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

Peter H. Sand ¹

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In June 1997, the Conference of the Parties to the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)² will hold its tenth regular meeting in Harare, Zimbabwe. After twenty years in force, the treaty stands at a crossroads - and in the focus of global debate on the future relationship between trade and environment. The present analysis will attempt to review the past performance of the CITES regime, assess its innovative contributions to international law in the field of sustainable development, and consider its prospects for growth.

I. The Problem of Wildlife Trade: Commodity or Taboo?

The worldwide commercial exchange of wildlife (live animals and plants) and wildlife products (hides and furskins, ivory, timberwood and other derivatives) is big business - valued at between US$5-50 billion annually.³ The predominant direction of the trade is South-to-North, mainly driven by consumer demand from affluent developed countries and their profitable fashion and food industries as well as by users of rare animals and plants for medical/pharmaceutical research, exhibition or collection purposes.⁴ A characteristic feature of the trade is its luxury orientation, in response to consumption patterns often ranging from the non-essential to the perverse.⁵

While exports of wildlife and wildlife products are thus a significant source of foreign currency revenue for a number of countries, especially in the Third World, unsustainable rates of harvesting have led to serious depletion and, in a growing number of cases, exhaustion of the particular resource. Wildlife species are indeed renewable natural resources but, like many `flow resources', they have a critical level below which a decrease in reproduction capacity becomes virtually irreversible⁶ - even through artificial conservation measures (such as captive breeding in zoological gardens or propagation in botanical centres) may still postpone the moment of biological extinction.⁷ The need to prevent extinction can be justified scientifically as well as economically, but ultimately depends on ethical (anthropocentric or biocentric) value judgements.⁸

Man-made risks to the survival of wild fauna and flora are well documented and monitored, especially in the Red Data Books compiled since 1966 by the Species Survival Commission of the World Conservation Union (IUCN).⁹ Commercial exploitation for trade is not, of course, the only cause of wildlife depletion. Destruction of natural habitats is generally recognized as the single most important threat,¹⁰ followed by the introduction of alien species. Other contributing factors include inadequate methods of harvesting or processing that may render utilization unsustainable.¹¹ Hence, there is no simple mono-causal link between trade and the conservation status of a species according to its IUCN Red List category ('vulnerable', 'endangered', 'critically endangered').¹²

By the same token, international approaches to species conservation address a wide range of issues and primarily focus on habitat protection,¹³ in spite of the constraints which the 'territorial imperative' (of national sovereignty over most of the world's biological resources)¹⁴ traditionally imposes on a regulatory regime. Yet trade was readily identified as an issue for which precautionary transnational action is both feasible and necessary - not only to avoid aggravating a multiple-cause ecological problem, but also to prevent a 'free rider' dilemma lest unilateral bans penalize individual importing or exporting countries vis-à-vis their less scrupulous competitors. Thus, economic concerns for the 'level playing field' in a sizeable world market also played a role in the diplomatic negotiations on a global regime for trade in endangered species.

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1 Institute of International Law, University of Munich. The author was Secretary-General of CITES from 1978 to 1981. The present review is based on a contribution to the Green Globe Yearbook 1997 (Fridtjof Nansen Institute, Oslo)19-36; the work was completed in August 1996 during a residency at the Bellagio Center of the Rockefeller Foundation, whose support is gratefully acknowledged.

2 Signed on 3 March 1973, entry into force on 1 July 1975, amendment of 22 June 1979 (article XI) in force since 13 April 1987; multilingual (unamended) text and Final Act in United Nations Treaty Series (1976), 993, 243-438. Appendices I-III are periodically updated; the current version of Appendices I-II became effective on 16 February 1995, Appendix III on 16 November 1995. The pronunciation of `CITES' rhymes with `nighties'.

3 G. Hemley (ed.), International Wildlife Trade: A CITES Sourcebook (1994); and M.C. Trexler, `The Convention on International Trade in Endangered Species of Wild Fauna and Flora: Political or Conservation Success?', Ph.D. thesis on file at the University of California), 9. These estimates do not include the world timber trade (about $40 billion) and international fisheries (about $12 billion). Nor do they take account of the `street value' of clandestine wildlife traffic (about $5 billion according to a 1994 Interpol estimate), where a single hyacinth macaw fetches $10,000; Grove, `Wild Cargo: The Business of Smuggling Animals', 159 National Geographic Magazine, (1981) 287, at 290.

4 Even within the category of scientific research, the majority of animal and plant imports is for lucrative commercial purposes, such as pre-market testing of drugs, cosmetic products, and so forth; see T. Inskipp and S. Wells, International Trade in Wildlife (1979), 32.

5 Sand, `Luxury at Any Cost', 34/35 Naturopa (1980), 59.

6 S. von Ciriacy-Wantrup, Resource Conservation: Economics and Policies (3rd ed., 1968) 39, 256; P.R. Ehrlich and A.H. Ehrlich, Extinction: The Causes and Consequences of Disappearance of Species (1981); and Myers, `The Biodiversity Crisis and the Future of Evolution', 16 Environmentalist (1996) 37.

7 C. Tudge, Last Animals at the Zoo: How Mass Extinction Can Be Stopped (1992).

8 N. Myers, The Sinking Ark: A New Look at the Problem of Disappearing Species (1979) 18-20; Altner, `Ethische Begründung des Artenschutzes', 46 Schriftenreihe des Deutschen Landesrates für Landespflege (1985) 566; Johnson, `Toward the Moral Considerability of Species and Ecosystems', 14 Environmental Ethics (1992) 145; and B. Dexel, Internationaler Artenschutz: Neuere Entwicklungen, FS/II/95-401 (1995) 77-79.

9 SSC, the former `Survival Service Commission' (established in 1949) of the International Union for Conservation of Nature and Natural Resources, cooperates with other expert groups, including the International Council for Bird Preservation (ICBP, founded in 1922, now BirdLife International) and the World Conservation Monitoring Centre in Cambridge (WCMC, co-sponsored by UNEP, IUCN and the World Wide Fund for Nature), which operates a specialized Wildlife Trade Monitoring Unit (WTMU) under contract with CITES; see Caldwell, `WCMC: The CITES Database', 1 CITES/C&M International Magazine (1994) 76-78; World Conservation Monitoring Centre, Global Biodiversity Status of the Earth's Living Resources (1992); and the updated tables in World Resources Institute, World Resources 1996-97 (1996).

10 Uetz and Johnson, `Breaking the Web', 16 Environment (1974) 35 (figure 2); G. Nilsson, The Endangered Species Handbook (1983) 20; and World Resources Institute, World Resources 1994-95 (1994) 320-321 (table 20.3: habitat extent and loss in the 1980s).

11 It has been estimated that close to 50% of the 2 million crocodile hides taken from the wild annually are spoiled before they can be converted into luxury leather abroad: Wayne King, `The Wildlife Trade', in US Council on Environmental Quality, Wildlife and America: Contributions to an Understanding of American Wildlife and its Conservation (1978) . Similarly, as a result of international trade in wild-caught birds (approximately 800,000 imported per year in the United States alone), from 5 to 10 birds die for every one that reaches a pet store alive: van Note, `Statement on U.S. Enforcement of the Convention on International Trade in Endangered Species', U.S. Congress, House of Representatives, Committee on Merchant Marine and Fisheries (Subcommittee on Oversight and Investigations) 100:2, 14 July 1988, 7.

12 Revised IUCN/SSC Red List Categories were adopted by the IUCN Council at its 40th meeting on 30 November 1994; for background see R.S.R. Fitter and M. Fitter (eds.), The Road to Extinction (1987).

13 A. Schmidt-Räntsch and J. Schmidt-Räntsch, Leitfaden zum Artenschutzrecht (1990); de Klemm and Shine, `Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems', IUCN Environmental Policy and Law Paper, 29 (1993); T.M. Swanson, The International Regulation of Extinction (1994); and P. van Heijnsbergen, International Legal Protection of Wild Fauna and Flora (1997).

14 See Scelle, `Obsession du territoire', in F.M. van Asbeck et al. (eds.), Symbolae Verzijl (1958) 347-361; R. Ardrey, The Territorial Imperative: A Personal Inquiry into the Animal Origins of Property and Nations (1966); and N. Schrijver, Sovereignty Over Natural Resources: Balancing Rights and Duties (1996).

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