CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora), a. List technique, b. The permits system

CITES addresses the specific problem of the demand for endangered species of wild fauna and flora who are tradable or possess a commercial value, regulating the trade of wildlife species. It represents a successful case of a universal MEA, showing one of the largest records of ratifications. It can be claimed that CITES has reached the goal set in the treaty on safeguarding endangered species, many of which have their habitats in developing countries (regarded as ‘producers’).

This success has led to a potential extension of the regime to other species not contemplated in other regimes. From a compliance standpoint, the main tool used by CITES has been the institution of trade restrictions through certain bureaucratic obstacles, preventing unregistered trade exchanges of allowed

Biodiversity 257 transactions in protected species. In relation to compliance, CITES shows a number of initiatives and regulatory techniques best exemplified by the ‘list technique’.

This consist in the obligations taken under the treaty that apply to certain species and/or spaces which are normally listed in the appendix to the agreement. The list is not static and can be periodically updated to mirror the evolution and understanding of the circumstances surrounding the environmental problem. More complex models are also available, which imply the adoption of specific lists with obligations applicable to different species or spaces.

CITES sets up a Conference of the Parties (COP), which also monitors compliance. The institutional framework is completed by two treaty bodies created by the COP: a Plants Committee and an Animals Committee, whose memberships represent the main countries involved - namely, developing countries. The scope of the protection includes both plants and animals (alive or dead) as well as ‘any readily recognizable part or derivative thereof, which applies to the trades of rhino horns or elephant tusks.[1]

One may argue that the effectiveness of this MEA resides in the simplification observed in terms of substantive duties imposed on States as there are but a few clear obligations. The main one is the establishment of a ‘Management Authority’ and a ‘Scientific Authority’. This double-headed system is tasked with the administration of the permit system described below. Another substantive obligation, common to other MEAs, is the reporting system: each Party should submit annual reports to the Secretariat, accounting for the number and types of permits granted, and bi-annual reports about ‘legislative, regulatory, and administrative measures taken to enforce the provisions of the Convention’. The third substantive obligation consists in the duty of each party to follow the procedures concerning the documentation on the three appendices of protected species (the ‘lists’).

a List technique

CITES comprises three lists in Appendices I, II and III; however, the obligations relating to trade in specimens of the species listed in each of them are different. Appendix I refers to species subject to a prohibition of trade with some exceptions, including ‘all species threatened by trade’ (art. 11(1)). In order to trade species included in Appendix I, a trader must obtain both an export and an import permit.

Species contained in Appendix II of CITES are those that may become threatened in the future without trade controls (art. 11(2)). Appendix III covers species ‘which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exportation’ (art. 11(3)).

The species of Appendix II are at risk of becoming endangered if trade is not controlled. With regard to species listed in Appendix III, CITES establishes a system that fosters and facilitates the assistance of State parties in the implementation of the regulation.

The list technique has been used in other parts of I EL, such as with regard to the protection of natural areas or sites or cultural sites. In CITES, it includes assistance of other States parties in the implementation of the unilateral regulation. It also incorporates flexibility as the list modification system regulated in Articles XV and XVI provides for the possibility of issuing ‘reservations’ (Article XV(3), XVI(2) and XXIII). The institutional framework complements this technique, setting forth an implementation system, which is a core component of the regulation of trade with non-parties to CITES.

CITES provides for changes concerning the species comprised on the respective lists, including ‘uplisting’. The amendment of Appendices I and II needs a two-thirds majority of parties present and voting at a meeting of the COP (art. XV). This mechanism has allowed for some flexibility being used dynamically to adjust to changing circumstances and granting more protection if needed. Up-listing has been relied upon quite frequently, such as in the case of the African elephant ‘uplisted’ to Appendix I in 1989 and the Cuvier’s Gazelle, moved from Appendix III to Appendix I in 2007. Modifications to Appendix III operate in a simplified manner via any of the parties nominating a species as such (art XVI).

Moreover, in national court cases, the list system has been used to adjudicate controversies over illegal trade, which has reinforced compliance with the Convention.[2] One crucial aspect is how to manage the relations between State parties and third States concerning trade in endangered species, with some spillover effects due to their mutual interaction.

b The permits system

Under Appendix I, the importing State will issue an import permit only after its Scientific Authority advises that the import will not be ‘detrimental to the survival of the species involved’. The Scientific Authority should be satisfied about the suitability of the proposed recipient in the country of import (if it can suitably look after the specimen, if living). The importing State’s Management Authority must confirm the use of the specimen and that it is not ‘for primarily commercial purpose’. In turn, the exporting State may issue an export permit only after its Scientific Authority finds the exchange non-threatening to the

Biodiversity 259 survival of that species.[3] Its Management Authority should (1) discover no violation of its domestic species protection laws; (2) believe that the transfer will minimize the risk of injury, damage to health or cruel treatment; and (3) confirm the previous granting of an import permit. Under this Appendix, CITES prohibits the most harmful trade, establishing a complex record and paper trail for permissible exchanges.

Species included in Appendix II of CITES require an export permit, not an import permit. Permits under this Appendix follow the model of Appendix I, so the exporting party may award the permit upon its Scientific Authority determining that the exchange is non-threatening to the survival of the species. The Management Authority shall also determine that the specimen has both been legally obtained and is safely transferable (art. IV(2)). There is less involvement for the parties than under Appendix I; however, CITES still requires paper trail for all legal trade under Appendix II.

In order to trade in species on the Appendix III list, an export permit and a Certificate of Origin must be obtained. The export permit represents an exemption of the need of determination by exporting the State’s Scientific Authority, requiring only the intervention of the Management Authority, certifying that no domestic laws were infringed in the capture of the specimen and that the transfer does not involve undue harm (art. V(2)). In addition, CITES mandates a Certificate of Origin for all trade under Appendix III and when the transaction involves parties that have not listed any species in Appendix III (art. V(3)).

c Assessing the effectivity of compliance with CITES

CITES represented a step forward and one in the right direction to protect endangered species. However, trade (both legal and illegal) in protected species has not stopped or diminished in the expected proportion. It is possible to put forward reservations against the listing of a species in Appendix I, II or III, or in any parts and derivatives of Appendix III. A reservation has the effect of avoiding the permit system with regard to that species, placing the objecting party as a non-party, in that it can freely trade with other non-parties.

Another aspect which generates implementation issues concerns the ability of parties to trade with non-party States (or an objecting party for a particular species), if the non-party issues ‘comparable’ documentation that ‘substantially conforms’ to CITES permits and certificates (art. X). This exposes trade to fraud by non-traders and non-parties.

The exemptions regime for listed species brings in more complexity. One of the main exceptions concerns specimens acquired within an owner’s usual State of residence which are considered ‘personal or household effects’ and are generally not covered by CITES (art. VI 1(3)). Another exception consists of specimens

documented by an exporting State’s Management Authority, as obtained before the species in question became listed (art. VII(2)). More significantly, CITES provides for yet another exception from restrictions species ‘bred in captivity’ if the trader gets a certificate of captive breeding from the State of export (art. VII(5)). The COP monitors this type of operations under Appendix I species globally, and has successfully called the Parties on to not receive certificates of captive breeding from unregistered facilities. Scientific exchanges are excluded from the regime, with the COP also overseeing a list of scientific institutions entitled to the exception for ‘non-commercial loan, donation, or exchange between scientist or scientific institutions’ (art. VII(6)).

The quota-allocation system species, operated by the COP, comprises species such as the leopard, some types of crocodilians and the cheetah, determining in some cases that trade within set limits will not be harmful to the survival of that species.[4] An example of this is the quota system applicable to the export of raw ivory.

Overall, the regime has performed well, with a good level of compliance, considering the scope and the resources available in the respective States. Illegal trade nevertheless remains a problem. One possible manner of reinforcing the system is to provide greater financial assistance from industrialized countries to developing parties in order to promote enforcement. The clearing house mechanism has fostered the sharing of good practice and provided parties with case studies which reinforce the application of the Convention at domestic level. Progressively, State parties are implementing the norms through effective measures.

  • [1] CITES, art. 1(b). 2 CITES, art. VIII. 7.
  • [2] Indonesia’s first court case involving CITES Appendix I listed Radiated Tortoise (2018), available at https://www.traffic.org/news/indonesias-first-court-case-involving-cites-appendix-i-listed-radiated-tortoise/ accessed 1 April 2020. 2 CITES, art. III. 3. 3 Ibid. 4 Ibid.
  • [3] CITES, art. Ill (2). 2 CITES, art III.2
  • [4] CITES, Ninth meeting (1994) Res. 9.21. 2 See, for instance, CITES welcomes Belgian court judgement on illegal trade in birds of prey, available at https://www.cites.org/eng/cites_welcomes_Belgian_court_judgement_illegal_trade_ birds_prey accessed 1 April 2020.
 
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