Enforcement Problems

Reservations and exemptions

CITES disallows general reservations to the Convention^[1] Parties to the Convention are entitled to enter only specific reservations with regard to any of the species in any of the Appendices or to any parts or derivatives in relation to a species in Appendix

III. Reservations of this kind must be made at the time of depositing an instrument of ratification, acceptance, approval, or accession by a state partyd[2] [3] Until a reserving party has withdrawn its reservation it shall be treated as a non-state party to the Convention with respect to trade in a species, or parts, or derivatives specified in the reservation^ The same effect will result from reservations to amendments adopted by parties in respect of Appendices I and II,[4] [5] and in respect of lists submitted under Appendix III and amendments thereto.51

It has been suggested that the aim of the inclusion of reservation clauses in CITES was to accommodate two objectives: first, to prevent dissent between parties over the listing and status of species posing an obstacle to ratification of the Convention, and second, to accommodate the objective of CITES, namely to strike a balance between protecting endangered wildlife species on the one hand and the economic interests of states relating to wildlife trade, on the other”

Although a reservation results in the reserving state becoming a non-state party to the Convention to the extent of the reservation, the reserving state seems to be still obliged to at least comply with the Convention’s documentation requirements. Article X, for instance, determines that in trade between a non-state party and a state party the latter may accept ‘comparable documentation’ from the former that ‘substantially conforms’ to the requirements of the Convention for trade permits and certificates. However, whatever merit this ‘safeguard’ might hold, it is rendered ineffective in trade between a reserving state and a non-party and between states parties that have entered identical reservations. Since in the latter instance the trade is between non-state parties, reserving states with a large market share in wildlife trade may provide opportunities for illicit trade in endangered species, especially if the reserving states are countries of origin and have fewer resources for effective enforcement”

That the reservation clauses may be contradictory to the general objectives of CITES has been duly noted, with the further observation that there seems to be ‘little doubt that their operation has detrimental effects on listed endangered species’.[6] [7] [8] [9] [10] In an apparent attempt to limit the potentially detrimental effects of reservations on the protection of certain endangered species, the fourth CoP meeting recommended that parties having entered a reservation with regard to Appendix I species treat that species as if it were an Appendix II species for all purposes, including documentation and control. The same meeting also called on parties having entered reservations to nevertheless maintain and communicate statistical records on trade affected by the reservation so that international trade in such species may still be properly moni- tored.55 At the eleventh meeting it was nevertheless necessary to make states parties again aware of the fact that reservations by importing countries allow loopholes for specimens illegally acquired in countries of origin to find legal markets ‘without any control whatsoever?6

In addition to reservations the protective objective of CITES may be further compromised by the exemptions provided for in the Convention. For instance, the Articles III, IV, and V conditions for the regulation of trade in Appendix I, II, and III species do not apply to the transit or trans-shipment of specimens through or in the territory of a party as long as the specimens remain under Customs control.57 Also exempted from these provisions are specimens acquired before the Convention became applicable to them, provided a Management Authority in the state concerned has issued a certificate to that effect?8 specimens that are personal, and household effects?9 although in the case of the latter certain conditions must be fulfilled?0 and specimens subject to a non-commercial loan, donation, or exchange between scientists or scientific institutions registered by a Management Authority of their state?1

A Management Authority of a state is also entitled to waive the requirements of Articles III, IV, and V and to allow the movement without permits or certificates of specimens forming part of a travelling zoo, circus, menagerie, or plant exhibition?2 However, in these instances the exporter or importer must register full details of the specimens with the Management Authority; the specimens must have been acquired prior to the Convention, or bred in captivity (in the case of an animal), or artificially propagated (in the case of a plant); and the relevant Management Authority must be satisfied that any living specimen will be transported and cared for in a manner that will minimize the risk of injury, damage, harm to health, or cruel treatment?3

The above, potentially problematic, features of CITES must be read in conjunction with the concerns expressed by the CoP with regard to the enforcement and evasion of the Convention’s provisions. For instance, it has been noted that, in the past in both importing and exporting countries, violations have occurred as a result of inadequate or insufficient implementation by Management Authorities,[11] with regard to surveillance and compliance with the issuance of documentation and provisions regulating trade in endangered species.6[12] Variations in capacity to implement and to enforce provide further opportunity for exploitation, a factor that is even more disconcerting in developing countries that experience major difficulties in complying with control requirements as a result of their socio-economic, political, and geographic circum- stances.66 Moreover, the extreme implementation and enforcement difficulties faced by producer countries exacerbate enforcement problems in other countries, while consumer countries often allow illegal imports as a result of inadequate CITES control in producer countries and in that way become directly responsible for encouraging illegal trade world-wide.67

  • [1] CITES, Art. XXIII(1). 48 Ibid, Art. XXIII(2). 49 Ibid, Art. XXIII(3).
  • [2] 50 Ibid, Art. XV(3). 5i Ibid, Art. XVI(2).
  • [3] 52 Gwyneth G. Stewart ‘Enforcement problems in the endangered species conventions: reservations
  • [4] regarding the reservation clauses’, (1981) 14 Cornell International Law Journal, 429, p. 436.
  • [5] 53 Ibid, p. 438.
  • [6] Philippe Sands and Jacqueline Peel, Principles of International Environmental Law, Cambridge,CUP, 2012, p. 476.
  • [7] Resolution Conf. 4.25 (Rev. CoP 14). ^ Resolution Conf. 11.3 (Rev. CoP 16), preamble.
  • [8] 57 CITES, Art. VII(1). 58 Ibid, Art. VII(2). 59 Ibid, Art. VII(3).
  • [9] 60 Ibid, Art. VII(3)(a) and (b). 6i Ibid, Art. VII(6). 62 Ibid, Art. VII(7).
  • [10] 63 Ibid, Art. VII(7)(a)-(c).
  • [11] To make these authorities more effective practical guidelines were developed to assist them withtheir verification tasks. See Alison R. Rosser and Mandy J. Haywood, Guidance for Cites ScientificAuthorities: Checklist to assist in making non-detriment findings for Appendix II exports, Cambridge,IUCN, 2002; and European Community Regs No. 338/97 and 687/2006, agreed on 3 September 2014.
  • [12] Resolution Conf. 11.3 (Rev. CoP 16), preamble. 3 4 5 6 7 Ibid. 67 Ibid.
 
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