EXECUTIVE SUMMARY
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) will address the growing threat from illegal trade at its forthcoming Conference of the Parties (CoP17). CITES is a regulatory treaty that is neither self-executing nor legally binding unless its provisions are reproduced in member states’ laws. Approximately half the parties still need to develop legislation to strengthen their implementation of the convention; 10 of the 17 parties designated by the CITES Secretariat as needing priority attention are in Africa. There is thus opportunity to harmonise legal frameworks for more effective CITES implementation. While parties improve their environmental laws, the secretariat can foster transregional consensus on trade controls, improve synergy with other conventions in the context of environmental crime, prioritise support to CITES scientific and management authorities in high- biodiversity countries, especially those subject to trade suspensions for non-compliance, and recommend raising penalties for illegal transactions in wildlife commodities known to finance conflict.
INTRODUCTION
Illegal wildlife trade is depriving nations of their biodiversity, income opportunities and natural heritage and capital. This trade is enormous in volume and scope, absorbing a broad range of plants and animals and their parts and derivatives, including timber, charcoal, corals, orchids, shark fins, seal skins and pangolin scales; live animals, from pythons to parrots to great apes; and parts of iconic megafauna, such as elephant ivory and rhino horn. The recently documented rise in wildlife crime calls for the scaled-up integration of existing global biodiversity-related regulatory frameworks and co-ordinated transregional responses. The establishment of CITES was originally motivated by a need to control illegal trade in wildlife.1 Today the convention regulates the international trade in over 35 000 wild species of plants and animals between its 182 member states. In the lead-up to CoP17 South Africa, the host of CoP17, has called upon the CITES Secretariat to provide ‘further guidance to CITES parties relating to co-operation and collaboration on matters that relate to illegal trade in wildlife within the scope of the Convention’, as well as improved uniformity in implementing the convention.2 South Africa has also welcomed the development of an African Common Strategy on Combating Illegal Trade in Wild Fauna and Flora,3 laid out in 2015 by the AU to consolidate efforts and establish a common position on combating illegal trade.
CITES is the premier and best-known conservation convention,4 even though by design its focus is not on species protection per se but on promoting controlled trade that is not detrimental to wild species.5 Because other multilateral environmental agreements (MEAs) do not regulate trade and consumptive use of species across international borders, they have not been emphasised as tools to manage wildlife crime to the same extent as CITES.
In this briefing, an overview of the existing mechanisms CITES uses to address and combat illegal trade is given followed by a set of recommendations ahead of CITES CoP17, which will provide parties with an opportunity to reach improved consensus on tackling illegal wildlife trade.6 CoP17 will convene for the first time in Africa since CoP11 met in Nairobi in 2000, before illegal trade escalated to become one of the primary threats to wild species.
EXISTING CITES FRAMEWORK
CITES is an international convention and regulatory framework that gives producer and consumer countries responsibility for ecological sustainability. The convention works primarily through a system of classification and licensing. Wild species are categorised in Appendices I to III – often reflecting species’ threat status on the Red List of the International Union for Conservation of Nature – and a permitting system is instituted appropriate to each level of threat. International trade in Appendix I species is prohibited with few exceptions (for example scientific/ educational), for which both exporters and importers must issue permits. Species listed under Appendices II and III can be traded with fewer restrictions, with the former requiring export but no import permits (unless the importing country requires an import permit by national law)7 while a certificate of origin may suffice for Appendix III species. Shipments are accepted or refused by the receiving party on the basis of permit validity and other importer-specified criteria at port. The importer must verify the export permit and thoroughly inspect the contents of the shipment to ensure that it contains what is licensed and that the species involved has been correctly identified.8
National CITES management authorities issue permits once scientific authorities show non-detriment findings (NDFs)9 – evidencing that a species will not be harmed by trade – and legal acquisition can be demonstrated (NDFs are not required for Appendix III species but evidence that they were legally acquired is).10 Where NDFs are lacking because of deficiencies in data (for example species distributions or population size), caution should ideally be exercised to avoid overexploitation, which could compromise a species’ role in its ecosystem or threaten its survival in the wild. While guidelines for conducting NDFs now exist (as of 2014), these are non-binding.11 One of these guidelines – which should be compulsory – proposes that the CITES scientific authorities take both legal and illegal trade into account when considering species’ vulnerability to further trade.
In addition to permits, there are other mechanisms by which CITES stipulates control of illegal activity: 1) clear marking of specimens in ways that make imitation difficult and traceability possible; 2) certificates attesting to the source of specimens (for example a captive-breeding facility); 3) adaptive adjustment of export quotas; and 4) seizures of specimens when permits are invalid, fraudulent or suspect. The power to seize questionable shipments is important as, once confiscated, items are removed from circulation (assuming that, if seized, they are dealt with in line with CITES provisions and not stored or stockpiled, risking theft or death in the case of live specimens). Of course there are numerous ways to circumvent all of these measures, by, for example, forging permits or laundering wild-caught species through captive-breeding facilities – increasingly done in the case of live reptiles.12
The CITES Secretariat may recommend suspending trade in instances of non- compliance, including where countries fail to introduce legislation necessary for implementing CITES. Such suspensions most often involve countries that struggle with implementation because they are under-resourced or are coping with internal conflict (the Democratic Republic of Congo (DRC) being an example). At the 66th meeting of the CITES standing committee, 27 countries were dealt trade suspensions13 – 16 of them in Africa. Whether the secretariat’s recommendations to suspend trade are implemented depends on each individual CITES party’s implementation14 through, for example, refusal of imports of particular or all CITES-listed species from countries with suspensions. Ideally, trade data would be carefully monitored by the World Conservation Monitoring Centre (a specialist arm of the UN Environment Programme (UNEP)) – which manages the CITES trade database under contract with the secretariat – to evaluate parties’ enforcement of recommended suspensions. Such monitoring would help spur countries into action to improve compliance.
CITES representatives may also resort to the complete cessation of international trade in specific species through trade bans or moratoria and the transfer of species to Appendix I. In other words, species can be rendered ‘off-limits’, making all trade in them illegal. Famously, this was done in 1977 and 1989 when international trade in rhino horn and elephant ivory respectively was banned. However, after a reprieve, these species were split-listed between CITES Appendices I and II at regional levels to allow sales of stockpiled ivory, live trade and trophy hunts (notably in Southern Africa).
Split-listing of species across multiple appendices and the persistence of domestic trade can undermine or evade CITES trade bans. For example, the prohibition of trade in ivory at the international level was followed by decades of continued domestic trade until only recently, with domestic ivory markets being shut down in major consumer countries including China, the US and members of the EU. Although CITES does not regulate domestic trade, parties may be ‘urged’ to restrict and penalise internal trade in products banned internationally (as happened for rhinoceros: CITES Res. 6.10 was later replaced by 9.14).
CITES Article XIV encourages domestic legislation to be more stringent – not more lax – than CITES provisions. Ideally, this stringency applies as much to re-exports of non-native species by transit and consumer countries as to exports of native ones by source countries.16 Source countries often integrate domestic measures into their existing wildlife or endangered species legislation,17 prohibiting trade in wild species without permits or trade transactions that contravene the convention. The CITES Secretariat’s ‘encouragement’ of parties to enact implementing legislation has, however, proven ineffectual over the lifespan of the convention. UNEP and the CITES Secretariat collaboratively established the CITES National Legislation Project in 1992, and the secretariat provided legislative checklists and a template for CITES-specific domestic legislation called the Model Law. Despite these efforts, 50% of CITES signatories still lack national laws for effective and enforceable implementation of the convention (see Figure 1 for implementation rankings and compliance in Africa). At the 66th meeting of the CITES Standing Committee in January 2016, the secretariat showed tenacity by recommending that all commercial trade be suspended with three countries – Guinea-Bissau, Liberia and Venezuela – for their failure to adopt such legislation.
Meanwhile, UNEP currently estimates that environmental crime is rising by 5%–7% annually.18 Given the growing scale of illegal trade, can CITES adapt itself to changing circumstances? How can this be done while the CITES Secretariat ‘waits’ for member states to adopt national implementation laws and control domestic trade?
SYNERGY WITH OTHER MEAs AND ECO-CERTIFICATION SCHEMES
CITES alone cannot effectively tackle the illegal wildlife trade. Controlling illegal wildlife trade will require successful and scaled-up collaboration between CITES representatives and a range of intergovernmental agencies. In 2013 at CITES CoP16,19 the process of harmonising CITES with other biodiversity-related conventions became a resolution and features on the agenda for the upcoming CoP17. Agenda item 14, ‘Cooperation with other organizations and MEAs’,20 includes the International Consortium on Combating Wildlife Crime, which is being asked to increase its support to CITES parties, including combating heavy poaching of rhinoceros.21 Furthermore, in documents submitted ahead of the CoP, South Africa is urging CITES to collaborate more closely with the UN Office on Drugs and Crime (UNODC), while the EU and Senegal are suggesting that CITES parties ratify the UN Convention against Transnational Organized Crime and the UN Convention against Corruption (UNCAC) if they have not already done so.
Many CITES-listed species are the focus of MEAs other than CITES and, where national CITES implementation laws may be lacking, the success of the convention can be reinforced through synergy with these other agreements. Such conventions may also have national laws associated with them, be more legally binding and address a wider range of threats to species. The Convention on Biological Diversity (CBD) is one such MEA. While links between the CBD and CITES were formalised in a memorandum of understanding (MoU) signed as long ago as 1996, the CBD still needs to consider risks posed to species by commercial trade and could do so at the next CBD CoP in December 2016.23 This year (2016) may therefore be an opportune time to revisit and update the CITES–CBD MoU to cement co-operation between the two conventions in the context of illegal and unsustainable trade as a growing threat to biodiversity.
Further synergy is embodied in a recent meeting between representatives of CITES and the Convention on the Conservation of Migratory Species of Wild Animals (CMS) to discuss the conservation of African lions.24 These two conventions are complementary in that both deal with the transboundary movement of species: while CITES regulates trade in these species, CMS protects their migration and habitats. Drawing on multiple conventions could help strengthen CITES implementation by bringing together actors with distinct yet inter-connected agendas (such as species trade and species migration), reducing the chances of duplication of effort and the burden of monitoring and evaluation, reporting, manpower and costs. Ahead of CoP17, lions are being proposed for listing on CITES Appendix I, while they are to remain on the CMS Appendix II.25 Where appropriate, making listings consistent across separate but complementary conventions would harmonise conservation efforts, encourage the use of consistent nomenclature, and help establish consensus on levels of threats and their sources.26 Markedly, nine African countries are not yet party to CMS, including Botswana, the Central African Republic, Lesotho, Malawi, Namibia, Sierra Leone, Sudan, South Sudan and Zambia,27 even though many of them harbour important populations of migratory species.
Improving co-operation between CITES and these and other MEAs is integral to building consensus as the AU Commission develops an African Common Strategy on Combating Illegal Trade in Wild Fauna and Flora.28 This strategy will need to include concrete mechanisms for improving the participation and compliance of African countries with a range of relevant MEAs; CITES provisions and recommendations are more likely to be successfully implemented if specific ‘trans- MEA’ actions are integrated into the African Common Strategy.
Co-ordination of MEAs needs to enhance overall delivery and not undermine each individual agreement by, for instance, subsuming CITES reporting into an overall biodiversity report that loses specificity, or using the CBD or recently adopted Sustainable Development Goals to promote consumptive use under CITES. In other words, potential conflicts of interest between agreements and varying definitions of what constitutes ‘sustainable use’ will need to be duly moderated – via external oversight – if co-operation between conventions is to yield net benefits for biodiversity. By collaborating with bodies that emphasise non-consumptive use, for example the UN World Tourism Organization, which has recently evaluated the economic importance of wildlife-watching tourism,29 CITES could ensure its trade regulation does not increasingly impinge on non-consumptive uses of wild species.
Furthermore, to promote good practices and ensure that supply chains of legal and sustainably obtained products are secure, CITES can foster linkages with fair trade or ecolabels and certification schemes. Two of these have already been evaluated in the context of CITES, namely the Marine Aquarium Council,30 which tracks tropical fish from trader to tank, and the Forest Stewardship Council (FSC),31 which certifies timber. Issues of traded species can also be included within the spatial and thematic safeguards of national REDD+ (Reducing Emissions from Deforestation and Forest Degradation) programmes, reducing forest degradation from illegal logging through CITES–FSC–REDD+ integration, thus helping overcome some of the shortcomings of each of these.
STRENGTHENING TRANSREGIONAl CONSENSUS
Effecting regional-level decisions more widely will acknowledge wildlife crime as a serious offense. To achieve this, the CITES Secretariat must be ready to propose the adoption of stricter measures at the convention level, where these are agreed at broad scales: the majority of countries on a continent, the majority of a species’ range states, or multiple regional economic communities. Encouragement of such consensus with majority views would improve outcomes, as trade banned in one or more regions would not simply be displaced elsewhere, shifting markets to possibly less well-patrolled, well-monitored or well-resourced areas with poorer governance. For example, 29 African countries have united in proposing a comprehensive ban on ivory trade and restrictions on live elephant exports. This total ban is being advocated by 70% of African elephant range states – known as the African Elephant Coalition. However, three elephant range states, namely South Africa, Namibia and Zimbabwe, have opted not to join this coalition. They are countering its proposal to ban trade by encouraging the acceptance of the ivory trade through a decision- making mechanism (not unlike that formed in the early 1990s, the Southern African Centre for Ivory Marketing). The secretariat’s support of majority views in such controversial instances is integral to stepping up the convention’s role in combating illegal trade. Reaching and adopting consensus views on illegal wildlife trade matters is necessary for improved co-ordination, and should not be viewed as an imposition or interpreted as a discounting of either sovereignty or the varied conservation approaches that exist across Africa.
That 50% of CITES parties (88 countries and 13 dependent territories) have yet to fully legislate to implement the convention is an opportunity to harmonise legislation, as well as to draw on the experiences of the other half of CITES member states. Discussions of national laws during CITES standing committee meetings and CoPs could be more effectively moderated to allow countries with model laws to share outcomes. One example is the American Lacey Act (1900), which gives the US a legal basis for refusing imports where these contravene foreign laws, for example the import of hard corals from Mozambique if their removal is illegal in Mozambique. As laws can eventually translate into norms over time, a ‘Lacey Act for all’ could greatly aid demand-reduction efforts. Of course, its effectiveness depends on staying informed of other parties’ conservation and trade legislation. One available reference tool is the database Ecolex,32 which contains treaties, CoP decisions, court decisions, legislation and relevant literature. Another, specific to Africa, is the Legal Regional Library33 maintained by The Last Great Ape Organization (LAGA) in Cameroon.
Lastly, consistency on benchmark penalties could be aided by the secretariat in conjunction with the UNODC and other relevant bodies. Penalties would ideally be set higher in cases of products demonstrated to finance conflict (for example charcoal, timber and ivory), raising the accountability of individuals and corporations involved in such trade.
BOOSTING CAPACITY AND PARTICIPATION OF SCIENTIFIC AUTHORITIES IN HIGH-BIODIVERSITY COUNTRIES
National authorities endowed with specialist knowledge drive the successful implementation of the CITES convention. Unfortunately, African biodiversity scientists and specialists are under-resourced compared with those in Europe and North America. While collaboration and consensus-building as described above can ease the burden of the CITES process on developing country representatives and scientific authorities, further support is still required.
Systems for the continued financing of scientific and management authorities, particularly in developing countries, must be more openly discussed at CoP17, prioritising countries currently facing trade suspensions. To this end, at least some funding responsibility must lie with major consumer states, whose support should facilitate training to scientific authorities in source countries. For example, South Africa could provide technical assistance to the DRC, which has recently had to place a moratorium on trade in African grey parrots, which South Africa has imported in vast numbers (accounting for up to 74% of all DRC exports and importing more than the entire CITES export quota for the DRC in some years).
Building the capacity not only of CITES scientific and management authorities but also of conservation scientists and national conservation NGOs in high-biodiversity developing nations will improve the evidence base of NDFs and the governance of trade in CITES-listed species. But the CITES Secretariat must also ensure that parties institute legislation that makes their scientific authority’s recommendations binding on management authorities (in other words, scientific authorities must not be subordinate to management authorities). Furthermore, a clear mechanism must exist – perhaps established jointly with UNCAC – to impartially audit the activities of CITES authorities, especially where there is suspicion of corruption or collusion with illegal wildlife trade players and syndicates. At present, the CITES Secretariat oversees some limited investigations (under implementation of Article XIII) with two ongoing ones focused on the DRC and Lao PDR.
Finally, analyses of existing CITES datasets – for example elephant poaching data from the CITES programme Monitoring the Illegal Killing of Elephants and law enforcement data on ivory seizures from the Elephant Trade Information System – need to be more open to inputs from a wider range of independent scientists, especially those from and based in species range states, where perspectives are sensitive to the realities on the ground.
CONCLUSION
While CITES was set up to regulate trade rather than control crime, it has various mechanisms by which its implementing authorities can ensure that the existing global trade in wildlife is legal and non-detrimental to biodiversity. National laws that enforce CITES provisions and recommendations are crucial to the future of the convention. Parties need to engage with compliance, specifically by being open to examples from national legislation elsewhere that demonstrates efficacy and best practice. CITES parties must also be encouraged to harmonise their legislation, and set higher penalties for illegal trade in wildlife commodities known to finance conflict. The CITES Secretariat can oversee this harmonisation and, where appropriate, encourage trade controls to be adopted more uniformly to combat illegal wildlife trade and raise the profile of environmental crime. The secretariat can further draw on complementarity and develop partnerships with other conventions and eco-certification systems. The UN World Tourism Organization could advise CITES on how to better implement controls on trade so trade does not conflict with non-consumptive uses. In Africa, the secretariat can help bolster the AU Commission’s plan to develop and implement a co-ordinated strategy to combat illegal wildlife trade by fostering transregional consensus that coheres with regional approaches and local needs without opposing majority views. The success of implementing CITES also hinges on collaboration between scientific authorities in high-biodiversity countries. This collaboration should be prioritised, funded and enabled by major wildlife consumer states.
Katarzyna Nowak is a Research Associate in Zoology and Entomology at the University of the Free State, Qwaqwa, South Africa.