By Dr. Christina Voigt and John Scanlon AO

In Memoriam. Dr. Françoise Burhenne-Guilmin and Dr. Wolfgang E. Burhenne

“CITES has teeth” is often the catch cry of Secretariat staff and observers alike. But does it? Is it robust or a house of cards? Is it used consistently and equitably and has it achieved compliance?

Legal foundation for compliance

Articles VIII and IX of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) set out parties’ core obligations under CITES, including to: take appropriate measures to prohibit trade in specimens in violation of the Convention; enforce its provisions through domestic measures; designate national authorities; and submit an annual trade report. Compliance with these core obligations is crucial for the effective implementation of the Convention. In the absence of a specific compliance mechanism under the Convention, Article XIII empowers the Secretariat to raise compliance issues and the Conference of the Parties (CoP) to make recommendations.  

CITES compliance procedures are set out in a Resolution adopted in 2007, which in large part codified past practice. While there is an expectation that CITES Resolutions will be implemented, they are non-binding. The Resolution on compliance contains “non legally-binding” guidelines to inform the parties and various bodies on compliance-related tasks and, in particular, assist parties in meeting their obligations regarding such compliance. Parties have accepted these guidelines but their effectiveness relies largely upon ongoing goodwill and parties’ willingness to comply.

Compliance Resolution objective

The Resolution’s objective is to achieve compliance with CITES obligations, taking a supportive and non-adversarial approach. It includes a wide range of compliance measures, including requesting special reporting and compliance action plans, with the measure of last resort being to sanction a party by recommending the suspension of commercial or all trade in specimens of one or more CITES-listed species. Former Secretariat staff say the depositary government, Switzerland, often questioned the legal basis for such sanctions.

CITES and WTO

Could such trade-related sanctions interfere with the objective of liberalizing international trade under the World Trade Organization (WTO)? Over the 50 years since CITES was signed, there has never been a WTO dispute directly challenging a CITES compliance measure. However, there have been threats of doing so.

CITES compared to UNFCCC/Paris Agreement

The UN climate treaties provide an interesting parallel. While the UNFCCC’s Article 13 calls upon parties to establish a multilateral consultative process for the resolution of questions regarding implementation, parties never resolved to do so.

The Paris Agreement is the most recent and most comprehensive of the UN climate treaties. Its Article 15 establishes an implementation and compliance committee. The Committee’s modalities and procedures prescribe that it shall function in a facilitative, non-punitive manner, with the primary aim to support and enhance parties’ capacity to implement and comply with the provisions of the Agreement. In cases of non-compliance with core legal obligations, i.e. communication of mandatory information, however, the Committee can resort to an array of compliance measures.

For example, it may recommend to the party concerned the development of a compliance action plan, or – as a last resort – may publicly issue findings of facts in relation to compliance matters of individual parties. This is further defined in the Rules of Procedure for the Committee. While no trade sanctions are foreseen, it is expected that the reputational impact of the available measures may induce parties’ compliance.

How has CITES applied its compliance procedures

The CITES Standing Committee is the de facto compliance body. Currently 31 recommendations to suspend trade are in place, all for developing states, including on the basis of annual reports, national legislation, and significant trade. Application of these measures is inconsistent and has not achieved universal compliance. For example, close to 50% of parties still do not have legislation that fully meets the requirements of the Convention.

It has, however, advanced compliance much faster than would otherwise have been the case and it is something parties take seriously, in part due to the threat of sanctions, as well as reputational impact. However, with the Standing Committee agenda growing exponentially over the past decade, it has insufficient time to adequately address compliance issues.

CITES has created a Compliance Assistance Programme, with a recent analysis showing a preference for more support than sanctions. However, trade suspensions are often threatened, sometimes in an arbitrary manner, which may rebound on the Convention.

Looking ahead to the next 50 years

Given the commercial value of certain species brought under CITES trade controls, including shark and timber species, it is likely that parties will more robustly contest compliance measures, especially sanctions. While a dispute has never been taken to the WTO, we anticipate a party may test a CITES sanction though the WTO.

CITES parties might find it prudent to establish either a separate compliance committee or a subcommittee under the Standing Committee so parties can address compliance issues in a more thorough, consistent, and transparent manner.

Maintaining support amongst CITES parties will require compliance measures to be applied judiciously and in a manner that is fair, equitable, and proportionate.

Dr. Christina Voigt is Professor of Law, University of Oslo, Department of Law; Chair of the IUCN World Commission on Environmental Law; and Co-Chair of the Paris Agreement Implementation and Compliance Committee.

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.

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.