Animal Law - Elephants* - State Bar of Texas Animal Law Section

Animal Law - Elephants*

ELEPHANTS, INTERNATIONAL ISSUES FOR ENDANGERED SPECIES MANAGEMENT

Overview of the Convention of International Trade in
Endangered Species of Wild Fauna and Flora - CITES

David Favre
Professor
Detroit College of Law
Michigan State University
East Lansing, MI 48813-1300

©2000 Professor David Favre

CITES is a mature international treaty which became effective in 1975 and now has over 140 party states (sovereign states that have ratified or acceded to the treaty) as members. The purpose of the treaty is to control the international movement of wild plants and animals, alive or dead, whole or parts there of (specimens of species) in such a manner as to be assured that the pressures of international trade do not contribute to the endangerment of species around the world. If a species is in danger of extinction then the treaty will impose a ban on the commercial trade of the listed specimen. For purposes of this treaty trade is defined as any transboundry movement of species, regardless of the purpose. The party states meet every two or so years in order to carry out their responsibilities under the treaty. This event is referred to as a Conference of the Parties. There have been eleven of these meetings since 1975.

A. Methods of Control

The treaty creates three categories into which species of concern or risk of extinction may be placed: Appendix I, Appendix II & Appendix III.

Appendix I are species threaten with extinction which are effected by international trade
Appendix II are species that may be threatened with extinction ?unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival.?
Appendix III is a list of species which are proposed by individual countries when they seek aid in controlling trade in these species. (This category is of minor importance and will not be further considered.)

Within the real world species at risk can be divided into four different categories:

Species at risk bot not in trade - CITES not relevant and they are not within the treaty. Example: many birds found on the Hawaiian islands of the United States are at risk but are not part of any international trade and therefore not listed under CITES.
Species controlled by CITES to help assure long term commercial trade. Crocodile & leopards are controlled with CITES export quotes which allow for commercial trade.
Species endangered and protected from the pressures of trade by Appendix I listing. The whales, the birds the chimpanzees are examples of this category.
Endangered Species who?s numbers are so low that the Appendix I listing by itself is insufficient to assure the continued existence of the species. The black rhino, the tiger & the panda are examples of this category. Illegal trade and habitat changes could drive these species to extinction even if all legal trade is stopped.

The process of listing species in Appendix I or II is a group decision made at the Conference of the Parties and require 2/3 vote of the Parties, but any state who disagrees with a listing decision may take a reservation on the species listing within 90 days of the vote. This right of reservation is not exercised very often as the custom of the Parties is to accept the decision of the Conference of the Parties (Elephant issues often provide and exception to the general rule.)

As it is now understood by everyone that the consequence of listing a species on Appendix I will result in the elimination of commercial trade, such proposals receive very close scrutiny by the delegates at the Conference of the Parties. Indeed, much attention has been given to the issue of what standards should be used in trying to determine whether a species is ?threatened with extinction.? While it is clear that the burden of proof is on the proponents of the proposal, any number of other issues are less clear:

How to judge whether a species may be threatened by trade?
Within how many generations does the threat of extinction have to arise to corss the threshold for protection?
How small of subset of the world wide population of a species can be considered in a listing proposal?
How should the precautionary principle be used?
Should different standards be used to down list or remove a species from a list as compared with placing a species on a list?

Ultimately each party state must make a decision on each listing proposal, one vote per country, normally in open voting. (Elephants & whale votes have triggered the use of secret ballots.) There is no appeal, the vote of the Conference of the Parties is final.

Once a species is placed upon either Appendix I or II then the protection of the treaty is triggered by requiring each State to prohibit the transboundry movement of the species unless a permit has been issued by the relevant country. There is no international police system to enforce the obligations of the treaty. The treaty presumes that enforcement will be done at the national level. A specific obligation of the treaty is to adopt domestic legislation which will carry out the requirements of the treaty. In the United States section 8(a) of the Endangered Species Act contains the implementing provisions of CITES. Additionally, under the treaty, each country is obligated to appoint a Management Authority and a Scientific Authority each of which have responsibilities in the process of granting CITES permits. In the United States they are both located in the Department of Interior.

Appendix II species require only an export permit issued by state of export. Before issuing a permit the Authorities of the State of Export must find:

the Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species;
the Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; and
the Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.

The key criteria for protection of the species is the requirement of a non-detrimental finding. Determining when trade is detrimental is a difficult projection into the future by science. This is a particular challenge in developing countries where wildlife science for many species is nonexistent. If detrimental trade is allowed, knowingly or unknowingly, then the goal of the treaty is frustrated.

Appendix I species, those already identified as at risk of extinction, requires two permits; an exporting permit and an importing permit. The criteria for the exporting permit are the same as with Appendix II species. For the import permit

the Scientific Authority of the State of import has advised that the import will be for purposes which are not detrimental to the survival of the species involved;
the Scientific Authority of the State of import is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and
the Management Authority of the State of import is satisfied that the specimen is not to be used for primarily commercial purposes.

Note that the importing states must also make a finding that the purpose of the import will not be detrimental to the species. While the determination of what is a primarily commercial purpose would seem to be straight forward in the main, on the margins it is a difficult question. Sport hunting trophies are generally not considered a commercial purpose even thought they may have a market value. Importation of animals by zoo?s is likewise not prohibited by CITES custom even though money is pay for the animal and the zoo will generate money from the display of the animal. While there is a resolution adopted by the Conference of the Parties to help on this issue, ultimately it is a unilateral decision by the country of import.

This provision of the treaty is controversial in that some states argue that economic utilization of Appendix I species would be useful for obtaining the resources and political motivation for the protect of the species ? i.e. elephant ivory. Additionally some states are troubled by the fact that the importing country (primarily the developed countries) can block trade that the exporting country (primarily developing countries) believes is acceptable. But these issues have been settled by the language of the treaty and it would take an amendment of the treaty to change the approach, and an amendment. While an amendment is provided for in the treaty, is highly unlikely to occur.

The treaty provides a number of exceptions to the requirement of a permit or alternative permits each of which raises a set of issues:

Specimens in transit or transhipment trough or in the territory of a Party while the specimens remain in Customs control.
Specimens acquired before the provisions of the Convention applied to that specimen.
Specimens that are personal or household effects.
Any specimen of an animal species which was bred in captivity or any specimen of a plant species which was artificially propagated can obtain a certificate by that Management Authority to that effect.
The non-commercial loan, donation or exchange between scientists or scientific institutions registered by a Management Authority of their State, of herbarium specimens, other preserved, dried or embedded museum specimens, and live plant material which carry a label issued or approved by a Management Authority.
Specimens which form part of a traveling zoo, circus, menagerie, plant exhibition or other traveling exhibition.

B. Enforcement

In the area of enforcement the treaty shows it age. More recent treaties are attempting to create provisions for the enforcement of obligations, but back in the 1970?s the good faith of the Parties was the primary method of enforcement. Individual citizen incur no rights from the adoption of this treaty by their state and can not use the treaty as a basis to sue others. These is no international court to which a party state has a right to file a complaint or grievance against a private individual or another party state for violation of the provisions or obligations of CITES. However, peer pressure and public pressure can be effective in moving countries toward better enforcement of the CITES. On occasions the Party States have resorted to trade sanctions against a specific country to pressure the adoption of adequate domestic law, and this approach has been successful.

The problems faced by CITES is not just the limitations of the treaty language but of limitations within individual party states:

Lack of adequate domestic laws
Lack of adequate government employees - lack of pay and training for the employees
Lack of scientific experts within a country - unwillingness to give power to them - lack of resources for the scientist that are present
Lack of support from the police and courts for wildlife crimes prosecutions and lack of serious punishment for violators of the law.
Lack of a public education component.

C. Illegal Trade

While must effort is expanded trying to assure that the permit process functions fully, there is also effort which must be expended to try and deal with illegal trade. The amounts of money involved, and therefore the incentives for illegal trade are substantial. For example:

In September of 1995 the U.S. Fish and Wildlife Service reported that a Texan company, Tony Lama Boot Company, had forfeited 907 pairs of caiman lizard cowboy boots and 2,554 pairs of boot vamps. They estimated that over 13,80 caiman lizards (Appendix II) were killed and illegally shipped, with a wholesale value of over $1,000,000 for the manufactured goods made with the skins.

A U.S. court also sentenced Chang Hao, a Chinese national, to 21 months of jail time for illegal shipment of tiger, bear, rhino and must deer parts and derivatives (valued in excess of $800,000).

A report by the Environment Ministry of Columbia in 1999 (obtained by Reuters) stated that about 7 million reptiles, multi-colored birds, frogs, monkeys, spiders, and other species are smuggled bout of Columbia yearly, with a black market value of approximately $40 million. Upwards of 80% of these animals can die during the transportation process.

While some illegal trade is out of ignorance, and some is petty, but much is done in organized rings not unlike drug groups, with suppliers in developing countries, shippers, financiers and retail distributors. Some illegal traders use legitimates business as fronts. The most recent channel for trade in the internet, and that is particularly difficult to police. The only answer is strict enforcement, but in a world of limited government resources this is often difficult to accomplish. The other side of the equation is the demand side and as with drugs there does not seem to be any lack of individuals with financial resources who are desire to possess illegal specimens of protected species.

D. Protection for Individual Animals

While the primary concern of the drafters was ecological in nature, at least some concern is expressed in the treaty for the for the pain and suffering of individual animals. However, the scope of concern is very circumcised to a particular portion of the full chain of events for international trade of animals. Consider the normal chain of possession and transfer faced by live animals.

Capture
Holding by the gatherer
Transportation to in-country shipper
Holding for export by shipper
International transportation
Holding in country of import at the port of entry
Transportation to customer
Living conditions at end point

Which portion of this chain comes within the provisions of CITES? Only the middle step - international transportation for both Appendix I and II animals and the final step for Appendix I species. The treaty requires for the granting of an export permit of a live animal that the Management Authority to be:

satisfied that any live specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.

Also, if an Appendix I species in involved, the Scientific Authority of importing country has the obligation to determine that: ?the proposed recipient of a living specimen is suitably equipped to house and care for it.?

Early on it was realized that CITES did not want to become a technical body which had to argue about cage sizes. Recognizing that the large majority of live animals transported internationally are do so by airplane, they have turned to an international association which has set standardize shipping requirements for containers for use by airlines. CITES by resolution requires treaty shipments of live animals, by aircraft to conform to IATA (International Air Transportation Association) shipping standards.

While the legal requirements for shipping conditions are relatively straight forward, the difficulty is in the implementation. Even assuming good faith efforts by government officials generally it is an awkward process. The requirement for humane transportation is to be satisfied before the granting of the permit, but there is no way to know how they will in fact be shipped, as that will not occur until after the permit is granted. Indeed most exports will only be seen by custom agents, not representatives of the Management Authority.

Twice there have been proposed resolution considered by the Conference of the Parties to expand the concerns of the States beyond the limited language of the treaty to methods of capture and holding. At the 4th Conference of Parties and at the 11th Conference. Methods of capture (or killing) as well as conditions of housing remain a state by state issue.

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