Discussion document on precautionary measures in CITES Resolution Conf. 9.24^*

Background

Annex 4 of Resolution Conf. 9.24 refers to precautionary measures to be taken into consideration or implemented when amending the appendices. The resolution also makes explicit reference to the precautionary principle, both in its preambular and operative parts:

"RECOGNIZING that by virtue of the precautionary principle, in cases of uncertainty, the Parties shall act in the best interest of the conservation of the species when considering proposals for amendment of Appendices I and II.

.....

RESOLVES that when considering any proposal to amend Appendix I or II the Parties shall apply the precautionary principle so that scientific uncertainty should not be used as a reason for failing to act in the best interest of conservation of the species."

Annex 4 of the resolution is devoted entirely to precautionary measures although no reference is made at all in this annex to the precautionary principle per se. It is divided into a paragraph of general precautionary measures (Paragraph A), a series of paragraphs concerning specific precautionary measures when species are transferred from Appendix I to Appendix II (Paragraphs B-D) and a paragraph concerning possibly extinct Appendix-I species (Paragraph E). General precautionary measures, specific measures and the process of quota review are dealt with separately below.

I. General precautionary measures

Background

Paragraph A of Annex 4 of Resolution Conf. 9.24 states:

"When considering proposals to amend the appendices, the Parties shall, in the case of uncertainty, either as regards the status of a species or as regards the impact of trade on the conservation of a species, act in the best interest of the conservation of the species."

Discussion

Because of the similarity in wording between this and the paragraphs in Resolution Conf. 9.24 that explicitly refer to the precautionary principle, the intention of this is presumably to reinforce the precautionary principle as recognized under the Convention. As noted by Dickson (1999), the precautionary principle remains ill defined in international law, and can be understood in a number of different ways. To try to understand its intention in Resolution Conf. 9.24, three main questions need to be asked:

· When should this paragraph be invoked (ie. what is meant by cases of uncertainty)?

· What is meant by species (see split-listing above)

· What is the best interest of the conservation of the species?

1. When should it be invoked?

Because the effects of changes in the appendices will be manifested in the future, there is at a fundamental level always uncertainty as to the impact of such changes. This paragraph arguably, therefore, applies to all proposals. At this level, however, it amounts to little more than a general exhortation to implement the Convention in the spirit of its preambular section, notably as expressed in the first paragraph ("Recognizing that wild fauna and flora¼ are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come") and fourth paragraph ("Recognizing, in addition, that international co-operation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade).

It would appear that the paragraph is intended to have greater force than this, and is thus applicable where there is considerable uncertainty (usually manifested in widespread disagreement) concerning the impact of a proposal. Clearly, uncertainty in these cases potentially covers many different factors including:

· current knowledge of the status of the species concerned;

· the impact of the proposed change in listing on harvesting regimes;

· the impact on the wild population of any changes in harvest regimes;

· the impact of the change on any illegal trade;

· the impact of the change on international demand for the species;

· future changes in international demand, not necessarily connected with the proposed change in listing;

· future changes in management regimes in range States, brought about by the proposed change;

· other future changes in management regimes in range States;

· future changes in the status of the species caused by factors other than the proposed change in listing.

In all cases there will be more or less uncertainty over these and other factors. In terms of decisions "in the best interest of the conservation of the species", the important factor is not the amount of uncertainty over any given factor, but the risk associated with that uncertainty. "Risk" in this context essentially means the possibility that a given set of circumstances or actions might generate an outcome that is not in the best interest of the conservation of the species. A factor with a high degree of uncertainty may have little risk associated, while one with a relatively small amount of uncertainty may have a much higher risk.

It may be more helpful to deal with uncertainty rather through requiring proponents of changes to the appendices to make explicit the perceived risks associated with particular courses of action. Proponents could also be expected to provide the means by which the outcomes of different actions will be monitored and assessed, and the remedial measures that would be put in place were problems to emerge. Such an approach would allow the Conference of the Parties itself to determine, transparently and explicitly, what level of risk it was prepared to accept in a given case, and would also be confident that the outcome of its decisions would not be irreversible. An integral part of such an approach would be that the Conference of the Parties regularly revisits such decisions to determine itself whether it considers the outcome satisfactory or not.

This is addressed in further detail in the discussion paper on uncertainty, which should be read in conjunction with this section.

2. What is meant by species?

This is addressed in the discussion document on split-listing.

3. What is meant by "the best interest of the conservation of the species"?

This paragraph has been widely used to oppose lessening of restrictions on trade. That is, it is assumed in cases of uncertainty that the best interest of the conservation of the species will be served by retaining maximum protection under the Convention. (ie. When in doubt, do not permit trade).

However, a number of interpretations can be made that are different from this. Some argue that the best long-term interest of the conservation of a species is actively served by encouraging sustainable use so that local people may benefit from the species. This case has been forcefully put by the Southern African countries in their proposals concerning African elephants. These countries maintained that international trade was an important part in maximising returns from sustainable use of elephants and therefore acted to the advantage of their elephant populations as a whole, by providing incentives to maintain elephants and their habitat.

In Cuba, the conservation status of the Hawksbill turtle appears to have improved considerably with the reduction of the domestic harvest from ca 5000 per year in the period 1968-1990 to fewer than 500 in the late 1990s. At CoP 10 and CoP 11 the Cubans proposed a transfer of their population of Hawksbills from Appendix I to Appendix II to allow export of tortoiseshell from this small harvest, in order to obtain foreign exchange. It is possible that, having had the proposal rejected, the country may (entirely legally) increase its annual harvest of Hawksbills for domestic consumption to pre-1990 levels, in order to compensate for the benefits forgone in the absence of international trade. This change will clearly have a negative impact on the conservation status of the species.

It is also believed likely that in some cases transferring species from Appendix II to Appendix I, or including previously unlisted species in Appendix I, may act against the best interest of the conservation of the species concerned, even if it meets the criteria for inclusion in Appendix I. This applies most particularly to species in taxa that are of interest to hobbyists (eg. cacti and orchids amongst plants, and parrots and tortoises amongst animals). In such cases there is a risk that listing the species in Appendix I will attract the attention of traders and collectors, thereby increasing demand and the risk of illegal trade. This is explicitly recognized by the Parties in Resolution Conf. 9.18 (Rev.), concerning regulation of trade in plants.

Listing a species in Appendix I may also hamper trade in artificially propagated or captive-bred specimens, thereby lessening incentives to maintain populations under cultivation or in captivity and therefore not necessarily acting in the best interests of the species.

II. Specific precautionary measures

Background

Part B of Annex 4 of Resolution Conf. 9.24 sets out a series of specific conditions which must apply if a species is to be removed from Appendix I. These are:

"B.1 No species listed in Appendix I shall be removed from the appendices unless it has been first transferred to Appendix II, with monitoring of any impact of trade on the species for at least two intervals between meetings of the Conference of the Parties." [Paragraph B. 1.]

2 Species listed in Appendix I should only be considered for transfer to Appendix II if they do not satisfy the relevant criteria in Annex 1. Even if such species do not satisfy the relevant criteria in Annex 1, they should be retained in Appendix I unless they satisfy one of the following criteria:

a) the species is not in demand for international trade, nor is its transfer to Appendix II likely to stimulate trade in, or cause enforcement problems for, any other species included in Appendix I; or

b) the species is likely to be in demand for trade, but its management is such that the Conference of the Parties is satisfied with:

i) implementation by the range States of the requirements of the Convention, in particular Article IV; and

ii) appropriate enforcement controls and compliance with the requirements of the Convention; or

c) an integral part of the amendment proposal is an export quota approved by the Conference of the Parties, based on management measures described in the supporting statement of the amendment proposal, provide that effective enforcement controls are in place; or

d) an integral part of the amendment proposal is an export quota approved by the Conference of the Parties for a specified period of time, based on management measures described in the supporting statement of the amendment proposal, provided that effective enforcement controls are in place; or

e) a ranching proposal is submitted consistent with the applicable Resolutions of the Conference of the Parties and is approved."

Discussion

Removal from Appendix I of species not in demand for trade

Under the measures in B. 2. a), a species should be retained in Appendix I even if does not meet any of the biological or trade criteria for inclusion in Appendix I if its transfer to Appendix II is likely to stimulate trade in, or cause enforcement problems for, any other species included in Appendix I.

This provision appears to conflict with the definition of Appendix-I as set out in Article II of the Convention. Article II of the Convention makes provision for species to be included in Appendix II, rather than Appendix I, if they must be subject to regulation in order that trade in specimens of other species may be brought under effective control [Article II, paragraph 2(b)]. The other species referred to in Article II of the Convention are, however, those included in Appendix II rather than Appendix I.

It is unclear whether this provision uses species in the biological sense, or as defined in Article I of the Convention (see discussion document on split-listing).

Effective or appropriate enforcement controls

There are several references in Part B of Annex 4 of Resolution Conf. 9.24 to the necessity of the Parties’ being satisfied that "appropriate" [Paragraph 2.b)ii)] or "effective" [Paragraphs 2.c) and d)] enforcement controls are in place.

No qualifications or guidelines are provided for this. It is unclear, therefore, whether proponents are expected to demonstrate that enforcement is appropriate or effective in potential importing countries as well as exporting ones and other range States. In the case of proposals for entire species (in the biological sense), it may be argued that if appropriate or effective enforcement is demonstrated in all range States it is not necessary to demonstrate such controls in importing countries as the wild population be adequately protected by the former. In the case of proposals that would result in split-listings it is not evident that this is the case. It is argued that the opening of legal international trade routes through export of specimens from Appendix-II populations may make it easier for specimens from the remaining Appendix-I populations to enter (illegal) trade. The extent to which this should be addressed or not is discussed in the paper on split-listing.

In the absence of guidelines for assessing whether enforcement controls are appropriate or effective, this is presumably expected to be judged by the Conference of the Parties on a case-by-case basis.

Other restrictions on trade

The only specific restrictions on trade included in part B. 2. of Annex 4 of Resolution Conf. 9.24 are for export quotas, either for a specified period or with no specified period, or for a ranching proposal. In practice, the Parties have made use of a number of additional kinds of restrictions when considering transfer of species from Appendix I to Appendix II. These include:

· other forms of quota, including those covering specimens introduced from the sea, and re-export quotas;

· export only of products obtained through non-destructive harvesting (eg. Vicuña cloth produced from wool sheared from live animals);

· other restrictions on products (eg. annotation º604 on the African Elephant);

· imposition of conditions under which export of a specified product may be carried out (eg. Decisions 10.1 and 10.2 concerning export of ivory);

· specification of an importing country or countries (eg. Japan as the only designated recipient of ivory under annotation º604);

At present such restrictions appear to be developing on an ad hoc basis. Further guidance as to the kinds of restrictions allowed and the circumstances under which they may be appropriate would be helpful.

As well as restrictions on trade in species that are transferred from Appendix I to Appendix II, the Parties are increasingly imposing restrictions on species already in Appendix II as an alternative to transferring them to Appendix I when trade is perceived as a serious concern. For example, at CoP11 the Asiatic pangolins Manis spp. were proposed for transfer from Appendix II to Appendix I on the grounds that they met both the trade and biological criteria for Appendix-I listing. The Parties decided that while this might well be the case, the conservation of the species would be better served by maintaining them at present in Appendix II with a zero quota. Such a step forms an amendment to the appendices and may be considered a precautionary measure. There are currently no criteria or guidelines for assessing proposals to alter such restrictions in future.

III. Renewal of quotas

Background

Part D of Annex 4 of Resolution Conf. 9.24 sets out conditions for renewal of quotas:

"If the proponent Party wishes to renew, amend or delete a quota established pursuant to paragraph B 2.d above, it shall submit an appropriate proposal for consideration at the next meeting of the Conference of the Parties".

Paragraph B 2.d sets out one of the ways by which the precautionary measures entailed in transferring a species from Appendix I to Appendix II can be satisfied, namely by including in the proposal provision for an export quota for a specified period of time.

Discussion

There are no criteria established in Resolution Conf. 9.24 or elsewhere under the Convention for assessing any proposal for renewing, amending or deleting a quota. The most relevant existing criteria by which to judge such a proposal appear to be those in Annex 4, Paragraph B.2.c) & d) for the establishment of quotas following transfer from Appendix I to Appendix II. These are that the quota should be based on "management measures described in the supporting statement of the amendment proposal, provided that effective enforcement controls are in place".

If it is intended that these are the criteria to be used in assessment of a proposal to amend a quota, it would be helpful if these were made explicit.

General conclusions

Implementation of a number of the precautionary measures in Annex 4 of Resolution Conf. 9.24 is somewhat problematic. The general precautionary measure in Paragraph A. is open to a range of differing interpretations and provides no guidance as to when it might be applied, or what action might be appropriate under it. A more helpful form of guidance might be to request proponents of changes to the appendices to state explicitly what the risks are of various courses of action, how the outcomes of these actions are to be monitored and assessed, and what remedial measures will be undertaken if problems emerge. The Conference of the Parties itself would decide what level of risk it found acceptable, and would review the outcome of its decisions to ensure that any necessary remedial action is undertaken.

With regard to the more specific precautionary measures, a number that have already been adopted by the Conference of the Parties are not included in Annex 4 of Resolution Conf. 9.24. It might be helpful to include these, along with guidelines as to when and how they should be applied.

The precautionary measure in Paragraph B 2 a) (species not meeting either the trade or biological criteria for inclusion in Appendix I should still be retained in that appendix if their removal might cause problems for other Appendix-I listed species) appears to contradict the intention of the Convention in Article II, concerning species to be listed in each of the appendices. The Parties may wish to revise this measure.

No guidelines or criteria are provided for the imposition of restrictions on species already in Appendix II (such restrictions usually being imposed in lieu of a transfer to Appendix I), or for assessing a quota renewal proposal (Paragraph D. of Annex 4). The Parties may wish to consider providing these.

Reference

Dickson, B. 1999. The Precautionary Principle in CITES: A Critical Assessment. Natural Resources Journal 39: 211-228.