The South Africa – Viet Nam Rhino Horn Trade Nexus (PDF ... - WWF

situation at the end-use market: viet nam
LEgIsLATIoN rEguLATINg wILdLIfE TrAdE IN VIET NAM
The trade in wildlife products, including anything made from or comprising either native or exotic
rhino species, is regulated under Vietnamese law and legislation provides for either the issuance of fines
or the imposition of prison sentences depending on whether or not the violation in question resulted
in “serious consequences”.
Domestically, the exploitation of the indigenous Javan Rhino is regulated under Government Decree
32/2006/ND-CP on the Management of Terrestrial Endangered, Precious and Rare Species of Wild Plants and
Animals of 30 March 2006. The Javan Rhino is listed in Group 1B of this Decree, which covers species
whose “populations are very small in the wild or are in high risk of extinction” and expressly prohibits
“exploitation and use for commercial purposes” (Article 2.2.a). More specifically, under this Decree, it is
prohibited to “hunt, shoot, trap, capture, keep, slaughter, endanger” (Article 5.2.a), or “transport, process,
advertise, trade, use, hide, export, import” (Article 5.2.b) species or their products in this category.
However, the Decree makes an important distinction (discussed further below) between those acts that
qualify as criminal offences and those which are deemed administrative violations. Some 30 native
plant and 90 native animal species are protected in this manner as Group 1 species (Tung, 2011).
Viet Nam has been a signatory to CITES since 1994, becoming the 121st Party to the Convention. CITES
is implemented in Viet Nam through Decree 82/2006/ND-CP on Management of Export, Import, Re-export,
Introduction from the Sea, Transit, Breeding, Rearing and Artificial Propagation of Endangered Species of Precious
and Rare Wild Fauna and Flora of 10 August 2006. This Decree covers the international trade in endangered
or threatened fauna and flora of both domestically protected species and those covered by CITES
(Article 1.a). This Decree also legislates the application of the CITES Appendices in accordance with
Articles III, IV and V of the Convention (Article 2.5), and adopts the international permit system as a
requirement for such trade (Article 3). Thus, all CITES Appendix I species, including all non-indigenous
rhino species, are regulated under this Decree, and any allowances for exceptional trade require CITES
export or import permits.
Through this legal instrument, international trade in White Rhino trophies from South Africa is permissible
with valid export CITES permits for Appendix II species from exporting countries. Since Viet Nam has
been identified as a leading importer of rhino horns obtained through legal sport hunting in South Africa,
further procedures have been defined. To import a rhino horn specimen as a hunting trophy, the following
documents have to be presented to the CITES Management Authority in Viet Nam: (1) a CITES export permit
from the country of origin; (2) the hunting permit issued by the government authority in the country
of origin; (3) a copy of the passport of the Vietnamese hunter to verify that the person stayed in the country
where the rhino was hunted; and (4) a residence certificate issued by the local police (Tung, 2011). Viet
Nam’s CITES Management Authority will then, based on the copy of the export permit, confirm legality
and the particular details with the CITES Management Authority in the country of export, more specifically
South Africa. If importation is allowed, stipulation is made that the horn is not eligible for sale, but it is
taxed at the rate of 3% of its value, which is calculated at USD25 000 per kg (Tung, 2011).
Penalties for the violation of these laws are covered under the country’s Penal Code if the violation is
considered to be a serious or criminal offence, or Decree 99/2009/ND-CP on Sanctioning of Administrative
Violations in the Domain of Forest Management, Forest Protection and Forest Product Management of
2 November 2009 if the violation is regarded as an administrative infraction. Thus, Decree 99/2009/
ND-CP applies to violations considered to be less serious in nature, with financial penalties for the
exploitation of species protected under this decree based on the value of the goods, with a maximum
penalty of VND500 million (approximately USD29 000). If an offence is determined to be “serious”,
more so than an administrative violation, then criminal law will be applied and penalties are issued
under the revised Penal Code of 19 June 2009 (Article 190.1). Penalties under the Penal Code include
fines, non-custodial reform (i.e. non-detention re-education) for up to three years, or a prison sentence
of six months to three years (Article 190.1).
Severity of a case under the Penal Code is determined by the value of the goods seized and whether a violation:
(a) is conducted in an organized manner, (b) results through abuse of position held, (c) results
through abuse of the power under position held, (d) entails hunting in a prohibited area or prohibited seasons,
and/or (e) has caused severe or exceptionally severe consequences. Such violations result in a maximum
penalty of VND500 million (USD29 000) and up to seven years imprisonment (Article 190.2 and 3).
However, the degree of ambiguity around this definition allows enforcement officials some discretion.
Antelope horn trophies in Viet Nam.
LAw ENforcEMENT sTrucTurE for wILdLIfE TrAdE IN VIET NAM
Many agencies and branches of government are involved in Viet Nam’s management and law enforcement
structure with regard to wildlife trade. First and foremost, the CITES Management Authority under the Viet
Nam Administration of Forestry in the Ministry of Agriculture and Rural Development (MARD), is responsible
for CITES Management, including issuing all CITES import and export permits internally, and liaising
with the CITES Secretariat and the CITES Parties externally. Also under the Viet Nam Administration of
Forestry is the Forest Protection Department (FPD), which is responsible for enforcement of the country’s
forestry legislation, monitoring all types of forests and carrying out initial investigations of forest violations.
In the Ministry of Natural Resources and Environment (MoNRE), the Viet Nam Administration of
Environment is charged with managing the country’s national parks and protected areas, including Cat
Tien National Park where Viet Nam’s last rhino population was known to exist.
Within the Ministry of Public Security, the General Department of Police is mandated to investigate
any law enforcement case that has been determined to be “serious” under the Law on Forest Protection
and Development. In this regard, the Environmental Police play a special role and carry out initial
investigations of forest violations, including wildlife trade infractions involving rhino horn. Although
assuming a much lesser role in wildlife trade matters, the Marine Police are charged with preventing
the illegal importation of contraband goods through the country’s coastal borders and, in doing so,
engages in direct co-operation with the Customs Service. Similarly, the Transport Police play a parallel
role in preventing the illegal transportation of goods overland. In the Ministry of National Defence, the
Civil Defence Force engages in military preparedness, social safety and maintaining public order
through co-operation with the police. In particular, the Border Guard has special powers to control
encroachment into Viet Nam and prevent illegal border crossings, including cases that involve the illegal
exploitation of natural resources.
A key institution for policing wildlife trade within the Ministry of Finance is the General Department
of Customs, which monitors the import and export of goods. This body plays a fundamental role in the
implementation of CITES and other wildlife trade laws of Viet Nam. Although rather infrequent, when
seizures of rhino horn occur in Viet Nam, Customs are usually involved. In the Ministry of Industry
and Trade, the Department of Market Control also has responsibilities for inspecting domestic markets
and controlling trade violations. This is the primary agency for policing traditional medicine markets
that illegally dispense rhino horn.
Finally, the Ministry of Justice reviews legal normative documents and monitors implementation of the
country’s laws, while the Provincial People’s Committees direct the operation and law enforcement of
functioning departments and People’s Committees at the provincial or local level.
In summary, with various competencies, market control, environmental police, Customs officers and
forest rangers are all authorized to control trade in wild plants and animals, including the seizure of
their parts and derivatives or products in which they are used as ingredients. Unfortunately, most of
these enforcement personnel are not trained or equipped to identify endangered species listed in Decree
32/2006/ND-CP, or many partially processed or processed products and derivatives of plants and animals
used in traditional medicine (Nguyen and Nguyen, 2008).
114 the south africa – viet nam rhino horn trade nexus TRAFFIC 115
karl ammann