THE PERVERTED ARK: FAILURES, SUCCESSES, AND SOLUTIONS … · THE PERVERTED ARK: FAILURES,...

THE PERVERTED ARK: FAILURES, SUCCESSES, AND SOLUTIONS TO PROTECT

THE WORLD’S RAREST CREATURES FROM INTERNATIONAL TRAFFICKING

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I. INTRODUCTION.

“Kindness and compassion towards all living things is a mark of a civilized society. Conversely,

cruelty, whether it is directed against human beings or against animals, is not the exclusive

province of any one culture or community of people.” —César Chávez1

At first glance, many people are not quite sure what the creature is. A mass of

scales, long tail, short nose, and claws; it looks like a hybrid between an armadillo, anteater,

and dinosaur. It is a pangolin, a one-to-three foot animal native to Sub-Saharan Africa and

Southeast Asia.2 There are eight known species, with many strange adaptations—ranging

from a skunk-like spray to deter predators, to tongue longer than their body, used to snack

on insects.3 Despite their rather fantastic appearance, pangolins are mammals, and very

valuable ones at that.4 The pangolin is the most trafficked mammal on the planet.5

1 CÉSAR CHAVEZ, LETTER TO ERIC MILLS (1990).

2 What is a Pangolin?, SAVE PANGOLINS (last accessed Mar. 4, 2018),

http://savepangolins.org/what-is-a-pangolin/.

3 Id.

4 Id.

5 Sarah Heinrich et al., Where Did All the Pangolins Go? International CITES Trade in Pangolin

Species, 8 GLOBAL ECOLOGY & CONSERVATION 241, 242 (2016); Nearly 6,000 Pangolins in

Illegal Wildlife Trade in India Since 2009, TRAFFIC: THE WILDLIFE TRADE MONITORING

NETWORK (Feb. 16, 2018), http://www.traffic.org/home/2018/2/16/nearly-6000-pangolins-in-

illegal-wildlife-trade-in-india-sin.html (noting that even in 2018, the pangolin is still the most

trafficked animal in the world).



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The International Union for Conservation of Nature (“IUCN”) estimates that

between 2004 and 2014, over one million pangolins were trafficked.6 Pangolin scales have

been used in traditional Chinese medicine for hundreds of years with the belief that they

treat a variety ailments, from possession by devils and ogres, to malaria and deafness.7 Its

meat is considered a delicacy in Vietnam and China served in various forms; sometimes

entire animals are placed in jars of rice wine to function as a ghastly beverage flavoring.8

6 Eating Pangolins to Extinction, INTERNATIONAL UNION FOR CONSERVATION OF NATURE (Jul.

29, 2014), https://www.iucn.org/content/eating-pangolins-extinction.

7 Chinese Medicine and the Pangolin, 141 NATURE 72 (1938); see also Martin Fletcher,

Pangolins: Why This Cute Prehistoric Mammal is Facing Extinction, THE TELEGRAPH (Jan. 31,

2015), https://www.telegraph.co.uk/news/earth/wildlife/11370277/Pangolins-why-this-cute-

prehistoric-mammal-is-facing-extinction.html (explaining that pangolin scales are made of

keratin, the same substance as human hair and fingernails, and thus have utterly no medicinal

value).

8 Eating Pangolins to Extinction, INTERNATIONAL UNION FOR CONSERVATION OF NATURE (Jul.

29, 2014), https://www.iucn.org/content/eating-pangolins-extinction; Martin Fletcher, Pangolins:

Why This Cute Prehistoric Mammal is Facing Extinction, THE TELEGRAPH (Jan. 31, 2015),

https://www.telegraph.co.uk/news/earth/wildlife/11370277/Pangolins-why-this-cute-prehistoric-

mammal-is-facing-extinction.html (providing a disturbing account of a restaurant employee who

exclaimed he could acquire a live pangolin for $250 per kilogram and promised to slit its throat

in front of the patrons).



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These practices are disturbing, yet they raise the question: why should this largely unknown

little animal’s plight matter?

The crashing pangolin population shows that the laws against trafficking currently

in place are simply not working.9 Research by the Environmental Investigation Agency

found a substantial growth in the demand for pangolins which is leading to decimation of

their populations.10 The trafficking of pangolins is representative of a massive international

crime syndicate based on the abuse and death of wild animals, from parrots to tigers, valued

globally at US $20 billion.11

9 See, e.g., Manis Pentadactyla (Chinese Pangolin), INTERNATIONAL UNION FOR CONSERVATION

OF NATURE (last accessed Mar. 9, 2018), http://www.iucnredlist.org/details/12764/0 (displaying

results from a 2014 Chinese pangolin population assessment that predicts continuing population

declines of over 90% in the next two decades); Sahana Ghosh, “Alarming” Levels of Pangolin

Poaching in India Point to Need for a Systematic Study on the Species, SCROLL (Mar. 07, 2018),

https://scroll.in/article/870574/alarming-levels-of-pangolin-poaching-in-india-point-to-need-for-

a-systematic-study-on-the-species (noting that pangolin populations are believed to be crashing

due to the extent of poaching and that there are no comprehensive studies on their populations in

India);

10 Illegal Trade Seizures: Pangolins, ENVIRONMENTAL INVESTIGATION AGENCY (last accessed

Mar. 7, 2018), https://eia-international.org/illegal-trade-seizures-pangolins (illustrating the

growth over the last eight years).

11 Daniel W.S. Challender & Douglas C. MacMillan, Poaching is More Than an Enforcement

Problem, 7 CONSERVATION LETTERS 484 (2014).



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The trafficking of animals and animal products has surged in recent years.12 In the

U.S., there were nearly 50,000 illegal shipments of wildlife and wildlife products seized

between 2005 and 2014, consisting of 55,000 live animals and three million pounds of

animal products.13 The climate of international law implicitly rejects the inherent or moral

value of animals in and of themselves;14 however, the instrumental value of animals

reaches far beyond their mere worth in currency.15 Treatment of animals as mere

commodities to be bought and traded results in cruel behavior by humans.16 Allowing

12 Bradley Anderson & Johan Jooste, Wildlife Poaching: Africa’s Surging Trafficking Threat,

AFRICA SECURITY BRIEF (May 2014), available at https://africacenter.org/wp-

content/uploads/2016/06/ASB28EN-Wildlife-Poaching-Africa%E2%80%99s-Surging-

Trafficking-Threat.pdf; The E.U. Approach to Combat Wildlife Trafficking, EUROPEAN

COMMISSION (Mar. 3, 2017), http://ec.europa.eu/environment/cites/trafficking_en.htm.

13 Tina Deines, Illegal Wildlife Trade Booming Across U.S.-Mexico Border, NATIONAL

GEOGRAPHIC (Mar. 14, 2017), https://news.nationalgeographic.com/2017/03/wildlife-watch-

wildlife-trafficking-reptiles-mexico-united-states/.

14 TERO KIVINEN, THE ETHICS OF INTERNATIONAL ANIMAL LAW (Master’s Thesis, University of

Helsinki 2014) (on file with author of this piece).

15 See ABIGAIL PERDUE & RANDALL LOCKWOOD, ANIMAL CRUELTY AND FREEDOM OF SPEECH:

WHEN WORLDS COLLIDE 74 (2014) (finding that serious crimes against humans, such as drug

trafficking, gambling, and gang violence are often intertwined with animal cruelty).

16 See ABIGAIL PERDUE & RANDALL LOCKWOOD, ANIMAL CRUELTY AND FREEDOM OF SPEECH:

WHEN WORLDS COLLIDE 74, 178 (2014) (discussing research that found violence against humans



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animal-related crimes to go unpunished creates an environment that supports further crimes

against both animals and people.17

Although East Asian countries, such as China and Vietnam, are the world’s largest

consumers of pangolins and pangolin products,18 the U.S. plays a significant role in the

trafficking process. The U.S. is currently the second to China as the largest market for

trafficked animals in the world.19 The U.S. has a strong presence as a hub for trafficked

is intertwined with animal cruelty and further data that suggests that exposure to violence can

result in increased aggressive behavior, especially in juveniles).

17 Id.

18 NGUYEN DAO NGOC VAN & NGUYEN XUÂN DANG, The Pangolin Trade in Vietnam,

PROCEEDINGS OF THE WORKSHOP ON TRADE & CONSERVATION OF PANGOLINS NATIVE TO SOUTH

& SOUTHEAST ASIA 164 (2009); Alexandra Andersson, China’s Appetite for Pangolin is

Threatening the Creature’s Existence, TIME (Jun. 12, 2014),

http://time.com/2846889/pangolins-china-cites-trafficking-endangered/; see also Wildlife Crime:

Pangolin Trade Still Flourishing Despite Ban, UNITED NATIONS ENVIRONMENT PROGRAMME

(Feb. 15, 2018), https://www.unenvironment.org/news-and-stories/story/wildlife-crime-pangolin-

trade-still-flourishing-despite-ban (finding that demand for pangolins have increased along

China’s growth in population and wealth).

19 Kristina Davis & Joshua Emerson Smith, Teen Sentenced to Six Months in Prison for

Smuggling Border Tiger, SANDIEGO UNION-TRIBUNE (Feb. 20, 2018),

http://www.sandiegouniontribune.com/news/courts/sd-me-tiger-sentence-20180220-story.html.



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wildlife.20 Despite the severity and significance of such crimes, traffickers can receive a

sentence as low as 6 months due to apathy towards the crime by judges.21 The U.S. can

serve as an example for other nations by creating stricter laws with more comprehensive

punishments to create a stronger deterrent effect. Until laws are more consistently enforced

across all nations, INTERPOL should continue to work alongside the International

Consortium on Combatting Wildlife Crime (“ICCWC”) to coordinate seizure operations

that require international cooperation and accountability.22

Changing global views of animal welfare is messy. There’s no simple answer, nor

is there any one law that can resolve the problem within a year or two’s time. Many of

these practices are rooted in traditions spanning thousands of years.23 Therefore, it is

20 Diego Urdaneta, Inside America’s Battle on Wildlife Trafficking, PHYS.ORG (Feb. 27, 2016),

https://phys.org/news/2016-02-america-wildlife-trafficking.html

21 Jani Actman, Why a Teen Got a ‘Light’ Sentence for Smuggling a Tiger Cub, NATIONAL


teenager-smuggling-tiger-cub-mexico/.

22 Wyatt Smith, Note, Endangered Species Act or Extradition?: Protecting Foreign Species in

the Aftermath of the Cecil the Lion Controversy, 18 VT. J. ENVTL. L. 55, 83 (2016); Anti-Wildlife

Trafficking Operation Results in Global Arrests & Seizures, INTERPOL (Mar. 2, 2017),

https://www.interpol.int/News-and-media/News/2017/N2017-022.

23 GUANG BANG-WANG, Pangolin Protection in Taiwan, PROCEEDINGS OF THE WORKSHOP ON

TRADE & CONSERVATION OF PANGOLINS NATIVE TO SOUTH & SOUTHEAST ASIA 82 (2009)



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necessary to take a realistic approach to the situation to best create a solution that will

eventually lead to greater respect, understanding, and care for the world’s wildlife in later

years. Our tenacity as animal activists cannot falter if we hope to save pangolins, tigers,

and other creatures that are so brutally exploited.

This essay begins with a brief explanation as to the problem of pangolin trafficking and

emphasizes the significant relation to the welfare of other frequently smuggled animals and

animal products. Part II analyzes international laws designed to protect wildlife and the

punishments for smuggling. Part III explores wildlife smuggling laws in the U.S., and their

connection to international laws. Finally, Part IV addresses how laws can be changed to better

help smuggled wildlife and provides solutions to ensure the laws are enforced.

II. WILDLIFE SMUGGLING LAWS INTERNATIONALLY.

a. International Treaties are Widely Accepted; The Value of Endangered Animals is

Expected of Countries.

One of the most important treaties regarding the conservation and trade of endangered

species is the Convention on International Trade in Endangered Species, more commonly known

as CITES.24 CITES protects about 5,800 species of animals and 30,000 species of plants from

over-exploitation through international trade.25 There are 183 parties to the convention,

(explaining that Chinese traditional medicine has valued pangolin scales for thousands of years,

and practitioners are skeptical of substituted items).

24 What is CITES?, CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD

FAUNA & FLORA (last visited Mar. 27, 2018), https://www.cites.org/eng/disc/what.php.

25 The CITES Species, CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF

WILD FAUNA & FLORA (Jan. 2, 2017), https://www.cites.org/eng/disc/species.php.



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including the U.S., China, Vietnam, Cameroon, and Uganda—all countries known for having a

major role in the trafficking of pangolins and other animals.26 CITES-protected species are

distributed between three appendixes which classify species based on their risk of extinction.27

Appendix I species are those threatened with extinction and can only be traded in

exceptional circumstances.28 The trade must not be for commercial use; typically, the purpose of

import is for scientific research.29 Appendix II species are those which are not necessarily

threatened with extinction, but trade practices must be controlled because unregulated trade is

26 List of Contracting Parties, CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES

OF WILD FAUNA & FLORA (Last accessed Mar. 11, 2018),

https://www.cites.org/eng/disc/parties/chronolo.php; Helene Franchineau, A Ranger, Poacher, &

Investigator Explain Pangolin Trade, THE ASSOCIATED PRESS (Oct. 6, 2016),

https://apnews.com/17f48256f26a4ce38dbd4dfea1b1c1cb (explaining that pangolin demand is

strong in China & Vietnam, and that Ugandan pangolins are often poached for trafficking

purposes); A.N. Paul, Cross-Border Investigation: Pangolin Poaching in Africa & Trafficking to

Asia, DAILY MAVERICK (Feb. 23, 2018), https://www.dailymaverick.co.za/article/2018-02-23-

cross-border-investigation-pangolin-poaching-in-africa-and-trafficking-to-

asia/#.WqW4Z4JG2b9 (highlighting Cameroon’s role in the global pangolin trade).

27 How CITES Works, CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF

WILD FAUNA & FLORA (last accessed Mar. 6, 2018), https://www.cites.org/eng/disc/how.php.

28 Id.

29 The CITES Appendices, CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF

WILD FAUNA & FLORA (last accessed Mar. 28, 2018), https://cites.org/eng/app/index.php.



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incompatible with prolonged survival.30 Finally, Appendix III species are those protected in at

least one country that has asked other parties to CITES for assistance in regulating trade.31 All

eight species of pangolin are listed in Appendix I, meaning that their international trade is

essentially illegal.32 Other heavily trafficked animals listed on Appendix I include tigers,

elephants, sea turtles, and rhinoceroses.33

In 2010, CITES founded the International Consortium on Combatting Wildlife Crime

(“ICCWC”) alongside INTERPOL, the United Nations Office on Drugs & Crime, the World

Bank, and the World Customs Organization.34 The ICCWC is necessary because CITES does

30 Id.

31 Id.

32 Appendices I, II, & III, CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF

WILD FAUNA & FLORA (Oct. 4, 2017), https://cites.org/eng/app/appendices.php; How CITES

Works, CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA &

FLORA (Last accessed Mar. 6, 2018), https://www.cites.org/eng/disc/how.php.

33 Appendices I, II, & III, CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF

WILD FAUNA & FLORA (Oct. 4, 2017), https://cites.org/eng/app/appendices.php; Illegal Wildlife

Trade, WORLD WILDLIFE FUND (last accessed Mar. 6, 2018),

https://www.worldwildlife.org/threats/illegal-wildlife-trade (listing some of the animal species

most severely affected by trafficking, including several species of tigers and rhinoceroses).

34 The International Consortium on Combatting Wildlife Crime, CONVENTION ON

INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA & FLORA (Nov. 29, 2017),

https://cites.org/eng/app/appendices.php.



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not create crimes or punishments in international law.35 ICCWC is designed to strengthen

criminal justice systems and provide coordinated support in response to wildlife crimes.36

For example, in 2015, the ICCWC orchestrated and funded Operation COBRA III which

resulted in 139 arrests of individuals in possession of prohibited animal products.37 In 2017,

Operation THUNDERBIRD seized nearly four tons of pangolin scales and 8,000 live animals

from 49 countries.38 INTERPOL argues that the success of these operations is demonstrative of

what can be achieved through transnational law enforcement collaboration.39 It appears that such

collaboration will be key to ensure lesser-developed nations have the resources to adequately

prosecute environmental crimes.

35 Mara E. Zimmerman, Note, The Black Market for Wildlife: Combatting Transnational

Organized Crime in the Illegal Wildlife Trade, 36 VAND. J. TRANSNAT’L L. 1657, 1678 (2003).

36 The International Consortium on Combatting Wildlife Crime, CONVENTION ON

INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA & FLORA (Nov. 29, 2017),

https://cites.org/eng/app/appendices.php.

37 Wyatt Smith, Note, Endangered Species Act or Extradition?: Protecting Foreign Species in

the Aftermath of the Cecil the Lion Controversy, 18 VT. J. ENVTL. L. 55, 83 (2016).

38 Anti-Wildlife Trafficking Operation Results in Global Arrests & Seizures, INTERPOL (Mar. 2,

2017), https://www.interpol.int/News-and-media/News/2017/N2017-022.

39 Id.



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b. China and Vietnam

Because China is the world’s biggest consumer of trafficked animal products, an analysis

of the current laws is essential to understand how their trafficking laws can be improved.40 At

first glance, China is addressing the issue properly, as the smuggling of “rare animals and their

products” is a serious offense.41 Chinese law has scales for punishment of such offenses based

on severity; less serious offenses are punishable by a maximum sentence of five years

imprisonment plus a fine, while the most extreme acts are punished by life imprisonment or

death and forfeiture of property.42 Hunting of endangered wildlife is also a significant offense,

with punishments starting at a five to ten year sentence depending on severity, up to over ten




41 Zousī Fànzuì (走私犯罪) [Smuggling Offenses] (promulgated by the Standing Comm. Nat’l

People’s Cong., effective Mar. 14, 1997), art. 151, amended 1997 STANDING COMM. NAT’L

PEOPLE’S CONG. (establishing that conviction of smuggling rare animals and rare animal

products is punishable by a maximum of life imprisonment or death and seizure of property).

42 Zousī Fànzuì (走私犯罪) [Smuggling Offenses] (promulgated by the Standing Comm. Nat’l

People’s Cong., effective Mar. 14, 1997), art. 151, amended 1997 STANDING COMM. NAT’L

PEOPLE’S CONG.



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years imprisonment plus forfeiture of property, in significant cases.43 Interestingly, eating

pangolins is a crime punishable by up to ten years imprisonment, as well.44

Unfortunately, in practice, these punishments still seem to be lacking, though it may be

due to a lack of available data.45 Chinese case law translated to English is exceptionally difficult

to find, and news reports detailing the sentencing of traffickers or consumers of illegal animal

products are few and far between. One example is a 2016 case, in which two individuals

smuggling pangolins into China (worth over $600,000) were sentenced to just five years of jail

43 Pòhuài Huànjìng Zīyuán Baohù Zuì (破坏环境资源保护罪) [Crimes of Undermining

Protection of Environmental Resources] (promulgated by the Standing Comm. Nat’l People’s

Cong., effective Mar. 14, 1997), art. 341, amended 1997 STANDING COMM. NAT’L PEOPLE’S

CONG.

44 China Confiscates 12 Tonnes of Endangered Pangolin Scales in the Country’s Biggest Seizure,

S. CHINA MORNING POST (Last updated Jan. 5, 2018),

http://www.scmp.com/news/china/society/article/2122348/china-confiscated-12-tonnes-

endangered-pangolin-scales-countrys.

45 See Wildlife Crime: Pangolin Trade Still Flourishing Despite Ban, UNITED NATIONS

ENVIRONMENT PROGRAMME (Feb. 15, 2018), https://www.unenvironment.org/news-and-

stories/story/wildlife-crime-pangolin-trade-still-flourishing-despite-ban (noting that demand for

pangolins have increased along China’s growth in population and wealth despite harsh

punishments for harming protected wildlife species).



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time and were fined about $30,000 each.46 In another incident, a man who killed and ate what

was believed to be the last wild Indochinese tiger was sentenced to just ten years for eradicating

the subspecies, with another two years tacked on for possession of an illegal firearm.47 Both of

these cases seem to be extreme, warranting over ten years imprisonment. Yet, they are

considered as moderately serious at best. While China would greatly benefit from stricter laws

due to it being the country that demands pangolins the most,48 lack of enforcement is an issue in

46 Echo Huang, China Just Seized the Biggest Haul of the World’s Most Trafficked Mammal,

QUARTZ (Nov. 30, 2017), https://qz.com/1142567/pangolin-trafficking-china-seized-record-haul-

of-the-worlds-most-trafficked-mammal/.

47 John Platt, Man Convicted for Killing & Eating China’s Last Indochinese Tiger, SCIENTIFIC

AMERICAN (Dec. 25, 2009), https://blogs.scientificamerican.com/extinction-countdown/man-

convicted-for-killing-and-eating-chinas-last-indochinese-tiger/.








trade-still-flourishing-despite-ban (finding that demand for pangolins have increased along

China’s growth in population and wealth).



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certain areas due to poverty or corruption.49 Until such issues are resolved, INTERPOL and

ICCWC should continue their work in East Asia, attempting to infiltrate trafficking

transactions.50

c. The Combination of Corruption and Poverty Make Law Enforcement Difficult in African

Nations.

Four of the eight pangolin species are scattered throughout central Africa.51 Although

anti-poaching and trafficking laws exist, and governments only appear to superficially recognize

the issue,52 enforcement of laws in Africa or Asia is difficult due to a lack of resources and

49 Daniel W.S. Challender & Douglas C. MacMillan, Poaching is More Than an Enforcement

Problem, 7 CONSERVATION LETTERS 484, 485 (2014); see also C. Raj Kumar, Corruption,

Development, & Good Governance: Challenges for Promoting Access to Justice in Asia, 16

MICH. ST. J. INT’L L. 475, 527 (2008) (finding that while China has anti-corruption laws, their

efficacy has been called into question due to a lack of transparency and enforcement of the laws

against senior party members).

50 Anti-Wildlife Trafficking Operation Results in Global Arrests & Seizures, INTERPOL (Mar. 2,

2017), https://www.interpol.int/News-and-media/News/2017/N2017-022.

51 Pity the Poor Pangolins, CLEAN MALAYSIA (Feb. 14, 2018),

http://cleanmalaysia.com/2018/02/14/pity-poor-pangolins/.

52 A.N. Paul, Cross-Border Investigation: Pangolin Poaching in Africa & Trafficking to Asia,

DAILY MAVERICK (Feb. 23, 2018), https://www.dailymaverick.co.za/article/2018-02-23-cross-

border-investigation-pangolin-poaching-in-africa-and-trafficking-to-asia/#.WqW4Z4JG2b9.



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corruption.53 Many of the African nations where pangolins are most poached (Uganda and

Cameroon, for example) are mired in poverty.54 Additionally, the fact that government officials

can be easily bribed makes poaching a highly profitable venture for the desperately poor.55

53 Pity the Poor Pangolins, CLEAN MALAYSIA (Feb. 14, 2018),

http://cleanmalaysia.com/2018/02/14/pity-poor-pangolins/; Martin Fletcher, Pangolins: Why

This Cute Prehistoric Mammal is Facing Extinction, THE TELEGRAPH (Jan. 31, 2015),

https://www.telegraph.co.uk/news/earth/wildlife/11370277/Pangolins-why-this-cute-prehistoric-

mammal-is-facing-extinction.html.

54 Colin Thirtle et al., The Impact of Research-Led Agricultural Productivity Growth on Poverty

Reduction in Africa, Asia, & Latin America, 31 WORLD DEVELOPMENT 1959 (2003) (finding that

90% of the 1.2 billion people who live on less than $1.00 per day live in Asia and Sub-Saharan

Africa); Barbara Tasch, Ranked: The 30 Poorest Countries in the World, BUSINESS INSIDER

(Mar. 7, 2017), http://www.businessinsider.com/the-25-poorest-countries-in-the-world-2017-3

(finding that, as of February 2017, sub-Saharan countries are among the absolute poorest on

earth).

55 See Anu Nkeze Paul et al., Cross-Border Investigation: Pangolin Poaching in Africa &

Trafficking to Asia, DAILY MAVERICK (Feb. 23, 2018),

https://www.dailymaverick.co.za/article/2018-02-23-cross-border-investigation-pangolin-

poaching-in-africa-and-trafficking-to-asia/#.WrFglcgh2b8 (noting that Nigerian traffickers may

bribe officials upwards of $200 USD to illegally move their pangolin scales); Helene

Franchineau, A Ranger, Poacher, and Investigator Explain Pangolin Trade, ASSOCIATED PRESS

(Oct. 5, 2016), https://apnews.com/17f48256f26a4ce38dbd4dfea1b1c1cb (finding that in an



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South Africa enacted the National Environmental Management: Biodiversity Act

(“NEMBA”) in 2004 to protect endangered species from poaching and trafficking.56 NEMBA

establishes a punishment of up to five years imprisonment and a fine up to 100,000 South

African Rand (equal to about $11,255 U.S. dollars).57 The Central African Republic has similar

laws, issuing a fine of up to 1 million francs (about $2,000 U.S. dollars) and five years of

imprisonment for killing or mutilating protected animals.58

Kenyan law against poaching is more comprehensive, featuring specific and general

punishments, in addition to scaled punishments depending on what animal is killed.59 For

instance, killing an elephant, leopard, or rhinoceros is punishable by a fine of 40,000 Kenyan

Shillings (about $400 U.S. dollars) and up to ten years imprisonment,60 while killing a bongo,

interview with a Ugandan farmer, he poached with the intent to make money, but was deterred

due to a short prison sentence); see also Patrick Vrancken, International Child Sex Tourism: A

South African Perspective, 53 J. AFRICAN L. 1 (2009) (explaining that even the issue of child sex

trafficking is prevalent because of the difficulty in law enforcement and need for money).

56 Wildlife Trafficking & Poaching: South Africa, LIBRARY OF CONGRESS (June 9, 2015),

available at https://www.loc.gov/law/help/wildlife-poaching/southafrica.php.

57 Id.

58 Wildlife Trafficking & Poaching: Central African Republic, LIBRARY OF CONGRESS (June 9,

2015), available at https://www.loc.gov/law/help/wildlife-poaching/centralafricanrepublic.php.

59 Wildlife Trafficking & Poaching: South Africa, LIBRARY OF CONGRESS (June 9, 2015),

available at https://www.loc.gov/law/help/wildlife-poaching/southafrica.php.

60 Id.



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reticulated giraffe, oryx, or other ungulate is punishable by half the fine and prison time.61

African laws appear to be facially strong, but enforcement is difficult, unfortunately, making the

laws weaker than they appear.62

III. WILDLIFE SMUGGLING LAWS IN THE U.S..

Congress passed the Lacey Act, 16 U.S.C.S. § 3371, in 1900 as a means to “enlarge the

powers of the Department of Agriculture” by prohibiting the interstate transportation of animals

killed in violation of local laws and for “other purposes.”63 The Lacey Act works alongside the

Endangered Species Act, 16 U.S.C.S. § 1531, to protect endangered flora and fauna from

exploitation.64 Under the Lacey Act, a felony violation is punishable by a fine of up to $20,000

and a maximum of five years of imprisonment. Misdemeanors are punishable by Criminal

violations of the Endangered Species Act, which are punishable by a fine of no more than

$25,000–50,000 and/or six to twelve months imprisonment, depending on the crime

61 Id.

62 See Patrick Vrancken, International Child Sex Tourism: A South African Perspective, 53 J.

AFRICAN L. 1 (2009) (explaining that child sex trafficking, an extraordinarily serious crime, is

prevalent in South Africa because of the difficulty in law enforcement and need for money).

63 Agricultural Department, 31 Stat. 187

64 See Act of May 22, 2008, P.L. 110–246, § 4(a), 122 STAT. 1291 (codified at 16 U.S.C.S. §

3371) (defining prohibition of endangered plants and animals); Act of Oct. 13, 1982, P.L. 100–

478, § 9(a), 96 STAT. 1426 (codified at 16 U.S.C.S. § 1531) (defining endangered species and

providing means for conservation programs to protect them).



18

committed.65 Finally, the Eliminate, Neutralize, & Disrupt (“END”) Wildlife Trafficking Act

was passed in 2016 to make wildlife trafficking offenses equal to drug and arms trafficking

offenses, which carries a maximum fine of $250,000 and 20 years imprisonment.66 While this

law is progressive, it fails to account for the illegal movement of wildlife parts and products.67

As such, states have created their own laws to fill in the gaps.68 For instance, New

Mexico recently introduced a bill that would impose civil and criminal penalties on traffickers.69

They could be subjected to a misdemeanor charge and a fine of up to $25,000 or three times the

65 Act of Dec. 1, 1990, P.L. 107–171, § 10418(b)(3), 116 STAT. 508 (codified at 16 U.S.C.S. §

3371) (defining prohibition of endangered plants and animals)

66 Act of Oct. 10, 2016, P.L. 114–231, § 10418(b)(3), 130 STAT. 949; Tina Deines, Illegal

Wildlife Trade Booming Across U.S.-Mexico Border, NATIONAL GEOGRAPHIC (Mar. 14, 2017),

https://news.nationalgeographic.com/2017/03/wildlife-watch-wildlife-trafficking-reptiles-

mexico-united-states/; 66 Jani Actman, Why a Teen Got a ‘Light’ Sentence for Smuggling a Tiger

Cub, NATIONAL GEOGRAPHIC (Mar. 10, 2018),

https://news.nationalgeographic.com/2018/03/wildlife-watch-teenager-smuggling-tiger-cub-

mexico/.

67 Id.




69 Id.



19

value of the smuggled item, whichever is greater.70 Arizona and California are attempting a

similar approach to trafficking, by focusing on more inclusive laws that focus on removing the

incentive to traffic animals or their products.71

In U.S. v. Kapp, a man who bought, killed, and sold “a large number of” live big cats and

products produced by their death was sentenced to 51 months imprisonment (a little over four

years), followed by a three year supervised release, a $5,000 fine, and 300 hours of community

service.72 In a 2018 case involving an 18-year-old attempting to smuggle a tiger cub from

Mexico to the U.S., the judge issued just six months imprisonment. Although there is less

incentive to place a “low-level” offender in jail for 20 years due to poverty likely driving the

crime,73 it is disheartening to see a person take a critically endangered baby tiger with the intent

of selling it to a miserable life (or death) and receiving a slap on the wrist. Unlike drug

trafficking, even low-level offenders will almost certainly be responsible for the death of an

innocent life.

70 Id.

71 Id.

72 U.S. v. Kapp, 419 F.3d 666, 671–73, (7th Cir. 2005).



teenager-smuggling-tiger-cub-mexico/ (noting that a Vanda Felbab-Brown, a senior fellow at the

Brookings Institution argues that we must be cognizant of the cycle of poverty that drives low-

level offenders to commit many of these crimes, similar to the war on drugs).



20

IV. PROPOSED CHANGES TO CURRENT LAWS TO DETER POACHING.

a. International Changes

No substantial change can come quickly, but there are a few potential solutions that the

U.S. could help implement on an international scale to protect pangolins and other endangered

animals. It is important to create comprehensive solutions on both an international and domestic

level, so the value (or lack-thereof) of an animal is nearly identical, no matter the border it is

found upon. A combination of International Criminal Court jurisdiction, economic incentives,

and educational programs could be a good start for the international movement to protect

critically endangered creatures.

First, there is the International Criminal Court (“ICC”). Its case law covers war crimes,

crimes against humanity, and genocide; “environmental destruction” being criminalized within

the context of war crimes.74 The ICC is often considered to be a court of last resort, but as of

2016, it has increased its definitions of “crimes against humanity” to include environmental

destruction, particularly in the form of land-grabbing.75 Land-grabbing can be broadly defined

as the large-scale acquisition of land by foreign persons.76 Its results are devastating on

74 Elodie Théobald, Towards Briding the Accountability Gap for International Wildlife

Trafficking: The Efforts of the Wildlife Justice Commission, 9 AMSTERDAM L. F 115, 119–120

(2017).

75 John Vidal & Owen Bowcott, ICC Widens Remit to Include Environmental Destruction Cases,

THE GUARDIAN (Sept. 15, 2016), https://www.theguardian.com/global/2016/sep/15/hague-court-

widens-remit-to-include-environmental-destruction-cases.

76 Jootaek Lee, Contemporary Land Grabbing: Research Sources & Bibliography, 107 L. LIBR.

J. 259 (2015).



21

indigenous persons, resulting in human rights violations and the destruction of environments.77

Land-grabbing frequently occurs in developing nations in Sub-Saharan Africa, Southeast Asia,

and Latin America78—regions where pangolins and other heavily trafficked animals reside.79

It was hoped that the ICC’s move to make land-grabbing and the destruction that

accompanied it would deter large corporations and corrupt governments from endangering the

environment, and the peoples who depend on it for their daily life.80 However, the true effect of

these laws remains to be seen, and pushing the ICC to explore wildlife crimes specifically is not

realistic at this time. However, the ICC should begin investigation of wildlife crimes due to

changing global views on the importance of animal welfare.

Another possibility is a focus on international cooperation through economic rewards.

By creating trade incentives, an environment of international cooperation can be created.81

77 Id.

78 Id.

79 What is a Pangolin?, SAVE PANGOLINS (last accessed Mar. 4, 2018),

http://savepangolins.org/what-is-a-pangolin/; See, e.g., Checklist of CITES Species, CITES (last

visited Mar. 26, 2018), http://checklist.cites.org/#/en (providing the identification and location of

several thousand critically endangered animal species).

80 John Vidal & Owen Bowcott, ICC Widens Remit to Include Environmental Destruction Cases,

THE GUARDIAN (Sept. 15, 2016), https://www.theguardian.com/global/2016/sep/15/hague-court-

widens-remit-to-include-environmental-destruction-cases.

81 Brian Srubar, Breaking Bad Policy: Shifting U.S. Counter-Drug Policy, Eliminating Safe

Havens, & Facilitating International Cooperation, 37 HOUS. J. INT’L L. 197, 206–07 (2015).



22

Trade preference programs were created in 1961 under the Foreign Assistance Act, which

rewarded countries that took major efforts to reduce drug production or transit.82 Conversely,

countries that failed to make changes required under the act were punished with prohibitions on

foreign assistance.83 Later incarnations of such laws include the Andean Trade Preference Act in

1991, followed by the Andean Trade Promotion & Drug Eradication Act in 2002.84 These acts

functioned largely the same as the Foreign Assistance Act, but also provided incentives and

guidance for drug-producing countries to switch to more economically viable options.85

These programs were successful in that U.S. economic assistance provided alternative

crop development in countries such as Bolivia and Peru.86 A similar program could be used for

the developing nations that produce products derived from pangolins, elephants, and

rhinoceroses. These nations are often poorer and/or lack economic diversity.87 With a program

82 Id at 207.

83 Id.

84 Id at 208.

85 Id.

86 Id.

87 See, e.g., CÉLINE ALLARD ET AL., Sub-Saharan Africa: Restarting the Growth Engine,

INTERNATIONAL MONETARY FUND 13 (Apr. 2017), available at

https://www.imf.org/en/Publications/REO/SSA/Issues/2017/05/03/sreo0517 (providing a

comprehensive report on the Sub-Saharan economic climate, indicating that current exports such

as copper, tea, and coal have decreased significantly in 2016); Salvatore Babones, Vietnam’s

GDP is Just 11 Years Behind China, and Growing Rapidly, Forbes (Nov. 9, 2017),



23

that gives these countries the tools to encourage a sustainable, diverse range of exports, it may

deter poorer individuals from seeking financial well-being in poaching.

Finally, and perhaps most importantly for a present solution, is the suggestion of

educational programs. These educational programs could work to decrease demands for the

animals in question, while simultaneously making would-be offenders aware of potential

punishments should they break the laws. 88 In China and Vietnam especially, where demands for

wildlife products are amongst the highest,89 programs to decrease demand are nearly as

https://www.forbes.com/sites/salvatorebabones/2017/11/09/vietnam-is-following-in-chinas-

footsteps-in-gdp-growth-at-least/#598ba8ba7c3e (explaining that the growth in Vietnam has

been partly due to China’s offshoring of manufacturing jobs to the country).

88 See Jane Cynthia Graham, Snakes on a Plain, or in a Wetland: Fighting Back Invasive

Nonnative Animals, 25 TUL. ENVTL. L. J. 19, 31 (2011); Charu Sharma, Chinese Endangered

Species at the Brink of Extinction: A Critical Look at the Current Law & Policy in China, 11

ANIMAL L. 215, 239, 253–54 (2005).








trade-still-flourishing-despite-ban.



24

important as programs that punish. China has long used educational programs, but they don’t

seem to have disrupted the demand for pangolin or other animal products.90 However, Chinese

traditional medicine has been used for thousands of years; therefore, it can be expected that

educational programs will take years to become effective, especially in rural parts of China.91

Illustrating the costs of these traditional medicines to those who claim dependency upon them

may be a good place to begin.

Educational programs in Sub-Saharan Africa are proving to be successful.92 While

human growth is exponential, creating a large population of impoverished individuals,

educational programs can send a clear message: animals are worth more alive than dead.93

Tourism encourages conservation of animals, as impoverished nations recognize that foreigners

will pay to see animals that would normally be poached.94 Although it does appear to be a

90 Charu Sharma, Chinese Endangered Species at the Brink of Extinction: A Critical Look at the

Current Law & Policy in China, 11 ANIMAL L. 215, 248 (2005).

91 GUANG BANG-WANG, Pangolin Protection in Taiwan, PROCEEDINGS OF THE WORKSHOP ON

TRADE & CONSERVATION OF PANGOLINS NATIVE TO SOUTH & SOUTHEAST ASIA 82 (2009).

92 Justin Catanoso, On Poaching in South Africa, Education “Has Saved More Wildlife Than a

Guard With a Gun”, MONGABAY (July 13, 2017), https://news.mongabay.com/2017/07/on-

poaching-in-south-africa-education-has-saved-more-wildlife-than-any-guard-with-a-gun/.

93 Id.

94 Peter A. Lindsey et al., Wildlife Viewing Preferences of Visitors to Protected Areas in South

Africa: Implications for the Role of Ecotourism in Conservation, 6 J. ECOTOURISM 19 (2009);

Justin Catanoso, On Poaching in South Africa, Education “Has Saved More Wildlife Than a



25

solution, it somewhat narrows the scope by focusing primarily on elephants, rhinoceroses, and

lions.95 The potential for ecotourism to continue to expand as an industry in the near future,

makes it a sustainable solution to poaching worldwide. Strong laws, combined with educational

programs that create more incentive to enforce the laws, will best serve the purpose of deterring

acts of poaching and trafficking.

b. Domestic Changes

The U.S. recognizes the importance of stopping wildlife smuggling, with federal law

focusing on both strengthening enforcement and reducing demand.96 These tactics, coupled with

international cooperation, show that wildlife trafficking is a crime that the U.S. takes seriously.

With expanded efforts, wildlife trafficking in the U.S. can be dramatically reduced. Currently,

there is a focus on reducing financial incentive to traffic animals rather than punishing

offenders.97 While useful, economic sanctions can “risk becoming a mere cost of doing

Guard With a Gun”, MONGABAY (July 13, 2017), https://news.mongabay.com/2017/07/on-

poaching-in-south-africa-education-has-saved-more-wildlife-than-any-guard-with-a-gun/.

95 Peter A. Lindsey et al., Wildlife Viewing Preferences of Visitors to Protected Areas in South

Africa: Implications for the Role of Ecotourism in Conservation, 6 J. ECOTOURISM 19 (2009).

96 U.S. Task Force on Wildlife Trafficking: Efforts to Combat Wildlife Trafficking, U.S.

DEPARTMENT OF STATE (Mar. 3, 2017), https://www.state.gov/r/pa/prs/ps/2017/03/268182.htm.






26

business” rather than serve as a realistic deterrent.98 Therefore, it is important to treat wildlife

trafficking as equal to animal cruelty, because that is what the offense conduct is at a

fundamental level.

While CITES establishes which species are protected, it fails to provide enforcement

mechanisms or mandate criminal sanctions.99 It can thus be said that CITES expects

participating nations to create their own laws to punish wildlife crime. Because of the U.S.’s

role as a hub nation in wildlife trade, U.S. laws can have a significant influence on the laws of

other participating nations.100 A combination of a strong financial punishment and significant

imprisonment time will match the severity of the crime and create a strong deterrent effect.101

98 Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental

Law: Reforming Environmental Criminal Law, 83 GEO. L. J. 2407, 2452 (1995).



100 Diego Urdaneta, Inside America’s Battle on Wildlife Trafficking, PHYS.ORG (Feb. 27, 2016),

https://phys.org/news/2016-02-america-wildlife-trafficking.html.


Organized Crime in the Illegal Wildlife Trade, 36 VAND. J. TRANSNAT’L L. 1657, 1677–78

(2003); see Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of

Environmental Law: Reforming Environmental Criminal Law, 83 GEO. L. J. 2407, 2452 (1995)

(noting that financial deterrents alone are insufficient for the most severe offenders).



27

Under the Lacey Act, the maximum punishments are a $500,000 fine and five years

imprisonment.102 Although it is difficult to estimate the “worth” of critically endangered animals

or their products, Yuri Fedotov, head of the United Nations office on drugs and crime, stated that

tiger poaching alone brings in about $5 million dollars in profits globally, in 2010.103 With about

150 tigers killed per year by poachers (5% of the world’s remaining wild population), that gives

a rough estimate of a tiger being worth about $30,000 U.S. dollars.104 A haul of pangolin scales,

estimated to represent between 1,100 and 6,600 killed animals was valued at about $1.25 million

U.S. dollars on the black market. This means a single pangolin is valued at anywhere between

approximately $1,136 U.S. dollars and $189 U.S. dollars. Consistently issuing a fine double the

value of the animal(s) exploited by the offender would likely be a strong financial deterrent.

Furthermore, a strict penalty of a one year minimum imprisonment for low-level

offenders, who have not killed or severely harmed the animal(s) could make persons like Luis

Valencia, the teen who smuggled a tiger cub during March 2018, rethink their involvement in a

seemingly harmless act.105 For high-level offenders who kill, torture, or otherwise severely harm



103 Associated Press, Experts Say China Fuels Tiger Poaching, CBS NEWS (Nov. 22, 2010),

https://www.cbsnews.com/news/experts-say-china-fuels-tiger-poaching/.

104 Id.



teenager-smuggling-tiger-cub-mexico/.



28

any animal(s) in the process of trafficking, the minimum punishment should be five years

imprisonment. These consequences will help unify the punishments already enacted by nearly

all states, as nearly all states have felony penalties available for animal cruelty offenders.106

Although States have differing penalties, they recognize that animal cruelty should be

taken seriously. Animal cruelty can be considered a third degree felony in Texas, for instance,

and is punishable by a minimum of two and maximum of ten years imprisonment.107 California

law establishes a similar precedent for animal cruelty, holding that cruelty offenders may be

imprisoned for a maximum of three years.108 New York law conversely finds animal cruelty

offenses to be punished by a maximum of two years imprisonment.109 Thus, a flat punishment of

one year imprisonment for single instances of trafficking or instances where the animals are not

severely harmed and five years of imprisonment for multiple instances of severe harm or death

seems to be aligned with states’ interests in punishing animal cruelty cases.110

106 2017 U.S Animal Protection Laws Rankings, ANIMAL LEGAL DEFENSE FUND (2017), available

at http://aldf.org/wp-content/uploads/2018/01/Rankings-Report-2017_FINAL.pdf

107 Tex. Penal Code §§ 12.34, 42.092 (West 2018) (establishing that torturing, causing severe

bodily harm to, or intentionally killing previously captured wild animals is a third degree felony).

108 Cal. Penal Code § 597 (West 2018).

109 N. Y. C.L.S. Agr. & M. § 353-a (West 2018).

110 Cf. Cal. Penal Code § 597 (West 2018); N. Y. C.L.S. Agr. & M. § 353-a (West 2018); Tex.

Penal Code §§ 12.34, 42.092 (West 2018).



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V. CONCLUSION.

The trafficking of animals and animal products has surged in recent years. It is a crime

that is as serious as drug trafficking, as lives are being put on the line with each transaction.

Whether live parrots are shoved in water bottles for pet shop sales111 or tiger cubs are torn from

their mothers to travel hundreds of miles,112 this is no victimless crime. It is difficult to reconcile

these issues ethically and economically, but it is critical that we take these difficult first steps so

that further lives, human or animal, do not need to be endangered.

Animal cruelty is seemingly inherent in all parts of this world, but it does not have to be.

There are no easy answers in criminal law, but when we take a realistic approach to these issues,

when we examine the cultural, economic, and political motivations behind them, we can create a

solution that is both complete and effective. Our tenacity as animal activists cannot falter if we

hope to save pangolins, elephants, tigers, rhinoceroses, and other creatures that are so brutally

exploited.

111 AFP, Smuggler Caught in Indonesia With Rare Birds Jammed Inside Water Bottles, THE

GUARDIAN (May 6, 2015), https://www.theguardian.com/environment/2015/may/06/smuggler-

caught-in-indonesia-with-rare-birds-jammed-inside-water-bottles.




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