In March this year, prosecutors in Nanyang, Henan province, withdrew charges in a case concerning the trading of macaques. The five defendants – a breeder, pet shop owner, driver and two live streamers – had been charged in 2018 with the illegal purchase, transport and sale of endangered animals taken from the wild.
Despite the macaque being a Class II protected animal in China, breeding them in captivity is allowed with a permit and has become a speciality industry in Henan. The defendants did have a permit to breed the species, but were accused of selling non-captive bred animals.
In late 2022, after several rounds of court proceedings, Nanyang Central Court sent the case for a retrial. During this, the prosecutor’s office withdrew its charges, citing “changes in the law and judicial interpretation”. It was referring to an interpretation document issued in April 2022 by China’s supreme court and supreme procuratorate.
The doc states that cases should be judged on their particular circumstances, taking into account whether the animal in question is captive-bred, the current state of captive breeding of the species, and how threatened it is in the wild.
Those involved in the macaque case are still pursuing an appeal, requesting a verdict of complete innocence, saying that the provincial forestry department had issued a “domestication and breeding licence” and that the traded monkeys were “captive-bred” rather than “wild” animals.
“
People began strongly suspecting a link between wild animals and the epidemic, especially the eating of wild animals… and the public demanded that the risk be dealt with in law.
Zhou Ke, professor, Renmin University of China Law School
The case attracted plenty of interest among commentators in China because both the interpretation and the newly amended Wildlife Protection Law seem to represent a more accommodating regime for cases involving trade of captive-bred wild animals – meaning a more “reasonable” response when an offence is deemed less serious.
Some civil society organisations are concerned that this weakens conservation efforts, encourages the expansion of the wildlife-breeding industry, and could easily lead to illegally hunted animals being passed off as captive-bred. However, some academics think the amended law refines conservation management by making it more case-by-case and less one-size-fits-all.
So, how should the amended law’s potential impact on wildlife breeding be understood?
Too lenient or more sensible?
A revision to the law was launched in 2020 and the new version came into force on 1 May 2023, strengthening protections for wildlife habitats. However, controversy has surrounded the law’s treatment of commercial captive breeding of protected species. One such category is species regarded as having “special ecological, scientific or social significance” – known as the “three-haves”.
There are more than 1,700 such species in China, including animals no longer common in the wild, such as wolves, red foxes and raccoon dogs, and that remain common, such as tortoises, civets, sparrows, bamboo rats and geckos.
China has just updated its list of protected animals, and the wild boar, Sus scrofa has been removed from the list. Some researchers interpret this as a result of the high population of wild boars and the damage they cause to farmland.
The amended law provides for “graded, categorised management of wild animals bred in captivity”. In terms of protection priority, “three-haves” animals are behind “national key protected wildlife”. The latter are divided into Class II and Class I, with Class I animals having the greatest protections and prompting the most severe sentences for offences involving them.
Some of the changes in the amended law have been interpreted as loosening controls on the captive breeding of “three-haves” animals. In Article 25, the qualifying condition for breeding such animals has been changed from “A licence for captive breeding must be obtained” to “A record shall be filed with the local competent authority.” Moreover, the maximum fine for failing to do so is just 2,000 yuan (US$280).
Shan Shui Conservation Center, a nature protection organisation, has written that filing a record is not enough to ensure that captive-breeding facilities are sufficiently well monitored and are not used to launder wild-caught animals. This may weaken agencies’ monitoring and protection of “three-haves” animals, the organisation adds.
Another example is Article 29, which provides that nationally protected wild animals for which captive-breeding techniques are “mature and firmly established” can be moved onto the Directory of National Key Protected Wildlife for Captive Breeding. In practice, this means more wild animal species under Class I and II national protection can be bred and farmed. Meanwhile, “captive-bred populations” for which breeding techniques are firmly established can be removed from the list of national key protected wildlife.
However, in terms of their appearance and behaviour, it is hard to distinguish wild animals caught in the wild from those that have been bred in captivity for multiple generations. Those who are so minded may also pass off wild-caught animals as captive-bred by exploiting loopholes in the law.
Loopholes in the provisions for artificial breeding mean that trade of animal products is similarly problematic. Article 30 of the amended law states that trade in “wild animals and their products shall in the main comprise captive-bred populations”. An animal conservationist, who does not wish to be named, tells China Dialogue: “Such regulations are difficult to enforce, in practice. So long as there is no clear and direct evidence of poaching, there is no way to check whether products come from wild animals or animals bred in captivity.”
Others take a different view. In an interview with China Environment News, Qin Tianbao, director of the Research Institute of Environmental Law (RIEL) at Wuhan University, says that the new revision of the law is more a “difference in regulatory approach” than a reduction of administrative powers:
“Different gradings and categorisation correspond with different systems of management, and a relaxation in procedures does not equate to reduced powers… The management system in turn, with gradings and categorisation that correspond with conservation needs, is then adjusted and optimised accordingly.”
‘Conservation’ versus ‘utilisation’
Underlying the row about wildlife breeding are the concepts of “conservation” and “utilisation”.
Before the latest update, since coming into effect in 1988 the Wildlife Protection Law had been amended four times – in 2004, 2008, 2016 and 2018. The thrust of the 1988 legislation, pervading all of its provisions, was for “strengthened conservation of resources, active domestication and breeding, and reasonable development and utilisation”.
The law has been amended with increasing frequency over the last 20 years, alongside the periodic outbreak of public health incidents linked to wildlife.
“There has been some progress,” says Zhou Ke, a professor at Renmin University of China Law School. “During the succession of amendments, provisions on the breeding of wild animals have gone from ‘active domestication’ [1988] to ‘reasonable utilisation’ [2004], and on to ‘regulated utilisation’ [2022].”
Following much discussion of “conservation” and “utilisation”, “regulated utilisation” remained the main principle in law up until 2016, while retaining the concept of wildlife’s “utilisation as a resource”.
The situation changed abruptly with the outbreak of Covid-19 in 2020, amid suspicion that the virus originated in wild animals. Within three months of the start of the pandemic, China banned the consumption of wild animals as food. This move was heavily influenced by the public mood at the time, and concerns about the risks of breeding and eating wildlife. It was regarded as China’s “strictest wildlife conservation measure” to date.
Zhou Ke explains: “People began strongly suspecting a link between wild animals and the epidemic, especially the eating of wild animals… and the public demanded that the risk be dealt with in law.”
By 2022, however, with the global economy slumping, long-held public concerns about climate and environmental issues began to fade. The concern for wildlife and public health has been diminishing as pressing economic issues come to the fore.
A campaigner with an animal protection organisation, who wishes to remain anonymous, says: “Amending the law also involves trade-offs [between protecting industry and protecting wildlife]. When there’s a dropping off in the intensity of public opinion on wild animals and public health, coupled with economic concerns, the voice of ‘industry’ becomes extremely important.”
Such trade-offs are also reflected in contradictions among the provisions of the amended law, emphasising “conservation” on the one hand, while stressing “scientific utilisation” and “regulated utilisation” on the other. Among legal professionals, there are also those who believe that wildlife conservation may in practice be giving way to commercial exploitation.
A massive industry needs more precise enforcement
Zhou Ke says that breeding wildlife should never have become a commercial industry. “When the Wildlife Protection Law was introduced in 1988, it provided for the protection of wildlife as a natural resource,” he says. “Active breeding and domestication, as proposed at the time, were not driven by the objective of developing an industry. Commercial utilisation simply meant breeding for business purposes, but conservation of natural resources should have been the real objective.”
Wildlife breeding is widely seen as a way for people to escape poverty, not to increase wild animal populations. For instance, the giant salamander has a nationwide farmed population exceeding one million, but in the wild it has been pushed to the brink of extinction.
China’s wildlife breeding, trading and processing industry has an annual revenue of around 500–600 billion yuan (US$70–80 billion) and employs over 14 million people. There are already hundreds of species of wild animals bred in captivity throughout the country, and supply chains have developed for intensive breeding of snakes, deer, crocodiles and frogs.
Before coronavirus, farming bamboo rats had become a speciality in Guangxi, with annual revenue reaching over 2 billion yuan. The size of the sector makes it very difficult to ban the breeding of wild animals altogether.
A more granular approach to managing conservation perhaps offers a way forward. Liu Jinmei, director-general of the Chinese environmental protection organisation Friends of Nature, said in an interview: “Given today’s catch-all regulations and the multiplying assortment of illegal practices, along with a dearth of professional discernment skills in grassroots law enforcement, it is extremely difficult to obtain evidence and make it stick. Enforcement costs will only fall, and efficiency rise, if the legal provisions can be made more granular.”
Zhou Ke believes that the next step, going beyond the Wildlife Protection Law, will involve more narrowly focused, specialised administrative regulations.
“The latest amendment seeks to restrict development and utilisation, and its original intent was good. Objectively, however, the effect when implemented is to encourage commercial exploitation of wild animals and the practices of commercial breeding and domestication. So, on the heels of the latest amendment, we should prevent such consequences… from re-arising, avoiding these kinds of errors by means of localised administrative legislation.”
This article was originally published on China Dialogue under a Creative Commons licence.
