Banner image “de-horning a black rhino” courtesy of Save the Rhino
The Republic of South Africa, Department: Environmental Affairs (DEA) has issued for consultation:
Government Notice 986 “Draft Regulations relating to Domestic Trade in Rhinoceros Horn” and Government Notice 987 “Draft notice prohibiting the carrying out of certain restricted activities involving Rhinoceros Horn” as notified in Government Gazette, Vol. 639, No. 41919, Department of Environmental Affairs (DEA), dated 21 September 2018.
Members of the public are invited to submit written representations or objections to regulations within 30 Days of the Gazette’s issue.
IWB’s submission to the DEA is attached as a PDF – Draft Domestic Rhino Horn Trade and Restricted Activities, 19 October 2018
It would appear the purpose of the draft regulations is to facilitate the export and re-export of rhinoceros horn as ‘pre-convention specimens’ in terms of CITES permit requirements, where a ‘pre-convention specimen’ is defined as:
“A specimen acquired before the provisions of the Convention applied to it. If a certificate to this effect is issued by a Management Authority, then no other permit or certificate is required under the Convention to authorize export, import or re-export.”
“a) the date from which the provisions of the Convention apply to a specimen be the date on which the species concerned was first included in the Appendices; and
b) the date on which a specimen is acquired be considered as the date on which the animal or plant or, in the case of parts or derivatives, the animal or plant from which they were taken, was known to be:
i) removed from the wild; or
ii) born in captivity or artificially propagated in a controlled environment; or
iii) if such date is unknown or cannot be proved, the date on which the specimen was acquired shall be the earliest provable date on which it was first possessed by any person.”
This use of categorising rhinoceros horn exports as CITES pre-convention specimens is to disguise such exports as “for primarily non-commercial purpose” and facilitate the export of harvested, farmed rhinoceros horn, where the ‘pre-convention’ date can be given as the date the donor animal was born in captivity.
The draft regulations are clearly open to complicit parties (ie. a willing CITES Management Authority importing into Vietnam for example) to facilitate South Africa in the export of rhinoceros horn as ‘pre-convention specimens’ under the pretence it is not for commercial purposes, when in reality the use of such loopholes clearly invites abuse purely for commercial purposes:
“The term ‘commercial purposes’ should be defined by the country of import as broadly as possible so that any transaction which is not wholly ‘non-commercial’ will be regarded as ‘commercial’” – Resolution Conf. 5.10 (Rev. CoP15)
Presumably, the DEA proposes to wash its hands of any responsibility and place the onus on CITES and any complicit Management Authority’s oversight to overlook commercial intent, perhaps setting an arbitrary threshold on what can realistically be believed as not imported ‘for primarily commercial purposes’ and “not detrimental to the survival of the species*”
Appendix I Specimen – An import permit “may be issued” by the relevant “Management Authority” only “if the specimen is not to be used for primarily commercial purposes and if the import will be for purposes that are not detrimental to the survival of the species.”
Appendix I and II Specimen – “An export permit or re-export certificate issued by the Management Authority of the State of export or re-export is required. An export permit may be issued only if the specimen was legally obtained and if the export will not be detrimental to the survival of the species. A re-export certificate may be issued only if the specimen was imported in accordance with the Convention.”
So, only an export permit is required for Appendix II specimens, but for both Appendix I and Appendix II specimens, where is the independent, scientific proof that such imports/exports so facilitated will not be detrimental to the survival of the species? In summary, there is a burden to prove such exports of black rhino horns (Appendix I) are not for commercial purposes (how?) and for black and white rhino horn (SA’s white rhino population was down-listed in 1994 to Appendix II allowing commercial trade of live rhinos) that such exports will not be detrimental to the species. Where is that independent proof?
There is an obligation on parties (including the Republic of South Africa and any CITES Management Authority in any given signatory country of import) to the Convention on International Trade in Endangered Flora and Fauna (CITES) encompassed at Article VIII, “Measures to Be Taken by the Parties,” whereby:
“1. The Parties shall take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof. These shall include measures:
(a) to penalize trade in, or possession of, such specimens, or both; and
(b) to provide for the confiscation or return to the State of export of such specimens.”
The obligation on Parties to “take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof” includes all Parties’ (including South Africa’s) adherence not to facilitate trade in contravention of the CITES 1977 ban on all international commercial trade in rhinoceros and their products – where under Article I definitions ““Trade” means export, re-export, import…”
19 October 2018
Dear Ms Magdel Boshoff,
‘Draft Regulations for the Domestic Trade in Rhinoceros Horn’ and ‘Draft notice prohibiting the carrying out of certain restricted activities involving Rhinoceros Horn’
Please find below “written representations or objections” to the proposed Government Notice 986 “Draft Regulations relating to Domestic Trade in Rhinoceros Horn” and Government Notice 987 “Draft notice prohibiting the carrying out of certain restricted activities involving Rhinoceros Horn” as notified in Government Gazette, Vol. 639, No. 41919, Department of Environmental Affairs (DEA), dated 21 September 2018.
As with the previous incarnations (written representations attached at Appendix 1 and 2 – see PDF), there are many concerns with the ‘spirit’ of the draft ‘Domestic’ regulations and the loop-holes offered in terms of obtaining and exporting rhinoceros horn in contravention of the Convention on International Trade in Endangered Flora and Fauna (CITES) – namely, the 1977 CITES ban on international trade in rhinoceros horn.
Notice 986 – Draft Regulations relating to Domestic Trade in Rhinoceros Horn
Chapter 2, Domestic trade in rhinoceros horn
The draft regulation 3.(1)(a) states that a rhinoceros horn may only be sold, or acquired if the given horn is “5cm or more in length.” How does this stipulation ensure that a horn was not harvested to obtain a horn of “5cm or more” that resulted in an inadequate stub remaining on the donor animal? It is recommended that at least a 7cm length should remain on the front, or back horns of any donor animal to counter any adverse commercial incentive to cut too close to the donor animal’s horn root.
Furthermore, where is the required categoric proof that any seemingly ‘compliant’ horn was not originally obtained via illicit activity (poached wild, or poached farmed rhinoceros) and laundered into stockpiles via nefarious means? A 2016 report from the IUCN Species Survival Commission (IUCN SSC) African and Asian Rhino Specialist Groups and TRAFFIC to the CITES Secretariat pursuant to Resolution Conf. 9.14 (Rev. CoP15) concluded that South Africa’s stockpiles were not fully complaint with illicit stocks removed from potential laundering within any legal trade.
How will the necessary export/re-export Permits ensure (i.a.w. CITES) that an “export permit may be issued only if the specimen was legally obtained?”
How will the burden to prove “pre-convention” compliance be met for every horn’s seller’s /buyer’s Permit as stated within draft regulation 3.(2)(b)?
There is concern regarding the restrictions outlined in the draft regulation 3.(3) whereby a person “may not sell, give, donate, or in any similar way dispose of, rhinoceros horn” to –
(a) a person “who is not a citizen of the Republic, or who has not been granted a permanent residency permit in terms of the Immigration Act, 2002 (Act No. 13 of 2002)”; or
(b) a company not “registered in the Republic”; or
(c) a company of which “any of the directors or shareholders in not a citizen of the Republic” or “has not been granted a permanent residency permit in terms of the Immigration Act, 2002 (Act No. 13 of 2002)”; or
(d) a trust of which the trustees are not “a citizen of the Republic,” or “has not been granted a permanent residency permit in terms of the Immigration Act, 2002 (Act No. 13 of 2002).”
How will the draft regulation 3.(3) (and similarly 7.(3), 10.(2)(b)) be safeguarded to ensure that those that seek to profit from illicit, poached rhino horn in destinations such as Vietnam, will not obtain representation by proxy to place “citizens of the Republic,” and/or individuals “granted a permanent residency” to fraudulently seek superficial compliance on their behalf? Is there the will, resources and funding to adequately police such regulations and ensure such restrictions are not abused?
The draft regulation specified at 4.(2) gives exemption to the “lawful owner” of a rhinoceros horn to ‘give or donate’ a horn below 5cm long to the “State, or to a registered scientific authority….etc.”
What does the “State” intend to do with such horns (see comments at ‘Notice 987 – Draft notice prohibiting the carrying out of certain restricted activities involving Rhinoceros Horn’ below)?
Chapter 3, Provisions relating to the selling of rhinoceros horn by auction
As stated below, how can the buyer’s Permit envisaged under draft regulation 11.(1)(b) and 3.(1)(c) be issued i.a.w the Biodiversity Act that states compliance with “applicable international agreements binding on the Republic.”
The issuing of such a Permit potentially facilitates the buyer to export a rhinoceros horn purchased by the exploitation of draft regulation 13.(1)(c) and 13.(2) using the excuse that such export is “for primarily non-commercial purpose.” The spirit of these draft ‘Domestic’ regulations and export mechanisms clearly undermines CITES’ 1977 ban on any international rhinoceros horn trade. The arguments opposing this export mechanism are expanded upon directly below.
Chapter 4, Restriction relating to export or re-export of rhinoceros horn
Regulation 13.(2) states “A person may export or re-export rhinoceros horn contemplated in subregulation (1) for primarily non-commercial purpose.” This implies that the draft regulations seek to facilitate commercial, international export provided it is stated on the pre-requisite Permit (in accordance with the “Biodiversity Act” (National Environmental Management: Biodiversity Act, 2004 (Act 10 of 2004)) that commercial gain is not the primary reason for the export.
How will the burden of proof be levelled on any Permit applicant to prove such export is not for commercial purposes, or will each applicant be taken upon their self-declared word alone? How many Permit applications for export would it take for any given person (company or trust) to trigger the notion that such exports are actually for commercial purposes? Clearly, this export loophole is open to potential widespread misuse and abuse when no international agreement exists for the international trade in rhinoceros horn.
The Permit system outlined at Chapter 7 of the relevant Biodiversity Act provides opportunity for the issuing authority to sanction Permits provided it meets with certain conditions:
“(a) the applicable provisions of this Act;
(b) the national environmental management principles;
(c) the national biodiversity framework;
(d) any other relevant, plan as adopted or approved in terms of Chapter 3;
(e) any applicable international agreements binding on the Republic;
(f) the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000);
(g) any requirements that may be prescribed.”
The 1977 CITES ban on the international trade in rhinoceros horn is binding on the Republic of South Africa. So the export of rhino horn, regardless of any flimsy statement that it is for “primarily non-commercial purpose,” is clearly not permissible under the Biodiversity Act’s own international obligations. Will Permits be issued ‘unconditionally’ and if so, how does this comply with Chapter 7, “PERMITS,” Part 1, 88.(2)(e), or will CITES’ ban on the international trade in rhinoceros horn be wilfully subverted and/or ignored?
There are monitoring criteria proposed at regulation 13.(6), but no clear restrictions stated on the frequency and/or volume of rhinoceros horn that may be exported or re-exported via this mechanism/loophole either per person, or as an overall limit – there appears to be no export boundary.
What happened to any (but ill-conceived and defined) proposed “export a maximum of two rhinoceros horns” limit contained within the “Domestic Trade in Rhinoceros Horn, or Part, Product or Derivative of Rhinoceros Horn,” as notified in Government Gazette, Vol. 620, No. 40601, Notice 74, Department of Environmental Affairs (DEA), dated 8 February 2017?
In the absence of any obvious export boundary limits, how can these latest draft ‘Domestic’ regulations be seen as anything but a blatant attempt to circumvent the spirit of CITES’ 1977 ban on international trade in rhinoceros horn, no doubt with the DEA’s anticipated complicity of CITES “Management Authority” in a willing recipient country, such as Vietnam for example.
How does the DEA propose to detect fraud with the pre-condition given at regulations 15.(2)(a) and 15.(2)(d) in any “import permit issued by the Management Authority” and/or 15.(2)(e) “written confirmation from the Management Authority” stipulations? How easy will it be to fabricate or obtain by deception/corruption such paperwork?
Criteria for issuing a Permit i.a.w. Chapter 7 of the Biodiversity Act
As stated in past correspondence to the DEA (attached at Appendix 1 – see PDF) what ‘conditions’ (if any) will apply to the issuing of any required Permit (i.a.w. Chapter 7 of the Biodiversity Act)? Will there be any “risk assessment” and/or “expert evidence” sought before issuing Permits?
What market/demand modelling and onus on independent, scientifically proven evidence has been accumulated by the DEA that proves any rhinoceros horn export so orchestrated by the draft Regulations will actually “be for purposes that are not detrimental to the survival of the species” as stipulated by CITES?
How can the issuing authority for any such export Permit prove compliance with 57.(2) of the Biodiversity Act when the DEA has yet to establish conclusively (via any publicly available independent science) that such export activity is not of “a nature that may negatively impact on the survival of a listed endangered and protected species” such as rhinoceros?
Based on the rationale previously stated in correspondence to the DEA, dated 16 February 2017 (attached at Appendix 1 to this submission – see PDF) there is no independent, proven science that supports the opening of any form of international exportation of rhinoceroses’ horn. The likelihood is that any opening-up of international transit of rhinoceros horn will have negative consequences for the survival of the species in the wild (reference Appendix 1 – see PDF).
Notice 987 – Draft notice prohibiting the carrying out of certain restricted activities involving Rhinoceros Horn
Within a previous Government Notice (Government Gazette, Vol. 620, No. 40601, Notice 77, Department of Environmental Affairs (DEA), dated 8 February 2017 – “PROHIBITION OF THE POWDERING OR SHAVING OF RHINOCEROS HORN, THE DOMESTIC SELLING OR OTHERWISE TRADING IN, GIVING, DONATING, BUYING, RECEIVING, ACCEPTING AS A GIFT OR DONATION, OR IN ANY WAY DISPOSING OR ACQUIRING, OF POWDERED OR SHAVED RHINOCEROS HORN, AND THE EXPORT OF POWDERED OR SHAVED RHINOCEROS HORN”), this clearly provide the State with a potential loophole – for example, to powder stockpiled rhinoceros horn and export without restriction.
To reiterate, according to Notice 77, sub-regulation (4) the State (or Forensic Laboratory of South African Police Service) are exempted from any restriction from rhinoceros horn “products or derivatives” being “imported, or exported or re-exported from, the Republic of South Africa.” What assurance is there that the State will not in any way seek ways to ‘legally’ export rhinoceros horn “products or derivatives” so donated via Notice 77, that are stockpiled by the State?
Again, under the provision of regulation 2.(2)(d)(iii) of the latest “Draft notice prohibiting the carrying out of certain restricted activities involving Rhinoceros Horn” (Government Gazette, Vol. 639, No. 41919, Department of Environmental Affairs (DEA), dated 21 September 2018), the State has exemption to form “powders, slivers, chips, drill bits or any similar derivative, or the removal of parts or layers from rhinoceros horn.”
Furthermore, under draft regulation 2.(6)(c) the State is exempted from rhinoceros horn export and re-export restrictions for horn less than 5cm long and derivatives as stated at draft regulation 2.(1). These appear to be loopholes enabling the State unrestricted export potential – for example, enabling the State unrestricted license to export rhinoceros horns less than 5cm long and/or export stockpiled powder created from rhinoceros horn etc.
To reiterate, in the absence of CITES parties’ approval (at CoP17, or at the forthcoming CoP18 in May 2019) for any international trade in rhinoceros horn, the referenced draft ‘Domestic’ and ‘restricted activities’ regulations appear to once again seek to circumvent any formal CITES parties’ approval for international transit of rhinoceros horn and derivatives:
- The draft ‘Domestic’ regulations (Notice 986) facilitates loopholes for exporting rhinoceros horn by persons;
- The ‘restricted activities’ (Notice 987) for example, permits the State to export rhinoceros horn derivatives, such as powdered rhinoceros horn (via exemptions to any restrictions).
As stated within the Biodiversity Act, the DEA needs to comply with “any applicable international agreements binding on the Republic” such as CITES’ 1977 international trade ban for rhinoceros horn.
Where has the DEA proved by independent, verifiable science that the proposed export provisions within Notices 986 and 987 will “not be detrimental to the survival of the species” and hence prove that it has considered the need to monitor and set pre-emptive export boundaries?
How will the draft regulations be safeguarded to ensure that those that seek to profit from rhinoceros horn in destinations such as Vietnam, will not obtain representation by proxy to place “citizens of the Republic,” and/or individuals “granted a permanent residency” to fraudulently seek superficial compliance with the ‘Domestic’ regulations?
A 2016 report from the IUCN Species Survival Commission (IUCN SSC) African and Asian Rhino Specialist Groups and TRAFFIC to the CITES Secretariat pursuant to Resolution Conf. 9.14 (Rev. CoP15) concluded that South Africa’s stockpiles were not fully complaint with illicit stocks removed from potential laundering within any legal trade. Where is the conclusive, independent proof that South Africa’s stockpiles are fully compliant?
Based on all of the above, the draft regulations (Notices 986 and 987) are opposed on the grounds that they clearly seek to circumvent the existing, binding Convention on International Trade in Endangered Flora and Fauna (CITES) international trade ban for rhinoceros horn. The DEA’s proposal to facilitate the export of rhinoceros horn using the deceit that all such exports are orchestrated for “primarily non-commercial purpose” should not fool anybody outside of those seeking to circumvent CITES’ 1977 international trade ban for rhinoceros horn.
“Selling rhino horn: It’s time to ask hard questions about the Department of Environmental Affairs,” Don Pinnock, Daily Maverick, 29 October 2018
“Rhino Horn demand management & CITES preparations: DEA briefing,” Parliamentary Monitoring Group, 24 October 2018
“Exposing the Hydra“- The growing role of Vietnamese syndicates in ivory, rhino horn, pangolin and other wildlife trafficking, Environmental Investigation Agency, September 2018
“Rhinos Wanted – Dead or Alive,” IWB, 21 February 2018
“Rhino Horn Trade – The Great Unknowns,” IWB, 27 November 2017
“South Africa’s Rhino Paradox,” IWB, 25 September 2017
“Organized criminal gangs behind rhino horn processing in South Africa,” IWB, 18 September 2017
“Rhino Horn Trade Strategy,” IWB, 6 September 2017
“Fluid interfaces between flows of rhino horn,” IWB, 13 August 2017
“Save Our Rhino – Open Letter to Minister Molewa,” IWB, 14 August 2017
“Rhino – Living and Dying by Numbers,” IWB, 26 July 2017
“Auctioning Rhino Horn,” IWB, 19 July 2017
“Grinding Rhino – Elephant Action League Investigation,” IWB, 18 July 2017
“The Unsustainable Excuse,” IWB, 6 March 2017
“Proposed trade in rhinoceros horn – South Africa,” IWB, 11 February 2017
“Special Investigation: Inside the Deadly Rhino Horn Trade,” National Geographic, October 2016
“Commoditisation of Rhino Horn Trade ‘Self-Approved’ in South Africa,” IWB, 30 November 2015