IELP Goes to The Hague to Protect Endangered Species

June 6, 2007

The Hague, Netherlands

The COP has given us all a great opportunity to view many of the larger political issues behind international law. One of the themes that is emerging within the meeting is that the Parties, as well as Non-Governmental Organizations, seem to be increasingly unhappy with the actions of the Secretariat. The Secretariat is charged with organizing and helping to implement the Convention. While the Secretariat is thus supposed to be responsive to the wishes of the Parties, there is a sense that the Secretariat has been pushing its own agenda and not following the opinions of the Parties. This is possible, we have learned, because the Secretariat is not directly responsible to the Parties, but is rather appointed by the UN. Thus, while the Parties do have some power over the Secretariat, through funding the UN, it may not be sufficient to restrict the Secretariat to the interests of the Parties. The power of the Secretariat has a significant impact on the evolution of CITES and it will be interesting to see the direction that CITES moves.

One example of this has been the discussion on cooperation between parties and the use of unilateral actions under the treaty. This is an issue which Colin has worked on extensively during the year and which was discussed today. The issue was basically raised by the Secretariat over the source of several meetings. The main issue revolves around whether countries which are Parties to the Convention should ever enact domestic measures which are stricter than the treaty would otherwise provide for. For example, the EU requires import permits for the trade in any Appendix II species, while the Convention only requires import permits for Appendix I species. Another example the United States’ Wild Bird Conservation Act which bans the import of any exotic species, defining that as any birds not native to the United States and its territories. As such, the issue involves an important interplay between national sovereignty and international cooperation.

During discussion of the issue the Secretariat moved away from considering whether stricter domestic measures are legal, as they are specifically provided for in the text of the treaty, and rather focused on whether they are nevertheless illegitimate. The Secretariat has proposed that Parties should analyze their existing stricter domestic measures to determine whether they are necessary to protect the applicable species and has sought preparation of a report considering whether the Parties have effectively implemented the Resolutions of the Convention, and whether the use of multilateral means can adequately abrogate the need of Parties to enact stricter domestic measures. These actions are likely helpful to the effective operation of CITES as stricter domestic measures do hamper implementation at times. However, Professor Wold believes that this is part of a larger plan being advanced by the Secretariat to enact a procedure that must be complied with prior to any country enacting a stricter domestic measure. This would operate as a significant restriction on the sovereignty of the Parties as they would no longer be able to effectuate the wishes of citizens without complying with arduous procedure. However, it is unlikely that Parties will ultimately accept such a restriction on national sovereignty. Few Parties are willing to restrict sovereignty in such a manner, especially because the text of the treaty specifically provides for the use of stricter domestic measures. However, the Secretariat has planted a seed which it certainly intends to cultivate and develop into a serious debate on whether the Parties may protect endangered wild fauna and flora more aggressively than provided within the provisions of CITES.

Another interesting issue from Committee II, which is charged with the procedural and technical issues of implementing the Convention, was whether CITES Parties should consider the sometimes significant effects that listing decisions have on the livelihoods of local human populations. Consideration of this issue is believed to generally operate against adding species to the Appendices of CITES because a listing doesn’t allow animal trade and thus harms livelihoods. However, the Species Survival Network, for instance, has asserted that a CITES listing does not necessarily harm local populations because it only removes one possible use of species and allows local populations to utilize species for food, internal trade, or tourism—which can often positively influence livelihoods in a greater way than international trade. In the end the Parties decided to establish a working group to more fully consider the complex issues within a smaller forum. During the consideration of the scope of the personal and household effects exception to the CITES permitting requirements Professor Erica Thorson made an intervention to express her concerns about the complexity of the issue and to request a position within the working group to assist the parties in considering this issue. Further discussion within Committee II dealt with a proposal to encourage Parties to undertake voluntary wildlife policy reviews to ensure that national policies are effectively implementing CITES. The Parties made significant changes to the working group, but will likely accept the amended form.

Yesterday was an exciting day for whales in Committee I. Despite attempts by Japan to weaken whale protection by calling for a periodic review of cetacean species listed on CITES Appendices, Parties reaffirmed their commitment to listed whales and to prohibiting international whale trade for primarily commercial purposes. Proposing to include all whale species managed by the International Whaling Commission (IWC) in the CITES Periodic Review, Japan’s proposal would have opened the door for the downlisting of Appendix I cetacean species—which include species such as the humpback, fin and beluga whale— to Appendix II at future CoPs, seriously undermining the efficacy of the IWC’s current moratorium on commercial whaling to restore whale populations. Many Parties made interventions opposing this periodic review, emphasizing CITES long support of the IWC and its recognized role as the international scientific authority on whale populations. In response, those countries supporting the document stressed the need for the Convention’s autonomy from the actions and scientific opinions of the IWC and presented data showing that not all whale populations were in decline. Ultimately, the Parties disagreed and found such a review not only inconsistent with CITES’ established relationship with the IWC but also with Convention resolution. Following this decision, a separate proposal from Iceland proposing a periodic review for the fin whale was likewise rejected. Both votes are expected be challenged and re-opened, providing a one-third majority is secured.

The Parties in Committee I also addressed conservation measures for sharks. At this CoP, two shark species—the porbeagle and the spiny dogfish—are proposed for listing on Appendix II. Late maturity, low reproductive rates, and long gestation periods make these species especially vulnerable to over-exploitation in targeted fisheries—for their fins and meat—as well as by-catch in other fisheries operations. In fact, of the 547 shark and ray species assessed by the IUCN, 20% are listed as threatened with extinction. Poor management due to lack of information and accurate catch and trade data further exacerbate their precipitous decline. Documents 59.1 and 59.2 propose to resolve this information void. Recommending that Parties implement regional plans of actions, these documents address the accumulation of information necessary to assist in accurate species identification and to report catch and landing data at a species level. This information is necessary to inform effective and accurate species management. Because these two documents similarly provided for the accumulation of data, the Chair proposed a working group to consolidate the language. It is expected to reemerge in Committee I for debate next week.

Links

CITES Secretariat
Species Survival Network