and sentences. Often, the Therefore, they may prosecutors if they see factors which welcome input from an investigation that distinguish between the international experts in has taken significant people at the bottom of the judiciary to help work lead to a derisory the criminal ladder and tackle the issues. sentence. Similarly, those higher up are inconsistent sentences determined by IMPLEMENTING can lead to resentment culpability factors. SENTENCING to laws and GUIDELINES prosecutions which are Sentencing guidelines already unpopular are not a new concept As set out in the Legal among local Mexican in Mexico. In 2014, Framework section communities. Mexico implemented above, there is no rigid guidelines relating definitive answer for Sentencing guidelines to kidnapping offences what sentence will be should identify the due to a drastic rise in

the number of reported custodial sentence for not be a quick process. cases. This shows that offenders. If a However, by Mexico was able to defendant knows that supporting and identify that sufficient they face a high improving the Mexican guidelines are minimum sentence judicial system, the paramount to tackle then there is no groundwork is being growing issues. motivation for them to laid to prevent future plead guilty or co- catastrophic loss of It is not the intention of operate with officials in species. An this proposal to create investigations. It is also international link shall the new definitive possible that if judges be created between sentencing guidelines. believe that the judges to talk about the It is appreciated that it guidelines are too significance and the is likely to be ill- onerous on the difficulties involved in received if judges in the offenders, they simply serious and organised Mexican criminal will choose not to wildlife crime globally, justice system are told follow them. which will encourage what sentences they other nations to do the must impose by CONCLUSION same. The potential individuals who are not benefits to the Mexican similarly qualified. It is This proposal seeks to judicial system as a proposed that a target and deter the whole could be huge. collaborative approach beginning of the Whilst the focus of this can be achieved totoaba criminal supply proposal is to improve whereby Mexican chain that attracts many the country’s response judges can create the innocent and to wildlife crime, guidelines that they vulnerable Mexican Mexican judges and believe are appropriate civilians into dangerous prosecutors can only following discussions crime organisations. It improve with a sharing with industry experts is accepted that work of knowledge from and following a review remains to target the well-established of similar jurisdiction’s demand for totoaba criminal justice sentencing approaches. bladders which shall be systems. This will also It is also not the unaffected by these build the prosecutorial intention of this proposals and that capacity to deal with proposal to state that revolutionising the other organised crime Mexican judges must attitudes of judicial units including narco set a high minimum figures in Mexico will trafficking, recognising

that wildlife crime and other areas of crime share many convergence points.

DEVELOPING DUE DILIGENCE LAWS

Source – Traffic.org

DUE DILIGENCE engaging in the illegal Totoaba fish bladder is wildlife supply chain sold alongside legal Imposing due diligence through fear of seafood shipments as obligations upon prosecution. well as other illegal import-export agents, A key challenge in the products. Other illegal shippers and brokers design of due diligence products may include would ensure that and ‘know your shark fins or illegal illegal consignments of customer’ laws is that drugs. Totoaba is also totoaba would be totoaba consignments trafficked across the identified at the earliest can travel along supply land border between opportunity in the chains in various ways. Mexico and the USA supply chain and thus Totoaba is trafficked by via motor vehicles such more easily tracked to both human mules as cars and trucks. the source. Increased (someone who Front companies (an confiscation of illegally personally smuggles entity with the sourced totoaba and an contraband across a characteristics of a enhanced tracing border) or packaged legitimate business, network could also away for shipment and serving to disguise and deter wildlife hidden alongside other obscure illegal activity) traffickers from (legitimate) products. may be used by traffickers for larger

shipments of totoaba stakeholders and the (1) Customer bladders and other risks involved in any acceptance policy; illicit wildlife trade. potential dealings. Training those These laws were (2) Customer involved with initially introduced to identification identifying illegal form part of the procedures; shipments to have a broader goal of tackling better understanding money laundering in (3) Monitoring of of, and to be able to the sector, however, transactions; and identify totoaba is they are increasingly therefore essential. being adopted across a (4) Risk growing number of management. 33 KNOW YOUR industries. CUSTOMER (KYC) It is hoped that wildlife LAWS KYC laws compel trafficking can be banks and other significantly disrupted KYC laws are financial institutions to by adopting KYC essentially legislature identify who they are policies in the aviation concerning due dealing with, and to and shipping transport diligence. Due assess the risk that their industry. diligence can be services might be used defined as the for illegal purposes. By engaging and investigation a business developing an is expected to take The guidelines aim to understanding of their before entering into an prevent businesses customers (and ideally agreement or contract from being used by their customer’s with another party. criminal networks for customer) the money laundering transportation industry The KYC guidelines in purposes, as well as will effectively reduce place in the financial getting a further the scope of activities sector ensure that understanding of their carried out by criminal entities are open and customers. networks. transparent when maintaining a business The policies are based A combination of relationship. They on 4 key elements: corruption at various allow organisations to points along the trade verify the identity of chain, regulatory

33 https://www.iiflwealth.com/sites/default/files/investor-relations/KYC-POLICY1_0.pdf

loopholes, and under- couriers and freight to highlight corruption resourced law forwarding companies, and bribery, informing enforcement and are becoming passengers of the risks customs controls has increasingly vulnerable associated with meant that at present to exploitation by smuggling contraband wildlife trafficking is illegal wildlife and creating a network low risk and high traffickers.35 of information sharing. reward.34 The KYC legislation, Looking specifically at By adopting global funded by the United the trade in totoaba KYC laws the shipping Nations Development swim bladder it is and aviation industries Programme, would critical that the will be able to make a ensure responsibility is shipping and airline sizeable contribution to given to ports, borders, companies have these the wildlife trafficking customs authorities, systems in place and are threat. According to brokers and agents to aware of what cargo TRAFFIC, the wildlife collect, check and they are carrying, who trade monitoring confirm the identity of it belongs to, and who network, “Transportation each of their clients and it is intended for. is the backbone of global where their container is Incorporating these trade, and traffickers in heading. measures will ensure wild animals and wildlife that the illegal products rely heavily on In conjunction with the consignments of logistics, land, air and sea KYC laws it is crucial totoaba are identified at carriers to smuggle illicit that the aviation and the earliest possible goods. Companies from the shipping industries opportunity in the transportation and logistics work to build a robust supply chain, therefore sector can therefore play a customs system that is making it easier to trace critical role in identifying equipped to handle the back to its original and strengthening key risk illegal wildlife trade that source. points in the supply chain.” operates through its Transportation and business. This involves logistics businesses, training employees to such as passenger and recognise suspicious cargo airlines, shipping packaging, creating a companies, express whistle-blower system

34 https://www.traffic.org/site/assets/files/8832/w_traps-transportation-discussion-document.pdf 35 https://www.savetherhino.org/thorny-issues/the-transportation-industry-and-the-illegal-wildlife-trade/

REQUIREMENTS trafficking of wildlife. able, refuse to accept or FROM THE The commitments ship such cargoes.36 AIRLINE AND agreed upon by the SHIPPING signatories aim to help In the aviation industry INDUSTRIES support the private the problem was sector in fighting the initially perceived to be Naturally, the aviation illegal wildlife trade and linked mainly with air and shipping focus on: cargo, however, recent companies will play a (a) Securing reports indicate that key role in establishing information sharing there has been a the KYC laws on an systems for the sizeable shift towards industry wide scale. transport industry to passenger smuggling. Their participation and receive credible This highlights the support will inevitably information about high need to raise passenger determine the impact risk routes and awareness about that these laws will methods of wildlife trafficking and have in curbing the transportation; in training staff to illegal wildlife trade. recognise and report (b) Developing a suspicious packages There are encouraging secure system for and behaviour.37 signs that the airline passing information industry considers the about suspected illegal illegal trade to be wildlife trade from the something worth transport sector to campaigning against. relevant customs and This is evidenced by law enforcement the Buckingham Palace authorities; and Declaration. (c) Notifying The International Air relevant law Transport Association enforcement (IATA) and leading authorities of cargoes airline companies have suspected of containing signed the Buckingham illegal wildlife and their Palace Declaration to products and, where reduce the illegal

36 https://unitedforwildlife.org/the-buckingham-palace-declaration/ 37 https://routespartnership.org/industry-resources/publications/flying-under-the-radar-final.pdf/view

The image at the right of this page provides a list of airline companies who signed the memorandum.

This declaration has since been broadened in its scope to include a similar commitment by shipping companies around the world. In relation to the totoaba, efforts should be made to include all airlines and ships travelling between Mexico/US and China. Source – IATA.org Mexico in particular presents a significant The issue of illegal IMPLEMENTING threat. Between 2003- wildlife smuggling KYC LAWS 2013, nearly 2,000 requires a global (48%) of all the illicit commitment and Kenya is an example wildlife shipments support from the where KYC laws have from Latin America transportation been previously seized by US industries which can suggested to manage authorities originated help tackle the threat wildlife trafficking, in Mexico 38 meaning posed by these particularly in relation that KYC laws are vital advanced criminal to the ivory trade. in stopping not only networks.39 the trade of totoaba but It has been proposed other illicit wildlife by Space for Giants products too. that KYC laws need to be urgently implemented for the

38 Alejandra Goyenechea and Rosa A. Indenbaum, Combating Wildlife Trafficking from Latin America to the United States: The Illegal Trade from Mexico, the Caribbean, Central America and South America and What We Can do to Address It (Washington, D.C.: Defenders of Wildlife, 2015), 39 https://www.iata.org/en/pressroom/pr/2016-06-02-05/

import and export of investigators to trace of agreement. In products globally as the seized Mexico’s larger cities, it well as alongside those consignments back to is possible to hire a that deal with the source. It is difficult local consulting or law international to identify the original firm to obtain movements of money. source and track information about a The proposal has the precisely where they company or individual. back of the Director of were heading. Part of In addition, local Public Prosecutions, the issue lies with the chambers and Noordin Haji, but to transportation associations can assist date progress has been companies failing to U.S. firms in locating slow. carry out effective due economic reports on a diligence on their particular firm. There According to studies, customer’s are only a few private criminal prosecutions consignments. As a firms that conduct due in relation to wildlife result, there have been diligence trafficking are calls for Kenya to countrywide.43 increasing 40 , however, implement legislature it is evident that the that compels If adopted by the majority of those being companies to carry out Mexican, US and convicted are poachers comprehensive due Chinese governments and low-level diligence checks in an the KYC laws would middlemen rather than attempt to make illegal contribute to the the key stakeholders in trading far more conservation effort of the criminal complicated for the vaquita and totoaba networks.41 organised crime.42 by frustrating the criminal activities on The main reason as to Currently US firms are either side of the trade why the heads of these strongly advised to chain. criminal organisations conduct due diligence do not end up in court on a Mexican firm or This would prove is due to the paucity of individual before particularly useful information that allows entering into any type against the Asian

40 https://www.spaceforgiants.org/s/2018-Impact-Report. 41 Bradley Anderson and Johan Jooste, Wildlife Poaching: Africa’s Surging Trafficking Threat (Washington, D.C.: Africa Center for Strategic Studies, May 2014) 42 https://www.independent.co.uk/voices/campaigns/giantsclub/kenya/adapt-money-laundering-laws-african- trade-slow-poaching-a8509801.html 43 https://www.export.gov/apex/article2?id=Mexico-Due-Diligence

criminal syndicates mentioned in this The Attorney General which comprises an report) and other Office (Fiscalia extensive list of middle- authorities that deal General de la men such as truck with trade and customs. Republica) is in charge drivers, customs Only a multi-lateral of prosecuting money control, shipping effort would be able to laundering activities agents and many more. combat the criminal with the support of the Increasingly, the Asian organisations that Ministry of Finance criminal networks operate on such broad and Public Credit appear to be expanding scale in each country. through the Financial along both ends of the Intelligence Unit (FIU). chain, meaning they are MEXICO’S ANTI moving closer to MONEY The primary legislation controlling all aspects LAUNDERING governing each type of of the business, from LAWS institution within the the actual sourcing of financial sector and the animals to the final Mexico's official Anti accompanying sale at markets.44 Money Laundering regulations grants a Law came into force on broad range of powers With the increasing 17 July 2013. The to supervise licensed power these official name of the and registered organisations hold, it Law is Ley Federal para institutions for becomes ever more la Prevención e compliance with AML apparent for the need Identificación de requirements. The for an independent Operaciones con three financial Taskforce to be Recursos de supervisors have established between Procedencia Ilícita. statutory powers to the three governments. conduct inspections, This Taskforce would Mexico is not currently request any relevant work on introducing on the Financial Action information from the the KYC laws task Force (FATF) List institutions that they following the of countries that have supervise and apply precedent set by the been identified as sanctions for financial sector and having AML noncompliance with would operate deficiencies. the preventive alongside the UN Asset measures but the Recovery Agency (also CNBV does not have

44 Varun Vira, Thomas Ewing, and Jackson Miller, Out of Africa: Mapping the Global Trade in Illicit

explicit power to investigations in order risk countries) or revoke a banking to develop evidence factors that entities license for breaches of and trace criminal should consider when AML failings. proceeds related to determining whether a money laundering. transaction is unusual In Mexico’s banking or not such as supervision, the law The multiplicity of transactional behaviour foresees exchange of organisations of other clients who information, including responsible for the have a similar confidential investigation of ML background. information, between gives rise to difficulties the SHCP, Banco de in coordination, and (2) 24-hour reports- México, the CONSAR, ensuring proper when a FI has the Institute for the sharing of evidence and information based on Protection of Bank information. evidence or concrete Savings, the National Under the Mexican facts that the Commission for the legal framework, the transaction may be Protection of Financial reporting obligations related to ML or TF, it Service Users and the that relate to suspicious should file a report with CNBV. Where transactions comprise FIU within 24 hours appropriate, the two components: from the moment it authorities have becomes aware of such entered into (1) Unusual information. agreements in order to transactions - Financial facilitate exchanges. Institutions (FI) are The Financial Action required to consider a Task Force (FATF) The Mexican set of criteria separately and The Financial authorities, especially or jointly: suspicion of Action Task Force of Procuraduría General money laundering Latin America de la República (PGR) (ML) or terrorist (GAFILAT) prepared a and law enforcement financing (TF), report in January 2018 agencies (LEAs) have scenarios that are on the AML and access to financial deemed unusual counter- terrorist intelligence and other (unusually high financing measures that relevant information. amounts, the However, they do not complexity and unusual often use this modalities or information in financial involvement of high-

were in place in Mexico and prosecuted in a priority setting to be in 2017.45 proactive and able to effectively The key findings were systematic fashion, but detect and disrupt TF. that Mexico had a rather on a reactive, In the same way, mature AML regime case-by-case basis. The authorities must with a well-developed report found from receive consistent legal and institutional analysis of the training to identify framework. There was convictions on ML that Totoaba trafficking and however significant risk most fell within the proceeds from this. of money laundering lower end of the stemming from penalty scale. Financial Institutions activities associated (FI) and most with organised crime The report also found Designated Non- such as drug trafficking that the level of Financial Businesses extortion, corruption corruption affecting and Professions and tax evasion. law enforcement (DNFBPs) generally agencies (LEAs), in understand their AML The report found that particular at the state obligations including most of the key level, undermines their customer due diligence, authorities have a good capacity to investigate record keeping, and understanding of ML and prosecute serious reporting. However, as and TF risks, and there offences. FIs were not required was generally good to update non-high-risk policy cooperation and Overall, Mexico has a customers’ files unless coordination. The solid institutional and a change in behaviour financial sector legal framework in was detected, the demonstrated a good place to investigate and extent to which understanding of the prosecute TF and customer profiles are primary ML threats impose targeted up-to-date is uncertain. from organised crime financial sanctions. Mexico has a solid legal groups and associated However, Mexico and institutional criminal activities as could do more to framework in place to well as tax crimes, but ensure that the relevant seek and provide the recognition of authorities are better information. Mexico corruption as a main equipped with the right cooperates with many threat was uneven. ML tools in terms of countries, especially the was not investigated training, expertise, and U.S. Thus it would

45 https://www.fatf-gafi.org/media/fatf/documents/reports/mer4/MER-Mexico-2018.pdf

appear that there are complete with columns restitution hearing in sufficient processes in flanking the door.48 2014. place to track those involved in the illegal C4ADS’ also noted that In order for Mexico’s trafficking of the the investigation existing framework to totoaba. following seizures be successful those involving Anthony carrying out any type of C4ADS, 46 a non-profit Sanchez Bueno on 30 work that includes due organisation dedicated March 2013 revealed diligence need to providing data- links between a higher- consistent training to driven analysis and level trafficker, Jason be able to identify evidence-based Xie, and a recycling unusual and suspicious reporting on global company. C4ADS’ behaviours. conflict and analysis of this transnational security company revealed only Guidelines should issues reported on limited business include ‘Red flags’ of totoaba trade in 2017.47 activity; although the suspicious behaviour company claimed to be such as companies with The report found that engaged in recycling a registered address but prosecutions were activities. In addition, no storefront or online almost non-existent. In the company did not presence only, some cases, fishermen appear to have mismatching shipment were living in large, maintained a public content descriptions luxurious houses, presence at its and inaccurate customs especially compared to registered address HS codes, inaccurate or the modest during its five-year unavailable shipper and accommodations of period of operation. consignee information, their neighbours. For During the same and inaccurate or example, one suspected period, Xie received inconsistent weight and totoaba fishing family about $4 million in estimated value lived behind payments originating in declarations. “cinderblock wall” in a China, up to $2.1 C4ADS identified, house with two floors, million of which when trafficked, painted white and remained unaccounted totoaba have been for at the time of his hidden amongst other

46 www.c4ads.org 47 ‘Hooked: How Demand for a Protected Fish Lined the Pockets of Mexican Cartels & Sunk the Future of an Endangered Porpoise Species’ (C4ADS 2017) 48 Sergio Haro. “Pesca Ilegal de Totoaba: Corrupción y Simulación.”

fish products during transit or incorrectly declared as other fish species and even declared as completely unrelated products, such as cornflakes.

Some Business owners confirmed that it is easy Source – to get merchandise UNODC.com across the border without export fees, paperwork, or even an assist in reducing The UK has various inspection, simply by bribery and identifying frameworks to regulate bribing border officials, totoaba that is being anti-money laundering, who reportedly wave trafficked. especially relating to through Chinese criminal proceeds. textiles and appliances UK ANTI-MONEY Banks are regulated in every day.49 LAUNDERING the UK by the (AML) Financial Conduct Consistency in due REGULATIONS Authority. For the non- diligence obligations financial sector, Her and training in these Money Laundering is Majesty's Revenue and sectors is required to the concealment of the Customs (HMRC) ensure that the same origins of illegally oversees high value standards are being obtained money. The transactions. The UK’s followed. UK has a robust customer due diligence approach to requirements, under The need for monitoring money the Proceeds of Crime appropriate laundering. It is Act (2002) and the supervision and possible for these laws Money Laundering and training coupled with to be easily adapted in Terrorist Financing serious sanctions for other countries. (amendment) non-compliance will Regulations 2019, are

49 Testimony of Robert Dreher, Associate Director, U.S. Fish and Wildlife Service, Department of the Interior, before the U.S. House of Representatives, Committee on Foreign Affairs, Subcommittee on Terrorism, Nonproliferation, and Trade. Poaching and Terrorism: A National Security Challenge. 22 April 2015

broadly aimed at taking can lead to a sentence Under these steps to identify of up to 14 years in jail, regulations, companies customers and or a large fine. The are also required to checking they are who severity of the sentence carry out enhanced due they say they are. If or fine depends on the diligence when the banks or those amount of money customer is not involved in high value involved. physically present when transactions do not carrying out comply, they can be Due diligence can be identification checks. sentenced to prison, defined as risk Enhanced due though the most likely assessing your business diligence is also punishment will be by finding out more required if the high value fines and about your customers. customer is from or further monitoring of This would be residing in a high-risk the organisation or performed when you country, as identified individual’s compliance establish a business by the EU. Countries to due diligence laws. relationship with a considered high risk are customer, when money those where there are Money laundering is laundering is suspected, considered to be considered a crime or for any occasional deficiencies in the anti- under section 328 (1) of transactions of €15,000 money laundering the Proceeds of Crime or more. 50 This regulations. Enhanced Act when a person includes both single or due diligence is also commits an offence if linked transactions. required if multiple they enter into or Good examples of payments have been become concerned in businesses carrying out made by the same an arrangement which due diligence checks customer in a short they know or suspect include asking for the period of time or a facilitates (by whatever customer’s name, number of customers means) the acquisition, obtaining official have sent money retention, use or documents and transfers to the same control of criminal residential addresses person. property by or on and obtaining dates of behalf of another birth of individuals No evidence has been person. Money involved in high value found of totoaba being laundering under the transactions. trafficked via the UK. Proceeds of Crime Act The UK’s laws can be

50 https://www.gov.uk/guidance/money-laundering-regulations-your-responsibilities

used as a model involving wildlife trade. the regulatory body for framework in other Totoaba bladder is shipping companies. jurisdictions that form frequently found in the supply chain of the bulk and is worth more CHINA’S MONEY totoaba. There have than or similar to the LAUNDERING been recent shifts in price of gold on the LAWS UK policy to ensure black market and that due diligence and therefore the sale of the China has an anti-money laundering totoaba parts would understanding of checks consider links commonly be greater money laundering and between companies than €15,000. Highly terrorist financing risks and their supply chain threatened species, and is not on the if they are located far such as the totoaba Financial Action Task away. could be considered as Force (FATF) Country high risk under List identified as having Regulation 14 of The regulation 33, in the AML deficiencies. Money Laundering, same way as oil, arms, Terrorist Financing and and precious metals are All financial Transfer of Funds listed. Species institutions must (information on the threatened with comply with these Payer) Regulations extinction can easily be obligations, and the 2017, added argued as high risk. country's current participants in the fine regulators check art market who deal in One possible pathway whether these sales, purchases, and to help reduce illegal obligations are met. storage of works of art totoaba trafficking with a value of €10,000 could be to establish a If a customer entrusts to the list of persons regulatory body for an agent to deal with and firms subject to import-export agents, the transaction on their customer due diligence analogous to the role of behalf, the relevant requirements. the Financial Control financial institution will Authority in the UK, verify and register the A due diligence which monitors the identity certificate of framework such as the compliance of bank’s the principal. UK’s could easily be adherence to customer adapted to include a due diligence laws. The main controlling regulation for high Organisations such as body against money value transactions the IMO could act as laundering in China is

the People’s Bank of It would seem that away customers due to more China (PBOC) and the China has a sufficiently complicated and Anti-Money comprehensive AML comprehensive KYC Laundering Bureau regulatory regime in procedures. Moreover, rigid which is the place. The problem AML specifications have investigative body of therefore appears to be the potential to limit the PBOC. the enforcement of the business opportunities. The AML Law requires law. Thus AML remains a financial institutions to non-issue for most Chinese report large and A White Paper on banks, unless they go suspicious transactions. Identifying Anti- international.” Money Laundering In August 2007, China Issues in Chinese Asian banks have been adopted the Banks found a major targeted by US Administrative Rules challenge in China, as enforcement for Financial stated by a foreign authorities for trading Institutions on bank, is the verification with undesirable Customer of IDs, because there partners: Banco Delta Identification and are so many people in Asia from Macau has Record Keeping of China with the same been censured for Customer Identity and name. Moreover, there trading with North Transaction are a lot of people in Korea, and Malaysian Information, requiring bigger cities who use First East Export Bank all financial institutions counterfeit ID has been specifically to identify and verify documents.51 identified as a their customers, subsidiary of Iranian including the beneficial The White Paper also Bank Mellat by the US owner. noted predominant Department of feedback of Treasury. Cash transactions commercial banks in Information sharing however, are not China was that they among banks and included in the money regard AML “as a waste regulators has to be laundering schemes of time and resources, or as improved along with and therefore bear a major cost driver. Some more stringent potential opportunities even perceive it as negatively guidelines to comply for money launderers. affecting profits as it scares with due diligence

51 https://www.theasianbanker.com/assets/media/dl/whitepaper/Asian%20Banker%20White%20Paper%20- %20China%20Anti-Money%20Laundry%20(English).pdf

procedures and harsher existing BSA of incorporation, a penalties for non- framework for Government-issued compliance. customer identification business license, a procedures. Partnership agreement US - CUSTOMER or a Trust instrument. IDENTIFICATION Title III of the Patriot For either a business or PROGRAM (CIP) Act referred to as the an individual, further AND CUSTOMER International Money verifying information DUE DILIGENCE Laundering Abatement requested may include (CDD) and Financial Anti- financial references, REGULATIONS Terrorism Act requires information from a that financial consumer reporting The U.S. is considered institutions deliver on agency or public to have the strictest two requirements to database or a financial KYC regulations of any comply with the strict statement. country and has a long KYC regulations: the Every bank is required history of combating Customer to verify their financial crimes Identification Program customers’ identity and stemming from the (CIP) and Customer make sure a person or Bank Secrecy Act Due Diligence (CDD). business is real. (BSA) established in 1970. Since then, To comply with CIP, a With regard to CDD, numerous other laws bank asks the customer the Patriot Act does have enhanced and for identifying not directly specify a amended the BSA to information. Each CDD requirement, but provide more robust bank conducts its own rather specifies that a guidelines and the most CIP process, so a bank is required to effective tools to customer may be asked report suspicious combat illegal for different customer behaviours. transactions, one of the information depending most important being on the institution. An As a result of due the US Patriot Act of individual is generally diligence, a bank may 2001. asked for a driver’s flag certain risk The Patriot Act license or a passport. indicators such as expanded to include frequent wire transfers the criminalization of Information requested and international terrorism financing and from a company might transactions. A ‘high- strengthened the include certified articles risk’ account is then

monitored more The Specially frequently, and the Designated Nationals Financial sanctions customer is required to and Blocked Persons include a ban on explain their List, also known as the investment in the stock transactions or provide SDN List, is a U.S. of the blacklisted other information. government sanctions individuals and list and embargo companies in which the When corporate measure targeting U.S.- blacklisted individuals company members designated terrorists, have a controlling open new accounts, officials and interest, and a ban on members of the beneficiaries of certain new debt (including all company will have to authoritarian regimes, securities such as provide Social Security and international bonds, credits, bills of numbers and copies of criminals (e.g. drug exchange, etc.) with a a photo ID and traffickers).52 maturity of more than passports for their 90 days. employees, board The list is managed by members, and the Office of Foreign Since the beginning of shareholders. This Assets Control and 2019, dozens of non- applied to those contains tens of U.S. vessels, owners, countries involved in thousands of and operators have the supply chain of companies, been designated on the totoaba will enable organizations, and SDN List due either to organisations to trace individuals who have their role in the evasion those involved as this been identified as of sanctions or their will provide posing a threat to U.S. dealings with SDNs, transparency. national security and sometimes unwittingly. Therefore those in the foreign and economic Such crippling background and higher policy. All persons and sanctions have been up the supply chain will businesses within the applied to companies not be able to hide U.S. are prohibited ranging from small behind an individual from doing business European vessel that is at the lower end with blacklisted owners to shipping of the supply chain. individuals or are behemoths like This may also act as a subject to sanctions for COSCO Shipping deterrent. violating the law. Tanker (Dalian).

52 https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons- list-sdn-human-readable-lists

Those caught involved as various fish country must receive in the illegal trafficking products, which consistent training to of totoaba can be untrained enforcement identify totoaba added to the list. This officials will not be able trafficking and would reduce, if not to tell the difference. proceeds from this. A stop, the number of platform to share ideas persons and businesses Front companies may will allow members traffickers would be be used by traffickers from each county to able to deal with. for larger shipments of exchange information Harsher sanctions totoaba bladders in relation to suspicious would also act as a allowing traffickers to persons or businesses deterrent especially if it hide behind the name which will help to can be seen that of a registered reduce, if not eliminate, sanctions are being company. This enables the illegal trafficking of applied. them to avoid using a totoaba. person’s name on the CONCLUSION paperwork associated with air cargo or Failing to recognize the containerised maritime connection between shipments. A front totoaba trafficking and company will have organized crime is opportunity to smuggle stalling the small quantities of illicit development and products within larger implementation of legal shipments. strategies needed to tackle the sophisticated The relevant networks that direct the authorities in each totoaba trade. country along the supply chain need to be Traffickers moving better equipped with totoaba bladders by air the right tools in terms freight or by sea must of training, expertise, declare the products and priority setting to they are shipping in be able to effectively customs paperwork. detect and disrupt Many totoaba totoaba trafficking. shipments are declared Authorities in each

CLOSING CHINA’S WILDLIFE TRAFFICKING LOOPHOLES

purpose of the import CITES CITES has three is not commercial, for appendices, which instance for scientific The Convention on include lists of species research, as established International Trade in afforded different by Article III of Endangered Species of levels of protection CITES. In these Wild Fauna and Flora from over-exploitation. exceptional cases, for (CITES) was signed in the trade to take place, Washington D.C. on 3 Appendix I an import permit and March 1973 and incorporates the most an export permit (or re- entered into force on 1 endangered among export certificate), has July 1975. It is one of CITES-listed species, to be obtained from a the world's most useful (commonly plants or relevant authority. tools in aiding wildlife animals threatened Moreover, Article III conservation through with extinction). of CITES regulates the the regulation of the CITES prohibits trade of species species trade. CITES international trade of included in Appendix has 183 Signatory these species except I.54 Parties, including China when the and Mexico, and regulates international trade in over 35,000 species of plants and animals, including their products and derivatives. The CITES system seeks to ensure that international trade in listed species is legal, sustainable and traceable.53 Source - CITES

53 CITES Secretary-General in Mexico to address the Vaquita and Totoaba crisis fueled by illegal international trade: https://cites.org/eng/CITES_Secretary- General_in_Mexico_to_address_Vaquita_and_Totoaba_crisis_fueled_by_illegal_international_trade_31052019 54 The CITES Appendices https://cites.org/eng/app/index.php

The totoaba is one of Wildlife Protection punishment for the 16 fish species Law as the primary hunting Grade 1 listed in the Appendix I legislation governing animals illegally is more under CITES, meaning the country's efforts to severe than the that international fight wildlife punishments for commercial trade, trafficking. The hunting Grade 2 purchase and transport Wildlife Protection animals illegally. Also, of this fish, as a general Law’s main purpose, as obtaining approvals for rule and with some stated in Article 1, is “to special license hunting exceptions, is protect and rescue rare and is more difficult for prohibited. 55 The endangered wildlife, to Grade 1. A scientific totoaba was added to preserve biodiversity and assessment of the List CITES Appendix I in ecological balance, to of Wildlife under 1976 and was also prevent risks to public Special State deemed “critically health and to promote the Protection, a species endangered” by the red construction of an ecological categorisation, is list of the International civilization”.57 usually reviewed every Union for 5 years, with the first Conservation of According to Article 10 review made in 2017. Nature (IUCN) in of China’s Wildlife 1996.56 Protection Law the Prior to 2017, China’s wildlife under the Wildlife Protection CHINA’S government’s Law did not specify WILDLIFE protection is divided how often the List of PROTECTION into two categories, Wildlife under Special LAW ‘Grade 1’ and ‘Grade 2’. State Protection had to Grade 1 animals are be updated or revised. China has been a party rarer and are Since 1988, The List of to the CITES since considered more Wildlife under Special 1981 and has a legal endangered compared State Protection has framework in place to to Grade 2 animals, and been changed only regulate international more stringent twice, in two specific trade in wildlife. In protection rules apply. points, in 2003 the 1988, China issued the For example, the Grade 2 musk deer was

55 The CITES species. https://cites.org/eng/disc/species.php 56 CITES, at Appendix I; Findley, L. 2010. Totoaba macdonaldi. The IUCN Red List of Threatened Species. https://www.iucnredlist.org/species/22003/9346099 57 Wildlife Protection Law (Draft Revisions) for Solicitation of Comments https://www.chinalawtranslate.com/en/wildlife-protection-law-draft-revisions

upgraded to stricter Administration and the purpose of scientific Grade 1 protection. Ministry of Agriculture research, population Also, in June of 2020, and Rural Affairs of control, epidemiology the pangolin was China jointly published and disease monitoring, moved from Grade 2 to a list adding 517 new or for other special Grade 1.58 species to the old List reasons, with a special of Wildlife under license.61 In 2018, two members Special State of the Chinese People’s Protection, doubling Although China’s main Political Consultative the species under body of legislation sets Conference, Zhang protection.59 out to protect rare and Endi and Ma Jin endangered wildlife, it proposed to contrast Neither in the old permits hunting and/or China’s List of Wildlife version of the List of killing of wildlife if under Special State Wildlife under Special granted for special Protection with the State Protection nor in reasons by the annually updated the new version are the government. Articles 1 IUCN Red List of vaquita or totoaba and 4 of the Wildlife Threatened Species. included.60 Protection Law as They said that China originally drafted are was failing to protect Moreover, according to worded in a way that 405 species classified as Article 21 of China’s could be seen to critically endangered by Wildlife Protection encourage the IUCN Red List and Law the hunting or domestication and included for protection killing of wildlife under breeding of wildlife for 197 species that the the government’s various purposes, IUCN deemed at no protection is including human risk. prohibited. However, it utilization (which allows hunting and/or On February 2021, The killing, even for wildlife National Forestry and under Grade 1 national Grassland conservation, for the

58 China’s list of protected animals to be updated after 32 years https://chinadialogue.net/en/nature/chinas-list-of- protected-animals-to-be-updated-after-32-years/ 59 After 30 Years, China Revises Its Protected Wild Animals List https://www.sixthtone.com/news/1006814/after- 30-years%2C-china-revises-its-protected-wild-animals-list 60 China updates list of species with special protection https://birdingbeijing.com/2021/02/08/china-updates-list- of-species-with-special-protection/ 61 Wildlife Protection Law (Draft Revisions) for Solicitation of Comments https://www.chinalawtranslate.com/en/wildlife-protection-law-draft-revisions/

includes Law that encouraged protected species. It consumption).62 domestication and also stated “EIA has breeding of wildlife collated, translated and AMENDMENTS other than breeding made available public data TO THE programs carried out on 531 government permits WILDLIFE by scientific research issued to companies or PROTECTION institutes for government entities to buy, LAW preservation purposes. sell or utilise key protected However, Article 28 of species, including 45 issued On 2 July, 2016, the the Wildlife Protection to pharmaceutical first substantial Laws still allows for the companies”.63 revision of the Wildlife sale, purchase or use of Protection Law, was protected wildlife The 2016 amendment made by the Standing species and their was strongly criticized Committee of the products for the for expanding National People’s purpose of scientific loopholes and allowing Congress of the research, captive wildlife trade to People’s Republic of breeding and public continue in China. Xie China. exhibitions or Yan, a researcher at the performances with a China Central The amendments to special permission. Academy of Zoology the Wildlife Protection wrote “The language Law took effect on 1 The Environmental legitimizes the use of wildlife January, 2017, and as Investigation Agency for commercial purposes and per the previous laws, (EIA) made a report in encourages a consumptive prohibit the sale, October 2020 attitude that stimulates purchase, or use of rare regarding permissions demand for wildlife or near-extinction wild for the sale, purchase products”.64 animals protected by or use of protected the government. The wildlife species stating Although China is a amendments deleted that permits have been signatory party to passages from the issued to companies CITES, it is clear that Wildlife Protection previously involved in the local laws in China

62 Library of Congress. China: New Wildlife Protection Law https://www.loc.gov/law/foreign-news/article/china-new-wildlife-protection-law/ 63 Behind Closed Doors: lack of transparency in ongoing permitted use of threatened wild animal species in China. https://eia-international.org/wp-content/uploads/Behind-Closed-Doors-Lack-of-transparency-in-permitted-trade- of-threatened-species-in-China.pdf 64 Rachael Bale “Five Ways China’s Wildlife Protection Law Will Harm Wildlife” National Geographic, February 1, 2016. https://www.nationalgeographic.com/news/2016/02/160201-China-wildlife-protection-law-conservation/

are conflicted with the are worded legitimizes mainland China is easy, CITES framework and the trade of endangered with customs agencies not are vague, flexible, have species and encourages routinely inspecting fish loopholes, and even consumption, which maw consignments (...). include language that has led, and will EIA’s online research both legitimates and continue to lead, the identified numerous encourages the wildlife Chinese community to platforms for fish maw trade. consider such acts as trade, and significant ‘common practice’, consumer interest in totoaba Although the current which will continue to maws. Some of these Wildlife Protection drive demand. platforms were actively Law does not explicitly offering fish maw, including permit illegal activities TRAFFICKING totoaba for sale”.65 concerning protected ROUTES wildlife, wording of the Investigations have current rules does not The EIA made a report shown that totoaba go far enough to on January 2016 swim bladders are explicitly forbid regarding the illegal commonly smuggled activities that will likely trade and consumption through transit result in the extinction of the totoaba swim countries including of endangered species. bladder and the Hong Kong, South Also, current laws collateral damage to the Korea, Japan and permitting the trade of vaquita population, Taiwan, and shipped wild animals where which established: using couriers of other permission has been “In Guangzhou, EIA products like seafood. granted by the found golden coin The same routes are government has led [totoaba] maw openly on commonly used for Chinese society to sale in six shops. Generally, drug trafficking.66 legitimize the trade, use traders were aware that or consumption of totoaba sale is illegal, knew There are large totoaba species which should the fish are only found in importers in Hong be protected against Mexico and claimed that Kong – another such acts. The way in smuggling the contraband jurisdiction where laws which the current laws between Hong Kong and are too flexible,

65 Environmental Investigation Agency. January 2016. DUAL EXTINCTION: The illegal trade in the endangered totoaba and its impact on the critically endangered vaquita. https://eia-international.org/wp-content/uploads/EIA- Dual-Extinction-mr.pdf 66 OPERATION FAKE GOLD. The Totoaba Supply Chain – From Mexico’s Totoaba Cartels to China’s Totoaba Maw Wholesalers. An Illegal Trade Killing the Vaquita https://earthleagueinternational.org/operation-fake-gold/

enforcement is too open manner and explicitly) provides little and fines and traders are reported to some support for those punishments are not be ‘warned’ before trading totoaba under sufficient to discourage checks by Chinese the branding of TCM, the profits that come authorities, allowing providing an excuse to from selling totoaba. them to hide the swim those who continue to For example, on 28 bladders.69 exploit the loopholes January 2018, at the and continue to trade Hong Kong TRADITIONAL and consume International Airport, CHINESE endangered wildlife. authorities seized 28 MEDICINE kilograms of totoaba The use of animal bladders (about 95 Trade of endangered bladders has been a swim bladders). and protected animals Chinese cultural However, the two is not clearly described practice since 500AD, individuals involved, as an illegal practice with demand received 10 and 14 under the Wildlife previously met by the weeks of imprisonment Protection Law when critically endangered each.67 applied to the use of Chinese bahaba Also, traders state that animals for their (Bahaba taipingensis). smuggling totoaba alleged (and The Chinese bahaba is bladders from Hong unfounded) benefits of the same taxonomic Kong to mainland branded under family as the totoaba. China is easy since ‘traditional Chinese As the population of custom authorities do medicine’ (TCM). That Chinese bahaba not make routine does not mean that the numbers declined, inspections. 68 Despite totoaba used in TCM is trade shifted towards being illegal, the trade legal, but the wording totoaba bladders in its of totoaba bladders (which does not place to meet demand. often crosses several currently ban the trade TCM claims that swim countries until its of endangered animals bladders from the fish arrival to China in an for use in TCM family, Sciaenidae

67 The totoaba supply chain- From Mexico’s totoaba cartels to China’s totoaba maw wholesalers – an illegal trade killing the vaquita https://earthleagueinternational.org/wp-content/uploads/2018/07/EAL-Operation-Fake-Gold- Final.pdf 68 COLATERAL DAMAGE: How illegal trade in totoaba swim bladders is driving the vaquita to extinction https://eia-international.org/wp-content/uploads/EIA-Collateral-Damage-FINAL-mr.pdf 69 Chinese appetite for totoaba fish bladder kills off rare porpoise https://www.theguardian.com/environment/2017/may/16/chinese-appetite-totoaba-fish-bladder-threatens-rare- vaquita

(including totoaba), are discussion regarding The decision made by curatives for several the consumption of the NPC will help fast- ailments. However wildlife has reopened. track the ban by scientific research has For this reason, in amending the Wildlife not proven any of the February 2020, China’s of Protection law. This alleged health Standing Committee of brings hope to those benefits. 70 A the National People's wanting to see a ban in publication from the Congress (NPC), the trade of endangered China Briefing (a China's top legislature animals, however, the Chinese news outlet), banned wildlife trade permanent ban on published an article and consumption, first wildlife trade has not dated 1 April 2020 that temporarily on 12 yet been enshrined in stated; “Chinese February 2020 73 and the Wildlife Protection traditional medicine then permanently on Law. (TCM) is a multi-billion 24 February 2020.74 dollar industry in China, yet it is partially responsible for upholding discredited beliefs and quackery. It needs to be far better regulated”.71

COVID-19

With the arrival of Covid-19, with initial reports linking Covid- 19 with wet markets in China where wild animals were sold72, the Source – New Scientist

70 China's craze for 'aquatic cocaine' is pushing two species into oblivion https://www.theguardian.com/environment/radical-conservation/2016/jan/11/china-aquatic-cocaine-vaquita- totoaba-mexico-endangered-extinct 71 Covid-19 Carriers: What Do China’s Wildlife Protection Laws Say about Pangolins? https://www.china-briefing.com/news/covid-19-carriers-chinas-wildlife-protection-laws-pangolins/ 72 China's new wildlife law doesn't go far enough to stop another pandemic, https://edition.cnn.com/2020/11/17/opinions/china-wildlife-law-coronavirus-intl-hnk/index.html 73 China Focus: Stay Away From Wild Animals, China Takes Sustained Action Against Illegal Wildlife Trade http://www.xinhuanet.com/english/2020-02/12/c_138777165.htm 74 China's Legislature Adopts Decision On Banning Illegal Trade, Consumption Of Wildlife http://www.xinhuanet.com/english/2020-02/24/c_138814328.htm

CRITIQUE OF commercial breeding, would need to be THE CURRENT trade and consumption repealed. This would WILDLIFE of wild animals for cause further difficulty PROTECTION traditional medicine for the harmonisation LAW and other purposes, of the laws, and would while strictly depend heavily on the There was a publication prohibiting decision of the NPC to of the draft consumption as food, determine whether amendments to the could undermine the TCM or wildlife legislation on 21 commendable policy protection prevails. It October 2020.75 There changes aimed at could be argued that was a consultation after reducing disease risk whilst TCM has the draft was published from wildlife trade. centuries of culture and to critique the history, the modern amendments, which Another major concern approach and the ended on 19 with the Wildlife general population are November 2020. 76 Protection Law is how gravitating towards One crucial issue with it contradicts other wildlife protection, the amendments is that legislation. In including cities such as they would still permit particular, Article 25 of Guangzhou, Zhuhai commercial breeding the TCM Law and Shenzhen that has and trade of threatened encourages and higher levels of and protected wild supports wildlife economic development animal species for non- breeding for medicinal adopting local food purposes such as purposes. 77 Therefore, legislation to prohibit traditional medicine in order to ban the the consumption of and ornamental items. trade of endangered wildlife.78 There are particular wildlife for the concerns that a purposes of TCM, loophole permitting parts of the TCM Law

75 Proposed Amendments to the Wildlife Protection Law of the People's Republic of China, https://ddd.uab.cat/pub/da/da_a2020v11n4/da_a2020v11n4p214.pdf 76 China’s revised law paves the way for wildlife to become farm animals https://www.actasia.org/news/chinas- revised-law-paves-the-way-for-wildlife-to-become-farm-animals/ 77 Law of the People's Republic of China on Traditional Chinese Medicine, http://en.tmbos.xtow.net/index/article/view/id/14008.html 78 See Guangzhou Regulations on Prohibition of Unbridled Consumption of Wild Animals (2020.6.1), Zhuhai Special Economic Zone Regulations on Prohibition of Unbridled Consumption of Wild Animals (2020.5.1), Shenzhen Special Economic Zone Comprehensive Wildlife Prohibition Regulations (2020.5.1) etc http://sz.people.com.cn/n2/2020/0402/c202846-33921287.html

CBD CoP15 PROPOSED The NPC should also CHANGES make further In May 2021, China is amendments to the due to host the The NPC should Wildlife Protection Conference of the prohibit the trade and Law to completely Parties to the consumption of wild prohibit the domestic Convention on animals as food to commercial trade of Biological Diversity other forms of not only threatened but (CBD CoP15), a major consumption, all wildlife animal environmental summit including TCM. This species, including for the first time.79 As would be a two-step animals in captivity. the host, China must process. Firstly, it Furthermore, if wild demonstrate and would need to repeal animals are still provide working relevant provisions of included for scientific examples of effective the TCM Law that research purposes, policy changes in order allows for breeding of there must be stringent for other countries to wildlife animals for regulations in order to also take further action. medicinal purposes. provide licences such Without any Secondly, the Wildlife as the prevention of improvements, the Protection Law should breeding. If the licence prevention of further incorporate the current holder does not comply protection of wildlife local legislation that has with the regulations, a animals would be in already been adopted in heavy financial penalty grave danger and a cities preventing the would be applied. stagnation in further consumption of protection in a global wildlife animals. This CONCLUSION context. As China's would allow the wildlife legislation harmonisation of all As China is now one of currently stands, it is laws regarding the the global leading acting in direct consumption of economies in the opposition to prevent wildlife in the country world, a failure to the exploitation of all and would prevent adopt these suggested wildlife. further loopholes amendments would particularly with TCM. represent a grave missed opportunity to take much-needed

79 China's new wildlife law doesn't go far enough to stop another pandemic, https://edition.cnn.com/2020/11/17/opinions/china-wildlife-law-coronavirus-intl-hnk/index.html

action to reduce illegal and unsustainable wildlife trade. This would undermine China’s determination to be a leading example on biodiversity conservation whilst being the host of CBD CoP15 and the recommended revisions of the Wildlife Protection Law.