key: cord-0996512-reei97lu
authors: You, Mingqing
title: Changes of China's regulatory regime on commercial artificial breeding of terrestrial wildlife in time of COVID-19 outbreak and impacts on the future
date: 2020-08-22
journal: Biol Conserv
DOI: 10.1016/j.biocon.2020.108756
sha: dd92f8b8dc555d0daef271b53f2ca876ef75aa1a
doc_id: 996512
cord_uid: reei97lu

The basic attitude of Chinese law towards wildlife resources is differentiated protection plus rational utilizations. Artificial breeding of terrestrial wildlife was a big business and a way to alleviate poverty, but also raised concerns over wildlife conservation and public health. China's complete ban on the consumption of terrestrial wildlife, whether wild-sourced or artificially bred, was a drastic change of China's legal regime on wildlife conservation and commercial artificial breeding. This change will have impacts on the drafting of a new Biosafety Law and the revision and enforcement of the Wildlife Protection Law, the Husbandry law, the Fisheries Law, and the Animal Epidemic Prevention Law.

reduce risks in human-wildlife interaction and interface, and to prevent possible epidemics in the future, China introduced a complete ban on the consumption of terrestrial wildlife, whether artificially bred or wild-sourced, and reaffirmed the prohibition on the consumption of other wildlife required by the existing law in February 2020. This is a drastic change of China's general attitude towards the protection and utilization of wildlife resources, and will affect the drafting of the Biosafety Law of the People's Republic of China (Biosafety Law) "Wildlife" is a term commonly used in science and technology as well as in law and policies. As a legal term, its meaning and scope change over time and vary from context to context. As discussed later in this paper, the legal definition of livestock and poultry may affect the meaning and the scope of wildlife. The same is true as to the differentiation between terrestrial wildlife and aquatic wildlife. Therefore, caution should be given that "wildlife", "terrestrial wildlife", "aquatic wildlife" and other related terms are used in the context of Chinese law. This paper reviews China's existing legal regime on wildlife protection and commercial artificial breeding of terrestrial wildlife, the development of and concerns over commercial artificial breeding of terrestrial wildlife, the ban on consuming terrestrial wildlife, and the impacts on drafting new laws and the revision and enforcement of existing laws. This study of Chinese law may also be useful to other countries that have commercial artificial breeding of wildlife or other forms of utilization of wildlife resources.

purposes, and subject to the approval of the wildlife protection authorities at the provincial level. Special identifiers shall be obtained and used to ensure traceability.

In contrast with wildlife under special state protection, the Wildlife Protection Law protects other wildlife mainly with requirements on hunting licenses, hunting tools, hunting methods, timing of hunting, and allowable quotas. The licenses for hunting wildlife not under special state protection are issued by authorities of wildlife protection at or above the county level. The Wildlife Protection Law permits the sale, purchase, and trade of wildlife not subject to special state protection but requires legitimate proof of origin such as hunting licenses and import-export licenses.

The criminal liabilities are also differentiated between wildlife under special state protection and other wildlife. Under the Chinese Criminal Law, illegal hunting, killing, sales, purchase, trade, and trafficking of wildlife or wildlife products under special state protection may trigger termed imprisonment of less than 5 years. Serious violations may trigger a termed imprisonment from 5 to 10 years. In contrast, for wildlife not under state protection, the criminal liability is limited to illegal hunting with unallowable tools or methods, or at unallowable time or place, and the maximum penalty is a 3-year imprisonment.

China is a signatory of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and has the duty to implement this convention with domestic law. According to Article 35 of the Wildlife Protection Law, China's national authorities on the import and export of endangered species shall issue and adjust the list of wildlife and wildlife products prohibited or restricted for international trade by international treaties or conventions entered or acceded by China. This in effect requires China's CITES office to publish and update the list of wildlife species prohibited or restricted for international trade. The same legal provision authorizes the wildlife protection authorities under the crimes, the criminal penalty is termed imprisonment of more than 10 years or even life imprisonment.

However, the crime of smuggling CITES-listed species is confined to the wild population.

Rational utilization of wildlife resources is permitted and protected by the Chinese Constitution.

Article 9(2) of the Chinese Constitution provides that the State ensures rational use of natural resources.

An important form of rational use of wildlife resources is artificial breeding for commercial purposes.

Artificial breeding of wildlife for economic gains is also called wildlife farming (Bulte and Damania, 2005; Tensen, 2016) , although wildlife farming can also mean breeding individuals in captivity.

Unlike artificial breeding for the purpose of species conservation by scientific institutions, artificial breeding for other purposes, including commercial purposes, are subject to administrative licensing and other requirements. According to the Wildlife Protection Law and its implementation rules, the licensing authorities for first-class terrestrial wildlife under special state protection is the NFGA while the licensing authorities for second-class terrestrial wildlife under special state protection are wildlife protection authorities at the provincial level. Artificial breeding of wildlife under special state protection shall use artificially bred progeny provenance, and establish species pedigree, breeding files, and individual data. In the sense of the Wildlife Protection Law, artificially bred progeny refers to progeny individuals born under artificially controlled conditions and whose parents are also born in such conditions. The Wildlife Protection Law authorizes the authorities of wildlife protection under the State Council to make a list containing wildlife species under special state protection for which the artificial breeding techniques are mature and stable. The former NFA announced the first batch of 9 such terrestrial wildlife species in June 2017 (China NFA, 2017) . Except Heosemys grandis, all other 8 species were also listed in the list of 54 wildlife species capable of commercial artificial breeding issued by the former NFA in August 2003 (China NFA, 2003b) . The August 2003 list was repealed by the former NFA in December 2012 (China NFA, 2012) . In terms of law, the difference between June 2017 list and August 2003 list is that the June 2017 list is limited to terrestrial wildlife species under special state protection while the August 2003 list also covers some species not under special state protection. As to wildlife not under special state protection, the current Wildlife Protection Law does not require administrative licensing for commercial artificial breeding.

Under the Wildlife Protection Law, it is legal to sell, trade, and buy artificially bred wildlife or their products to make food or food products. As to wildlife species under special state protection, the seller J o u r n a l P r e -p r o o f Journal Pre-proof shall be a lawful commercial artificial breeder and the wildlife to be sold or utilized shall be attached with a special identifier to ensure the traceability of artificially bred wildlife and wildlife products.

Commercial artificial breeders may get such special identifiers from authorities of wildlife protection at the provincial level by presenting their artificial breeding licenses. The authorities verify the applicant's annual quantity of production and issue an equal number of identifiers. As to wildlife not under special state protection, the Wildlife Protection Law does not require special identifiers for sale and utilization, but still requires legitimate proof of origin such as hunting licenses and import-export documentation for transportation across county borders.

Similar to the fast development of wildlife farming in other countries (Schalkwyk et al., 2010) , commercial artificial breeding of wildlife developed quickly in China in the past decades. In some places such as Yunnan, Heilongjiang, Jiangsu, Jiangxi, and Hainan Provinces, commercial artificial breeding of terrestrial wildlife developed into a special industry for rural development and poverty alleviation (China NFGA, 2019; Xiao et al., 2018; Zhang et al., 2017) . In 2018, the artificial breeding and utilization of terrestrial wildlife as a first industry reached 50886.9 million Yuan (around 7270 million US dollars), and the production of food, fur, and other products as a second industry reached 28983.74 million Yuan (around 4140 million US dollars) (China NFGA, 2019) . The two biggest commercial purposes of artificial breeding are food and pharmacy. The government encouraged commercial artificial breeding of wildlife partly for rural development and poverty alleviation and partly for wildlife conservation (China NFA, 2004) . However, legal rules permitting commercial artificial breeding of wildlife are not completely welcomed because of risks associated with commercial artificial breeding.

The Wildlife Protection Law regards commercial artificial breeding as a way to reduce the demand on the wild population and a way to help wildlife conservation. This law requires that artificial breeding shall be conducive to species conservation and scientific research and shall not jeopardize the wild population. However, the relationship between commercial artificial breeding and wildlife conservation is controversial (Abbott and van Kooten, 2011; Damania and Bulte, 2007; Xu et al., 2017; Zhang et al., J o u r n a l P r e -p r o o f Journal Pre-proof 2017). Five criteria were proposed as conditions for commercial artificial breeding to have wildlife conservation effects: (1) legal products will form substitute; (2) demand is met and does not increase; (3) legal products will be more cost-efficient; (4) no re-stocking from the wild; and (5) laundering is absent (Tensen, 2016) . Arguably, these five conditions are not completely met for all species allowed for commercial artificial breeding.

As to substitution, legal products did not completely form substitute. If consumers expressly ordered wildlife meat, they generally preferred "genuine" wildlife meat, which meant wildlife harvested from the wild, not products of artificial breeding. Consumers not only thought "genuine" wildlife meat had a better taste, but also thought it was more organic than the meat of artificially bred wildlife. One consideration of consumers was that "genuine" wildlife were not polluted by chemical fertilizers, herbicides, additives, and other chemicals while meat of artificially bred wildlife was regarded as polluted by chemicals. However, restaurants might pretend to serve "genuine" wildlife meat with meat of artificially bred wildlife and many consumers in fact could not distinguish the taste between "genuine" (wild-sourced) and "fake" (artificially bred) wildlife.

As to demand, there was a possible increase in demand. Consumers' demand for wildlife meat varied from person to person, from place to place. Most Chinese did not regularly eat wildlife, whether wild-sourced or artificially bred. Still there was an increased demand for the meat of some wildlife (Zhou and Jiang, 2004) , which might encourage poaching, drive up illegal international trade (McEvoy et al., 2019) , and affect the wildlife conservation efforts of other countries.

As to the cost-efficiency of legalized wildlife products, the answer was generally positive. For species with developed techniques for breeding in captivity, the cost of commercial artificial breeding might be lower than harvesting from the wild. However, for species with less developed techniques for breeding in captivity, commercial artificial breeding might have a higher cost. Therefore, the cost of illegal harvesting of some species was still lower than commercial artificial breeding. A comparable veterinarians are under the authorities of the MARA. The limited number of veterinarians focus their work on swine fever, avian influenza and other epidemics of livestock and poultry. The quarantine check of wildlife is mainly for import and export. This makes the quarantine check for commercial artificial breeding facilities more difficult than livestock and poultry farms.

China's complete ban on the consumption of terrestrial wildlife was introduced by the decision of Chinese administrative agencies at the national level also adopted implementation rules, particularly the 

Penalties for breaching the consumption ban are not directly and specifically provided in the jeopardize the health of the wild population, do not pose unacceptable risks to the ecological system and human beings, and meet other conditions. If the artificially bred wildlife capable of being used for pharmacy, exhibition, or other acceptable purposes, this guideline encourages governmental agencies to facilitate the shift and grant necessary administrative licenses. Artificially bred wildlife of high quality may be transferred to qualified institutions for species conservation. Qualified institutions may temporarily take care of artificially bred wildlife abandoned by their owners for future legitimate use.

The last option is to kill and dispose of artificially bred wildlife in environmentally sound manners.

It may be a great financial burden for local governments to compensate artificial breeders of wildlife for food. To a lawfully established commercial artificial breeding facility engaged in artificial breeding of edible wildlife, the February 2020 Decision of the NPC Standing Committee and implementation rules in effect constitute a regulatory taking. The NFGA's implementation rules require local authorities to revoke administrative licenses of commercial artificial breeders of wildlife for food (China NFGA, 2020b) . According to China's Administrative Licensing Law, administrative license holders are entitled to compensation for their economic losses when their licenses are revoked or modified because of a change of law. The government needs to compensate for the revocation of administrative licenses and necessary costs to prepare for the release of artificially bred wildlife to the wild. Some provinces published their compensation arrangements. For instance, Hunan Provincial Government issued the first compensation arrangement on May 14, 2020 (Hunan Provincial People's Government, 2020), Guangzhou City followed on June 3, 2020 (Hunan Provincial People's Government, 2020). Other local governments are expected to issue their compensation arrangements in the coming months. The arrangements of Hunan Province and Guangzhou City indicate that local governments at the county or district level bear the largest share of the financial burden for compensation. Compensation is limited to qualified artificial breeding entities, at the prescribed prices, and mainly based on the quantity of current stock of artificially bred terrestrial wildlife. In addition to administrative license holders, Hunan province allows for compensation to those artificial breeders who submitted an application for artificial breeding license on or before February 24, 2020 and met the legal requirements to get an artificial breeding license. Illegal artificial breeders who were ordered to close their facilities before February 24, 2020 are not entitled to compensation. The biggest controversy is the prices of compensation. Artificial breeders complain that the prices are too low to cover their losses, but something is still better than nothing.

J o u r n a l P r e -p r o o f Journal Pre-proof

The February 2020 Decision of the NPC Standing Committee does not only prompt the revision of the Wildlife Protection Law, but also affects the enforcement and revision of other laws, notably the Husbandry Law, the Fishery Law, and the Animal Epidemics Prevention Law as well as the drafting of the Biosafety Law.

The Wildlife Protection Law was adopted in 1988 and was revised or amended in 2004 , 2009 , 2016 , and 2018 . The February 2020 Decision prompts yet another revision. At least the following revisions are needed:

First, the legislative purpose should be changed to reflect concerns over public health and wildlife conservation. The current Article 1 provides that the legislative purposes are to protect the wildlife, save wildlife species that are rare or near extinction, maintain biodiversity and ecological balance, and promote the development of ecological civilization. The current Wildlife Protection Law does not give sufficient consideration to wildlife conservation, and even less to public health. The NPC Standing Committee realized this insufficiency ("NPC Team Inspected Guangdong," 2003) and plans to revise the Wildlife Protection Law as part of legislations for public health (Wang, 2020) . The current basic framework of differentiated protection plus rational utilization needs to be changed because wildlife conservation does not only require the protection of rare and endangered species. After the consumption ban, commercial artificial breeding of terrestrial wildlife for other purposes is still allowed. This may still pose risks to public health and wildlife conservation. A revision of legislative purposes is necessary to leave room for an overhaul of this law.

Second, revision is needed to expand the scope of prohibition on consumption and increase penalties. Specifically, the current Article 30 restricting consumption of wildlife needs to be revised to Fourth, it may be advisable to transfer the daily supervision of commercial artificial breeding from the authorities in charge of forestry and grassland to the authorities in charge of agriculture and rural affairs to better enforce quarantine requirements and to make veterinary medical services more readily available to commercial artificial breeders.

The and 16 special species of livestock and husbandry. Cervus nippon, Cervus elaphus, Struthio camelus, and some species previously listed as terrestrial wildlife by the NFGA or its predecessors are now listed as livestock or poultry. These species are allowed to be raised and consumed, not as wildlife, but as livestock or poultry after this clarification. an umbrella legislation for biosafety, a legislation to coordinate other legislations and rules on bio-technology, bio-engineering, wildlife conservation, prevention of animal epidemics, and so on. As to wildlife, the second draft provides in Article 30 that the State protects wildlife, strengthens the prevention of animal epidemics, and prevent the spread of zoonotic infectious diseases. Overall, the second draft is still insufficient. The February 2020 Decision of the NPC Standing Committee and the nightmare of COVID-19 will make the NPC pay more attention to biosafety issues related to wildlife, including the biosafety issues related to commercial artificial breeding of wildlife, and make more provisions on the peaceful co-existence of human beings and wildlife.

Commercial artificial breeding of terrestrial wildlife was a big business in China and was once regarded as a rational utilization of wildlife resources and a way to alleviate poverty. A complete prohibition of consuming terrestrial wildlife, including the artificially bred terrestrial wildlife, is a drastic change of the legal regime on wildlife protection and commercial artificial breeding. To the society, it will cause a big economic loss; to the government, a big financial burden. China's willingness to bear this big loss and financial burden indicates China's determination to protect public health and promote wildlife conservation. The enforcement of wildlife conservation rules involves many administrative agencies. Only coordinated and conscientious law enforcement can achieve the goals required by the NPC Standing Committee in its February 2020 Decision. Capacity building, particularly the number and proficiency of village veterinarians, is clearly needed because law enforcement largely depends on the availability of high-quality veterinary medical services. Wildlife is a complicated legal issue in China.

Many issues are not address here and further research is needed in the future.

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