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  Endangered Species, International Protection Peter H Sand M  AX P LANCK E NCYCLOPEDIA OF P UBLIC I NTERNATIONAL L  AW (MPEPIL) Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum Vol. 3 (Oxford University Press 2012), pp. 423-429 (updated online, March 2017) [ cross-references  within the encyclopedia are indicated in italics ]   A. Introduction 1 Within the general context of international environmental law, designated natural fauna and flora resources are internationally protected against the risks of over-exploitation and extinction ( Conservation of Natural Resources ; Environment, International Protection ). However, unlike classical area-specific nature protection regimes ( Nature, International Protection ; World Natural Heritage ), species- specific protection is typically ‘a - territorial’; ie, individual specimens and living populations of animals or plants are subject to the international regime solely on the basis of their taxonomic identification as members of a listed protected species, irrespective of their geographical location inside or outside national territory. While any individual specimen of a protected species may thus be subject to the territorial sovereign control of the State where it is located ( Natural Resources, Permanent Sovereignty over  ), that customary rule does not apply to the species itself; ie, the abstract genotype to which the specimen belongs, biologically defined as ‘a population or series of populations of organisms capable of freely interbreeding with one another under natural conditions’ (Wilson). Hence, species that are authoritatively classified as ‘endangered’ (ie, at a high risk of extinction in the wild) under international treaties may well be viewed as common resources of humankind. Given the declared  community interest   in their long-term conservation, the host States concerned share a distinct fiduciary accountability as ‘pub lic trustees’ for these global trust resources, vis -à-vis the ultimate beneficiaries of the trust; ie, all people of the human species, including future generations ( Intergenerational Equity  ). 2 Wild- living fauna and flora are considered renewable or ‘flow resources’, replenished by natural reproduction/propagation. Characteristically, however, they have a ‘critical zone’ below which their depletion — from natural causes, or from human interference — may become irreversible, and hence may lead to extinction. The worldwide human-induced loss of species is now well documented as accelerating any losses inherent in the evolutionary process at alarming rates ( Biological Diversity, International Protection ). B. Sectoral/Regional Regimes 3 Historically, international action against over-exploitation of wildlife species already prompted the 1893  Bering Sea Fur Seals Arbitration , followed by the Pacific Fur Seal Treaties of 1911 and 1957 (the 1911 Convention Respecting Measures for the Preservation and Protection of Fur Seals in the North Pacific Ocean; and the 1957 Interim Convention [with Schedule] on Conservation of North Pacific Fur Seals; see also  Bering Sea ), and early European agreements such as the 1902 Convention for the Protection of Birds Useful to  Agriculture. Today, there is a wide range of bilateral and multilateral  treaties  for the conservation of migratory wildlife species ( Migratory Species, International Protection ), as well as for commercially exploited marine species ( Marine Living Resources, International Protection ; see also  Fisheries Agreements ; Marine Mammals ; Whaling  ), inland fisheries (mainly under the auspices of the  Food and Agriculture Organization of the United Nations  [FAO]  ), tropical forests ( Forests, International Protection ), and agriculturally used plants and plant genetic resources ( Plant Genetic Resources, International Protection ). 4 On a regional basis, multilateral single-species agreements have been concluded, inter alia, to protect polar bears in the   Arctic Region  (the 1973  Agreement on the Conservation of Polar Bears), terrestrial species such as the vicuña in South America (the 1979 Convention for the Conservation and Management of Vicuña), and marine living resources in   Antarctica  (the 1980 Convention on the Conservation of Antarctic Marine Living Resources; and the 1991 Protocol on Environmental Protection to the Antarctic Treaty). Furthermore, lists of protected species are contained or foreseen in the annexes to a number of general regional nature conservation conventions (including the 1940 Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere; and the 1979 Convention on the Conservation of European Wildlife and Natural Habitats) and to several regional seas protocols (including the 1985 Protocol on Protected Areas and on Wild Fauna and Flora in the Eastern African Region; and the 1990 Protocol on Specially Protected  Areas and Wildlife in the Wider Caribbean Region; see also  Regional Seas, Environmental Protection ). 5 One of the most active regional regimes in this field is the European Union, starting with its 1979 Council Directive 79/409/EEC on the Conservation of Wild Birds (as amended in 2006 by Council Directive 2006/105/EC [2006] OJ L363/368 and in 2013 by Council Directive 2013/17/EU [2013] OJ L158/193) and the 1992 Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (‘Habitats Directive’), as interpreted by the European Court of Justice in several leading decisions involving protected species (eg  Cases C-103/00   and  C-504/14 Commission v Greece   [‘ Caretta Cases ’ 1 and 2];  European Union, Court of Justice and General Court  ), and further elaborated by the European Commission in its 2007 Guidance Document on the Strict Protection of Animal Species of Community Interest under the Habitats Directive 92/43/EEC.  C. CITES: Wildlife Conservation and Sustainable Use 6 The total volume of legal world trade in wildlife (animals and plants, including forests and fisheries) and their products has been estimated at US$332.5 billion annually (Engler). For many  developing countries  in particular, exports of products harvested or collected from the wild — such as furs, hides, timber, or medicinal plants — continue to provide a significant source of income. National and international regulation of wildlife species therefore needs to strike a balance between the ecological concerns of nature conservation, and legitimate economic concerns of sustainable resource utilization ( Trade and Environment  ). 1. Historical Development 7  Attempts at multilateral law-making for endangered species date back to the 1900 Convention Designed to Ensure the Conservation of Various Species of Wild Animals in Africa which are Useful to Man or Inoffensive   (‘First London Convention’), and the 1933 Convention relative to the Preservation of Fauna and Flora in their Natural State  (‘Second London Convention’). Both treaties contained elements of a system to deal with the problem of unsustainable exploitation of wildlife by the colonial powers ( Colonialism ), through hunting restrictions for particular species listed in annexes; confiscation of illegally taken ivory; and export licensing for specified wildlife products. While the First London Convention never entered into force due to a lack of ratifications, the Second London Convention became applicable to most of the colonial territories in Africa, the Indian subcontinent, and Indonesia, but did not survive the era of   decolonization .  8 Following several initiatives at the national level to restrict trade in wildlife species, the matter was taken up from 1963 onwards in the Swiss-based non-governmental International Union for Conservation of Nature and Natural Resources (‘IUCN’, now World Conservation Union), which took the lead in preparations for a draft convention, endorsed by a  recommendation of the  United Nations (UN)  in the Action Plan of the 1972 Stockholm Conference (Report of the United Nations Conference on the Human Environment), and finalized by a diplomatic conference at Washington DC on 3 March 1973 as the Convention on International Trade in Endangered Species of Wild Fauna and Flora  (‘CITES’).   9 CITES entered into force on 1 July 1975, and currently has a near-universal membership of 182 States. A rectification protocol noting editorial mistakes in the authentic treaty texts (inter alia,  Arts III, XIV, and XVI CITES) was drawn up in the form of a   procès-verbal   by the Swiss Government as  depositary  , communicated to States Parties and signatories on 19 March 1976, and endorsed by the Confere nce of the Parties (‘COP’), the supreme decision -making body of CITES, at its first meeting ( Conference [Meeting] of States Parties ). A protocol amending  Art. XI CITES, adopted by an extraordinary meeting of the conference at Bonn on 22 June 1979, entered into force on 13 April 1987 (Bonn Amendment to the Convention on International Trade in Endangered Species of Wild Fauna and Flora). A further protocol to amend  Art. XXI CITES in order to admit the EU as a party was adopted by another extraordinary meeting at Gaborone on 30 April 1983 and entered into force on 29 November 2013 (Gaborone Amendment to the Convention on International Trade in Endangered Species of Wild Fauna and Flora; European Community and Union, Party to International  Agreements ; Treaties, Amendment and Revision ). While the Convention had already unilaterally been transformed into directly applicable EU law in 1982 by Council Regulation (EEC) 3626/82 [1982] OJ L384/1, as revised by Council Regulation (EC) 338/97 [1997] OJ L61/1, the EU thus officially became a party on 8 July 2015. 10 Periodic authentic treaty interpretation is provided by resolutions of the COP, adopted by a two-thirds majority at its triennial plenary meetings ( Environmental Treaty Bodies ; International Law, Development through International Organizations, Policies and Practice ; Treaties, Declarations of Interpretation ). There are 96 conference resolutions currently in effect, available on the Convention’s website. Even though CITES resolutions have occasionally — unsuccessfully —been challenged as mere recommendations ‘without any legal effect’ (eg by France before the ECJ in   Case C-182/89 Commission v France   [‘ Bolivian Furskin Case ’] at 4344), they are regularly sanctioned by collective trade embargoes (see paras 17  – 18 below), which have made CITES demonstrably more effective in practice than most other comparable treaty regimes ( Environmental Compliance Control  ). 2. Treaty Structure and Institutions 11 CITES regulates global market access for wildlife specimens, live or dead animals and plants as well as their parts and derivatives, by subjecting all border-crossing trade — including trade with Non-Member States ( Art. X CITES, elaborated in Res 9.5/1994 as revised in 2013) — to mandatory licensing on the basis of permits issued by the exporting country, and in exceptional cases to additional licensing by the importing country. Permits are granted in accordance with standard criteria (formerly CITES Appendix IV, now laid down in Res 12.3/2002 as revised in 2016 ), in light of an agreed ‘black list’ o f species excluded from trade (CITES Appendix I ) and a ‘grey list’ of controlled tradable species ( CITES  Appendix II). Furthermore, each country of srcin may unilaterally add to the lists by entering species in CITES Appendix III, or may notify other countries (through the CITES Secretariat) of further national restrictions. All Member States have a duty to enact and enforce the terms of the treaty by national laws (see para. 16 below), and to provide periodic trade data and reports on national implementation ( Art. VIII CITES, with standard criteria and guidelines laid down pursuant to Res 11.17/2000 as revised in 2016; Reporting Systems ). Reports are electronically processed and compared by the CITES Secretariat to determine, inter alia, whether trade data submitted by exporting and importing countries correspond with regard to the species concerned. 12  CITES Appendices I and II are amended every three years by the COP in light of the changing conservation and trade status of the species listed ( Art. XV CITES) on the basis of agreed listing criteria (Res 9.24/1994 as revised in 2016). Arguably the most controversial  illustration of this up-listing/down-listing procedure continues to be the status of elephants and the qualified ban on ivory trade (Res 10.10/1997 as revised in 2016). A further measure of flexibility is provided by reservations under   Arts XXIII and XV(3) CITES, which allow dissenting countries to opt out of species-listing decisions (Res 4.25/1983 as revised in 2007; Treaties, Multilateral, Reservations to ); and by a number of specific exceptions that were either built-in (eg for scientific exchanges, and for captive-bred or artificially propagated specimens, under   Art. VII CITES) or subsequently introduced by the conference (in particular the quota system for limited trade in Appendix I-species, under  Res 9.21/1994 as revised in 2004, Res 10.4/1997, and Res 13.5/2004 as revised in 2007). 13 Under the auspices of the omnipotent COP, new elected institutions not srcinally anticipated in the convention evolved over time: in particular, the Standing Committee (initially established by Res 2.2/1979) to which the conference delegated important treaty management functions during the periods between plenary meetings; and the two sectoral scientific committees (for animals and plants) which deal with most issues regarding the listing and delisting of species, and which also meet intersessionally (Res 11.1/2000 as revised in 2016). 14 While initial funding for CITES operations and meetings had been provided since 1975 by the  United Nations Environment Programme (UNEP) , responsibility for t he convention’s budget (currently about US$6 million annually) was transferred to the COP after formal treaty amendment in 1979 and the establishment of a special CITES fund for this purpose, as one of the  trust funds  under UNEP auspices, to which Member States make assessed contributions based on the UN scale. Under   Art. XII CITES, secretariat services are provided by UNEP, with possible assistance from qualified other bodies. Initially entrusted to the IUCN, the secretariat was formally taken over by UNEP in 1985, with an office now based in Geneva, together with CITES trade and species databases managed by the UNEP World Conservation Monitoring Centre in Cambridge. Shared administrative competences for staff recruitment, accommodation and supervision are laid down in a 2011 agreement between the CITES Standing Committee and the UNEP Executive Director. 15 Participation of   Non-Governmental Organizations   (‘NGOs’) and   civil society   continues to play an important role in the operation of the convention, through scientific advice from volunteer specialist groups of the IUCN Species Survival Commission and other non-governmental bodies. External monitoring is provided by the IUCN/WWF (World Wide Fund for Nature) TRAFFIC (Trade Records Analysis for Fauna and Flora in Commerce) programme (a non- governmental ‘watchdog’ network with national/regional offices in 16 countries worldwide), pursuant to two Memoranda of Understanding concluded in 1999 between the CITES Secretariat, IUCN, and TRAFFIC International (Memorandum of Understanding between the Secretariat of the Convention on International Trade in Endangered Species of Wild Fauna and Flora and IUCN; and Memorandum of Understanding Concluded between TRAFFIC International, on Behalf of the TRAFFIC Network, and the United Nations Environment Programme, Secretariat of the Convention on International Trade in Endangered Species of Wild Fauna and Flora). The accreditation of non-governmental  observers  at CITES conferences — admitting technically qualified NGOs ‘unless at least one - third of the Parties present object’, pursuant to   Art. XI(7) CITES as elaborated in Resolution 13.8/2004 (revised in 2013) — became a model for several subsequent environmental treaties ( Environment, Multilateral Agreements ). 3. Implementation and Compliance Control 16 Like most treaty regimes for the regulation of business activities ( International Economic Law  ), CITES depends on national legislative and administrative measures to become effective ( International Law and Domestic [Municipal] Law  ). For domestic measures to be considered in  compliance  with the convention, they must — as a minimum — provide States Parties with the authority to a)  designate at least one management authority and one scientific authority; b)  prohibit trade in specimens in violation of the convention; c)  penalize

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Oct 7, 2019

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