The most recent meeting of the CITES Standing Committee, held in Geneva, Switzerland, in November 2023, considered a number of compliance matters and it showed, once again, the significant value of having a robust compliance process.
It also raised serious questions within the Committee, and amongst observers, of due process, interpretation, and procedural fairness – issues that have been brewing for some time.
By John E Scanlon AO, President, Scanlon Advisory LLC
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) compliance processes and compliance measures are viewed favorably, especially when compared to those of other multilateral environmental agreements (MEAs), which often have no such process or, where they do, rely on collective assessments of progress and reputational repercussions. It is a strength of CITES and has led to it being referred to as a Convention that ‘has teeth,’ namely having an ability to hold its parties accountable for meeting the obligations they voluntarily agreed to adhere to when they joined the Convention. This distinguishes CITES from most other MEAs.
The most recent meeting of the CITES Standing Committee (SC77), held in Geneva, Switzerland, in November 2023, considered a number of compliance matters and it showed, once again, the significant value of having a robust compliance process. For reasons explored below, it also raised serious questions within the Committee, and amongst observers, of due process, interpretation, and procedural fairness – issues that have been brewing for some time.
Interestingly, Standing Committee members and observers also expressed differing views on whether CITES compliance measures apply to the implementation of resolutions, in addition to the legally binding obligations found in the Convention text itself. This is a fundamental issue to be resolved.
Experience shows that CITES compliance processes work best when they follow an open, transparent, consistent, and logical process, based upon reliable and predictable procedure and precedent, rather than being akin to a game of chance.
Legal foundation for compliance
Articles VIII and IX of 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 legal obligations is crucial for the effective implementation of the Convention. Detailed guidance on how some of these core obligations can be met has been elaborated by resolutions, such as for annual reports.
There is no compliance mechanism under the Convention. Rather, Article XIII on ‘International Measures’ empowers the Secretariat to raise compliance issues with the individual parties concerned and with the Conference of the Parties (CoP), which “may make whatever recommendations it deems appropriate.” The Convention uses the word “recommendations,” and it is silent on the consequences of a failure to adhere to such recommendations.
Article XIII doesn’t provide any clear guidance on how it is to be implemented. To fill this gap, CITES parties first adopted compliance procedures in Resolution Conf. 14.3 in 2007, which in large part codified past practice, and which has been amended several times since its first adoption, most recently at CoP19. This compliance resolution, and more importantly, its application, have evolved over time in a manner that may be drifting away from the text of the Convention, potentially to its detriment.
The resolution on compliance contains what are described as “non-legally binding” guidelines to inform the parties and various bodies on compliance-related tasks and, in particular, to assist parties in meeting their obligations regarding such compliance. Parties have noted these guidelines, but their effectiveness relies largely upon goodwill and on parties’ willingness to comply.
While there is an expectation that CITES resolutions will be implemented, they are non-binding, although some parties have taken the view that they are nonetheless subject to compliance processes. (Decisions and resolutions adopted by a CoP that are directed to the CITES Secretariat and the three Committees established by the CoP are binding on those entities.) To an extent, this viewpoint was tacitly accepted through decisions and resolutions adopted on the National Ivory Action Plan (NIAP) process, including through amendments to paragraph 30 of the resolution on compliance. The language of paragraph 30 states that a recommendation “is always specifically and explicitly based on the Convention”, but goes on to say “and on any applicable Resolutions and Decisions of the Conference of the Parties.” Paragraph 30 is footnoted to list those resolutions that are “applicable”; this growing list is where the compliance process creates the potential for deviating from the strict requirements of the Convention.
The NIAP process was first developed in response to the surge in illegal killing of elephants and the trafficking of elephant ivory in the early 2010s. The urgency of the situation led the Standing Committee to take unprecedented measures in relation to the NIAP process, including recommendations to suspend trade, although several parties took issue with the process.
Over time, consistent practice in how compliance issues are dealt with by the parties, coupled with a belief in a legal obligation, could lead to the emergence of customary international law, notwithstanding the absence of specific provisions in the Convention text. In this context, it is worth noting that recommendations to suspend trade can be traced back to CITES CoP5.
Compliance resolution objective
The objective of the resolution on compliance is to achieve compliance with CITES “obligations,” taking a “supportive and non-adversarial approach.” It includes a wide range of compliance measures, setting out a stepwise process. Measures include 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” with the sanctioned party.
The supportive, stepwise, and escalating process described in the resolution seems to be increasingly ignored in compliance considerations in favor of moving more swiftly toward trade sanctions. This was not the intention of the resolution, and proceeding down this path may present some fundamental, yet avoidable, risks to its future success.
While parties are expected to apply recommendations to suspend trade with non-compliant countries, nothing in the Convention text obliges them to do so, and questions about the legal basis for trade suspensions have been raised in the past, and will continue to be raised.
Compliance matters at CITES SC77
The CITES Secretariat raised a number of compliance issues at SC77 in November 2023, largely based on compliance missions conducted by Secretariat staff.
Questions from the Standing Committee and observer parties raised serious questions regarding many issues, including: the basis for drawing some matters to the Committee’s attention; the accuracy or lack of clarity regarding certain alleged ‘findings of fact’ by the Secretariat; an absence of due process; interpretation of provisions of the Convention; and proportionality of proposed actions.
Some parties and observers reminded the Committee of the difference between compliance under the Convention, and national enforcement, and the role of a court of law, as compared to an MEA compliance process. This was particularly noted in cases where a Management Authority is interpreting provisions of the Convention in fulfilling its mandated role.
Issues of differing interpretation, where differences are reasonable, should rarely be a compliance matter, though they may be challenged though judicial review at the national level. Differences between parties with respect to the interpretation or application of the provisions of CITES can be resolved through the process outlined in Article XVIII.
Some compliance issues of great importance were raised at SC77, including around the legality of the origin of breeding stock in the EU for animals bred in captivity for trade. However, because of the manner in which these matters were presented, important issues tended to get caught up in broader policy and interpretation discussions, many of which remained unresolved.
Other matters, such as with the UK and peregrine falcons, and the import of live Asian elephants in China, which it had voluntarily stopped in 2019, were brought to the Standing Committee in a manner inconsistent with past practice. As the Earth Negotiations Bulletin (ENB) observed in its summary report on the meeting, “[t]he case brought forward against the UK left many especially puzzled, as Peregrine falcons, of which the UK is a range state, are considered a species of ’least concern’ on the IUCN Red List.” Both items absorbed a considerable amount of the Committee’s time and had the potential to take the Committee further away from the intent of the resolution on compliance.
The Secretariat plays an important role in the treatment of compliance matters. It has the authority to draw matters directly to the attention of the Standing Committee (and the CoP). The Secretariat is also responsible for ensuring that it presents matters in a clear, consistent, and logical manner, aligned with the Convention and the resolution on compliance, so as to facilitate a well-structured discussion amongst parties.
Parties to CITES have determined that compliance is first and foremost about taking a “supportive and non-adversarial approach.” Such an approach benefits from having matters presented in a way that fosters goodwill amongst parties and between parties and the Secretariat.
Concerns over due process and ‘findings of fact’ do not facilitate this approach, as evidenced at SC77. It may be helpful for the parties to now provide more direction and guidance to the Secretariat regarding fulfilling its role under Article XIII.
The compliance process under CITES requires its parties to be willing to be regulated. If parties increasingly take the view that the process is not based on a “supportive and non-adversarial approach,” they may also increasingly refuse to cooperate in the manner they have to date, including by deciding not to invite the Secretariat on compliance missions and to explore other alternatives, which may present another set of implications for the effectiveness of the compliance process.
Compliance with the Convention text or with resolutions?
In its summary report mentioned above, ENB made the following observations:
“A key point is that SC77 showcased the diverging interpretations of what compliance is to be assessed against. Canada and China championed a narrow view, whereby compliance is assessed against obligations related to the articles of the Convention, not expectations contained in non-legally binding resolutions and decisions. Many others opposed this interpretation, underscoring that the implementation of resolutions and decisions is crucial for the effective implementation of the Convention. …
The reason this divergence in interpretation kept resurfacing was that many found that the cases presented at SC77 lacked clarity. Many parties underscored it was difficult for them to follow the Secretariat’s rationale for identifying cases of non-compliance, prompting them to request clarifications as to what CITES provisions are not being met. They also questioned the basis upon which the Secretariat decided to bring specific cases to the SC’s attention.”
Everyone wants to see the Convention, as well as its resolutions and decisions adhered to. However, there is a difference between what a party agrees to be legally bound by, and what is not legally binding. From a legal perspective, Canada and China are, in my view, correct.
This viewpoint still provides considerable scope for compliance matters to come to the Committee, including on the legality of breeding stock, with resolutions providing helpful guidance to parties in advancing a common understanding of articles of the Convention. However, any compliance issue must first and foremost be explicitly based on the obligations set out in the Convention.
Voting and reservations
In considering what is binding and what is not, one also needs to look at the manner in which decisions and resolutions are adopted. CITES specifically provides for voting in the text of the Convention itself. Voting has, overall, been a strength of the Convention, both at CoPs and in its committees, including when considering compliance and implementation issues.
While CITES allows for voting, it also allows, as a sort of quid pro quo, an opportunity to enter a reservation with regard to amendments to the Appendices, which is where species are listed. The Appendices form a part of the Convention and are legally binding. By entering a reservation with regard to a species (or an amendment), the party is treated as a non-party with respect to trade in that species.
However, there is no such provision for entering a reservation with regard to decisions or resolutions adopted at a CoP, as they are not legally binding. Zimbabwe brought this issue to light with their protest on the adoption of a revision to Resolution Conf. 11.20 on the definition of the term ‘appropriate and acceptable destinations’ at CoP18, in Geneva. In order to express their disagreement, Zimbabwe sent a message to the Depositary Government, which can be read as a reservation of sorts, making clear that it will not implement this resolution.
How have CITES parties applied its compliance procedures?
The CITES Standing Committee is the de facto compliance body. Currently (January 2024) over 30 recommendations to suspend trade are in place, including on the basis of failure to submit annual reports, failure to adopt national legislation, and failure to regulate significant levels of trade.
Application of the compliance process by CITES parties is inconsistent and it has not achieved universal compliance with obligations under the Convention. It has, however, advanced implementation of the Convention 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, which was clearly evident at SC77, where compliance discussions took up a fair part of the week, and the Committee had to agree to drop consideration of approximately 20 other agenda items.
The resolution on compliance obliges the CITES Secretariat to advise and assist parties in complying with obligations under the Convention. At the direction of the parties at CoP19, the Secretariat created a Compliance Assistance Programme, with a recent analysis showing a preference for more support than sanctions.
Improving upon current CITES processes
CITES parties might now find it prudent to establish either a separate compliance committee or a subcommittee under the Standing Committee so that parties can address compliance issues in a more thorough, consistent, and transparent manner, thereby also enabling the Committee to fully address other matters that fall within its remit.
Parties may also wish to thoroughly re-examine Resolution Conf. 14.3 (Rev. CoP19) on CITES compliance procedures. It has been in place for nearly 17 years, yet its stepwise process seems to be increasingly ignored. Parties may wish to consider more carefully how Article XIII of the Convention could better be applied, including by providing better guidance to its Secretariat, based upon the articles of the Convention.
CITES and WTO
The question of whether trade-related sanctions could interfere with the objective of liberalizing international trade under the World Trade Organization (WTO) has been ‘on the table’ for many years. Yet, over the 50 years since CITES was signed, there has never been a WTO dispute directly challenging a CITES compliance measure, although it has been threatened.
Given the commercial value of certain species brought under CITES trade controls, including shark and timber species, it is probable that parties will more robustly contest compliance measures, especially sanctions, in the future. While a dispute has never been taken to the WTO, it is conceivable.
Maintaining support for CITES compliance procedures
A lack of a clear and consistent logic as to why a matter is being brought to the attention of the Standing Committee, applying compliance measures in an arbitrary manner – and with shifting goalposts, differing interpretations of the Convention and its resolutions, including on how resolutions align with the Convention’s obligations, and an absence of due process, may come to rebound on the Convention.
Maintaining support amongst CITES parties will require compliance measures to be applied judiciously and predictably, and in a manner that is fair, equitable, and proportionate. Parties, individually and collectively, and the Secretariat may wish to reflect upon the recent history of compliance matters, including what happened at SC77, and be proactive in ensuring that a great strength of CITES doesn’t start to unravel.
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The author would like to express his most sincere thanks to Carolina Caceres, Craig Hoover, Jonathan Barzdo, and Daniel Kachelriess for their insightful comments and suggestions on earlier drafts of this article. All opinions expressed herein are those of the author alone.