In early 1970's, in the wake of the new environmental movement in the United States and Europe, and with the specific aid of the IUCN (International Union for the Conservation of Nature and Natural Resources), a treaty was drafted to help protect the endangered animals and plants of our planet. The United State hosted the final drafting conference in 1973 at which over 40 nations attended. In 1975, with the ratification of 10 countries the treaty came into effect.
CITES is a mature international treaty which as of the Fall of 2004 has 166 party states (sovereign states that have ratified or acceded to the treaty) as members, with the addition of Palau. [List of Party States] The purpose of the treaty is to control the international movement of wild plants and animals, alive or dead, whole or parts there of (specimens of species) in such a manner as to be assured that the pressures of international trade do not contribute to the endangerment of species around the world. If a species is in danger of extinction then the treaty will impose a ban on the commercial trade of the listed specimen. For purposes of this treaty trade is defined as any transboundry movement of species, regardless of the purpose. The party states meet every two or so years in order to carry out their responsibilities under the treaty. This event is referred to as a Conference of the Parties. There have been eleven of these meetings since 1975.[List of meeting -date and places]
At the Conference of the Parties may be as high as 1,200 individuals, and require simultaneous translation into three official languages (English, Spanish & French) and unofficial translation into several others such as German, Chinese and Japanese. With many countries receiving travel support, every county should have at least two representatives present, but countries such as the US or Japan can have 20-30 delegates each (but regardless of the number of delegates representing a state, each party state has only one vote). Additionally, the treaty specifically provides for non-voting delegates from international and national non-governmental organizations [Art. 11(7)] and this can add 800 or so individuals to the conference attendance. To operate efficiently in the allotted two week period of the Conference, the meeting is broken into two functioning Committees. Committee I considers species listing issues while Committee II considers the adoption of resolutions relating to the policy and administration of the provisions of the treaty. Thus Committee II has considered such issues as the content and structure of CITES permits, the issue of captive breeding and issues of enforcement. A fuller discussion of the operation of the Conference of the Parties can be found in a CITES Newsletter (2004)(332kb .pdf)
2. Operation of the Permit System
The treaty creates three categories into which species of concern or risk of extinction may be placed: Appendix I, Appendix II & Appendix III
Appendix I are species threaten with extinction which are effected by international trade.
Appendix II are species that may be threatened with extinction Aunless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival.
Appendix III is a list of species which are proposed by individual countries when they seek aid in controlling trade in these species. (This category is of minor importance and will not be further considered.)
Within the real world species at risk can be divided into four different categories:
1. Species at risk but not in trade - CITES not relevant and they are not within the scope of the treaty. For example, many birds found on the Hawaiian islands of the United States are at risk of extinction but are not part of any international trade and therefore not listed under CITES.
2. Species with a reasonably safe level of population, controlled by CITES to help assure long term commercial trade. Crocodile & leopards are controlled with CITES export quotes and permits, which allow for commercial trade year after year.
3. Species endangered and protected from the pressures of trade by Appendix I listing. The sperm whale, the eagle and the chimpanzee are examples of this category.
4. Endangered species who's numbers are so low that the Appendix I listing by itself is insufficient to assure the continued existence of the species. The black rhino, the tiger & the panda are examples of this category. Illegal trade and habitat changes could drive these species to extinction even if all legal trade is stopped.
The placement of a species in Appendix I or II is a group decision made at the Conference of the Parties (COP's) and requires a 2/3 vote of the Parties. [Art. 15(1)(b)] But any state who disagrees with a listing decision may take a reservation on the species listing within 90 days of the vote. [Art. 15(1)(c)] This right of reservation is not exercised very often as the custom of the Parties is to accept the decision of the Conference of the Parties (Elephant issues often provide an exception to the general rule.)
As it is now understood by everyone that as a consequence of listing a species on Appendix I, commercial trade in the species will be eliminated, such proposals receive very close scrutiny by the delegates at the Conference of the Parties. Indeed, much attention has been given to the issue of what standards should be used in trying to determine whether a species is Athreatened with extinction.@ [See: Conf. 9.24] While it is clear that the burden of proof is on the proponents of the proposal, any number of other issues are less clear:
- How to judge whether a species may be threatened by trade?
- Within how many generations does the threat of extinction have to arise to cross the threshold for protection?
- How small of a subset of the world wide population of a species can be considered in a listing proposal?
- How should the precautionary principle be utilized?
- Should different standards be used to remove a species from a list as compared with placing a species on a list?
Ultimately each party state must make a decision on each listing proposal, one vote per country, normally in open voting. (Elephant & whale votes have triggered the use of secret ballots at recent COP's.) There is no appeal, the vote of the Conference of the Parties is final. The treaty does provide for individual Party States to take a reservation on a specific listing decision. Generally the Parties have accepted the majority vote and not taken a reservation just because they voted against the listing proposal. [See: List of Reservations.]
Once a species is placed upon either Appendix I or II then the protection of the treaty is triggered by requiring each State to prohibit the transboundry movement of the species unless a permit has been issued by the relevant country. [Art. 2(4)] There is no international police system to enforce the obligations of the treaty. The treaty presumes that enforcement will be done at the national level. A specific obligation of the treaty is to adopt domestic legislation which will carry out the requirements of the treaty. [Art. 8(1)] In the United States section 8(a)of the U.S. Endangered Species Act contains the implementing provisions of CITES. Additionally, under the treaty, each country is obligated to appoint a Management Authority and a Scientific Authority each of which have responsibilities in the process of granting CITES permits. [Art. 9] In the United States both are located in the Department of Interior.
Appendix II species require a CITES export permit be issued by state of export. Before issuing such a permit, the Authorities of the state of export must find [Art. 4(2)] :
(a) the Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species;
(b) the Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; and
(c) the Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.
The key criteria for protection of the species is the requirement of a non-detrimental finding. Determining when trade is detrimental is a difficult projection into the future by science. This is a particular challenge in developing countries where wildlife science for many species is nonexistent. If detrimental trade is allowed, knowingly or unknowingly, then the goal of the treaty is frustrated.
Appendix I species, those already identified as at risk of extinction, require two permits: an exporting permit and an importing permit. The criteria for the exporting permit are the same as with Appendix II species. [Art. 3(3)] For the import permit:
(a) the Scientific Authority of the State of import must advised that the import will be for purposes which are not detrimental to the survival of the species involved;
(b) the Scientific Authority of the State of import must be satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and
(c) the Management Authority of the State of import must also be satisfied that the specimen is not to be used for primarily commercial purposes.
Note that the importing states must also make a finding that the purpose of the import will not be detrimental to the species. While the determination of what is a primarily commercial purpose would seem to be straight forward in the main, on the margins it is a difficult question. Sport hunting trophies are generally not considered a commercial purpose even thought they may have a market value. Importation of animals by zoo=s is likewise not prohibited by CITES custom even though money is pay for the animal and the zoo will generate money from the display of the animal. While there is a resolution adopted by the Conference of the Parties to help on this issue [See: Note "Primarily Commercial Purpose" & Conf. 5.10.] ultimately it is a unilateral decision by the country of import.
The limitation on commercial use of Appendix I species is controversial, in that, some states argue that economic utilization of Appendix I species would be useful for obtaining the resources and political motivation for the protect of the species - i.e. elephant ivory. Additionally some states are troubled by the fact that the importing county (primarily the developed countries) can block trade that the exporting country (primarily developing countries) believes is acceptable. [See: Note on Sustainable Use ] But these issues have been settled by the language of the treaty and it would take an amendment of the treaty to change the approach. While an amendment process is provided for in the treaty, is highly unlikely to occur. [Art. 17]
The treaty provides a number of exceptions to the requirement of a permit or allows for alternative permits, [Art. 7] each of these of course also raises a set of issues:
- Specimens in transit or transshipment through or in the territory of a Party while the specimens remain in Customs control.
- Specimens acquired by an individual before the provisions of the Convention were applied to that species.
- Specimens that are personal or household effects.
- Any specimen of an animal species which was bred in captivity or any specimen of a plant species which was artificially propagated can obtain a certificate by that Management Authority to that effect.
- The non-commercial loan, donation or exchange between scientists or scientific institutions registered by a Management Authority of their State, of herbarium specimens, other preserved, dried or embedded museum specimens, and live plant material which carry a label issued or approved by a Management Authority.
- Specimens which form part of a traveling zoo, circus, menagerie, plant exhibition or other traveling exhibition.
In the area of enforcement the treaty shows it age. More recent treaties are attempting to create provisions for the enforcement of obligations, but back in the 1970's the good faith of the parties states was the primary method of enforcement. Individual citizens incur no rights from the adoption of this treaty by their state and can not use the treaty as a basis to sue others. There is no international court to which a party state has a right to file a complaint or grievance against a private individual or another party state for violation of the provisions or obligations of CITES. However, peer pressure and public pressure can be effective in moving countries toward better enforcement of the CITES. On occasions the Party States have resorted to trade sanctions against a specific country to pressure the adoption of adequate domestic law, and this approach has been successful.
The enforcement problems faced by CITES are not just the limitations of the treaty language but also limitations within individual party states:
1. Lack of adequate domestic laws.
2. Lack of an adequate number of government employees - lack of pay and training for the employees that do exist.
3. Lack of scientific experts within a county - unwillingness to give power to them - lack of resources for the scientist that are present.
4. Lack of support from the police and courts for wildlife crime prosecutions and lack of serious punishment when a prosecution is successful.
5. Lack of a public education component.
4. Illegal Trade
While much effort is expended trying to assure that the permit process functions fully, there is also effort which must be expended to try and deal with illegal trade. The amounts of money involved, and therefore the incentives for illegal trade, are substantial. For example:
In September of 1995 the U.S. Fish and Wildlife Service reported that a Texan company, Tony Lama Boot Company, had forfeited 907 pairs of caiman lizard cowboy boots and 2,554 pairs of boot vamps. They estimated that over 13,800 caiman lizards (Appendix II) were killed and illegally shipped, with a wholesale value of over $1,000,000 for the manufactured goods made with the skins.
A report by the Environment Ministry of Columbia in 1999 (obtained by Reuters) stated that about 7 million reptiles, multi-colored birds, frogs, monkeys, spiders, and other species are smuggled out of Colombia yearly, with a black market value of approximately $40 million. Upward of 80% of these animals can die during the transportation process.
In January of 2001, custom officers in Vladivostok seized two trucks attempting to smuggle 3.5 tons of sturgeon and pickled jellyfish into China. Two Russian truckers were stopped at the Poltavka checkpoint in the Primorsky region. One truck was carrying 2.5 tons of sturgeon, coveted for its caviar, and the other contained barrels holding a ton of jellyfish, a delicacy in China. The fish were stashed under scraps of metal designated for export. Caviar was a high profile issue during 2001 as the Parties tried to develop a labeling system to help deter illegal shipment of caviar. See CITES Notification 2001/089. In the United States, U.S. Caviar & Caviar, Ltd., a major American supplier of that high-priced culinary delicacy, was fined $10.4 million - the most ever in a wildlife trafficking case - and Hossein Lolavar, the company's former owner and president, was sentenced to serve 41 months in prison by Judge Alexander Williams in federal court in Greenbelt, Maryland, in connection with a U.S. Fish and Wildlife Service investigation of illegal caviar trade. In July 2000, U.S. Caviar had pleaded guilty to 22 federal charges.
March 2001, in California, US, a man pleaded guilty to participating in a conspiracy that took 100 tons of coral and live rock from reefs off a Hawaiian island and shipped the protected species to the mainland U. S. (See generally, Conference Resolution 11.10 on Trade in Hard Corals.)
October 2001, Customs and DRI authorities had one of the biggest seizures of raw shahtoosh wool in India; over 230 kgs of the wool from the highly endangered Tibetan antelope have been caught in two separate cases. On September 26, 100 kgs of shahtoosh in three bales were caught at New Delhi Railway Station. It had been sent from Jaigaon on the Indo-Nepal border in Bihar. Secondly, the Customs authorities at the Indira Gandhi International Airport's Cargo terminal seized a 130 kg bale of shahtoosh, illegally declared as `wool top'. The bale was hidden between a large consignment of raw pashmina wool and pashmina shawls from Singapore.
November 19, 2001, authorities told restaurants in the Cambodian capital to stop serving rare animals or face closure. Many restaurants in Phnom Penh served rare animals because patrons believe eating parts of animals such as tigers, bears, scaly ant eaters, porcupines and turtles can cure diseases and ensure sexual potency. Phnom Penh Deputy Governor Seng Tong asked around 100 restaurateurs to sign agreements with the city administration promising to take rare wild animals off their menus.
December 10, 2001, two Slovak nationals caught in South Africa with 113 angulate tortoises in their possession were convicted under the Nature Conservation Ordinance.
While some illegal trade is out of ignorance, and some is petty, but much is done in organized rings not unlike drug rings, with suppliers in developing countries, shippers, financiers and retail distributors in developed countries. Some illegal traders use legitimates business as fronts. The most recent channel for trade is the internet, and that is particularly difficult to police. The only answer is strict enforcement, but in a world of limited government resources this is often difficult to accomplish. The other side of the equation is the demand side and as with drugs there does not seem to be any lack of individuals with financial resources who desire to possess illegal specimens of protected species.
5. Protection for Individual Animals
While the primary concern of the drafters of CITES was ecological in nature, at least some concern is expressed in the treaty for the for the pain and suffering of individual animals. However, the scope of concern is very circumcised to a particular portion of the full chain of events for international trade in live animals. Consider the normal chain of possession and transfer faced by live animals:
- Holding by the gatherer
- Transportation to in-country shipper
- Holding for export by shipper
- International transportation
- Holding in country of import at the port of entry
- Transportation to customer
- Living conditions at end point
Which portion of this chain comes within the provisions of CITES? Only the middle step, international transportation, for both Appendix I and II [Art. 3(2)(c) & Art. 4(2)(c)] animals and plants. The treaty requires for the granting of an export permit of a live animal that the Management Authority be:
satisfied that any live specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.
Also, if an Appendix I species in involved, the Scientific Authority of importing country has the obligation to determine that: Athe proposed recipient of a living specimen is suitably equipped to house and care for it.@[Art.3(5)(b)]
Early on it was realized that CITES did not want to become a technical body which had to argue about cage sizes. Recognizing that the large majority of live animals transported internationally are done so by airplane, they have turned to an international association which has set standardize shipping requirements for containers for use by airlines. CITES by resolution requires treaty shipments of live animal, by aircraft to conform to IATA (International Air Transportation Association) shipping standards. [See: Conf 10.21]
While the legal requirement for shipping conditions are relatively straight forward, the difficulty is in the implementation. Even assuming good faith efforts by government officials generally it is an awkward process. The requirement for humane transportation is to be satisfied before the granting of the permit, but there is no way to know how the animal will in fact be shipped, as that will not occur until after the permit is granted. Indeed most exports will only be seen by custom agents, not representatives of the Management Authority.
Twice there have been proposed resolution considered by the Conference of the Parties to expand the concerns of the States beyond the limited language of the treaty to methods of capture and holding facilities. At the 4th Conference of Parties [Doc. 4.32] and at the 11th Conference. [Doc. 11.56] Methods of capture (or killing) as well as conditions of housing remain a state by state issue.
6. A Little about Organization
The ongoing administrative body of the treaty is referred to as the Secretariat.[Art.12] The individual with ultimate responsibility is the Secretary General. This position is critical to the implementation of the treaty. But the Secretary General does not have independent executive powers such as a president, rather the office must do the bidding of the Party States. This office administers a budget (approx. $6,000,000 per year), while providing advice, training and support for the member countries.
The party states have organized themselves into operational committees which meet and consider issues between the Conference of the Parties. [See: Com. 11.1] The Animal and Plant Committee=s are science based and consider issues relating to which species should be on which appendix. The Standing Committee of CITES has a complex structure of regional representation and meets twice a year to deal with ongoing administrative issues.