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Max Planck Encyclopedia of Public International Law [MPEPIL]

Endangered Species, International Protection

Peter H Sand

Countermeasures — Sustainable development — Economic sanctions — Developing countries — Natural resources — Endangered species — Environmental disputes — Pollution

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A. Introduction

Within the general context of international environmental law, designated natural fauna and flora resources are internationally protected against the risks of over-exploitation and extinction (Conservation of Natural Resources; Environment, International Protection). However, unlike classical area-specific nature protection regimes (Nature, International Protection; World Natural Heritage), species-specific protection is typically ‘a-territorial’; ie, individual specimens and living populations of animals or plants are subject to the international regime solely on the basis of their taxonomic identification as members of a listed protected species, irrespective of their geographical location inside or outside national territory. While any individual specimen of a protected species may thus be subject to the territorial sovereign control of the State where it is located (Natural Resources, Permanent Sovereignty over), that customary rule does not apply to the species itself; ie, the abstract genotype to which the specimen belongs, biologically defined as ‘a population or series of populations of organisms capable of freely interbreeding with one another under natural conditions’ (Wilson). Hence, species that are authoritatively classified as ‘endangered’ (ie, at a high risk of extinction in the wild) under international treaties may well be viewed as common resources of humankind. Given the declared community interest in their long-term conservation, the host States concerned share a distinct fiduciary accountability as ‘public trustees’ for these global trust resources, vis-à-vis the ultimate beneficiaries of the trust; ie, all people of the human species, including future generations (Intergenerational Equity).

Wild-living fauna and flora are considered renewable or ‘flow resources’, replenished by natural reproduction/propagation. Characteristically, however, they have a ‘critical zone’ below which their depletion—from natural causes, or from human interference—may become irreversible, and hence may lead to extinction. The worldwide human-induced loss of species is now well documented as accelerating any losses inherent in the evolutionary process at alarming rates (Biological Diversity, International Protection).

B. Sectoral/Regional Regimes

Historically, international action against over-exploitation of wildlife species already prompted the 1893 Bering Sea Fur Seals Arbitration, followed by the Pacific Fur Seal Treaties of 1911 and 1957 (the 1911 Convention Respecting Measures for the Preservation and Protection of Fur Seals in the North Pacific Ocean; and the 1957 Interim Convention [with Schedule] on Conservation of North Pacific Fur Seals; see also Bering Sea), and early European agreements such as the 1902 Convention for the Protection of Birds Useful to Agriculture. Today, there is a wide range of bilateral and multilateral treaties for the conservation of migratory wildlife species (Migratory Species, International Protection), as well as for commercially exploited marine species (Marine Living Resources, International Protection; see also Fisheries Agreements; Marine Mammals; Whaling), inland fisheries (mainly under the auspices of the Food and Agriculture Organization of the United Nations [FAO]), tropical forests (Forests, International Protection), and agriculturally used plants and plant genetic resources (Plant Genetic Resources, International Protection).

On a regional basis, multilateral single-species agreements have been concluded, inter alia, to protect polar bears in the Arctic Region (the 1973 Agreement on the Conservation of Polar Bears), terrestrial species such as the vicuña in South America (the 1979 Convention for the Conservation and Management of Vicuña), and marine living resources in Antarctica (the 1980 Convention on the Conservation of Antarctic Marine Living Resources; and the 1991 Protocol on Environmental Protection to the Antarctic Treaty). Furthermore, lists of protected species are contained or foreseen in the annexes to a number of general regional nature conservation conventions (including the 1940 Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere; and the 1979 Convention on the Conservation of European Wildlife and Natural Habitats) and to several regional seas protocols (including the 1985 Protocol on Protected Areas and on Wild Fauna and Flora in the Eastern African Region; and the 1990 Protocol on Specially Protected Areas and Wildlife in the Wider Caribbean Region; see also Regional Seas, Environmental Protection).

One of the most active regional regimes in this field is the European Union, starting with its 1979 Council Directive 79/409/EEC on the Conservation of Wild Birds (as amended in 2006 by Council Directive 2006/105/EC [2006] OJ L363/368 and in 2013 by Council Directive 2013/17/EU [2013] OJ L158/193) and the 1992 Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (‘Habitats Directive’), as interpreted by the European Court of Justice in several leading decisions involving protected species (eg Cases C-103/00 and C-504/14Commission v Greece [‘Caretta Cases’ 1 and 2]; European Union, Court of Justice and General Court), and further elaborated by the European Commission in its 2007 Guidance Document on the Strict Protection of Animal Species of Community Interest under the Habitats Directive 92/43/EEC.

C. CITES: Wildlife Conservation and Sustainable Use

The total volume of legal world trade in wildlife (animals and plants, including forests and fisheries) and their products has been estimated at US$332.5 billion annually (Engler). For many developing countries in particular, exports of products harvested or collected from the wild—such as furs, hides, timber, or medicinal plants—continue to provide a significant source of income. National and international regulation of wildlife species therefore needs to strike a balance between the ecological concerns of nature conservation, and legitimate economic concerns of sustainable resource utilization (Trade and Environment).

1. Historical Development

Attempts at multilateral law-making for endangered species date back to the 1900 Convention Designed to Ensure the Conservation of Various Species of Wild Animals in Africa which are Useful to Man or Inoffensive (‘First London Convention’), and the 1933 Convention relative to the Preservation of Fauna and Flora in their Natural State (‘Second London Convention’). Both treaties contained elements of a system to deal with the problem of unsustainable exploitation of wildlife by the colonial powers (Colonialism), through hunting restrictions for particular species listed in annexes; confiscation of illegally taken ivory; and export licensing for specified wildlife products. While the First London Convention never entered into force due to a lack of ratifications, the Second London Convention became applicable to most of the colonial territories in Africa, the Indian subcontinent, and Indonesia, but did not survive the era of decolonization.

Following several initiatives at the national level to restrict trade in wildlife species, the matter was taken up from 1963 onwards in the Swiss-based non-governmental International Union for Conservation of Nature and Natural Resources (‘IUCN’, now World Conservation Union), which took the lead in preparations for a draft convention, endorsed by a recommendation of the United Nations (UN) in the Action Plan of the 1972 Stockholm Conference (Report of the United Nations Conference on the Human Environment), and finalized by a diplomatic conference at Washington DC on 3 March 1973 as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (‘CITES’).

CITES entered into force on 1 July 1975, and currently has a near-universal membership of 182 States. A rectification protocol noting editorial mistakes in the authentic treaty texts (inter alia, Arts III, XIV, and XVI CITES) was drawn up in the form of a procès-verbal by the Swiss Government as depositary, communicated to States Parties and signatories on 19 March 1976, and endorsed by the Conference of the Parties (‘COP’), the supreme decision-making body of CITES, at its first meeting (Conference [Meeting] of States Parties). A protocol amending Art. XI CITES, adopted by an extraordinary meeting of the conference at Bonn on 22 June 1979, entered into force on 13 April 1987 (Bonn Amendment to the Convention on International Trade in Endangered Species of Wild Fauna and Flora). A further protocol to amend Art. XXI CITES in order to admit the EU as a party was adopted by another extraordinary meeting at Gaborone on 30 April 1983 and entered into force on 29 November 2013 (Gaborone Amendment to the Convention on International Trade in Endangered Species of Wild Fauna and Flora; European Community and Union, Party to International Agreements; Treaties, Amendment and Revision). While the Convention had already unilaterally been transformed into directly applicable EU law in 1982 by Council Regulation (EEC) 3626/82 [1982] OJ L384/1, as revised by Council Regulation (EC) 338/97 [1997] OJ L61/1, the EU thus officially became a party on 8 July 2015.

10 Periodic authentic treaty interpretation is provided by resolutions of the COP, adopted by a two-thirds majority at its triennial plenary meetings (Environmental Treaty Bodies; International Law, Development through International Organizations, Policies and Practice; Treaties, Declarations of Interpretation). There are 96 conference resolutions currently in effect, available on the Convention’s website. Even though CITES resolutions have occasionally—unsuccessfully—been challenged as mere recommendations ‘without any legal effect’ (eg by France before the ECJ in Case C-182/89Commission v France [‘Bolivian Furskin Case’] at 4344), they are regularly sanctioned by collective trade embargoes (see paras 17–18 below), which have made CITES demonstrably more effective in practice than most other comparable treaty regimes (Environmental Compliance Control).

2. Treaty Structure and Institutions

11 CITES regulates global market access for wildlife specimens, live or dead animals and plants as well as their parts and derivatives, by subjecting all border-crossing trade—including trade with Non-Member States (Art. X CITES, elaborated in Res 9.5/1994 as revised in 2013)—to mandatory licensing on the basis of permits issued by the exporting country, and in exceptional cases to additional licensing by the importing country. Permits are granted in accordance with standard criteria (formerly CITES Appendix IV, now laid down in Res 12.3/2002 as revised in 2016), in light of an agreed ‘black list’ of species excluded from trade (CITES Appendix I) and a ‘grey list’ of controlled tradable species (CITES Appendix II). Furthermore, each country of origin may unilaterally add to the lists by entering species in (CITES Appendix III), or may notify other countries (through the CITES Secretariat) of further national restrictions. All Member States have a duty to enact and enforce the terms of the treaty by national laws (see para. 16 below), and to provide periodic trade data and reports on national implementation (Art. VIII CITES, with standard criteria and guidelines laid down pursuant to Res 11.17/2000 as revised in 2016; Reporting Systems). Reports are electronically processed and compared by the CITES Secretariat to determine, inter alia, whether trade data submitted by exporting and importing countries correspond with regard to the species concerned.

12 CITES Appendices I and II are amended every three years by the COP in light of the changing conservation and trade status of the species listed (Art. XV CITES) on the basis of agreed listing criteria (Res 9.24/1994 as revised in 2016). Arguably the most controversial illustration of this up-listing/down-listing procedure continues to be the status of elephants and the qualified ban on ivory trade (Res 10.10/1997 as revised in 2016). A further measure of flexibility is provided by reservations under Arts XXIII and XV (3) CITES, which allow dissenting countries to opt out of species-listing decisions (Res 4.25/1983 as revised in 2007; Treaties, Multilateral, Reservations to); and by a number of specific exceptions that were either built-in (eg for scientific exchanges, and for captive-bred or artificially propagated specimens, under Art. VII CITES) or subsequently introduced by the conference (in particular the quota system for limited trade in Appendix I-species, under Res 9.21/1994 as revised in 2004, Res 10.4/1997, and Res 13.5/2004 as revised in 2007).

13 Under the auspices of the omnipotent COP, new elected institutions not originally anticipated in the convention evolved over time: in particular, the Standing Committee (initially established by Res 2.2/1979) to which the conference delegated important treaty management functions during the periods between plenary meetings; and the two sectoral scientific committees (for animals and plants) which deal with most issues regarding the listing and delisting of species, and which also meet intersessionally (Res 11.1/2000 as revised in 2016).

14 While initial funding for CITES operations and meetings had been provided since 1975 by the United Nations Environment Programme (UNEP), responsibility for the convention’s budget (currently about US$6 million annually) was transferred to the COP after formal treaty amendment in 1979 and the establishment of a special CITES fund for this purpose, as one of the trust funds under UNEP auspices, to which Member States make assessed contributions based on the UN scale. Under Art. XII CITES, secretariat services are provided by UNEP, with possible assistance from qualified other bodies. Initially entrusted to the IUCN, the secretariat was formally taken over by UNEP in 1985, with an office now based in Geneva, together with CITES trade and species databases managed by the UNEP World Conservation Monitoring Centre in Cambridge. Shared administrative competences for staff recruitment, accommodation and supervision are laid down in a 2011 agreement between the CITES Standing Committee and the UNEP Executive Director.

15 Participation of Non-Governmental Organizations (‘NGOs’) and civil society continues to play an important role in the operation of the convention, through scientific advice from volunteer specialist groups of the IUCN Species Survival Commission and other non-governmental bodies. External monitoring is provided by the IUCN/WWF (World Wide Fund for Nature) TRAFFIC (Trade Records Analysis for Fauna and Flora in Commerce) programme (a non-governmental ‘watchdog’ network with national/regional offices in 16 countries worldwide), pursuant to two Memoranda of Understanding concluded in 1999 between the CITES Secretariat, IUCN, and TRAFFIC International (Memorandum of Understanding between the Secretariat of the Convention on International Trade in Endangered Species of Wild Fauna and Flora and IUCN; and Memorandum of Understanding Concluded between TRAFFIC International, on Behalf of the TRAFFIC Network, and the United Nations Environment Programme, Secretariat of the Convention on International Trade in Endangered Species of Wild Fauna and Flora). The accreditation of non-governmental observers at CITES conferences—admitting technically qualified NGOs ‘unless at least one-third of the Parties present object’, pursuant to Art. XI (7) CITES as elaborated in Resolution 13.8/2004 (revised in 2013)—became a model for several subsequent environmental treaties (Environment, Multilateral Agreements).

3. Implementation and Compliance Control

16 Like most treaty regimes for the regulation of business activities (International Economic Law), CITES depends on national legislative and administrative measures to become effective (International Law and Domestic [Municipal] Law). For domestic measures to be considered in compliance with the convention, they must—as a minimum—provide States Parties with the authority to a) designate at least one management authority and one scientific authority; b) prohibit trade in specimens in violation of the convention; c) penalize such trade; and d) confiscate specimens illegally traded or possessed (Art. VIII CITES; and Res 8.4/1992 as revised in 2010). Since 1992, the COP has periodically evaluated the national implementing legislation of Member States (ranking them according to their compliance adequacy in three categories); provided advice, training and technical assistance to countries still in default; and in case of persistent non-compliance, recommended collective sanctions.

17 The innovative CITES system of economic sanctions for non-compliance was not foreseen in the original treaty text but gradually evolved as a result of continuous practice by the COP, re-stated and consolidated in Resolution 14.3/2007 on CITES Compliance Procedures. Where a case of non-compliance cannot be resolved by direct communication between the country concerned and the CITES Secretariat (under Art. XIII CITES) or the Standing Committee (under delegation from the conference), the conference or the committee may decide to recommend countermeasures in the form of a trade embargo; ie ‘the suspension of commercial or all trade in specimens of one or more CITES-listed species’ (Res 14.3/2007 para. 30). In State practice, the embargo is collectively enforced by Member States exercising their right under Art. XIV (1) (a) CITES to adopt ‘stricter domestic measures regarding the conditions for trade … or the complete prohibition thereof’ of CITES-listed species with the country so targeted.

18 First used against Bolivia, collective trade suspensions have since been recommended by the conference in more than 100 cases over the past three decades, both for treaty infringements by Member States (eg Thailand in 1991, Italy in 1992, Greece in 1998, India in 2004) and against non-Member States failing to provide the ‘comparable documentation’ required under Art. X CITES and Resolution 9.5/1994 (revised in 2013) on trade with non-Member States, thus resulting in significant third-country effects to discourage ‘free-riding’. Given the economic consequences of an embargo, most of the countries targeted quickly returned to compliance. The procedural safeguards of Resolution 14.3/2007—including prior consultation, with rights of hearing and response for targeted countries—are fully compatible with the corresponding rules on legitimate countermeasures developed by the International Law Commission (ILC) in its 2001 (Draft) Articles on Responsibility of States for Internationally Wrongful Acts, in particular Arts 4854. Multilateral retorsion therefore seems preferable to unilateral trade measures (such as the 1971 Act to Amend the Fishermen’s Protective Act of 1967 to Enhance the Effectiveness of International Fishery Conservation Programs [‘Pelly Amendment’], invoked against alleged CITES infractions by Japanese marine turtle imports in 1991), given that unilateral sanctions are wholly within the executive discretion of individual governments (Japan Whaling Association v American Cetacean Society) and remain open to challenge under the non-discrimination rules of the World Trade Organization (WTO). The threat of a collective embargo under Resolution 14.3/2007 is also likely to be more effective in practice than recourse to adversarial dispute resolution by arbitration under Art. XVIII CITES, which requires mutual consent for submission and so far has never been used (Environmental Dispute Settlement).

19 The bulk of CITES implementation occurs at the domestic level, with national authorities applying and enforcing international norms vis-à-vis individuals and corporate entities, ie the phenomenon known as dédoublement fonctionnel. The convention also provides the framework for inter-administrative co-operation to combat illegal trade in listed species (see also Co-operation, International Law of). For this purpose, the CITES Secretariat has entered into Memoranda of Understanding with the International Criminal Police Organization (‘ICPO’; Interpol) and the World Customs Organization (WCO), and together with these organizations, the World Bank and the United Nations Office on Drugs and Crime (‘UNODC’) formed the International Consortium on Combating Wildlife Crime (‘ICCWC’) in 2010. Resolutions 11.3/2000 (as revised in 2007) and 17.6/2016 call on Member States to become parties to the UN conventions against transnational organized crime and corruption (Corruption, Fight Against); and UNGA Res 69/314 on ‘Tackling Illicit Trafficking in Wildlife’ in turn calls for universal participation in and effective implementation of CITES. National CITES management authorities also participate in the voluntary International Network for Environmental Compliance and Enforcement (‘INECE’).

20 At the regional level, six African countries concluded in Lusaka the 1994 Agreement on Co-operative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora under UNEP auspices, followed by the 1999 Protocol on Wildlife Conservation and Law Enforcement of the Southern African Development Community (SADC) adopted in Maputo. Within the framework of the Association of Southeast Asian Nations (ASEAN), a regional Wildlife Enforcement Network (‘ASEAN-WEN’) was established in 2005. Similarly, a North American Wildlife Enforcement Group (‘NAWEG’) has been operating under the North American Agreement on Environmental Cooperation (1993) since 1995. The EU Committee on Trade in Wild Fauna and Flora also set up a permanent enforcement group in 1995, composed of management authorities from EU Member States (European Community and Union, Actor in International Relations). As a result of the incorporation of CITES into EU law since 1982 (currently under Council Regulation 338/97/EC on the Protection of Species of Wild Fauna and Flora by Regulating Trade Therein, as periodically amended), European national management authorities may thus be said to exercise a kind of détriplement fonctionnel, implementing national laws that implement EU regulations in turn implementing CITES (European Community and Union Law and Domestic [Municipal] Law).

D. Interlinkages

21 Several external evaluations of CITES have confirmed the overall operational effectiveness of the treaty in regulating legitimate international wildlife trade and curtailing illegal trade. It should be kept in mind, however, that CITES is but one component of the existing patchwork of global and regional conventions protecting wild fauna and flora. It is, by definition, narrowly focused on the trade issue which is only one among the multiple threats to wildlife resources—such as the inexorable loss of natural habitats; the impacts of global pollution and climate change (see also Climate, International Protection); the consequential or accidental spread of alien species; and unsustainable practices of economic exploitation.

22 One of the lessons learned is the continuous need for co-operation and synergy with other nature protection regimes, whether species-oriented or area-oriented, especially the biodiversity and migratory species treaties operating under UNEP auspices. This objective has been acknowledged in CITES Res 10.4/1997, Res 13.2/2004, and Res 13.3/2004 (revised in 2007) and addressed through a ‘Liaison Group’ of seven biodiversity-related conventions (established in 2004 under Decision VII/26 of the Conference of the Parties to the Convention on Biological Diversity), and a series of Memoranda of Understanding with their secretariats. At the same time, species conservation regimes must continue to maintain a dynamic—and at times inevitably conflictual—discourse with the multitude of treaty regimes for the sustainable management of living resources, such as whaling (addressed by CITES Res 11.4/2000, revised in 2002); fisheries, as illustrated by the ‘tuna v dolphin’ and ‘shrimp v turtle’ disputes (GATT United States — Restrictions on Imports of Tuna; WTO United States — Import Prohibition of Certain Shrimp and Shrimp Products; General Agreement on Tariffs and Trade [1947 and 1994]; World Trade Organization, Dispute Settlement); and forests (addressed by Res 14.4/2007 on co-operation between CITES and the International Tropical Timber Organization). In this context, the CITES Secretariat has also concluded specific inter-agency co-operation agreements with the FAO, the WTO, and the United Nations Conference on Trade and Development (UNCTAD).

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