This piece was written for Lewis & Clark’s Emerging Topics in Animal Law course. All views expressed are those of the author.
by Patricia Welty
The Convention on International Trade in Endangered Species of Wild Fauna and Flora[1] (CITES) is an international agreement between governments that was enacted to ensure that international trade in specimens of wild animals and plants does not threaten the survival of the species in the wild.[2] CITES was first conceived of 60 years ago when members of the International Union for Conservation of Nature[3] (IUCN) met to address their concerns regarding the loss of species. The group drafted resolutions that would become the text of the treaty we know as CITES. CITES entered into force on July 1, 1975, at a meeting in Washington, DC.[4]
This blog post raises two broad concerns I have regarding the effectiveness of CITES:
- As a treaty created to conserve species, is CITES meeting the conservation needs of today’s world that is experiencing the sixth mass extinction?[5]
- Is CITES devoting adequate attention to illicit trade in wildlife in light of the risk of zoonotic diseases?[6]
CITES accords varying degrees of protection to about 5,950 species of animals and 32,800 species of plants.[7] Unfortunately, the original vision to protect wild species from extinction often falls short. One reason is the inherent weakness in the implementation structure of the treaty which leaves enforcement authority with individual States.
Before we get into the questions posed above, I would like to review how a species gains protection under CITES. State representatives meet every two to three years at a Conference of the Parties (CoP), the purpose of which is to evaluate proposals to list species on one of three appendices. This classification by appendices[8] determines the level of trade allowed for a species.
- Appendix 1 are species threatened with extinction and are affected by international trade. Trade in these species must be subject to strict regulation in order not to further endanger their survival and must only be authorized in exceptional circumstances.[9]
- Appendix II species are those that may be threatened with extinction unless trade is subject to strict regulation in order to avoid utilization incompatible with their survival.[10]
- Appendix III includes species that are proposed by a State seeking aid in controlling trade in that species.[11]
Is CITES fulfilling its mission as a conservation treaty or is it merely a numbers game?
Some say CITES is foremost a trade agreement.[12] I contend otherwise, and point to the Preamble as evidence that CITES was created to conserve species.[13] The CITES Preamble is a mission statement that embodies the drafters’ intent. Let’s take a look at this Preamble that 184 States recognize.[14]
The Contracting States,
Recognizing that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come;
Conscious of the ever-growing value of wild fauna and flora from aesthetic, scientific, cultural, recreational and economic points of view;
Recognizing that peoples and States are and should be the best protectors of their own wild fauna and flora;
Recognizing, in addition, that international co-operation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade;
Convinced of the urgency of taking appropriate measures to this end;[15]
We can see from the Preamble that CITES was created to conserve wildlife. It clearly recognizes the value of wildlife and the urgent need for States to be the best protectors.
The structure of CITES requires States to appoint a Management Authority and a Scientific Authority[16] to carry out the implementation of trade regulations in their respective country. The Management Authority issues permits but it is the Scientific Authority which makes determination findings as to whether a permit should be issued.[17] Only if a non-determination finding (NDF) is found can the species be traded.[18] Unfortunately, not everything goes as planned.
Poorly paid management officials are know to fall prey to bribe.[19] This can result in the misuse of export and import permits. Permits are forged or officials turn a blind eye.[20] This allows for otherwise illegal trade to appear sanctioned. Wildlife trafficking is big business and lax enforcement only incentivizes bad actors to co-op the system for huge profits at the expense of wildlife conservation.[21]
A recent example of mismanagement is the trade of wild Asian elephants between Laos and China. Despite Asian elephants (alphas Maximus) being listed on CITES Appendix I[22] as endangered, Laos has exported 142 Asian elephants to China since 2015.[23]
Decisions to up-list and/or down-list species to or from a more trade restrictive appendix are should be science based, include the number of animals remaining in the wild, and the urgency of the threats to their survival.[24] However, decisions are made which lack basic data, including population estimates, making it impossible to know what levels of trade are sustainable.[25] Adding to the lack of needed information is the fact that scientists and nongovernmental organizations cannot submit CITES proposals or vote.[26]
In my opinion it is imperative that CITES do more to conserve threatened species. The following are three suggestions:
- Make greater use of trade sanctions
Sanctions can be an effective tool to deter States from allowing trade in CITES-listed species through the liberal use of permits. And, these sanctions should be used! Available sanctions impact a States access to resources such as timber, orchids, reptile skins or anything else included on one of the conventions’ appendices.[27]
- Phase out the captive-bred exception to allowable trade
Animals traded under CITES are often sourced from captive-bred facilities.[28] Often the parents of these captive-bred species are taken from the wild.[29] The proportion of trade in the offspring of captive animals has increased significantly since CITES was implemented and the increase in trade in produced animals has given rise to concerns related to the control of the production and trade which includes false declarations of the source of the animals.[30] Bad actors mislabel wild caught and vulnerable species as ‘captive-bred’ in order to avoid CITES permitting requirements as required in the appendices and which would otherwise prohibit the trade.[31]
- Abolish split-listing of the same species on two different appendices
Currently the African elephant is the only species that is split-listed, that is, the same species listed on two appendices depending on their range States. Zimbabwe, South Africa, Namibia, and Botswana successfully lobbied hard to allow their range elephants to be on Appendix II, which allows for trade in live elephants and their parts (ivory) with the issuance of an only export permit (no import permit is needed from the importing country). Split-listing provides cover for illegitimate ivory to be commingled with ivory that is sanctioned for trade. The down-listing of elephant from the four sub-saharan States to Appendix II permitted two ‘one-off’ sales[32] of their stockpiled ivory to Japan and China. As Tom Milliken,[33] TRAFFIC’s Elephant and Rhino Horn Program Leader[34] stated: “Legal sale of ivory to China opened a Pandora’s box of demand and provided a ‘laundromat’ to help criminal syndicates supply that demand with poached ivory.”[35]
Is CITES relevant today?
CITES Standing Committee[36] (SC) recently met to plan the agenda for the upcoming CoP meeting. As I listened to the SC members discuss proposals for the CoP I hoped to hear some of my concerns address which would include:
- Up-listing elephants from Zimbabwe, Namibia, South African, and Botswana to Appendix 1;
- Strengthening CITES compliance with more effective use of sanctions;
- Training in the use of the best scientific evidence to evaluate species vulnerability;
- Evaluating the captive-bred exception to trade in endangered species; and
- Implementing electronic export and import permits.
The SC was notably silent except for a nod to compliance in two geographic regions and an agreement to revisit trade live elephants. This is especially disheartening in light the extinction crisis we face exacerbated by the rampant illegal wildlife trafficking to fund terrorism.[37] (Terrorists use ivory which is worth more than gold on the black market to fund wars.[38]) Stronger sanctions and more severe penalties are critical because the current penalties are not a deterrent to wildlife crime.[39]
What I heard from the SC included the following proposals (partial list) for the CoP agenda:
- Further consideration on the trade in live elephants;
- A recommendation that the treaty should cover specimens produced through biotechnology;
- Compliance and implementation of CITES in Central and West Africa; and
- A recommendation that work is needed on how CITES can contribute to reducing the risk of future zoonotic disease emergence.[40]
While I agree that CITES should take on these topics I cannot help but think that it is too little too late. Compliance and implementation is not a regional problem. It is global.[41] The proposed SC agenda item on reducing the risk from zoonotic diseases is obviously needed especially now that the world recognizes that wildlife can be a link to human disease.[42]
In summary, CITES should align with its mission statement as embodied in the Preamble by supporting individual States to provide better training for officials who implement CITES regulations, providing economic incentives, utilizing sanctions when needed, and promote stiffer penalties for illegal trafficking and poaching. CITES has the structure and the mission but it needs the teeth to conserve natural resources.
Footnotes
[1] Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243 [hereinafter CITES].
[2] CITES, What is Cites? https://cites.org/eng/disc/what.php.
[3] International Union for Conservation of Nature, https://www.iucn.org [hereinafter IUCN].
[4] Supra note 2.
[5] World Wildlife Fund, What is the sixth mass extinction and what can we do about it? (Mar. 15, 2022),
https://www.worldwildlife.org/stories/what-is-the-sixth-mass-extinction-and-what-can-we-do-about-it.
[6] International Wildlife Defense Fund, Protecting The World’s Most Threatened Species - Impact of Poaching, We are Experiencing the Sixth Mass Extinction (2022), https://www.intlwdf.org/impact-of-poaching.
[7] CITES, The CITES species, https://cites.org/eng/disc/species.php.
[8] CITES Appendices, https://cites.org/eng/app/appendices.php.
[9] Id. at Art. III.
[10] Id. at Art. IV.
[11] Id. at Art. V.
[12] Lynn Johnson, CITES-The Trade System That Doesn’t Know What It Doesn’t Know, Nature Needs More (Jan. 7, 2019), ghttps://natureneedsmore.org/cites-the-trade-system-that-doesnt-know-what-it-doesnt-know/.
[13] CITES Preamble, https://cites.org/eng/disc/text.php#texttop.
[14] Cites, List of Contracting Parties, https://cites.org/eng/disc/parties/chronolo.php.
[15] Id.
[16] CITES, art. IX, https://cites.org/eng/disc/text.php#IX.
[17] Supra note 10 (Art. III 2(a) “Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species;”).
[18] CITES, How CITES works, https://cites.org/eng/disc/how.php.
[19] TRAFFIC Wildlife Trade & Corruption at 4, https://www.traffic.org/site/assets/files/9927/anti_corruption_report_web.pdf.
[20] CITES Fraud Warning, https://cites.org/eng/news/sundry/2007/fraud_warning.shtml.
[21] United Nations Office on Crime, World Wildlife Report, Trafficking in Protected Species (2020), https://www.unodc.org/documents/data-and-analysis/wildlife/2020/World_Wildlife_Report_2020_9July.pdf (“A common theme in the illicit trade of ivory and rhino horn … is corruption in the form of bribes. Corruption has been found to be a critical enabler of the illicit wildlife trade, taking place at sourcing, transit and export stages, and involving public and private sector abuse of power and trust.” Id. at 17).
[22] supra note 7.
[23] Tracy Keeling, Global wildlife trading body under fire over highly questionable asian elephant exports, The Canary (Jan. 7, 2021), https://www.thecanary.co/exclusive/2021/01/07/global-wildlife-trading-body-under-fire-over-highly-questionable-asian-elephant-exports/.
[24] Rachel Nuwer, How Well Does CITES Really Prevent Wildlife Trafficking And Illegal Trade?, ensia (Oct. 4, 2018), https://ensia.com/features/cites/.
[25] Id.
[26] Id.
[27] CITES, Countries currently subject to a recommendation to suspend trade (Mar. 18, 2022), https://cites.org/eng/resources/ref/suspend.php.
[28] CITES, Captive-produced animals and artificially propagated plants, https://cites.org/eng/prog/captive-breeding.
[29] Id.
[30] Id.
[31] Bryan Christy, The Lizard King 118-119 (Kindle ed. 2008).
[32] CITES, Ivory sales get the go-ahead, https://cites.org/eng/news/pr/2008/080716_ivory.shtml.
[33] Judith Mills, SA’s trade plan is ‘reckless endangerment of wild rhinos’, Environmental Investigation Agency, (Jul. 3, 2013), https://eia-international.org/blog/sas-horn-trade-plan-is-reckless-endangerment-of-wild-rhinos/ (quoting Tom Milliken, TRAFFIC’s Elephant and Rhino Program Leader).
[34] TRAFFIC, https://www.traffic.org/about-us/our-mission/ (TRAFFIC is an NGO established by WWF & IUCN to help ensure that wildlife trade is not a threat to the conservation of nature.).
[35] Supra note 26.
[36] CITES, 74th Meeting of the Standing Committee, YouTube (Mar. 7-11, 2022), https://www.youtube.com/playlist?list=PLz_LdpRy1ZhLj_DPzC4BRHbx1TWk9j5FU.
[37] David H. Barron, How the Illegal Wildlife Trade Is Fueling Armed Conflict, 16 Geo. J. Int’l. Aff’s. 2, 217–27 (2015), http://www.jstor.org/stable/43773711 (last visited Apr. 27, 2022).
[38] World Wildlife Fund, https://www.worldwildlife.org/threats/illegal-wildlife-trade.
[39] Deterrent value of wildlife smuggling laws limited - DENR, BusinessWorld (Mar. 3, 2020, 10:13 pm), https://www.bworldonline.com/economy/2020/03/03/281784/deterrent-value-of-wildlife-smuggling-laws-limited-denr/.
[40] Id.
[41] Willow Outhwaite, TRAFFIC, Addressing corruption in CITES documentation processes, https://www.traffic.org/site/assets/files/12675/topic-brief-addressing-corruption-in-cites-documentation-processes.pdf.
[42] Centers for Disease Control & Prevention, One Health, Zoonotic Diseases, https://www.cdc.gov/onehealth/basics/zoonotic-diseases.html (last reviewed July 1, 2021).