Reporter: 2002 No. 18: CITES COP12

The 12th meeting of the Conference of the Parties to the Convention on International Trade in Endangered Species (CITES) will be held in Santiago, Chile, from 3 to 15 November 2002. It will be preceded by a meeting of the Standing Committee to be held from 1 to 2 November 2002. A total of 54 proposals for amendment of Appendices I and II have been submitted to the Secretariat, including several dealing with marine species. These include a number of proposals to transfer species from Appendix I to Appendix II in order to permit trade: for example, Cuba would like to sell hawksbill turtle shells from existing legal stockpiles and Japan is seeking the transfer from Appendix I to Appendix II of most northern hemisphere populations of minke whale and a Pacific population of Bryde’s whale. Also of particular interest is a proposal from Australia to list Patagonian and Antarctic toothfish in Appendix II. This article will first provide a brief background to the Convention and will then provide an overview of the principal (but not all) proposals concerning marine species.

The Convention on International Trade in Endangered Species (CITES) is a major multilateral treaty on trade and the environment. It was signed by 21 States in 1973, but since then has grown steadily and currently has 158 Parties. In general terms, it seeks to protect endangered species of wild animals and flora through the prevention or restriction of international trade in such species. The Convention does not, therefore, purport to address the root causes of species decline, per se, such as harvesting, habitat loss or pollution but seeks instead to reduce the demand for a large number of endangered species by restricting the trade between States of such species.

The types of trade which CITES seeks to regulate fall into four categories: export, re-export, import and “introduction from the sea,” the latter category being defined as “the transportation into a State of specimens of any species which were taken in the marine environment not under the jurisdiction of any State.” All four categories of trade may relate to marine animals, especially as CITES applies to trade in live and dead animals and derivative products.[1] CITES works by subjecting trade in endangered species to certain controls, through a system of permits and certificates.

The species covered by CITES are listed in three Appendices. The strictest measures are set out for the species in Appendix I, which includes species threatened with extinction. Trade in such species is subject to “particularly strict regulation” and is only authorized “in exceptional circumstances.” The most restrictive controls are placed on the importing State. Thus, imports may only be permitted if the relevant authorities of the importing State are satisfied that Appendix I specimens will not be used for “primarily commercial purposes,” that the import is for purposes which will not be detrimental to the survival of the species involved and, if the specimen is alive, that the proposed recipient is suitably equipped to house and care for it.[2] The conditions for the granting of a permit for introduction from the sea are essentially the same. In practice, these conditions, and specifically the requirement that trade be restricted to non-commercial purposes, effectively prohibit international commercial trade in Appendix I species and limit the legal trade in such species to a few hundred specimens a year. The conditions attached to exports and re-exports are less onerous, although both are still subject to the issue of a permit or certificate. As regards export, a permit may only be granted if the “export will not be detrimental to the survival of that species” and if the States of export is satisfied that the specimen was acquired legally and that the State of import has already granted an import permit for the specimen. Further export requires the granting of a certificate, which will only be issued if the Management Authority of the State of re-export is satisfied that the specimen was imported into that State in accordance with the provisions of the Convention.

The next category of species are listed in Appendix II and include: (a) species not necessarily threatened with extinction, but for which trade must be controlled in order to avoid utilization incompatible with their survival; and (b) species which must be subject to regulation in order that the trade in other listed species is brought under control. Controls imposed on the trade of Appendix II species are similar to those which apply to Appendix I species, except that the rules for imports are much less stringent. Thus, permits or certificates are still required for export and re-export, subject to similar determinations as required for Appendix I species. Importantly, however, import certificates are not required for Appendix II species. As regards introduction from the sea, a certificate is still required but the requirement that the introduction not be for primarily commercial purposes is removed. The result of this is that international commercial trade in and introduction from the sea of Appendix II species is perfectly possible under CITES, provided that the authorities in the State of export are satisfied that such export would not be detrimental to the survival of the species and provided that the other requirements with respect to export, re-export or introduction from the sea had been met.

Appendix III is not generally relevant to marine species because it relates to species which are identified by any party as protected within its jurisdiction and as needing the cooperation of other parties in the control of trade in their specimens. Nevertheless, some marine species - including, recently, basking shark by the United Kingdom - are listed in Appendix III (although it should be pointed out that this is not always considered an appropriate listing by the Secretariat). In the case of trade from a State that included the species in Appendix III, an export permit issued by the Management Authority of that State is required. This may be issued only if the specimen was legally obtained and, in the case of a live animal or plant, if it will be prepared and shipped to minimize any risk of injury, damage to health or cruel treatment. In the case of export from any other State, a certificate of origin issued by its Management Authority is required and in the case of re-export, a re-export certificate issued by the State of re-export is required.

The listing of species in the Appendices is kept under regular review by the Conference of the Parties, according to the degree of protection they need. The Convention itself does not provide criteria for the listing of species in the Appendices (other than the basic definitions in Article II), although two attempts have been made at Conferences of the Parties to elaborate detailed criteria. The first attempt was made at the first Conference of the Parties in 1976, but the formula agreed there, known as the Bern criteria, were never successfully applied, partly because the criteria themselves were flawed[3] and partly because they were not always followed or applied objectively by the Parties. As a result a new set of criteria - based on biological and trade inputs - was finally adopted in 1994, after long and difficult deliberations.[4] The new criteria were used at the tenth Conference of the Parties in 1997 for the first time.[5]

A large number of marine species are listed in the CITES Appendices, including all species of large whale (in Appendix I) and all small cetacean species (some on Appendix I, most on Appendix II), as well as various species of fish, seabirds, sea turtles and pinnipeds. Few marine species are listed in Appendix III. It should be mentioned that the effect of CITES can be limited by the possibility of reservations by States to the listing of certain species. Thus, specific reservations with regard to species listed in the Appendices are allowed under CITES, provided that they are made at the time of ratification of or accession to the Convention, or within 90 days of the adoption of amendments to the Appendices. A party which has entered a specific reservation is not regarded as a party with respect to trade in specimens of the species concerned. A small number of States (Japan, Iceland, Norway and, in respect of humpback whales only, St Vincent and the Grenadines) have entered reservations to a number of cetacean species, including minke whale. Consequently, there is nothing under CITES which prevents these States from trading whale products with each other or with non-CITES members. This is, of course, an issue of current interest, with international trade between Norway and Iceland and Norway and Japan set to resume this year.

The current institutional structure of CITES has evolved considerably over several years. The body with the principal responsibility for monitoring and keeping under review the implementation of CITES is the Conference of the Parties, which meets every two-and-a-half years. The Conference of the Parties is also responsible for adopting amendments to the Appendices and for making recommendations for the overall effectiveness of the Convention through Resolutions. A Standing Committee was established in 1979 as an advisory body providing general policy and operational direction between Conferences of the Parties and the Secretariat also fulfils a central coordinating and administrative role, which has proved important as knowledge of and information on trading practices has accumulated. CITES contains a number of measures relating to enforcement, but the responsibility for enforcement rests with the Parties themselves. Thus, Parties are required to take appropriate measures to enforce the provisions of the Convention, including measures to penalize trade in, or possession of, illegally traded specimens and to provide for the confiscation or return to the State of export of such specimens. Furthermore, each party is required to maintain records of trade in specimens of species included in the Appendices and to prepare periodic reports on its implementation of the Convention.

Black Sea bottlenose dolphins, which are thought to occur as a separate population from other bottlenose populations in the Mediterranean and beyond, have declined greatly during the twentieth century, first because of commercial exploitation for meat and blubber and more recently because of habitat degradation through marine and land-based pollution, coastal development, depletion of food resources and accidental mortalities through fishery bycatch. Although the commercial exploitation of the dolphins is banned in most of the range States, some directed exploitation is known still to occur. Significant progress has been made in recent years in regional cooperation to address these problems, including agreements to limit pollution and to protect and rehabilitate the Black Sea ecosystem, and the numbers of this species in the Black Sea appear to have been increasing in recent years. The current proposal, by Georgia, seeks to transfer the listing of the Black Sea bottlenose dolphin from Appendix II to Appendix I. A proposal similar to the current one was submitted by the United Sates and Georgia at the 11th meeting of the Conference of the Parties, but was withdrawn. However, the Conference of the Parties adopted Decisions 11.91 and 11.139, which, inter alia, called on member States to provide more information on levels of harvest, trade, population status and incidental killings.

Information on trade in bottlenose dolphins, presented at the 18th Meeting of the CITES Animals Committee, indicates that, during the last 10 years, international trade in bottlenose dolphins has largely been confined to small numbers of live specimens exported from the Russian Federation and Ukraine (probably around 112 animals in total). The proposal by Georgia indicates that exports may not always have been in compliance with the provisions of the Convention relating to transport of live animals and alleges that there has been a substantial international commercial trade in bottlenose dolphins from the Black Sea, although the proposal does not contain any real evidence of illegal international trade in bottlenoses and the CITES Secretariat has not been able to confirm the latter allegation. The Secretariat has also outlined other problems with this proposal, in particular that it is, from a scientific point of view, difficult to distinguish bottlenose dolphins in the Black Sea from those in the Mediterranean, which may lead to enforcement problems, particularly as the Mediterranean population would remain on Appendix II. (In other words, the control of trade in virtually indistinguishable specimens of populations included in two different Appendices, would be extremely difficult). Combined with the fact, mentioned above, that the Black Sea bottlenose population is no longer thought to be in decline, the Secretariat concludes that there appears to be no justification for a transfer of bottlenose dolphin from Appendix II to Appendix I.

Cuba is to propose the downlisting of hawksbill turtles in order to allow it to resume international trade. This species of turtle has been protected by CITES since 1977, but Cuba has continued, under a national conservation and management programme between 1993 and 2002, to allow the hunting and stockpiling of hawksbill shells within its territory. The country now has an excess of turtle shells (a stockpile of 7,800 kg) which it would like to sell on the international market. Although Cuba has entered a reservation against the listing of hawksbill turtles (and so could, in theory, trade internationally), the only other CITES Party with a reservation is St Vincent and the Grenadines whereas, Japan, the most likely trading partner, does not have a reservation. It will therefore be necessary to remove the listing in Appendix I in order to allow trade to resume. Cuba has made several other attempts to downlist the turtles at other recent CITES meetings, but has not so far been able to gain the necessary number of votes.

The proposal is designed to transfer of the population of hawksbill turtles in Cuban waters from Appendix I to Appendix II, for the exclusive purpose of allowing Cuba to export its stockpile of shells. Export will not take place until the CITES Secretariat has verified, within 12 months of the decision, that the importing country has adequate internal trade controls and will not re-export and the CITES Standing Committee accepts this verification and the wild population in Cuban waters will continue to be managed as an Appendix I species. The proposal states that, further, that if it is adopted, Cuba will withdraw its reservation to the listing of hawksbill turtles within 90 days and will also ensure that current commitments for the conservation and management of this species will be maintained, to the benefit of local communities.[6]

Japan has put forward two proposals for downlisting from Appendix I to Appendix II most northern hemisphere populations of minke whale (with the exception of the Yellow Sea, East China Sea and Sea of Japan populations) and the Western North Pacific population of Bryde’s whale. Both proposals are identically formed. Thus, under the proposals trade is to only to be allowed between Parties that are also signatories to the International Convention for the Regulation of Whaling and which have an effective DNA register system to monitor catches, introductions from the sea and imports from other States. To ensure that trade does not result in removals in excess of catch limits, the following additional measures would also have to be implemented under the proposal:

a) any trade shall be subject to the provisions of Article IV, dealing with Appendix II species (even though there are certain exclusions in the Convention as regards marine Appendix II species;

b) the calculation of a safe catch level using the IWC’s Revised Management Procedure (RMP);

c) the establishment of export quotas that shall ensure that trade does not result in removals in excess of catch limits;

d) the indication on trade documents of the number of animals involved when shipment of products are only parts of animals, and tracking of this number through DNA monitoring of imports;

e) the implementation of domestic legislation to ensure imports are from animals taken legally; and

f) DNA registers to monitor catches, introductions from the sea and imports and a requirement that all imports be accompanied by certified DNA profiles.

The scientific, political and legal background to the whaling and whale trade issues have been well documented elsewhere, including in this journal, and do not need to repeated at length here.[7] It will be sufficient to merely summarize here that there is substantial, albeit not universally accepted, evidence that certain whale stocks, including minke in the North and Northeast Atlantic, West Greenland and the Western Pacific, and (to a lesser extent) Western North Pacific Bryde’s whale. The West Greenland stock of minke whales is already on Appendix II, but all other stocks are listed in Appendix I. As was noted above, since the early 1980s the decisions of CITES as regards whales have been determined in conjunction with the International Whaling Commission. Japan and, at earlier COPs, Norway have argued, particularly since the adoption of new listing criteria in 1994, that CITES should determine its listings independently of the IWC moratorium. They have additionally pointed out that allowing trade under Appendix II would, in any case, be consistent with the IWC, as trade would only be permitted by CITES Parties which were also members of the IWC and so whaling would take place in accordance with the Convention and in accordance with its scientific criteria for determining catch quotas.

Whale sharks are highly migratory fish which have a wide distribution in all tropical and warm temperate seas except for the Mediterranean. Like other shark species, they are long-living fish with delayed maturation and relatively low fecundity, making them particularly vulnerable to exploitation. The main threats to whale sharks currently come from directed fishing and incidental capture in fishing operations. Other threats are vessel collisions and, potentially, harassment by unregulated shark watching or diving operations. Whale shark is a commercially valuable, and in some countries highly prized, species which is targeted mainly for its meat and fins. The global status of the whale shark is assessed as vulnerable in the IUCN Red List.[9]

A proposal to include whale shark in Appendix II was presented by the United States at the last meeting of the COP, but it was not accepted. The current proposal, put forward by India and the Philippines, seeks to present a more comprehensive assessment of the current status of whale sharks and provides additional information on national fisheries and conservation measures and on national and international trade. It mentions that downward population trends have occurred in some sites, although the causes of decline are not known. Current fishing effort for this species is unclear. However, the proposal notes that the causes of population declines in whale shark are not always known and it is not entirely clear from the proposal to what degree international trade threatens this species. Other concerns, which were raised when the United States presented its proposal at COP 11, relate to the control of trade in whale shark because there is some doubt whether the products of this species can be readily recognized, especially processed or partially processed products, or products from juveniles. The current proposal suggests that fresh meat and whole fins from adults are identifiable (and a fin identification guide has been prepared to support the listing in Appendix II), but it does not indicate whether other parts and derivatives, such as liver oil and cartilage, could be distinguished from that of other shark species. Accordingly, the preliminary view of the Secretariat is that although whale shark may be suitable for inclusion in Appendix II, in accordance with CITES listing criteria, the control of trade and enforcement of CITES rules may be impractical. It has stated that if the proposal were adopted, it would be necessary to develop identification materials to differentiate parts and derivatives, other than fins or fresh meat, that may enter international trade.

Basking sharks are widely distributed in the temperate waters of continental and insular shelves of the Atlantic and Indo-Pacific Oceans and Mediterranean Sea. Like whale sharks, they are vulnerable to exploitation and the main threats come from directed fishing, incidental capture and collisions at sea.[10] Also like whale sharks, the main products are the fins and meat and they are listed as vulnerable on the IUCN Red List. A proposal to include basking shark in Appendix II was first presented by the United Kingdom at COP 11, but was rejected.[11] It was listed in Appendix III in September 2000 by the United Kingdom, annotated to apply to whole animals, fins and parts of fins only. Two of the main fishing nations for this species, Norway and Japan, entered reservations on this listing. The Secretariat has taken the view that the listing on Appendix III is not appropriate because basking sharks also occur in waters beyond the jurisdiction of any State. On this basis and on the basis that the species is suitable for listing in accordance with CITES criteria, the Secretariat supports the proposal. However, as with whale sharks there are concerns about difficulties in control and enforcement and the Secretariat has again stressed the need to develop identification materials.

Australia has tabled a proposal to list two species of toothfish - Patagonian toothfish and Antarctic toothfish - in Appendix II. These species, which are fished in the Southern Ocean, have been the subject of considerable attention in recent years. Commercial exploitation of these stocks, which occur mainly within the national EEZs of Chile and Argentina and within the Convention Area of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), began in the late 1980s. The main issue of concern, however, is the rise in illegal, unregulated and unreported (IUU) fishing, which began in the mid-1990s, and now, it is estimated, accounts for at least half of all toothfish catches. Over the past four years, for example, around 243,282 tonnes of toothfish were traded in international markets with only 123,165 tonnes caught in accordance with internationally agreed rules through CCAMLR. It is widely believed that such fishing represents a serious threat to the species’ biological status and long-term sustainability. The main importers of toothfish are Japan, the United States, the European Union, China and Canada and the main exporters are Chile, China, Argentina, France, Mauritius, Uruguay, Australia and Spain.

There are some interesting new proposals to be presented at the next meeting of the Conference of the Parties and some old favourites. Norway and Japan have been attempting from several years now to downlist certain whale stocks to Appendix II, but so far without success. It is likely that the latest attempt by Japan will fail again. As regards the newer proposals, the attempt to include sharks and toothfish in the CITES Appendices raises questions of the relationship between CITES and regional fisheries management organizations (RFMOs) and other fisheries bodies, such as FAO. The development of a relationship with FAO has, of course, been under development for sometime (both within CITES and within FAO). The toothfish proposal, however, raises specific questions about the role of CITES in relation to an RFMO which has adopted its own trade measures to deter overfishing and illegal fishing but which has its measures undermined by non-member IUU fishing.

Chris Hedley
IFB Editor

[1] Article I(a) stipulates that “specimens” may be living or dead and include “any readily recognisable derivative thereof.” Thus, CITES applies not only to the animals caught themselves but also to any derivative products, such as whale blubber, seal skins or turtle shells.

[2] The responsibility for determining whether the requirements for the granting of permits and certificates for import, export, re-export and introduction from the sea of CITES specimens rests with national authorities. Under the Convention, each party is required to designate at least one “Management Authority” and at least one “Scientific Authority.”

[3] These criteria were flawed not so much because of what they laid down for the listing of species but because they made it difficult to remove a species from one of the Appendices or to transfer a species from one Appendix to another.

[4] The new criteria, which are set out in Conference Resolution 9.24, also refer to special cases such as the listing of higher taxa than species and the listing of populations of the same species in various appendices (split-listing) and it includes precautionary measures to prevent decisions that could be detrimental to the conservation of the species concerned.

[5] Interestingly, the new criteria led to renewed attempts by the pro-whaling States at COP 10 to detach decisions of CITES from those of the IWC. CITES has always maintained a close relationship with the IWC and has, in general, sought to ensure that the position under CITES was consistent with that of the IWC. In particular, CITES decided in 1983 that all cetaceans which were to come under IWC moratorium should be transferred to Appendix I in 1986 to coincide with the commencement of the moratorium. The justification for this decision was based on Article XV(2)(b) of the Convention which requires CITES to consult inter-governmental bodies having a function in relation to marine species with a view to ensuring coordination with any conservation measures enforced by such bodies. At COP 10, Japan and Norway proposed downlisting five species of whale from Appendix I to Appendix II, including two stocks of minke whale, in the Northeast Atlantic and the North Central Atlantic, for which there was scientific evidence which suggested that the stocks were in a healthy state. These States argued that such action would still reflect the IWC position, since it was compatible with the IWC’s new quota calculation model under the Revised Management Procedure. These arguments were not, however, accepted by the anti-whaling members, however, which argued that no downlisting could come into effect until the IWC had lifted the existing moratorium on commercial whaling. In their view, any downlisting would undermine the IWC moratorium and therefore the IWC’s authority. Japan’s proposals were either rejected or withdrawn. The Norwegian proposal achieved a simple majority in favour (57 for, 51 against) but not the necessary two-thirds majority to secure an amendment to the Appendices. As will be seen below, the matter remains on the CITES agenda.

[6] Mention should also be made of another proposal, by Ecuador, for a Resolution on Cooperation and Synergy with the Inter-American Convention for the Protection and Conservation of Sea Turtles. Based on the requirement for cooperation with marine conservation organizations, mentioned above, Ecuador is proposing that cooperation measures be taken between the Secretariats of CITES and the Sea Turtle Convention, which has recently entered into force. In particular, the draft resolution requests the CITES Secretariat to coordinate its activities with regard to sea turtles and their habitats in the western hemisphere, including future dialogue meetings among range States, with the Parties and Secretariat of the Inter-American Convention for the Protection and Conservation of Sea Turtles;

[7] Summaries are provided, at least from the Japanese perspective, in the two proposals.

[8] Mexico, for example, has submitted a draft resolution calling for continued coordination between CITES listings and IWC decisions. There can be expected to be considerable support for this resolution.

[9] There has been growing international attention on sharks in recent years because of concerns about overexploitation and the practice of “finning” (i.e. the removal of the fins, which are the most valuable part, and the discarding of the carcass back into the sea). This led in 1999 to the adoption, by FAO, of the International Plan of Action for the Conservation and Management of Sharks. The objective of this IPOA, which (like the other IPOAs developed by FAO) is a voluntary instrument, is to ensure the conservation and management of sharks and their long-term sustainable use. It notes that the current state of knowledge of sharks and shark fisheries practices causes problems in the conservation and management of sharks due to the lack of available catch, effort, landings and trade data and calls on States, inter alia, to facilitate the identification and reporting of species-specific biological and trade data. Progress in the implementation of this IPOA has so far been extremely limited, however.

[10] Basking sharks congregate in bays and shallow water and so are more at risk from collisions with vessels than some other sharks. Collisions seem to be relatively frequent, according to the proposal, with large areas of scarring often being observed on the head and dorsal surfaces. As with whale sharks, there is also thought to be potential harassment from shark watchers.

[11] It should be pointed out that the first proposal was made by the United Kingdom on its own behalf. It was questioned, however, whether or not the UK, as a Member State of the European Community, was permitted (i.e. had the competence) under Community law to propose the listing of a species of fish on a CITES Appendix. The Community is not a party to CITES because an amendment to the Convention, adopted in Gaborone in 1983, allowing it to accede to the Convention has not yet entered into force. However, it implements the provisions and decisions of CITES through Community legislation. Its powers to do so stem from the provisions of the EC Treaty dealing with the protection of the environment, in which area competence in shared with the Member States. Thus, ordinarily, a Member State may present proposals for the listing of species, subject to certain conditions. However, as regards the proposal of basking shark it was argued by the Commission that this fell within the scope of the Common Fisheries Policy, for which the Community only had competence. After some debate within the Community, it was determined that the matter did fall within Community competence under fisheries policy. Consequently, the proposal is effectively a European Community one, made on its behalf by the UK.

[12] Mention should also be made of a proposal, by Chile, for a resolution on cooperation between CITES and CCAMLR regarding toothfish trade which seeks to further coordinate measures between the two bodies.