Whither CITES? The Evolution of a Treaty Regime in the Borderland of Trade and Environment

Whither CITES? The Evolution of a Treaty Regime in the Borderland of Trade and Environment

II. International Response to the Problem

CITES was preceded by two unsuccessful international attempts to regulate wildlife management among colonial powers: the 1900 London Convention Designed to Ensure the Conservation of Various Species of Wild Animals in Africa which are Useful to Man or Inoffensive,¹⁵ and the 1933 London Convention Relative to the Preservation of Fauna and Flora in their Natural State.¹⁶

Both treaties contained basic elements of a system to deal with the problem of unsustainable exploitation of wildlife, by means of hunting restrictions for threatened species listed in annexes, confiscation of ivory taken illegally, and export licensing for specified wildlife products. Exceptions were provided for scientific collection and for specimens acquired prior to the entry into force of the treaty.¹⁷ Under the 1933 Convention, any imports of listed species required export certificates from a competent authority in the territory of origin.¹⁸ Although still focused on harmonization of local wildlife management rules - motivated by traditional concern for the preservation of colonial big-game hunting grounds and revenues - the regime thus extended its controls to wildlife-importing countries, and already envisaged wildlife identification manuals for customs officers (article 9/5).

While the 1900 Convention never entered into force (for lack of ratification by all signatories, as required under article VIII)¹⁹ and hence did not survive World War I, the 1933 London Convention became applicable to most of Africa. Its import restrictions were subsequently extended by Britain to Aden and India, and by the Netherlands to Indonesia.²⁰ Yet the treaty failed to provide for decision-making institutions and secretariat services. Consequently, proposals for implementation and adjustment formulated during two technical follow-up meetings (held in London in 1938 and at Bukavu in 1953)²¹ were unsuccessful and were eventually overtaken by the political events of decolonization. The 1933 Convention's provisions on export/import controls became the model for similar provisions in two regional treaties - the 1940 Washington Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere²² and the 1968 Algiers African Convention on the Conservation of Nature and Natural Resources.²³ However, these were never given any practical effect by the two regional organizations concerned, the Organization of American States (OAS) and the Organization of African Unity (OAU).

Meanwhile, however, the issue had been taken up by national legislators. In the United States, the Lacey Act of 25 May 1900, which prohibited interstate commerce in illegally taken wildlife, was extended in 1935 to wildlife imported from abroad.²⁴ Pursuant to the 1930 Tariff Act, imports of birds, mammals and their derivative parts or products into the United States required a certificate of legal acquisition from the US consulate in the country of export.²⁵ After a number of further amendments, the Endangered Species Conservation Act of 5 December 1969 authorized the US Department of the Interior to promulgate a list of wildlife 'threatened with worldwide extinction', imports of which were prohibited except for scientific or breeding purposes.²⁶ At the same time, in response to public lamentations about competitive disadvantages by the American fur and leather industries and the pet trade,²⁷ the US government was directed to encourage the enactment of similar laws by other countries and to 'seek the convening of an international ministerial meeting' to conclude 'a binding international convention on the conservation of endangered species'.²⁸

The initiative coincided with preparations for the UN Conference on the Human Environment²⁹ and with ongoing work in the IUCN. This latter's 1963 General Assembly in Nairobi had called for an 'international convention on regulation of export, transit and import of rare or threatened wildlife species or their skins and trophies'.³⁰ Successive drafts were prepared and circulated after 1967 by the IUCN Environmental Law Centre in Bonn.³¹ Revisions were then made in 1969 and 1971 in light of comments received from thirty-nine governments and eighteen non-governmental organizations.³² The IUCN drafts started from the premise that wildlife trade was to be controlled or banned on the basis of global lists of threatened species. These would be drawn up and updated (along Red Data Book lines) upon advice by an international expert committee. Opposition to this approach came from developing countries, led by Kenya, which insisted on the right of each range state to determine its own list of tradeable species.³³ This view found support in the United States (which was also a commercial exporter for products such as bobcat furs and alligator hides, and which found the Kenyan approach compatible with its Lacey Act). Ultimately, both approaches were consolidated in a 1972 US draft that served as the working document for the conference of eighty plenipotentiaries, held at the Pentagon from 12 February to 3 March 1973.³⁴ By coincidence, one of the largest cases of illegal wildlife imports in New York - with ramifications to major European fur traders and multiple suppliers in Asia, Africa and Latin America³⁵ - was discovered and prosecuted immediately prior to the conference, thereby adding a large measure of publicity and urgency.

The outcome of the Washington Conference was CITES, a Convention with 25 articles and four appendices. Hailed by conservationists as the 'Magna Charta for Wildlife',³⁶ CITES was both a 'conservation and trade instrument'³⁷ to protect wild fauna and flora both for humankind ('present and future generations') and as national heritage (of 'peoples and States'). It institutionalized the core idea of the 1933 London Convention, by subjecting all wildlife imports - including trade with third parties (article X) - to mandatory licensing (article II/4), with permits (a kind of 'passport'³⁸) to be issued by the exporting countries. Permits are given in accordance with the common criteria of Appendix IV³⁹ and on the basis of an agreed 'black list' (of prohibited species in Appendix I, subject to certain exceptions) and 'grey list' (of controlled species in Appendix II). Furthermore, each country of origin may unilaterally add to the lists by entering species in Appendix III, or may notify other countries (through the secretariat) of further national restrictions. All member countries have a duty to enact and enforce the terms of the treaty by national laws, and to provide periodic trade data and reports on enforcement measures (article VIII). As to governance, CITES learned from the negative lessons of the 1933 Convention, and established the biennial Conference of the Parties as an autonomous body for decision-making and periodic treaty adjustment (articles XI and XV). Secretariat functions were entrusted to UNEP, with a formal mandate for assistance by 'qualified' non-governmental organizations (article XII).⁴⁰

15 Signed on 19 May 1900 on behalf of Great Britain, Germany, Spain, Belgian Congo, France, Italy and Portugal; French text in B. Rüster and B. Simma (eds.), International Protection of the Environment: Treaties and Related Documents, 4 (1975) 1605-1614, and in C. Parry (ed.), Consolidated Treaty Series, 188 (1979) 418-425. The London Conference had been convened at the initiative of the British and German governments; see I. Parker and M. Amin, Ivory Crisis (1983) 123-124; and Maffei, `Evolving Trends in the International Protection of Species', 36 German Yearbook of International Law (1993) 131; Idem, La Protezione Internazionale delle Specie Animali Minacciate (1992).

16 Signed on 8 November 1933 on behalf of South Africa, Belgium, Great Britain, Egypt, Spain, France, Italy, Portugal and the Anglo-Egyptian Sudan; entry into force on 14 January 1936; text in League of Nations Treaty Series (1936) 172, 241-272.

17 Articles II(11) and III of the 1900 Convention.

18 Article 9, which provided for special identification marks in the case of ivory and rhino horn, but generally applied to all `trophies', broadly defined as any animal, dead or alive, and anything part of or produced from any such animal. The need for instruction of Customs officers was specifically mentioned.

19 Hayden, `The International Protection of Wild Life: An Examination of Treaties and Other Agreements for the Preservation of Birds and Mammals, Columbia University Studies in History, Economics and Public Law, 491 (1942) 37.

20 Under article 13(2); Hayden supra note 18, at 59.

21 de Klemm, `Conservation et Aménagement du Milieu: Aspects Juridiques et Institutionnels Internationaux', IUCN Publications New Series: Supplemental Paper, 19 (1969) 28-29. The two meetings were held pursuant to a protocol to the 1933 Convention, which however made no provision for bringing amendments into force; text in League of Nations Treaty Series (1936) 172, 270.

22 Signed on 12 October 1940, entry into force on 1 May 1942; text in United Nations Treaty Series (1953) 161, 193-216; see article IX.

23 Signed on 15 September 1968, entry into force on 16 June 1969; text in United Nations Treaty Series (1976) 1001, 3-28; see article IX.

24 U.S. Statutes 31:187, as amended on 15 June 1935; M.J. Bean, The Evolution of National Wildlife Law (2nd ed., 1983) 111-115.

25 Section 527, U.S. Code 19:1527(a); Bean, supra note 23, at 115-118.

26 Public Law No. 91-135, U.S. Statutes 83:275, entry into force on 3 June 1970; superseded by a comprehensive new Endangered Species Act (ESA, Public Law No. 93-205, U.S. Statutes 87:884) after the adoption of CITES in 1973. See Smith, Moote and Schwalbe, `The Endangered Species Act at Twenty: An Analytical Survey of Federal Endangered Species Protection', 33 Natural Resources Journal (1993) 1027; and Balistrieri, `CITES, the ESA and International Trade', 8 Natural Resources and Environment (1993) 33-35. A similar list, though for live animals only, had already been introduced in the United Kingdom by the Animals (Restriction of Importation) Act of 17 July 1964.

27 `Hearings on Endangered Species', U.S. Congress, House of Representatives Committee on Merchant Marine and Fisheries (Subcommittee on Fisheries and Wildlife Conservation), 19-20 February 1969, Serial 91-2, 117, 166, 188; and Senate Committee on Commerce (Subcommittee on Energy, Natural Resources and the Environment), 14-15 May 1969, Serial 91-10, 181.

28 Public Law No. 91-135 (1969), section 5(a) and (b).

29 As CITES negotations were not completed in time for the Stockholm Conference in June 1972 (mainly because of diplomatic problems relating to the representation of China), Recommendation 99 of the Stockholm Action Plan called for `a plenipotentiary conference to be convened as soon as possible, under appropriate governmental or intergovernmental auspices, to prepare and adopt a convention on export, import and transit of certain species of wild animals and wild plants'.

30 IUCN, Proceedings of the 8th Session of the General Assembly (1963) 130; earlier resolutions had since 1951 already aimed at prohibiting the importation of endangered species, see International Union for the Protection of Nature (IUPN), Proceedings of the 3rd Session of the General Assembly (1952) 24.

31 Directed by Wolfgang E. Burhenne, who was also the author of the 1963 Nairobi resolution.

32 R. Boardman, International Organization and the Conservation of Nature (1981) 89; Kowalski, `Commentary Upon the IUCN Draft Convention on the Export, Import and Transit of Certain Species of Wild Animals and Plants', 21 Catholic University Law Review (1972) 665.

33 The counter-proposal, prepared in response to the 1971 IUCN draft by Perez Olindo, Director of Kenya's National Parks, parallels the national listing of protected areas under the 1971 Ramsar Convention on Wetlands of International Importance, United Nations Treaty Series (1976) 996, 245-268.

34 For historical analysis of the conference and its travaux préparatoires, see A. Flachsmann, Völkerrechtlicher Schutz gefährdeter Tiere und Pflanzen vor übermässiger Ausbeutung durch den internationalen Handel: Washingtoner Artenschutz-Abkommen von 1973 (1977) 83-138.

35 Ibid, at 77 (the Vesely-Forte case, resulting in a $500,000 fine); see Sitwell, `Stopping the Trade in Endangered Species', World Wildlife News (Summer 1973) 3.

36 Layne, `Eighty Nations Write Magna Charta for Wildlife', 75 Audubon Magazine (1973) 99; and Wayne King, `International Trade and Endangered Species', 14 International Zoo Yearbook (1974) 2.

37 Hill, `The Convention on International Trade in Endangered Species: Fifteen Years Later', 13 Loyola of Los Angeles International and Comparative Law Journal (1990) 231, at 245. Hence the treaty is more than a `protectionist instrument'; A.O. Adede, International Environmental Law Digest: Instruments for International Responses to Problems of Environment and Development 1972-1992 (1993) 42.

38 Grove, supra note 2, at 294.

39 Superseded by the current form annexed to CITES Conference Resolution 9.3 (1994); see W. Wijnstekers, The Evolution of CITES: A Reference to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (4th ed., 1995) 91-104.

40 Text of Washington Conference Resolution in United Nations Treaty Series (1976) 993, at 312. The UNEP Executive Director, who attended the conference as observer, provisionally accepted the designation, later confirmed by UNEP Governing Council decision 1/I/VIII of 22 June 1973. UNEP then contracted IUCN to provide secretariat services and facilities (with UNEP funding) until October 1984, when the staff was transferred to UNEP and later relocated to Geneva; Wijnstekers, supra note 38, at 222-225.

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