Symposium on the interface between international and domestic environmental law
CITES and wildlife trade - International cooperation and national action
John E. Scanlon
Secretary-General, CITES Secretariat
Tel Aviv, Israel, 31 August 2015
Good morning and thank you to our colleagues in the Israel Nature and Parks Authority for organizing today’s Symposium and for giving me the opportunity to address you.
The question of what wildlife trade issues are addressed through international law, and the interrelationship with national law, is frequently raised by the media and members of the general public and it is a great topic for today’s Symposium. In the time available, I will touch upon some of the issues that arise most often, and in particular, I will spend some time on law enforcement, as it is a topic that generates a lot of discussion.
The origins of CITES
Prior to the adoption of CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora), international trade in wildlife was not regulated at the global level.
Consequently, with the exception of certain national laws or bilateral or regional agreements1, a State was free to trade with any other State in wild animal or plant species, in any quantity, and without needing to report such trade to any global entity.2
The need for a convention to regulate international wildlife trade was first identified in a decision of the IUCN General Assembly held in Nairobi back in 1963. The 1972 UN Conference on the Human Environment, held in Stockholm, called for negotiations on a convention to be concluded as soon as possible and the US Government heeded this call by hosting a Plenipotentiary Conference in 1973, which resulted in CITES being adopted on 3 March.3 Today CITES has 181 States Parties4 and it is regarded as one of the most successful of all international environment-related agreements, noting that CITES is increasingly being recognized in the context of sustainable development, as I explain below.
Following on from a Resolution adopted at the 16th meeting of the Conference of the Parties to CITES (Bangkok, 2013), the UN General Assembly in December 2013 recognized 3 March, the date of adoption of CITES, as UN World Wildlife Day.
How CITES works
Let me take a few moments to briefly describe how CITES work and what it is and isn’t.
Perhaps the first thing to note in the context of this Symposium is that, while some countries make international agreements part of their national law, CITES is not a self-executing instrument. It places obligations on States that are Party to the Convention that must be given expression through national laws, including the designation of relevant authorities, ensuring trade in CITES-listed species is in accordance with the provisions of the Convention, and penalizing trade that takes place in violation thereof.
CITES is a unique instrument in that it has also established compliance processes, which include the ability for the Standing Committee to take certain compliance measures. These include measures that have been taken in relation to unsustainable levels of trade, a failure to submit annual reports, inadequate legislation, and a persistent failure to implement the Convention effectively, some of which I will address in further detail through the course of this speech.5
CITES is both a trade-related and a conservation convention. CITES uses trade-related measures to achieve its conservation objective, which is to ensure that wildlife, both animals and plants, is not unsustainably exploited through international trade.6
The Convention regulates commercial and non-commercial international trade in over 35,000 species of animals and plants, including their parts and derivatives, which often find their way into medicines, food, building materials, cosmetics, clothes or furniture. The nature of the various trade measures utilized by CITES to regulate this trade depends primarily upon the biological status of the species.
For certain species,7 commercial international trade in wild taken specimens is prohibited. These species are included in Appendix I of the Convention and they are categorized as threatened with extinction. This prohibition includes commercial trade in elephant ivory, rhino horn, great apes, marine turtles and tigers.
For other species commercial international trade is subject to strict regulation to be sure it is legal, sustainable and traceable.8 These species are included in Appendix II of the Convention and they are categorized as not yet necessarily threatened with extinction but they could become so if trade is not strictly regulated. This regulated legal trade includes commercial trade in crocodile and python skins, the meat of the queen conch, the wool of the vicuña, and the bark of the African cherry tree.9
While different species of animals and plants are included on different appendices, the Convention does not draw any distinction between charismatic and lesser-known species, although the attention paid to different species, of animals in particular, varies considerably. In that sense, one could say that while all animals are equal under CITES, in the court of public opinion "some animals are more equal than others."10
While CITES is both a conservation and a trade-related Convention, it neither promotes nor discourages trade, rather it regulates trade in CITES-listed wildlife when it does take place to ensure it is legal, sustainable and traceable. Under international law States have sovereign rights to exploit their own biological resources.11 The decision whether or not to allow trade is one for the country itself to determine – subject, of course, to meeting their international commitments, and in particular those under CITES.
CITES – a vibrant convention that continues to evolve
The world has changed a lot since 1975 when CITES entered into force. In that time we have witnessed growing prosperity, changing consumption and production patterns, vastly enhanced scientific knowledge, phenomenal advances in technology and, above all, exponential growth in global trade. Looking at population figures alone, the world's population has grown from 4 to over 7 billion people – and that is an additional 3 billion potential consumers of wildlife and wildlife products.
Yet, CITES has remained as relevant today as when it first entered into force 40 years ago. This is because CITES is and has remained a focused, action-orientated and vibrant convention.
CITES has continued to evolve over time in response to changing conditions in many ways, including through developing compliance procedures, bringing new marine and timber species under CITES12 trade controls, making the best use of emerging technologies and strengthening cooperative implementation and enforcement efforts.13 This evolution will continue.
CITES and sustainable development
The enduring relevance of CITES was perhaps most powerfully expressed through the agreed outcomes of the UN Conference on Sustainable Development or Rio+20 in 2012, which recognized the important role of CITES as “an international agreement that stands at the intersection between trade, the environment and development.”14
This outcome has reinforced the links between CITES implementation and sustainable development, which has taken on even greater significance with the UN General Assembly adopting the first specific resolution on Tackling Illicit Wildlife Trafficking last month and with UNGA being poised to adopt the Sustainable Development Goals in September of this year. CITES implementation will contribute in many ways to achieving these Goals and related targets.
CITES, international trade and the WTO
As you will have gathered, CITES sets the agreed multilateral measures to regulate international wildlife trade for CITES-listed species. This means CITES has a direct interface with the international trade rules.
The CITES regulatory regime has harmoniously coexisted with the World Trade Organization (WTO) (and its predecessor, the General Agreement on Tariffs and Trade) for over 40 years, which we recently detailed in the 2015 publication CITES and the WTO Enhancing Cooperation for Sustainable Development. As this publication points out, there has not been any WTO dispute directly challenging a CITES trade measure in the 40+ year history of the Convention.
Without CITES, international trade in wildlife would be unregulated. Such trade would only be regulated by national laws, where they exist, (or through bilateral and regional agreements), whose application could well lead to disputes under the WTO.
The Lacey Act of the U.S.A. dates back to 1900 and is perhaps the most well known example of a pre CITES national law to regulate wildlife trade across internal and international borders. Since CITES came into force in 1975, it is the U.S. Endangered Species Act that primarily incorporates international obligations under CITES into national law as well as U.S. stricter domestic measures that go beyond CITES.
CITES and conservation, including sustainable use
When a State does decide to trade in a CITES-listed species the Convention sets out three requirements that must be met, namely the need to:
- make a legal acquisition finding – being a certification that the specimens have been taken in accordance with national law;
- make a non-detriment finding – being a science-based biological sustainability finding that takes account of the role of the species in the in its ecosystem;
- issue the appropriate permit/certificate and report the trade – being the formal authorization and report of the trade transaction to the CITES Secretariat.
There are over 15,000,000 recorded authorized trade transactions in the CITES trade data base. Legal and sustainable trade can have benefits for both wildlife and people, which has been formally recognized by CITES.15 The recovery of the vicuña in South America is one such example of where local people and wildlife have benefited from well-regulated trade.
CITES continually reviews the levels of international trade in CITES-listed species through its Review of Significant Trade.16 This is conducted by the CITES Animals and Plants Committees, which can ask exporting Parties questions about the levels of trade, including about their non-detriment finding, and make recommendations to the Party. If recommendations are not adequately implemented, the Standing Committee can take compliance measures,17 which can, as a last resort, result in a recommendation to suspend trade in the affected species.
CITES and livelihoods and local communities
As mentioned above, CITES recognizes the potential positive and negative impacts CITES can have on livelihoods. Legal and sustainable trade can have benefits for both wildlife and people, as has been referred to, but listings may also have negative impacts on livelihoods. CITES recognizes these issues and several CITES resolutions and decisions are focused on identifying such impacts and mitigating any negative impacts.18 This recognition is however in the context of implementing decisions to list species under CITES, rather than in considering a decision on whether to list a species or not.
The increasing recognition of the importance of engaging with local communities in implementing CITES, both for well regulated trade and combatting illegal trade, has seen the active engagement of the UN Development Programme and regional organizations such as OAS (Organization of American States) and others in the work of CITES.
CITES and animal welfare and animal rights
The issues of animal welfare and animal rights can generate a lot of the media attention, especially regarding charismatic CITES-listed animals, both through traditional and social media. We saw this most recently with the extraordinary global media attention surrounding the killing of a male African lion in Zimbabwe that was given the name Cecil. This is one area where national, rather than international law, sets most of the rules and as such it varies considerably from one State to another – noting that the issue of animal rights is related – yet distinct from – animal welfare.19
CITES was the first, and possibly remains the only, global legal instrument to address animal welfare,20 while noting some issues have been considered by the World Organization for Animal Health (OIE)21 and that several other conventions have adopted certain resolutions that relate to aspects of animal welfare.22
The animal welfare provisions under CITES are specific and targeted. They address the transport of live animals so as to minimize the risk of injury, damage to heath or cruel treatment and ensure the suitability of places destined to receive live animals23, including rescue centers. Guidance on meeting these CITES obligations have been provided by the Parties in some instances, such as through the guidelines on the transport of live specimens24 .
However, to date, States have considered that most animal welfare issues should be addressed through domestic law rather than international law and there is currently no global treaty governing either animal welfare or animal rights, although efforts have been made by some NGOs in this regard.25 It is perhaps partly for this reason that CITES has been used as a forum for the expression of a wide range of differing and passionately held views on international trade in wild animals, including on particular trade transactions, whether all of the actions sought by various actors fall under the current mandate of CITES or not.
And CITES is possibly the only global forum in which we see experts and advocacy groups from such a wide range of perspectives – conservation and sustainable use, trade, development, livelihoods, animal welfare and animal rights – come together in one place to discuss, and contribute to the making of decisions and recommendations on such issues, which is a great strength of CITES.
In this context, it is worth noting that CITES does not prevent countries from taking measures that go beyond what is agreed through CITES, which are known as stricter domestic measures. Such measures do however need to be consistent with a country’s obligations as a member of the World Trade Organization.
CITES and illegal trade in wildlife – when international trade is illegal
CITES regulates international trade in CITES-listed wildlife, and, as mentioned earlier, this involves addressing both legal and illegal trade. For domestic or international trade in wildlife to be described as illegal or as ‘illicit wildlife trafficking’, which is often used to refer to illegal trade, it must contravene either domestic or international law (or both).
CITES obliges States that are Party to the Convention to (inter alia) not to trade in listed species other than in accordance with the Convention, to take appropriate measures to enforce the Convention and to prohibit trade in violation thereof, including measures to penalize such trade.
Consequently, illegal trade, or ‘illicit wildlife trafficking’, under CITES includes trading commercially in wild-taken specimens of Appendix I listed species and failing to obtain, or to follow the conditions within, the necessary permits or certificates to trade in Appendix I, II or III listed species, as well as the illegal possession of specimens illegally imported or otherwise acquired.
The scale of illegal trade in wildlife and the international response
Leaving aside timber and marine products, it is estimated that the annual value of wildlife crime is up to USD 20 billion a year ranking it amongst other serious transnational crimes such as the trafficking in people and arms. Let me share just three examples to illustrate the scale of the illegal taking that feeds this illicit trade:
- The poaching of African elephants and the illegal trade in their ivory is one of the most noticeable and destructive forms of wildlife crime. Over the period 2010-2012, an estimated 100,000 elephants were poached for their ivory. In some regions, such as Central Africa, killings far exceed births, putting regional populations at imminent risk of extinction.
- The recovery of the White rhino is a great conservation success story, mainly due to the efforts undertaken in South Africa, but these gains are now under threat. Poaching was well under control up until 2007 when only 13 animals were poached. Since that time we have seen a rapidly increasing level of poaching, which reached a high last year with 1,215 rhino poached in South Africa alone for their horn.
- And these crimes are not only affecting iconic species that we all know well. Lesser known species such as the pangolin, a small ant eater living in Africa and Asia, are being poached at a massive rate for their scales and meat, with 10 tonnes of pangolin meat being recovered in just one customs seizure– that is the equivalent of 130 people of my weight.
While combatting illicit wildlife trafficking presents major challenges, the positive news is that there is a global collective effort underway to combat it and we are witnessing encouraging progress both at national and international level in response to the changing dynamic of these highly destructive crimes, some aspects of which I will highlight.
The 2012 UN Conference on Sustainable Development, whose outcomes were endorsed in a resolution of the UN General Assembly, explicitly recognized the “economic, social and environmental impacts of illicit trafficking in wildlife, where firm and strengthened action needs to be taken on both the supply and demand sides” and has emphasized “the importance of effective international cooperation among relevant multilateral environmental agreements and international organizations.”26
This message was powerfully reinforced earlier last month when the UN General Assembly unanimously adopted a resolution on ‘Tackling Illicit Trafficking in Wildlife’, being the first dedicated resolution on the topic adopted by the UNGA. This resolution was the culmination of several years of increasing political attention being paid to the devastating impacts of illegal trade in wildlife.
These resolutions, and those taken by CITES and others, recognize that illicit wildlife trafficking increasingly involves transnational organized crime and in some cases rebel militia and rouge elements of the military. This has changed the dynamics of combating this highly destructive criminal activity, in particular as it relates to some charismatic species, such as elephants and rhinos.
As a result, the importance of treating certain illicit wildlife trafficking as a serious crime27 has been recognized by the UN General Assembly and others along with the need to combat corruption. The need for States to engage with Customs, the police, rangers or inspectors, the judiciary, and sometimes the military to implement CITES effectively is also recognized, which may necessitate intervention from the highest political level.
The UN General Assembly, CITES Parties and others have recognized the need to ‘mainstream’ wildlife crime in calling for all States to consider becoming Parties to the UN Conventions against Corruption and Transnational Organized Crime. As a consequence, international organizations that deal with Customs, the police, the judiciary, and related conventions dealing with corruption and transnational organized crime, become an essential part of the architecture for implementing CITES and combating illicit wildlife trafficking. The ultimate objective is for such entities to include the combating of illicit wildlife trafficking in their core programmes and as a part of their daily work.28
And great strides were made in this direction when five key intergovernmental agencies dealing with wildlife crime formed a new alliance in 2010 called the International Consortium on Combating Wildlife Crime 29 (ICCWC) – an initiative that is providing coordinated support and technical assistance to countries, including on the use of sophisticated investigative and anti-money laundering techniques, the sharing of intelligence and modern forensics.
We have also seen the United Nations Security Council adopt two Resolutions on UN sanctions targeting armed groups in the Central African Republic and the Democratic Republic of the Congo30 financed by the illegal exploitation of natural resources, including poaching and illicit wildlife trade. Individuals or entities involved will be subject to travel bans and asset freezes. Such measures are critical when dealing with States where there is a breakdown in law and order and where armed groups are operating.
Some have also informally suggested a Protocol be developed under the Convention against Transnational Organized Crime dealing expressly with illicit wildlife trafficking, similar to the protocol on trafficking in persons, although this has not gained much traction to date.
In addition, there is a strong international focus on building the capacity of all States to effectively enforce their international commitments at national level across the entire enforcement chain, as this is where ‘the rubber hits the road’. This includes deploying the same sorts of techniques to combat illicit wildlife trafficking as are used to combat narcotic trafficking.
The role of International and national law in combatting illegal trade in wildlife
While CITES includes enforcement-related obligations, and many other international agreements address such issues, law enforcement is a domestic responsibility and current international efforts are focused on strengthening cross-border cooperation amongst source, transit and destination States, as well as supporting relevant bilateral, regional, and cross-regional enforcement efforts. The benefits of this collaboration across source, transit and destination States are now increasingly evident – such as the excellent results achieved through Operation Cobra III, the largest ever joint enforcement initiative undertaken earlier this year between 62 States across Asia, Africa, Europe and North America.
Some academics and non-governmental organizations have called for international enforcement powers to combat illicit wildlife trafficking.31 This could only occur under the existing international legal regime if the jurisdiction of the International Criminal Court were expanded to cover illicit wildlife trafficking.
To do so, such offences would, however, need to be regarded by the international community as one of “the most serious crimes of concern to the international community as a whole”, such as the crime of genocide32, and included in the Rome Statute of the International Criminal Court. It is highly unlikely that such a step will be taken, at least in the foreseeable future.
As is referred to earlier, CITES does however have compliance processes and compliance measures have been taken in the past where there has been a sustained failure to enforce the Convention at the national level. The ability to take such international compliance measures, as a last resort, is not found in many international instruments, and it is a reason why CITES is often described as a Convention “with teeth.”
Closing remarks – International commitments and national action
CITES is an international agreement that connects international commitments with national action.
It is also a Convention that attracts a diverse range of stakeholders and generates a lively and passionate debate around trade, development, environment, livelihoods, animal welfare and animal rights, with some issues falling under the mandate of CITES and others remaining exclusively in the domain of national law.
The success of CITES relies upon the contributions and ongoing commitment of, and collaboration between, multiple organizations and people coming from a wide range of disciplines and perspectives and the Convention benefits from the rich and diverse level of interest in the Convention.
In this our 40th year of being in force,33 CITES is seen as a great example of successful international cooperation combined with national action that has evolved to meet new challenges and will continue to do so.
As such, this visionary Convention is as relevant today, if not more relevant, as it was in 1975 in enabling us to continue to benefit from wild plants and animals – and now I quote from the founding text of the Convention itself – from the “aesthetic, scientific, cultural, recreational and economic points of view.”
3 The US government’s own figures on imports into the US in 1969, figures that were openly shared at the Plenipotentiary Conference, are nothing short of staggering. They included the import of just under 8,000 leopard skins, close to 1 million live birds and over 1.4 million live reptiles. These numbers pale in comparison with the import of almost 99 million live fish.
4 States – as distinguished from individual ministries – become Parties to a convention, and it is the State, through its executive, legislative and judicial bodies, that takes the measures that are necessary to implement a convention. In the case of CITES, Parties are obliged to establish at least one Management Authority and one Scientific Authority to carry out functions relating to the determination of legal acquisition and biological sustainability, the issuance of appropriate CITES permits and certificates, the enforcement of relevant laws (in cooperation with general and specialized enforcement authorities) and the submission of periodic national reports.
5 Resolution Conf. 14.3 CITES compliance procedures
9 Some commercial international trade is regulated only to ensure legal origin, leaving the issue of sustainability to measures already taken at the national level and these species are found in Appendix III. About 1%
11 See Convention on Biological Diversity Article 3
13 For example through ICCWC (the International Consortium on Combating Wildlife Crime).
15 Resol. Conf. 8.3 (Rev. CoP13) Recognition of the benefits of wildlife trade
16 Resol. Conf. 12.8 (Rev. CoP13) Review of Significant Trade in specimens of Appendix-II species
17 Resol. Conf. 14.3 CITES Compliance procedures
18 See for example: Resol. Conf. 16.6 CITES and Livelihoods
19 While there are many definitions, perhaps the primary distinction between the two is that animal welfare accepts the responsible use of animals to satisfy certain human needs, whereas animal rights does not, with animals themselves having rights that must be respected.
20 In particular: national authorities being satisfied that “any living specimen will be so prepared and shipped so as to minimize the risk of injury, damage to heath or cruel treatment”; the proposed recipient of a living Appendix I specimen to be imported or taken from the high seas “is suitably equipped to house and care for it”; any living Appendix II specimen taken from the high seas ‘will be so handled as to minimize the risk of injury, damage to health or cruel treatment’; during any period of transit, holding or shipment, living specimens “are properly cared for so as to minimize the risk of injury, damage to heath or cruel treatment”; designated rescue centers are able “to look after the welfare of living specimens, particularly those that have been confiscated”; and trade in certain live animals is only to “appropriate and acceptable destinations.”
23 See Resol. Conf. 11.20 Definition of the term 'appropriate and acceptable destinations'. There are also relevant Resolutions on Ranching and trade in ranched specimens, and the Disposal of confiscated live specimens of species
24 See Resol. Conf. 10.21 (Rev. Cop16) Transport of live animals, which recommends Parties promote the full and effective use by Management Authorities of the IATA Live Animals Regulations (for animals), the IATA Perishable Cargo Regulations (for plants) and the CITES guidelines for the non-air transport of live wild animals and plants.
25 For a summary see for example Georgetown Law Library website dedicated webpage on the topic.
26 For more see: CITES: From Stockholm in ‘72 to Rio+20 - Back to the future
30 Resolutions 2134 (2014) and 2136 (2014) adopted on 28 January and 30 January, 2014 respectively
31 There is some academic debate on whether a crime of ecocide should be included.