• E4J University Module Series: Wildlife Crime

• Module 2: International Frameworks for Combating Wildlife Trafficking

• Introduction and learning outcomes

• Key issues

• • Environmental protection and conservation
  • CITES and the international trade in endangered species
  • Organized crime and corruption
  • Animal welfare
  • References

• Exercises

• Possible class structure

• Core reading

• Advanced reading

• Student assessment

• Additional teaching tools

 

Published in September 2019 

Regional Perspective: Eastern and Southern Africa - added in April 2020 

 

 

  This module is a resource for lecturers  

 

CITES and the international trade in endangered species

 

CITES, the Convention on International Trade in Endangered Species of Wild Flora and Fauna , regulates and moderates international trade in plants and animals to ensure that such trade does not threaten their survival. The Convention seeks to achieve this by placing various restrictions and requirements on legal trade in certain flora and fauna. Its system of permits and certificates, which relate to three lists of protected species in the Convention's Appendices, enable States Parties to 'reciprocally protect one another's species according to a common set of rules' (UNODC, 2016, p. 23). In addition, CITES provides a framework to combat trade that occurs outside these limits. CITES is the only international instrument mandating penalization of illegal trade in protected species (UNODC, 2012).

As of June 2019, CITES regulates trade of some 30,000 plant and 5,800 animal species. As of 1 March 2019, 183 States have signed this treaty. The Convention is legally binding on ratifying parties, which must adopt domestic laws to ensure CITES compliance at the national level. The Convention's scope is 'limited to international trade and species affected by that international trade (Aricle I(c), (e); Wiersema, 2017). States Parties are free to regulate domestic trade involving on CITES-listed species as they see fit.

The role and effectiveness of CITES in combatting wildlife trafficking and protecting endangered species is limited. CITES is a trade instrument designed to regulate the legal trade in wildlife and plant species. Several widely traded species have become critically endangered or extinct despite their inclusion in the CITES' Appendix system. For example, the Northern White Rhinoceros, while listed in CITES Appendix I, became functionally extinct in 2018 following excessive poaching.

 

Appendix classification and the permit system

CITES regulates the international trade in flora and fauna through use of import and export permits. The specific requirements for these permits vary depending on the level of restriction imposed by CITES on the trade of a species (Ivory, 2017).

CITES applies to 'specimens of species' which are listed in the Convention's Appendices. These may be alive or dead and include 'any readily recognizable part or derivative thereof' (Article I(b)). The Conference of the Parties - the governing and decision-making body for CITES, as described below - has further clarified that

the term 'readily recognizable part or derivative', as used in the Convention, shall be interpreted to include any specimen which appears from an accompanying document, the packaging or a mark or label, or from other circumstances, to be a part or derivative of an animal or plant of a species included in the Appendices, unless such part or derivative is specifically exempted from the provisions of the Convention (CITES Resolution Conf. 9.6 (Rev.)).

'Species' includes 'any species, subspecies or geographically separate population thereof' (Article I(a)). The fact that species may be differentiated by geographic location means that certain States' populations of a species may be placed in one Appendix, while other States' populations of the same species appear in a different or no Appendix. Thus, States that have better managed, non-endangered populations of species, but which are endangered elsewhere, may engage in commercial trade (Bowman et al, 2010).

A large number of animal and plant species are listed in the CITES Appendices. There are roughly 36,000 species of animals and plants listed in the three Appendices (numbers are approximate as there are no agreed lists for some higher taxa). The vast majority of listings are in Appendix II (over 95 percent), with smaller numbers in Appendix I and III. Specific listings in the Appendices often include annotations, such as the inclusion or exclusion of certain subspecies or geographically distinct populations. They may also include quotas for export.

Figure 1: Species Listings in the CITES Appendices as at October 2017

	Appendix I	Appendix II	Appendix III
Fauna	669	4952	190
Flora	334	29644	12
Total	1003	34596	202

 

 

Appendix I

Many species are threatened with extinction due to the negative effects of international trade. Appendix I seeks to protect such species by subjecting any trade in them to 'particularly strict regulation in order not to endanger further survival'. Trade 'must only be authorized in exceptional circumstances.' 'Exceptional circumstances' include, inter alia, for scientific exchange, breeding, or educational programmes (Strydom, 2016). Trade cannot be for primarily commercial purposes (Article III(c)). As a result of such strict stipulations, listing a species in Appendix I effectively ends the commercial international trade in that species. Examples of species listed in Appendix I include the giant panda, gorillas, Asian elephants, and all tiger species.

Export and import permits, issued by States' Management Authorities, are required where Appendix I species are to be traded internationally (Article III(2) and (3)). An export permit can only be granted if the exporting State confirms that 'export will not be detrimental to the survival of that species' and following confirmation that travel precautions have been taken to minimize any risk of cruel treatment or injury (Article III(2)(a)-(c)). An import permit must also be granted by the receiving State prior to export. Import permits can only be granted where the purpose of import is not detrimental to the survival of the species and is not for primarily commercial purpose (Article III(3)). Documentation is also required for re-export (meaning export of any specimen that has previously been imported) of species (Article III(2)(a), III(3)(a)).

CITES places a prohibition on the introduction from the sea of species listed in Appendix I. Introduction from the sea is defined in Article I(e) as 'transportation into a State of specimens of any species which were taken in the marine environment not under the jurisdiction of any State'. A permit is required in such cases, as well as satisfaction of the above conditions regarding importation of Appendix I species (Article III(5)). A specimen is introduced from the sea if it is 'taken in the marine environment not under the jurisdiction of any State' (Article I(e)).

It should be noted that, where specimens of Appendix I listed species are bred in captivity for commercial purposes, these specimens are deemed to be included in Appendix II (see 'Exemptions' below).

 

 

Appendix II

Appendix II includes species that are not currently threatened with extinction, but which may be threatened if the trade in them is not strictly regulated (Strydom, 2016). Examples of species listed in Appendix II include the hippopotamus, Southern elephant seals, and African penguins.

In practice, species listed in Appendix II involve species that are traded in substantial numbers and are unthreatened, as well as species not subject to significant trade but which may be vulnerable if trade in them increases (Bowman et al, 2010). Compared to the other two Appendices, Appendix II contains the largest number of listings, with over 30,000 species. This is said to be a consequence of States Parties' 'tendency to list individual species in Appendix I and whole families in Appendix II' (Bowman et al, 2010, p. 496). Species that are lookalikes for species listed in Appendix II may also be added to prevent trade in lookalike species from affecting species requiring Appendix II regulation (Article II(2)(b)).

Trade in Appendix II species is less restrictive than those in Appendix I, with trade permitted for commercial reasons if not detrimental to the species in the wild. Export permits are required, for which the exporting State must make determinations similar to those applicable to Appendix I species. In particular, there must still be a determination that export is not 'detrimental to the survival of that species' (Article IV(2)(b)). Furthermore, export permits must be limited where it is determined that export of an Appendix II species must be reduced

in order to maintain that species throughout its range at a level consistent with its role in the ecosystems in which it occurs and well above the level at which that species might become eligible for inclusion in Appendix I (Article IV(3)).

Unlike Appendix I species, import permits are not needed. Re-export certificates are required for re-export, and introduction from the sea also requires a certificate (Articles IV(5) and (6)).

 

 

Appendix III

Species included in Appendix III are identified as being subject to domestic regulation within a State Party to CITES 'for the purposes of preventing or restricting exploitation', with cooperation required between parties to control the trade (Article II(3)). Examples of species listed in Appendix III include the Bengal fox (listed by India), the walrus (listed by Canada), and common snapping turtles (listed by the United States).

The permit requirements for trade in Appendix III species are less restrictive than for those listed in Appendices I or II (Sheikh & Corn, 2016). While only the Conference of the Parties can amend Appendices I and II, States Parties can unilaterally add or remove species from Appendix III by notifying the CITES Secretariat (Article XVI). There is nonetheless an expectation that other States at the Conference of the Parties and the Animals and Plants Committees are consulted when species are added or removed (Resolution Conf. 9.25 (Rev. CoP17)).

 

Exemptions

In some cases, the permit requirements for CITES-listed species are modified and Certificates of Exemption may be issued in place of permits (Article VII). Such cases include:

• Where specimens transit 'through or in the territory of a party while the specimens remain in customs control' (Article VII(1)). This covers situations where shipments of specimens stop in a State on their way to their destination, for example, where a plane stops to refuel.
• Specimens acquired before they were listed in the CITES Appendices (Article VII(2)). For example, old fur coats made of CITES-listed species' fur can still be traded as long as they were made before the species was listed. The exporting (or re-exporting) State must confirm that the specimen was acquired before the Convention applied.
• Where specimens are persons' 'personal or household effects' (Article VII(3)). Such items are not defined in the Convention, though have been interpreted by the Conference of the Parties to include specimens 'owned or possessed non-commercially', 'legally acquired', and either 'worn, carried or included in personal baggage, or part of a household move' (CITES Resolution 13.7 (Rev. CoP14)).
• Specimens subject to captive breeding or artificial propagation (Article VII(4), (5)), ranched, or imported for the purpose of scientific study or exhibition, including in zoos and circuses (Article VII(6)).
• Specimens that are preserved, dried, or embedded in museums (Article VII(6)).

 

 

 

Trade with non-parties

CITES regulates trade among State Parties and between States Parties and Non-Party States. Where this occurs, the non-party must issue documentation comparable to and which substantially conforms with the requirements of CITES' provisions (Article X). The Conference of the Parties and the Standing Committee can make recommendations to suspend trade with non-parties where they do not comply with these requirements (Bowman et al, 2010).

CITES reservations

Under Article XXIII of CITES, States Parties may enter reservations to certain species being included in an Appendix, where the Party finds the listing of the species unacceptable. This is usually due to the reserving party having a legitimate economic or trading interest in the species. Notable examples of reservations include those by Japan, Norway, and Iceland with regard to certain species of whale. Each of these countries maintains whaling operations for particular whale species, for commercial, export, and scientific purposes, and objects to the restrictions otherwise imposed by CITES.

While the reservation mechanism in CITES has been criticized by some commentators as weakening the Convention (see, for example, Stewart, 1981), others have observed that it functions as a way of encouraging membership of the Convention by States who would otherwise not accede to it (UNODC, 2012).

Where a reservation is entered, the party is treated as being a non-party State by other States Parties with regard to trade in the species subject to the reservation (UNODC, 2012). Given the rules imposed on trade with non-parties (requiring comparable documentation) the effect of reservations is, in some respects, minimal. Nonetheless, prior experience shows that reservations can encourage illegal trade between the reserving party and other parties (see further, Bowman et al, 2010).

 

Administration of CITES

To help administer the Convention, monitor compliance and enforcement by States Parties, and to clarify the scope of its articles, CITES provides for the creation of several Convention bodies including, at the international level, the CITES Secretariat and the Conference of the Parties (Articles XI and XII).

At the national level, Article IX requires States Parties to establish Management and Scientific Authorities to carry out implementation of the Convention. Other administrative bodies, including the Standing Committee and the Animals and Plants Committees, do not have a mandate by the Convention itself. They have been established by Resolutions of the Conference of the Parties. This institutional structure ensures that designated bodies monitor the Convention's operation nationally and internationally and communicate to this end. Some commentators note that one of the main reasons for CITES' enduring relevance and success is the strength of the administrative structure that surrounds it (Bowman et al, 2010), as well as its ability to adapt (Wandesford-Smith, 2016).

The Conference of the Parties

The Conference of the Parties is the governing and decision-making body for CITES, comprising all States Parties to the Convention. The Conference of the Parties meets every two to three years. While only States Parties can vote, non-parties such as UN agencies, NGOs, and various international and national bodies 'technically qualified in protection, conservation or management of wild fauna or flora' can attend (Article XI(7)).

The Conference of the Parties provides guidance on implementation of CITES through recommendations, which take the form of either new or revised resolutions, or decisions (Article XI(3)). Resolutions are intended to be more permanent, while decisions are of a more temporary nature. One of the primary duties of the Conference of the Parties is to vote on amendments to Appendices I and II (Article XV(2)). Proposals are approved if two thirds of States Parties present at the Conference vote in favour (Wiersema, 2016). The text of CITES does not provide any guidance as to when species can be removed or downgraded from the Appendices. The Conference of the Parties has adopted a range of criteria, including that, where amendments to Appendix I or II are being considered, States Parties should 'act in the best interest of the conservation of the species concerned and adopt measures that are proportionate to the anticipated risks to the species' (CITES Resolution Conf. 9.24 (Rev. CoP17), Annex).

The Secretariat

The CITES Secretariat, located in Geneva, Switzerland, comprises several units (such as legal affairs and enforcement), each of which reports to the Secretary-General of CITES. Article XII of CITES sets out the functions of the Secretariat. These include, inter alia, arranging meetings of the Conference of the Parties and providing assistance to Parties regarding legislation, science, training, and enforcement. The CITES Secretariat also plays a role in enforcement of the Convention. It collects compliance data from States Parties and monitors implementation of non-compliance decisions. Under Article XIII of CITES ('International Measures'), the Secretariat, upon receiving information that Appendix I or II species are being adversely affected by trade or that the Convention is not being effectively implemented, communicates this to the Management Committee of the relevant State, which should propose remedial action. The Secretariat may also refer non-compliant parties to the Standing Committee and, further, for potential action by the Conference of the Parties (Sand, 2013).

The Committees

The Conference of the Parties has established permanent committees to assist the Secretariat with administration and implementation of CITES (CITES Resolution Conf. 11.1 (Rev CoP17). The Standing Committee is responsible for providing guidance and operational direction on implementing the Convention. It plays an important role in guiding the work of the Convention between meetings of the Conference of the Parties, dealing with budgetary matters and compliance issues (including considering sanctions), among other things. In particular, the Standing Committee plays a significant role in ensuring compliance with CITES' provisions (Sand, 1997). The measures the Standing Committee can take include

[asking] the party concerned to produce a special report on an issue; issuing a written caution; advising as to specific capacity-building issues; offering assistance in a given state on invitation by such a state; issuing a warning that a state is not complying with its obligations in relation to, for example, reporting or the adoption of national implementing legislation; and asking for a compliance action plan to be submitted indicating those steps a given state will take to bring it back into compliance and a timescale within which it will take such action (Bowman et al 2010, p. 518; Resolution Conf. 14.3, [29]).

If a non-compliant State Party does not take appropriate remedial measures and shows no intent to, the Standing Committee can recommend suspension of either commercial or all trade with that party (CITES Resolution Conf. 14.3, [30]).

The Conference of the Parties has further established Animals and Plants Committees. These Committees provide scientific advice to the Conference of the Parties, the Standing Committee, working groups, and the Secretariat. This may include advice on the inclusion of animal and plant species in the CITES Appendices, nomenclatural (naming) issues (noting that standardized nomenclature assists implementation of the Convention), and periodic reviews of trade in appendix-listed species. The Animals and Plants Committees may also assist and provide advice to State parties on techniques and procedures.

National administration

At the domestic level, each party to CITES must create Management and Scientific Authorities (Article IX). These bodies ensure that national authorities exist to administer the Convention and cooperate with other States (Bowman et al, 2010). Management Authorities are responsible for the granting of CITES permits and certificates. Articles III through IX impose a number of specific tasks on Management Authorities including, broadly, permit and certificate matters, determining exemptions, and confiscation of live specimens. They also have a role in enforcement, training, coordination with governments departments and civil society, and awareness. Management Authorities are also responsible for communicating with the Secretariat and other Parties to the Convention, for example by preparing reports and proposals for the Conference of the Parties (Article IX). Indeed, Management Authorities in exporting and importing countries often need to communicate to carry out their mandate (Bowman et al, 2010). Importantly, Management Authorities must consult with the Party's Scientific Authority before issuing export permits for specimens of species in Appendix I or II (CITES Resolution Conf. 10.3).

Scientific Authorities are responsible for advising the Management Authorities on scientific matters including, most importantly, any harmful effects of importing or exporting CITES species (Articles III(2)(a), (3)(a), IV(2)(a)). They also monitor exports to ensure that species avoid an Appendix I listing (Article IV(3)). The monitoring function of Scientific Authorities involves the making of non-detriment findings. Articles in CITES relating to the issuing of permits require assessment of whether a permit would be detrimental to the survival of the species. Scientific Authorities take various matters into account when making such findings, such as conservation status, relevant scientific literature, and ecological risk assessments (CITES Resolution Conf. 16.7 (Rev. CoP17)). Where a State's Scientific Authority does not conduct adequate non-detriment findings, the Standing Committee may recommend suspension of trade with that State.

Resolutions of the Conference of the Parties have further clarified the role of Scientific Authorities, mandating that, inter alia, such Authorities are also responsible for reviewing proposals to amend the CITES appendices, consulting with the Animals and Plants Committees, and interpreting Appendix listings (CITES Resolution Conf. 12.11 (Rev. CoP16); Resolution Conf. 10.3). They are also responsible for maintaining adequate facilities for care of imported live specimens of listed animals (Sheikh & Corn, 2016).

States generally have authorities, such as customs or police, that are tasked with enforcement of CITES. They also have enforcement focal points for facilitating communication and collaboration between agencies in different States for the purposes of law enforcement. For example, the enforcement focal point in Bangladesh is the Chief Conservator of Forests, within the Government Forest Department. In Mexico, it is jointly the Federal Attorney for Environmental Protection and the General Director of Environmental Inspection in Ports, Airports and Borders.

 

Criminalization and enforcement

While CITES does not directly deal with illegal trade, States Parties, in line with their obligations, must prohibit trade in specimens that contravene its provisions (Slobodan, October 2014). Trade in or possession of Appendix-listed specimens in violation of CITES must be penalized, though there is no requirement that these violations are made a crime, or illegal per se (Elliott, 2017; Slobodan, 2014). Article VIII(1) of CITES, entitled 'Measures to be Taken by the Parties', requires States Parties to

take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof. These shall include measures:

(a) to penalize trade in, or possession of, such specimens, or both; and

(b) to provide for the confiscation or return to the State of export of such specimens.

In simple terms, as CITES does not prescribe any particular penalties, this means that in some countries, trafficking in CITES-listed species is punished with a fine, while in others, offenders can be sentenced to time in prison. The 11 ^th Conference of the Parties held in 2000 that 'Parties should advocate sanctions for infringements that are appropriate to their nature and gravity' (CITES Resolution Conf. 11.3 (Rev. CoP17)). Indeed, penalties for offences under domestic law vary greatly. Some States only levy small fines in response to infractions, while offences in some States may result in long prison sentences (Global Initiative Against Transnational Organized Crime & WWF, 2015).

Pursuant to Article VIII, States Parties must provide for the confiscation and return of such specimens to the State of export. Where live specimens are confiscated, the Management Authority of the confiscating State assumes custody (Strydom, 2016; see further, Resolution Conf. 17.8). Furthermore, to facilitate apprehension and punishment of those trading Appendix-listed species illegally, Article VIII(3) of CITES urges States Parties to designate ports of entry and exit for import and export of wildlife. By channelling trade through limited gateways, the goal is to concentrate specialization, with experienced experts inspecting a large proportion of trade into and out of a State (Bowman et al, 2010).

Enforcement of CITES is carried out at the domestic level by law enforcement authorities of States Parties. Customs and border control agencies generally have primary responsibility for CITES enforcement (see Module 3), though the Conference of the Parties has also encouraged use of specialized multi-agency wildlife law enforcement units (CITES Resolution Conf. 11.3 (Rev. CoP16) Annex 3).

 

CITES and wildlife trafficking

The relevance of CITES to wildlife trafficking, and actions taken by its administration on the issue, have been recognized by numerous resolutions of the UN General Assembly and other UN entities. In a resolution in 2015, titled Tackling Illicit Trafficking in Wildlife, the UN General Assembly emphasized the important role of CITES' legal framework in combating wildlife trafficking (UN General Assembly, 19 August 2015). A further resolution in 2017 repeats this position (UN General Assembly, 28 September 2017). Numerous resolutions have been taken by the CITES Conference of the Parties with regard to wildlife trafficking. These include resolutions on demand reduction strategies to combat illegal trade, measures to detect and counter corruption, and general measures targeted at compliance with and enforcement of CITES (CITES Resolution Conf. 17.4; Resolution Conf. 16.6 (Rev. CoP17); Resolution Conf. 11.3 (Rev. CoP17)). The Conference of the Parties has also addressed cybercrime aspects of wildlife trafficking and community awareness of the crime-type (CITES Decisions 17.97 to 17.96 and 15.57; Decisions 17.97 to 17.100; Decision 17.86).

The Conference of the Parties has recommended that all Parties 'recognize the seriousness of illegal trade in wild fauna and flora and identify it as a matter of high priority for their national law enforcement agencies' (CITES Resolution Conf. 11.3 (Rev. CoP17) p. 4). To this end, the Conference recommends that Parties

in case of violation of [CITES'] provisions, immediately take appropriate measures pursuant to Article VIII, paragraph 1, of the Convention in order to penalize such violation and to take appropriate remedial action; and inform each other of all circumstances and facts likely to be relevant to illegal traffic and also of control measures, with the aim of eradicating such traffic (CITES Resolution Conf. 11.3 (Rev. CoP17) p. 4).

The current draft of CITES Strategic Vision: 2020-2030, submitted by the Management Committee for consideration by the Conference of the Parties, includes under Goal 3.

recognition that effective enforcement is key to combating the threat illegal and unsustainable trade poses to wild flora and fauna. Parties recognize the important role of CITES in global efforts to combat poaching and trafficking of species … to address both demand and supply of illegal wildlife products, and to tackle organized crime and poor governance, including corruption (CITES Standing Committee, CITES Strategic Vision Post 2020 (CoP18, Document 10).

As part of its efforts to tackle wildlife trafficking, CITES has significantly increased its cooperation with other UN agencies and non-UN organizations dealing with international crime. For example, the International Consortium on Combating Wildlife Crime (ICCWC), was established in 2010 during the International Tiger Forum. ICCWC focuses on strengthening criminal justice systems and supporting countries efforts to combat wildlife and forest crime, by enhancing the capacity of national legal institutions, and using tools to strengthen parties' responses to wildlife trafficking (CITES Secretariat, International Consortium on Combating Wildlife Crime (ICCWC) (CoP18, Document 15.5)).

 

Limitations of the CITES system

CITES' appendix and permit system has several well-recognized limitations. These limit the Convention's effectiveness in combating wildlife trafficking. As already noted, the Convention is a trade agreement and only applies to flora and fauna that is traded internationally (Slobodan, October 2014). As such, as an instrument dealing with international trade, CITES has no application to domestic markets and wildlife trafficking occurring intra-state. CITES enforcement occurs primarily at ports of entry; inter alia, combatting poaching and illegal domestic trade are matters for national governments.

Second, CITES' application is restricted by its appendix listing system; species not listed in an appendix are afforded no protection by the Convention. There are millions of species that are endangered, in some cases due to wildlife trafficking, that are not covered by CITES. For example, only 8 percent of the world's known reptile species are listed, despite reported trade in the skins of many non-listed reptiles, including, for example, all ten crocodile skink species (Nuwer, 14 December 2018). This issue is compounded by the fact that listing of species in CITES' Appendices is often driven by political, rather than scientific, processes. Indeed, inter-state negotiations over inclusion, or non-inclusion, of certain species have often attracted significant controversy.

A third issue is that the permit system is potentially open to abuse. It relies on proper compliance by issuing States Parties to the Convention. Unfortunately, examples of non-compliance, with various States issuing permits improperly, have been reported (see, for example, EIA, 2018). In Resolution 17.6, the Conference of the Parties called on State Parties to ensure that agencies responsible for administering permits were equipped with measures to detect and deter corrupt practices. Incomplete data on trade of species and the effect of trade on numbers in the wild can also negatively affect the efficacy of the permit system.

A final issue is that the CITES system does not devote great consideration to the welfare of animals traded pursuant to its provisions. While several articles touch on welfare issues, significant gaps exist in this area (and in international law more broadly) (Bowman, 1998). Animal welfare in international law is further addressed below.

It has been acknowledged that CITES 'cannot credibly be extended into an agreement to suppress and control every aspect of illegal trade in wild fauna and flora' (UNODC, 2012, p. 15). Nonetheless, CITES 'defines the rules that wildlife traffickers seek to circumvent' and, though it 'does not address all aspects of wildlife trafficking … it is the single most coherent approach to a topic of considerable international complexity' (UNODC, 2016, p. 24). It remains the only piece of international environmental law that can be used to counteract wildlife trafficking (Wandesford-Smith, 2016).

 

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