Essay: Protection of trade of endangered species

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  • Subject area(s): Zoology essays
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  • Published on: July 30, 2018
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This essay will analyse the successes and failures of the largest convention on the protection of trade of endangered species. There are various issues that impede CITES from meeting all its objectives. However, the Convention has and continues to succeed in limiting trade to protect threatened species to a great extent. It is impossible for a convention that covers such a broad range of species to control the trade of every single animal, therefore the positive empirical evidence demonstrates that CITES is overall successful. In order to demonstrate this, I will first explore the listing procedure and the debatable presence of scientific objectiveness, which impacts its applicability and context. Next, the structure of the Convention will be scrutinised in regard to how it helps and hinders implementation. Further, the issues and responses regarding CITES’ practical enforcement will be assessed. After having determined that the advantages of the Convention itself outweigh the disadvantages, the research question will be analysed through the case study of elephants.

The Convention on International Trade in Endangered Species of Wild Fauna and Flora entered into force on the 1st July 1975. It focusses on regulating international trade of certain species of animals and plants to ensure that their survival is not threatened. Currently, CITES includes as many as 35,000 species. Due to the wildlife trade market being worth billions of pounds and involving thousands of species, controlling it is vital. CITES focuses specifically on protecting species that are being exploited, due to the large amount of trade. Since levels of exploitation for each species differ, CITES has various levels of protection. Although this treaty is multilateral and therefore has legally binding force, it simply provides a framework within which each Party should adopt their own domestic legislation. This illustrates the necessity of strong international cooperation to achieve the aim of the Convention. Due to participation being voluntary, the fact that so many countries have joined demonstrates a willingness to collaborate in attempts to save endangered species. The balanced philosophical approach also provides for why the Convention has received so much respect and now includes 183 Parties. CITES is one of the international environmental treaties that has been most extensively adopted and achieved great successes.

The supreme decision-making body of CITES is the Conference of Parties. The CoP is made up of representatives of each Party in the Convention, who meet every two to three years to review the progress of the current listings, as well as consider whether new species need to be added or moved under a different Appendix. The other main body of the Convention is the Secretariat, which is administered by the United Nations Environment Programme. This position includes a coordinating and advisory role, as well as acting as an assistance mechanism in the implementation process.

2. The Listings under CITES:

a. Appendixes Explained:

CITES establishes three Appendices into which species can be listed, depending on the amount of protection required. Appendix I “include[s] all species threatened with extinction which are or may be affected by trade,” therefore can only be traded in “exceptional circumstances.” There is a ban on Appendix I species unless either an import or export permit is granted. Appendix II includes species that “may become [threatened with extinction] unless trade in specimens of such species is subject to strict regulation.” Parties are required to monitor and restrict trade, unless it is demonstrated through scientific evidence that it is permitted. Lastly, the least regulated is Appendix III which includes “all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation” and requests CITES’ support in regulating trade. Trade under Appendix III must be monitored, but not restricted.

The listings under the Appendices are not fixed. Appendix I and II can be amended by a two-thirds majority vote of the Parties present, whereas Appendix III can be unilaterally amended. Decisions, including amendments, are adopted by the CoP and become binding after 90 days without ratification. The empowerment given to the Parties, through the form of delegated law-making, can be viewed as concerning. It enables them to take significant decisions without being checked by any superior authority. It also lessens the pressure on each Party in voting, as they know that their one vote will not be the determinant of the decision, which may result in reckless decisions. This evidences the need for well-reasoned criteria, since they are not provided by CITES, and are at the pinnacle of the decision-making process.

b. Failure of Bern Criteria:

The first attempt to provide a comprehensive set of guidelines was at the Bern Conference of Parties in 1976. The listing criteria established standards that had to be taken into account for species in Appendices I and II. It was an attempt to use biological evidence when making decisions, however, the importance of this data depended largely on its availability. This was a positive move away from the equivocal language of the Convention, yet, it was vague and allowed for political views to influence decisions. Additionally, it made it almost impossible for species in Appendix I to be downgraded to Appendix II, which undermined the prominence of Appendix I. The Bern Criteria were ultimately more concerned with protecting wildlife, rather than fulfilling the aim of the Convention, which is to regulate trade.

The Bern guidelines did not triumph in providing reliable standards to follow. They simply pointed out issues to consider during the decision-making process, allowing for broad interpretation by the Parties. At the Kyoto CoP, it was established that the lack of sound guidelines destabilized CITES. It was evident that a more scientific approach was required. This would move towards limiting political decisions and therefore result in correct decisions being taken, as well as enhance the presence of the Rule of Law.

c. The Fort Lauderdale CoP:

At the Ninth CoP, changes were made to the Bern guidelines. Firstly, and arguably most importantly, scientific quantitative guidelines were introduced through the creation of the Fort Lauderdale Criteria. Secondly, there was a shift in values to consider when determining the listing of species from being a trade status to a biological status. Additionally, the CoP endorsed down-listing species that no longer require the stringent regulations of the appendix they were in, as well as permitted split-listing, meaning that two different populations of the same species could be in different appendices.

i. Fort Lauderdale Criteria Explained:

The guidelines, revised at the 13th CoP in 2004, add four broad biological criteria for assessing whether a species should be included in Appendix I. They state that one must have regard to the size and fluctuations of the population size, fluctuations in the area of distribution and quality of the habitat of the species. For Appendix II to be met, it either must be known that regulation of trade is necessary to “avoid it becoming eligible for inclusion in Appendix I in the near future” or “to ensure that the harvest of specimens from the wild is not reducing the wild population.” At first instance, the criteria appear vague and do not seem to provide much additional value to the existing guidelines. However, this is because the definitions given by the CoP are what contain the quantitative criteria. For instance, reference to the ‘near future’ is given a numerical value of being more than five years, but less than ten years. Therefore, these precise standards narrow the scope of the guidelines, as well as introduce a more scientific approach to the listing procedure.

ii. Objectivity of the FLC:

Whether the FLC are successful in eradicating political involvement from listing decisions is contentious. The quantifiable terms of the criteria demonstrate an attempt to make listing decisions as scientifically objective as possible. The clearly defined terms aim to restrict discretion during the decision-making process. However, the CoP acknowledges that species all vastly differ from each other and are influenced by case-specific interests. This is illustrated by their admittance that the figures are merely approximations and must be interpreted during their application, which results in further issues of discretion arising from the criteria. The FLC do not create purely objective guidelines for decision-making. Nonetheless, that is practically impossible and unrealistic. Therefore, the attempt towards increased objectivity can be viewed as a success in itself.

The fact that the criteria promote the use of scientific language in CoP discussions depicts this achievement. It creates the incentive to phrase arguments using a neutral vocabulary, which enables more peaceful debates between Parties. This results in more productive CoP, as members are more likely and able to reach constructive compromises. Furthermore, the lessening of arguments also reduces the likelihood that Parties will enter reservations, or even leave the Convention. Biological evidence provides plausible justifications for why certain decisions are being taken, which allows for domestic backing on controversial topics. Although the scientific criteria itself may not be able to directly create objective decision-making, the fact that it encourages scientific discourse at the CoP is an indirect accomplishment. Political views and motivations can never be fully excluded, as decisions taken by human beings unavoidably involve subjective opinions and can never be truly unbiased. However, introducing neutral language does provide a more productive environment within which decisions can be taken and is a positive step towards removing political pressure.

The major setback of the FLC is the lack of availability of data, which is required to make informed decisions using the criteria. Although the criteria seem theoretically sound, it is their practical application that is questioned. For a listing decision to conform with the criteria, it must be based on reliable and adequate scientific information. Yet, in most cases, the required data is either not available or manipulated by Member States. This depicts the hindrance of listing decisions due to biased data provided by Parties, resulting in political views getting involved. However, due to modernization and development of technology, unbiased data is becoming more readily available. Even though it may be costly and not yet present for all species, it illustrates that the applicability of the criteria will gradually become more successful as data becomes available.

iii. Listing Amendments:

The Fort Lauderdale CoP took the first initiative in improving the unsatisfactory Bern CoP guidelines, which were then further developed at the 13th CoP. The species listed under any of the three appendices can, in theory, be moved, but there are suggestions that this still remains practically difficult. Down-listing a species requires scientific evidence that the species can endure the exploitation, which must be shown by a documented population survey, an indication of the popular trend and an analysis of its potential for commercial trade. Due to the recurring problem of lack of data availability, producing such documentation may be problematic, therefore resulting in the inability of species to be down-listed. Arguably, the two-third majority voting requirement is seen as an additional inflexibility that limits the down-listing process. However, the stringent requirements, of sufficient scientific evidence, prove that moving a species to a lower level of protection will not interfere with its survival. This clearly justifies the use of the strict requirements that CITES adheres to for this procedure. On one hand, it is essential to ensure that the CoP does not abuse down-listing. On the other hand, keeping a species that no longer requires a trade ban in Appendix I would weaken its severity, therefore the possibility of down-listing protects the appendices, as well as the Convention as a whole, from not being undermined. This mechanism ensures that decision-making is facilitated without compromising the credibility of the CoP.

Debatably, however, the problem lies with de-listing, rather than down-listing. The language of the FLC for de-listing appears more restrictive than that of the criteria for listings. However, this can be justified by the precautionary approach taken. Being able to wholly de-list species from the Convention should only be done in cases where the species has first been transferred from Appendix I to II and there has been additional evidence to prove that this will not pose threats to its existence. This should not be taken lightly, as moving a species from having the protection of Appendix II to having none at all is a significant change. Overall, the difficult conditions of down-listing and de-listing are easily warranted by the importance of the consequences attached to them, illustrating the success that the FLC have had on the Convention.

The introduction of split-listing species has the possibility of improving the effectiveness of the Convention. If the species as a whole does not meet the requirements of Appendix I, the sub-population, which may require increased protection, would not receive it. Therefore, split-listing introduces a method to protect sub-populations that are particularly endangered. This mechanism results in the reduction of contentiousness at the CoP for the specific species. Although the theoretical advantages are evident, the practical implementation appears challenging. The origins of samples of the more protected sub-population would probably be concealed, so that they could be traded into areas where the population is not as severely protected, therefore demonstrating the obstacles in limiting their trade. The enforcement officials would need to be informed and active in detecting which sub-population is being traded, which would require new and creative implementation methods, as current techniques are not suitable. The CoP itself expressly states that split-listing should be avoided due to the “enforcement problems it creates.” Through this acknowledgement, it is evident that such provision should only be used in extreme circumstances, when split-listing is the only way for a threatened sub-population to attain the required protection. Notwithstanding its enforcement issues, the CoP have introduced it because of the necessity for its presence in exceptional conditions.

In regard to the amendment process of the listing procedure as a whole, the CoP have provided an effective way of dealing with difficult situations. They have had to balance the stringent guidelines, for ensuring the protection of trade of endangered species, with the flexibility required to ensure that the Convention would not be weakened. Although all amendment decisions should be taken with care, the possibility illustrates the adaptability of CITES to the continuously changing nature of the trade of species.

3. The Structure of CITES:

The CoP and Secretariat are the two main responsible bodies for CITES. The Parties have the right to use the mechanisms of reservations and secret voting, which are controversial. As for the Secretariat, there is debate surrounding the amount of unfettered power involved in the position.

a. Reservations:

Reservations are unilateral statements made by any Party, declaring that they remove themselves from being bound to a certain listing provision of the Convention. This weakens the Convention considerably, as it provides a mechanism which allows Member States to simply disregard the binding provisions of CITES. There is no requirement of proof or explanation for why a Party wishes to not comply with the listing. Even if there is valid scientific evidence suggesting that a certain species should be protected, States can blatantly ignore this and follow their close minded and personal preferences, which makes scientific decision-making harder to achieve. However, there are limitations on reservations for species in Appendix I or II, which are that the Party must do so either when they join the Convention or within 90 days of the adoption of the listing amendment. This attempts to place restrictions on entering reservations. Further, the 14th CoP has sought to directly address implementation issues by introducing a provision that ensures that Parties who enter reservations for Appendix I species should treat the species as if it were under Appendix II, and therefore still control and record its trade data. This illustrates that the CoP acknowledges the issues that arise from reservations. The justification for providing this mechanism is that enforcing stricter impositions could result in countries not joining the Convention, due to its voluntary joining policy. This gives the Parties a sense of liberty, which is one of the features that attracts States to join in the first place. Although certain reservations seem to undermine the enforcement of CITES, in general most provisions are adhered to by all countries.

b. Secret Ballot:

The Rules of Procedure for the CoP include the ability to vote through secret ballot. In order for this to be done, a country’s request must be seconded by at least ten other Parties. Secret ballots go against transparency, which is the main reason for Non-Governmental Organisations criticising them. Also, they enable countries to freely ignore the FLC, as they will not be questioned for their vote, which might be taken in aims of pursuing political interests. For this reason, certain Parties have suggested that the CoP Rules increase the number of votes needed to allow secret ballots. Nonetheless, the Rules themselves expressly admit that secret ballots should not be used on a regular basis, but rather when a Party feels like they cannot vote sincerely with the pressure of others. This is normally the case with under-developed countries, as they use the secrecy to protect themselves from the pressure of more developed countries, which is why in such cases their decision is promoted by ten other Parties. Secret voting enables smaller and less powerful countries to preserve their sovereignty. Lastly, secret ballots do not restrict those who wish to disclose their votes, which results in the accountability of developed countries from not being diluted. Although secret ballots should not be the main method of voting in CITES, its availability is supported through the protection that it provides intimidated Parties.

c. Secretariat:

The role of Secretariat is often criticised as being given too much unconstrained power. Firstly, this discretion is depicted by the Secretariat’s exclusive role in evaluating information received from individual states and choosing how to use it for recommendations to the CoP. However, these are merely suggestions and the CoP has the final power in making decisions, illustrating a restriction of the Secretariat’s power, as he is highly incentivised to produce convincing recommendations. The CoP is nonetheless limited, in the sense that they can only accept or reject the Secretariat’s recommendations. Conversely, the fact that the Secretariat’s work is closely related to the CoP, inevitably means that he is closely observed, and any unconvincing activity is discovered.

Furthermore, the ability to create recommendations is wholly based on the provision of information and data by the Members, illustrating their indirect involvement in creating them. Even though Member States will be incentivised to present evidence that backs their personal positions, the Secretariat’s role is to act impartially. The neutrality of the Secretariat is controlled by the fact that recommendations made on behalf of information that follows the listing criteria will be most convincing, and therefore get approved.

Lastly, the Secretariat’s role as exclusive agenda setter gives him a vast amount of authority, which is unusual in international environmental law, as expert groups are usually given this duty. Although the CITES Committees on Plants and Animals can submit proposals, ultimately, they do not hold a fundamental position. While the Secretariat undoubtedly plays a large authoritative role, the CoP’s scrutiny is enough to limit the discretion and ensure that the Secretariat is working impartially for CITES as a whole. This is evidenced by the positive impact made by the current Secretariat, John E. Scanlon, who has, since his appointment in 2010, been making a progressive contribution to the running of CITES.

4. Enforcement:

Instead of setting out specific compliance procedures, the Convention indicates that Parties must comply by implementing national legislation that fulfils CITES’ aims. This has caused the enforcement system to be moulded through secondary legislation and practice. For instance, the most influential document is the ‘Guide to CITES Compliance Procedures,’ which notwithstanding its adoption by the CoP, remains non-legally binding.

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