CITES, Voting, and Reservations: A Delicate Balance

In Memoriam. Dr Bradnee Chambers, Executive Secretary, Convention on Migratory Species 2013-2019

As the result of the vote was announced, the room erupted into spontaneous applause. The proposal to amend the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Appendices had been adopted. The species would now be listed and come under CITES trade controls. Jubilant parties and observers congratulate themselves, while others show signs of displeasure.

CITES: A voting convention

CITES specifically provides for voting. On substantive issues, like listing a new species by amending the Appendices, a two-thirds majority of parties “present and voting” is sufficient. The CITES Conference of the Parties (CoP) Rules of Procedure (RoP) go as far as obliging a Chair, when a consensus is not reached, to put a matter to a vote. Parties have sometimes made points of order obliging the Chair to do so, especially when considering amendments to the Appendices.

By way of contrast, the Ramsar Convention on Wetlands CoP RoP requires all efforts to reach consensus to be exhausted and to only go to a vote “as a last resort.” The Convention on Biological Diversity (CBD), the UN Convention to Combat Desertification (UNCCD), and the UNFCCC take decisions by consensus. There is text in the CBD’s CoP RoP to allow for voting, but it is still in brackets, meaning it is not yet agreed.

The result under CITES can be a rather truncated debate at CoP. At CoP17, a delegation not familiar with CITES, was taken aback by how quickly a matter was put to a vote, taking repeated points of order to try and slow the process. At CoP19, repeated attempts by some parties to work towards a consensus position on the requiem sharks proposal was bluntly rebuffed by the proponents, who, one suspects, were confident they had the numbers.

Parties that have their credentials in order, and are present, can vote. Abstentions are discounted. So, it is two-thirds of parties present at the meeting and voting that is required, not two-thirds of parties. Interestingly, a quorum under CITES CoP RoP is just half of the parties having delegations at the meeting, whereas a quorum under the Ramsar Convention CoP RoP is at least two-thirds of all parties present.

The most hotly contested proposal at CITES CoP19 was the one to list requiem sharks. The result of the vote was 88 in favor and 29 against, with 17 abstentions. It was decided by a two-thirds majority of parties present and voting, namely two-thirds of 117, but the ‘yes’ votes represented less than 50% of CITES’ 184 parties.

The proposal to amend the Appendices to list requiem sharks was adopted, but one may question the strength of the collective will amongst parties to get behind the implementation of the listing. Will parties that voted against the proposal be prepared to go along with the majority, or will they enter reservations, which may undermine the efficacy of the listing?

Voting has been a strength of CITES

Voting under CITES has, overall, been a strength of the Convention, both at CoPs and in its committees, including when considering compliance and implementation issues. Proposals to amend the Appendices have been adopted by CoP meetings that could not achieve consensus. If not for voting, most shark and timber species listings would never have been made.

And history shows us that, once a species is listed, attitudes can soften. For example, proposals to list certain hammerhead sharks at CoP15 were rejected, a revised proposal presented at CoP16 was adopted, by the narrowest of margins, and then, most recently, at CoP19, a proposal to list further hammerhead sharks was adopted by consensus.

Reservations – the quid quo pro

While CITES allows for voting, it also allows, as a sort of quid quo pro, an opportunity to enter a reservation with regard to amendments to the Appendices, which is where species are listed. There is no such provision for decisions or resolutions, as they are not legally binding.

When joining the Convention, a country can enter reservations concerning any species included in the Appendices. The other opportunity is up to 90 days after a decision to amend the list of species in the Appendices is adopted by the CoP, when a reservation can be made against the amendment. An amendment can include listing a species, changing the Appendix in which a species is listed, or changing an annotation to the listing.

There are currently a number of reservations affecting a wide array of species. However, history shows us that parties do not usually enter reservations even when they have voted against the proposal. For the most part, parties are prepared to go along with the majority, but not always.

Frustrations are building

One can detect a level of frustration building amongst some parties with the manner in which certain issues are hastily going to a vote, without fully exhausting all efforts to achieve a consensus. There is a sense amongst some that a vote is the choice of first resort, with the highest priority being to grow the list of species. This approach can lead to more reservations being entered and can impact how supportive parties feel towards the Convention.

Concerns over implementation issues are being responded to by agreeing to delay the entry into force of an amendment from the mandated 90 days to 12, 18, or even 24 months. This is a rather blunt tool to address such concerns. It has both negative and positive consequences, but it is increasingly being used. With the CoP meeting every three years, some question the value of a 24-month delay for entry into force. There is also frustration about the adequacy of consultation with Indigenous Peoples and local communities, as well as amongst parties prior to decisions being taken.

Looking ahead to the next 50 years

Voting has enabled CITES to evolve and it has, overall, been a strength of the Convention. There are, however, aspects of current practice that can disenfranchise parties. In an effort to maintain goodwill and support, it may be prudent for parties and observers to reflect on recent CoPs and, in particular, on how these CoPs managed proposals to amend the Appendices.

CITES may find it beneficial to take a fresh look at how proposals are prepared and considered, including on consultations at national level, especially with Indigenous Peoples and local communities, and at the international level, both prior to submitting a proposal and during the CoP itself, as well as considering how proposals can address implementation issues.

All of this will require an open, transparent and inclusive process on how best to capture such sentiments through amendments to the CoP RoP, relevant resolutions, and related decisions.

John Scanlon AO is CEO of the Elephant Protection Initiative Foundation, Chair of the UK Government’s IWT Challenge Fund, Chair of the Global Initiative to End Wildlife Crime and former Secretary-General of CITES.

Jinfeng Zhou is the General Secretary of the China Biodiversity Conservation and Green Development Foundation (CBCGDF), General Secretary and member of the Ninth, Tenth, and Eleventh National Committees of the Chinese People’s Political Consultative Conference, and member of the Expert Group of the Global Pact for the Environment.

On 3 March 2023, CITES will celebrate its 50th anniversary. This article is part of a series themed, ‘CITES at 50,’ the SDG Knowledge Hub is publishing to commemorate the occasion.