Getting on the list: Politics and procedural maneuvering in cites appendix I and II decisions for commercially exploited marine and timber species

AuthorMelissa Blue Sky
PositionJ.D. candidate, May 2011, at American University Washington College of Law
Pages35-40
SUSTAINABLE DEVELOPMENT LAW & POLICY35
GETTING ON THE LIST:
POLITICS AND PROCEDURAL MANEUVERING IN CITES APPENDIX I AND II
DECISIONS FOR COMMERCIALLY EXPLOITED MARINE AND TIMBER SPECIES
by Melissa Blue Sky*
*Melissa Blue Sky is a J.D. candidate, May 2011, at American University Wash-
ington College of Law.
INTRODUCTION
In this, the International Year of Biodiversity, the f‌ifteenth
Conference of the Parties (“COP-15”) of the Convention on
International Trade in Endangered Species of Wild Fauna
and Flora (“CITES” or “Convention”) will likely be remem-
bered most for those species that it failed to provide protection
for—the polar bear, coral, sharks, and most notably the blue-
f‌in tuna.1 International trade in wild species has been valued at
an estimated $240 billion annually and CITES seeks to ensure,
through international cooperation, that this trade does not unduly
threaten the survival of wild species.2 Despite increased consid-
eration of proposals to regulate trade in commercially valuable
species since CITES COP-12 in 2002, any past trends in their
acceptance are waning.3
Around eighty percent of the value of annual international
trade in wild fauna and f‌lora consists of trade in f‌isheries and
timber.4 That none of the six proposals to include marine spe-
cies, a number of which had been proposed for listing at prior
COPs, were ultimately accepted at COP-155 illustrates the
fundamental tension in listing decisions between parties who
believe that CITES should be part of the long-term sustainable
management of species and thos e who consider it a last resort
to prevent species extinction. Decisions on whether to provide
protection for commercially exploited species often have more
to do with economics than with science, underlining the inher-
ent challenge of the Convention: species that are in most need
of protection from trade are least likely to get listed because of
high levels of demand.
This article examines the opportunities and challenges
for protecting biodiversity of economically important spe-
cies through inclusion in CITES,6 f‌irst providing an overview
of CITES and its provisions for adding species to Appendices,
including the revised listing criteria and the new role of the
United Nations Food and Agriculture Organization (“FAO”) in
COP listing decisions. The next section will focus on COP-15
listing debates, procedural maneuvering, and votes, in the con-
text of scientif‌ic evidence and listing proposals for the Atlan-
tic bluef‌in tuna, several shark species, pink and red coral, and
two timber species. Proposals to increase the possibilities for
inclusion of commercially exploited species in CITES include
measures to strengthen the CITES Secretariat, build coalitions,
take livelihood concerns into consideration, amend the relation-
ship between CITES and FAO, and increase responsibilities for
importing countries. Finally, this article considers alternative
actions for protecting threatened species from overexploitation
through trade, such as through Regional Fisheries Management
Organizations (“RFMOs”) or enacting unilateral trade bans jus-
tif‌ied under Article XX of the General Agreement on Tariffs and
Trade (“GATT”).
OVERVIEW OF CITES AND LISTING CRITERIA
CITES regulates international trade in wild species, which
includes “export, re -export, import and intro duction from the
sea,” through permitting and certif‌ication.7 Based on an ini-
tial proposal from the International Union for Conservation of
Nature and signed by eighty countries in 1973, CITES currently
has 175 members.8 CITES was initially concerned with a small
subset of animals used in the fashion industry, such as leopards,
elephants, and alligators, but today covers the international trade
of over 5,000 animal and 28,000 plant species with myriad uses.9
Trade in wild fauna an d f‌lora is regulated for those spe-
cies included in CITES Appendices I, II, and III. Appendix I
includes “all species threatened with extinction which are or
may be affected by trade.”10 Trade in species listed in Appendix
I is prohibited, except under very limited circumstances for non-
commercial purposes.11 Species listed in Appendix II may either
be a species that while not currently threatened by trade, risks
becoming so if trade continues unregulated or a so-called “look
alike” species, which is included to ensure the effectiveness of
trade regulation for species listed in either Appendix I or II.12
Trade certif‌ication provisions for Appendix II species include
approval of an export permit by both importing and exporting
nations and a determination that the export of the species “will
not be detrimental to the survival of that species.”13 Appendix
III includes species that are regulated within the jurisdiction of a
country that needs international cooperation to control trade, and
contains limited permit requirements.14 Of the more than 33,000
species included in CITES, the majority are listed in Appendix
II, with less than three percent listed in Appendix I and less than
one percent in Appendix III.15
Member countries are required to designate a Management
Authority and Scientif‌ic Authority,16 whose responsibilities
include reviewing species and authorizing trade in species listed
in the Appendices.17 Parties are also responsible for enforc-
ing the regulations set forth in the Convention, but may make
36SPRING 2010
reservations with regard to specif‌ic species listed in Appendix
I, II, or III.18 Countries with reservations in the same listed spe-
cies may thus trade with one another or with non-parties to the
Convention and do not have to abide by CITES regulations for
that particular species.19
LISTING PROCEDURES
Species may be added to Appendix I or II either through an
aff‌irmative vote of two-thirds of all the members present and
voting at a COP, or between COPs by a two-thirds majority only
if votes are received from at least half of the parties.20 Absten-
tions are not counted in the determination of the two-thirds
majority.21 For consideration of a proposal at a COP the party
proposing the amendment must submit it to the CITES Secre-
tariat at least 150 days before the
meeting.22 The Secretariat must
consult with other parties and
interested bodies, provide the
text to the parties23 and, in the
case of marine species, consult
with relevant intergovernmental
organizations for all proposals.24
A party may ma ke uni lat-
eral additions to Appendix III by
notifying the CITES Secretariat
of the species subject to regula-
tion within the party’s jurisdic-
tion.25 A party may submit a
reservation for an Appendix III
species at any time.26 A listing
country may also withdraw a
species from Appendix III at any
time.27
LISTING CRITERIA
At COP-9 in 1994 CITES
members recommended that the
guidance for add ing species be
reviewed and revised before COP-12 in 2002.28 The listing crite-
ria used for proposals to COP-15 was again amended at the 12th,
13th, and 14th COPs.29
To be listed in Appendix I, a species must meet one of three
biological criteria to be considered threatened with extinction
for the purposes of CITES.30 The biological criteria are: a small
population; a limited geographic area of distribution; or a sig-
nif‌icant reduction in population, each of which must be coupled
with at least one additional factor that may contribute to decline
of the species.31
To be listed in Appendix II a species must either be in dan-
ger of meeting the criteria for inclusion in Appendix I if trade
is not regulated, or regulation of harvesting is needed to ensure
that the survival of the species is not threatened.32 In addition,
for the listing of “look alike” species in Appendix II, the traded
form must resemble an Appendix II listed species, be similar
enough to an Appendix I species that an enforcement off‌icer
would be “unlikely to be able to distinguish between them,” or
be otherwise necessary to regulate trade in a listed species.33
Moreover, the listing criteria notes that the conditions for
listing species in either Appendix I or II must be read in con-
junction with the def‌inition for “decline,” particularly with
regard to commercially exploited marine species.34 Def‌initions
are prefaced with a statement that numerical guidelines are illus-
trative, as no range will apply to all species.35 Nevertheless, for
a species to be considered in long-term decline the population
will generally be between f‌ive and thirty percent of the baseline,
and in the case of aquatic species the population will be between
f‌ive and twenty perce nt of the baseline.36 Decline can also be
measured by the recent rate of decline, which is a reductio n of
f‌ifty percent or more in the past ten years or three generations, or
a reduction of twenty percent or
more in the last f‌ive years or two
generations for species with low
productivity.37
ROLE OF FAO IN LISTING
Since COP-14 FAO has
played a major role in the listing
debates and decisions related to
aquatic species.38 Although the
Convention requires the Secre-
tariat to consult relevant inter-
governmental bodies for marine
species listing proposals,39 the
terms of the consultation with
FAO were expanded and for-
malized in a 2006 Memoran-
dum of Understanding (“MoU”)
between CITES and FAO.40 A
provision of the MoU specif‌i-
cally related to listing proposals
states that “the CITES Secre-
tariat will respect, to the greatest
extent possible, the results of the
FAO scientif‌ic and technical review of proposals to amend the
Appendices.”41
CITES and FAO expert panel listing recommendations con-
f‌licted on four of the seven marine species proposals at COP-14,
with many members disagreeing with FAO’s opposition to list-
ing coral and shark species.42 FAO also opposed listing a num-
ber of the proposed marine species at COP-15, as discussed in
more detail below.43 Moreover, parties at COP-15 applied FAO
recommendations inconsistently and did not follow any of the
FAO expert panel recommendations in favor of listing, indicat-
ing that politics may trump science in determining whether to
include a species in Appendix I or II.44
ANALYSIS OF COP-15 PROPOSALS, DEBATE,
AND LISTING DECISIONS
All marine species listing proposals at COP-15 were
rejected after contentious debate, but both timber species—rose-
wood and holy wood—were approved by consensus for listing
CITES was initially
concerned with a small
subset of animals used in
the fashion industry, such
as leopards, elephants,
and alligators, but today
covers the international
trade of over 5,000
animal and 28,000 plant
species with myriad uses.
37 SUSTAINABLE DEVELOPMENT LAW & POLICY
in Appendix II. In contrast, at recent COPs some marine spe-
cies have been listed, while a number of timber proposals have
met with considerable opposition. Commercially signif‌icant spe-
cies listed at COP-12 and COP-13 included seahorses, basking
whale and great white sharks, mahogany, and ramin.45 Out of
the eleven proposals on marine and timber at COP-14 only Bra-
zil wood, sawf‌ish, and eel species were listed.46
Forty-two Appendix I and II amendment proposals for spe-
cies were considered at COP-15, including downlisting of cer-
tain species, removal of certain species, and addition of species
to both Appendices.47 Although decisions on species ranging
from elephants to a newt are of
utmost importance in the realm
of biodiversity and international
trade, the scope of this article
includes only proposals to list
commercially exploited timber
and marine species, which were
either approved or rejected.
Arguments gaining traction
at COP-15 li sting debates—dis-
cussed in more detail in sections
below—include: parties ques-
tioning CITES jurisdiction, eco-
nomic and livelihood concerns,
and opinions of insuff‌icient or
f‌lawed scientif‌ic data.48
ATLANTIC BLUEFIN TUNA
Outside of CITES debates
there exists a near unanimous
agreement that the situation
of the Atlantic bluefin tuna
is dire.49 Commercial f‌is hing of the species only began in the
1970s,50 but the stocks have fallen to just f‌ifteen percent of their
total before f‌ishing began.51 Although around eighty percent
of the total bluef‌in tuna catch is consumed in Japan, European
and other Mediterranean countries harvest much of the Atlantic
bluef‌in.52
The International Commission for the Conservation of
Atlantic Tunas (“ICCAT”) has woefully mismanaged the Atlan-
tic bluef‌in tuna, setting total allowable catch (“TAC”) quotas
at levels that even its own scientists deemed unsustainable.53
Moreover, the problem of illegal, unregulated, and underre-
ported (“IUU”) f‌ishing and lack of enforcement by ICCAT led
to a total catch of nearly double the TAC in 2007.54
The rapid decline in the Atlantic bluef‌in tuna population has
been obvious for decades; Sweden initially proposed CITES list-
ing in 1992.55 The defeat of that proposal was accompanied by
claims that ICCAT management of the bluef‌in tuna stock would
improve, a promise echoed by those countries who worked to
defeat this year’s CITES Appendix I listing proposal.56 Although
ICCAT did reduce the TAC limits in 2009,57 even with a near
total ban population levels would still reach record lows in the
next few years.58
The proposal and amended proposal to add the Atlantic
bluef‌in tuna to Appendix I were both rejected despite recom-
mendations by FAO’s expert panel for approval.59 Even the
European Union, whose f‌ishing f‌leets would be among those
most effected, supported a modif‌ied version of the listing, which
would have delayed inclusion of the species until May 2011.60
Japan claimed to not oppose the listing on the grounds that it
would reduce sushi and sashimi consumption, but rather because
it would place a burden on coastal states and impair their sus-
tainable use of the species.61 Japan made this claim despite hav-
ing previously indicated that it would take a reservation if the
Atlantic bluef‌in tuna were added
to Appendix I and serving blue-
f‌in tuna sushi at the Japanese
embassy mere hours before the
vote.62 During the middle of
the debate on the listing pro-
posal, the delegate from Libya
screamed at other parties, called
everyone liars, and suggested
that politics had trumped science
in FAO’s recommendation for
listing, and called for an imme-
diate vote on the proposal.63 The
move was not surprising consid-
ering Libya’s f‌ishing f‌leets are
primary harvesters of the Atlan-
tic bluefin tuna and are sus-
pected of harvesting more than
their legal quota.64 Libya also
established “fishing conserva-
tion zone” in the Mediterranean
for exclusive use of one tuna ranching enterprise, which many
consider to be a violation of international law.65
After Libya requested a vote, the Chair directed parties to
f‌irst vote on whether to close the discussion.66 Although Libya
“called on the Chair to respect the Rules of Procedure and go
straight to a vote on the proposal” the Chair reiterated the need
to f‌irst address the issue of closing the discussion.67 Monaco
then requested a vote on adjournment of the session in an effort
to allow for further debate on the proposal and postpone the vote
until the plenary.68 Although CITES COP Rule of Procedure
18 states that motions to adjourn should be considered before
motions on closure of debate,69 the Chair determined that as
Libya’s motion had already begun that “he had no option but
to proceed.”70 The parties then voted to close the debate and
rejected both the amended and original proposals through votes
by a secret ballot.71 Even if Monaco had succeeded in adjourn-
ing discussion to allow for additional consideration over a
weekend,72 it is likely that the “coalition” put together by Japan
still would have defeated the proposal;73 however, Libya’s pro-
cedural maneuvering stopped debate in the only international
forum dedicated to consideration of trade in wild species.
Economic and
livelihood concerns
now play an important
role, either overtly or
covertly, in the decision
of whether to include
a species in a
CITES Appendix.
38SPRING 2010
SHARKS
Sharks are caught and traded for a number of reasons, with
sharkf‌in soup most notable among them. They are also often
captured as accidental bycatch in f‌ishing operations targeting
other species, which can complicate listing efforts, as the kill-
ings are not a direct result of trade in the species.
All four proposals to add shark species of “great com-
mercial value” to Appendix II were rejected,74 although they
received varying levels of support for listing during discussions,
with one listing initially accepted only to be overturned in the
plenary session two days later.75 China led the rejection of list-
ing proposals for sharks, as the world’s foremost consumer of
sharks, along with Japan, which opposes CITES listing for any
marine species.76
The proposal to list the scalloped hammerhead shark in
Appendix II was considered f‌irst. The United States had initially
included four look-alike shark species, but withdrew two species
based on the assessment by the FAO expert panel and the CITES
Secretariat.77 Many countries spoke out in support of the pro-
posal citing, inter alia, a decline to between f‌ifteen and twenty
percent of the baseline population, FAO support for the pro-
posal, lack of species-specif‌ic management plans under RFMOs,
and absence of any enforcement by ICCAT of their 2004 prohi-
bition on f‌inning.78
Arguments against listing included the familiar “RFMOs
[a]re the appropriate management body” for the proposed spe-
cies, as well as claims that technical and identif‌ication issues
were insurmountable, even with an amended twenty-four month
implementation delay.79 Moreover, Singapore noted that they
did not believe that CITES was intended to deal with marine
species—despite specif‌ic provisions related to marine species
in both the Convention and the listing criteria80—noting issues
with preparation and documentation for non-detriment f‌ind-
ings and introduction from the sea.81 Although the proposal did
receive a simple majority of the aff‌irmative votes, it did not meet
the two-thirds majority required for approval.82
The oceanic whitetip shark, a species prized for its f‌ins, was
considered for listing during the same session and is also esti-
mated to have declined to between f‌ifteen and twenty percent of
its baseline population.83 Although the EU and twenty-one other
countries have instituted shark-f‌inning bans, no international
management plans exist for the species.84 FAO also recom-
mended approval of the proposal.85 Supporters noted that, due
to its distinctive f‌in, identif‌ication should not present a problem
and the United States offered capacity building assistance.86 In
addition to arguments noted above in opposition to the proposal
to list the scalloped hammerhead shark, Japan supported Ven-
ezuela’s position that inclusion of the oceanic whitetip shark
would infringe upon their sovereign f‌ishing rights.87 The pro-
posal was rejected by a similar margin as the proposal for the
hammerhead shark.88
Although the porbeagle shark is one of the most widespread
shark species, its population has declined to around twenty per-
cent of its baseline population, with declines to less than ten per-
cent in the most affected populations.89 The porbeagle is caught
primarily for its meat, although f‌ins and oil are also traded.90 An
updated stock assessment led FAO reevaluate the species and to
support listing in COP-15, although it had opposed the proposed
listing at COP-14.91 The EU clarif‌ied that, contrary to comments
made by China and others, they had closed their internal por-
beagle f‌isheries, so that any porbeagle consumed within the EU
would be imported .92 The EU expressed a desire to ensure that
all future imports of porbeagle are sustainably harvested.93
Despite similar opposition to the listing of the porbeagle as
to the listing of the other shark species, the proposal passed in
secret ballot voting with eighty-six in favor, forty-two against,
and eight abstentions.94 In the plenary session, however, Singa-
pore made a motion under Rule 19 to reopen debate on the pro-
posal stating they believed that there was a “technical problem”
with the vote in Committee I.95 Although the United States and
Croatia were opposed to reopening debate, the requirement for
one-third of parties present and voting in favor of the motion
was met.96 Interestingly, in the two days between the approval
in Committee I and the vote in the plenary, four votes against
the prop osal were added, two of the votes in favor were lost,
and two abstentions were added, ultimately defeating the listing
proposal for the porbeagle.97
The f‌inal shark listing proposal was for the spiny dogf‌ish,
which is threatened by trade in its high-value meat primarily des-
tined for the EU.98 FAO concluded that the spiny dogf‌ish species
as a whole did not meet the listing criteria for addition to Appen-
dix II.99 Due to the reduction in the total catch in the EU to zero
because of signif‌icant declines in the population, the non-threat-
ened southern populations would have had to be listed based on
the look-alike criteria.100 Several range countries noted that their
internal management measures were suff‌icient and that popula-
tions remained stable.101 A lack of concrete data on population
decline due in part to “incomplete species-specif‌ic records” may
have also hampered support for listing.102 The proposal was eas-
ily defeated, with a majority voting against approval.103
CORAL
International demand in trade of coral is for jewelry, use
in aquariums, and its limestone content for making cement,
calcium supplements, and other products.104 The genus of red
and pink corals proposed for listing are the most commercially
exploited group of precious corals,105 and populations have
declined signif‌icantly recently, with the reproductive mod ules
at ten to twenty percent of the baseline.106 Although the United
States has banned collection of coral from its own reefs, it is still
the world’s largest importer and introduced the listing proposal
to ensure the sustainable management of coral in trade.107
This was the second time that the proposal to list the red
and pink coral was rejected at a CITES COP. Listing of the spe-
cies was initially approved in Committee I at COP-14 in 2007,
but debate was reopened and the proposal was subsequently
rejected.108 There was vocal opposition to the listing proposal
by Italian artisans who use the Mediterranean coral to make
valuable jewelry, including necklaces that can cost as much as
$25,000.109
SUSTAINABLE DEVELOPMENT LAW & POLICY39
In debate it was noted that collection methods for coral
should be considered “mining” rather than f‌ishing, due to the
fact that the harvested resource was non-renewable.110 Iran
stated that if trade was not regulated “both the continued trade in
precious corals and the livelihood of the people involved would
be in doubt.”111
Opposition to the proposal included the belief that the Gen-
eral Fisheries Commission for the Mediterranean was the appro-
priate management body for the coral species, that, if listed,
“consumers would think that buying [the coral] would be envi-
ronmentally unfriendly,” and FAO’s assessment that the species
did not meet the listing requirements for Appendix II.112 Not
surprisingly, the proposal barely
received a majority and was thus
rejected.113
TIMBER SPECIES
In contrast to the propos-
als on commercially exploited
marine species, two propos-
als on economically important
timber species were accepted
without much debate. Although
efforts to list some timber spe-
cies have met with resistance at
past COPs, rosewood and holy
wood proposals were offered
by Brazil and Argentina respec-
tively—countries that are prin-
cipal sources of the species in
international trade.114 Marine
and timber species have a range
of different issues related to list-
ing in CITES, however, if coun-
tries proposing the listings are
involved in international trade
of a species as exporters and
meet with little opposition from importers, listing proposals may
more easily be approved.
In contrast to the opposition that the rosewood listing pro-
posal met with at COP-14, the proposal for inclusion in Appen-
dix II was approved by consensus at COP-15.115 In 2007 Latin
American range states opposed the proposal, citing livelihood
concerns and implementation issues with CITES obligations
for timber species. As much of the international trade is from
wood harvested in Brazil that is being cut—both legally and
illegally—at a greater rate than it regenerates, Brazil presented
the COP-15 listing proposal for rosewood, which is used as an
ingredient in perfume.116 Although concerns with identif‌ication
in f‌inished products were expressed, an amendment excluding
those products was accepted, as was a proposal to create a task
force to work on identif‌ication issues.117
Argentina, which with Paraguay has the majority of holy
wood stands, recommended the addition of the species to
Appendix II because of pressures from habitat loss and trade.118
Holy wood is used for its essential oil and timber, in medicines,
and for a number of traditional uses.119 The proposal was passed
by consensus after a draft decision by Spain for creating a task
force to address technical issues was considered, and subse-
quently also approved.120
RECOMMENDATIONS
ADDING COMMERCIALLY EXPLOITED SPECIES TO CITES
APPENDICES AT FUTURE COPS
It is obvious that the conf‌lict over addition of commercially
exploited marine and timber species to CITES Appendices is not
going away. The CITES Secretariat must be clear that all species
threatened by international trade
should be included in the appro-
priate Appendix once it has been
determined by the CITES Sec-
retariat that they meet the listing
criteria. Although the listing crite-
ria already include specif‌ic guide-
lines for determining whether a
marine species is in decline, the
CITES Secretariat must be given
the support and funding to dem-
onstrate that CITES does and
should have jurisdiction over
international trade in additional
aquatic species, despite some par-
ties’ opinions.
Countries must build coali-
tions and mobilize support for
listing proposals months in
advance of voting at COPs. If
possible, countries substantially
involved in the trade of a spe-
cies should recommend the list-
ing, as in the case of Brazil with
the rosewood proposal and Argentina with holy wood. Although
approving a listing proposal is much more diff‌icult than defeat-
ing it because of the requirement of approval by two-thirds of the
votes,121 Japan’s “diplomatic” approach leading up to COP-15
shows the importance of lining up support prior to the vote. In
contrast, the EU announced their support for a trade ban for the
bluef‌in tuna just days before the start of COP-15 and was divided
on the original proposal, after their amended proposal delaying
inclusion of the species failed to garner enough votes for pas-
sage.122 There will of course always be last minute negotiations
in the halls of COPs, but it is unlikely that a coalition to approve a
proposal can be created at the meeting.
Economic and livelihood concerns now play an important
role, either overtly or covertly, in the decision of whether to
include a species in a CITES Appendix. Leading up to a COP,
the recommending country and proponents of listing must identify
potential livelihood concerns and use national trade, environment,
and development agencies to work with potentially effected sec-
tors in developing countries to f‌ind viable alternatives. If countries
If CITES is to be more
than “an ambulance at
the bottom of the cliff,”
waiting to rescue a
species that it may not
be able to save, then
countries must make
decisions to list species
before their extinction is
virtually guaranteed.
SPRING 2010 40
in favor of listing try to address economic concerns of a proposal
prior to a vote, then it will be more apparent that opponents are
citing livelihoods as an excuse to continue the status quo because
of a culinary preference for certain marine species. CITES listing
should not be a debate between jobs and species; if unsustainable
harvesting continues we should not be surprised to discover that
both have disappeared.
It has been suggested that the burden placed upon export-
ing countries to certify “non-detriment” to an Appendix II spe-
cies prior to exportation creates resistance to list on the part of
some countries.123 Although offers of capacity building support
have increased, additional responsibility on the part of importing
countries in the form of bilateral cooperation or regulatory mea-
sures could help build support for listing approval.124
FAO listing recommendations for marine species at COP-
15 were only followed when they stated that the species did
not meet listing criteria. The inconsistent application of FAO’s
recommendations and the fact that they often conf‌lict with the
CITES Secretariat is not leading to listing decisions f‌irmly based
on science. The relatively new practice of presenting FAO rec-
ommendations at COPs should be adjusted so that FAO can
provide expertise and support directly to the CITES Secretariat.
FAO and CITES should coordinate to provide one recommen-
dation on each proposal, using FAO’s technical and scientif‌ic
expertise within the CITES framework of regulation of interna-
tional trade in wild species.
ALTERNATE APPROACHES TO PROTECTING WILD SPECIES
Parties should capitalize on the growing international and
public pressure for better management of bluef‌in tuna. It appears
that the threat of listing may have led ICCAT to reduce the TAC
at its November 2009 meeting; this reduction must be enforced
and lowered to zero at the 2010 meeting to prevent the imminent
collapse of the stock. ICCAT also has provisions for prohibiting
imports from countries that have caught more than their allo-
cated quotas for two consecutive years.125 Despite attempts by
the United States to enforce the provisions against Europe and
Libya, the measure has only been used once—and against Equa-
torial Guinea.126 ICCAT must be made to enforce its internal
trade measures and prohibit imports from countries that regu-
larly violate their quotas.
A near universal argument of opponents to listing aquatic
species was that RFMOs were the appropriate forum for man-
agement. Although membership in RFMOs is much more lim-
ited than that of CITES, countries wishing to protect threatened
species should also pursue species specif‌ic regulation and catch
limits for sharks through the relevant RFMOs. Cooperation
between RFMOs with distinct populations of the same species
should also be encouraged.
As a last resort countries could enact unilateral import and
export bans for severely threatened species. If the United States
is serious about protecting red and pink coral then it should
enact a ban on imports of the species, to complement its exist-
ing ban on coral harvesting.127 Countries would likely be more
willing to consider listing coral in Appendix II if the alternative
was a ban on coral exports to the United States. The EU could
also attempt to do the same for the shark species it currently has
f‌ishing bans for in its waters.
CONCLUSION
It is increasingly diff‌icult to get species listed in Appendix I or
II of CITES: those species that are threatened with extinction that
countries can agree to stop trade in have already been added. For
commercially exploited species endangered by trade there is likely
to be resistance to limiting that trade, at the very least from those
who are engaged in trading the species. Even when, as in the case
of the bluef‌in tuna, the evidence that listing criteria are met is clear,
countries are increasingly willing to ensure that a threatened species
is not protected because they want to keep selling and buying it.
Awareness of the plight of species has been increased as a
result of the debates at COP-15, but ICCAT quotas are still too high
to allow for recovery of the bluef‌in tuna stock, RFMOs have no
management authority to prevent increased shark harvesting for
sharkf‌in soup, and coral is threatened not only by rising sea level
temperatures caused by global warming, but for use in jewelry.
If CITES is to be more than “an ambulance at the bottom
of the cliff,”128 waiting to rescue a species that it may not be
able to save, then countries must make decisions to list species
before their extinction is virtually guaranteed. Through creation
of new coalitions and addressing livelihood concerns of devel-
oping countries, countries can ensure CITES continues to be a
force for international biodiversity protection.
Endnotes: Getting on the List: Politics and Procedural Maneuvering
in Cites Appendix I and II Decisions for Commercially
Exploited Marine and Timber Species
1 See, e.g., Justin McCurry, How Japanese sushi offensive sank move
to protect sharks and bluef‌in tuna, THE GUARDIAN (London), Mar. 26,
2010, available at http://www.guardian.co.uk/environment/2010/mar/26/
endangered-bluef‌in-tuna-sharks-oceans; David Jolly & John M. Broder, U.N.
Reject Export Ban on Atlantic Bluef‌in Tuna, N.Y. TIMES, Mar. 18, 2010,
available at http://www.nytimes.com/2010/03/19/science/earth/19species.
html?ref=global-home; Bluef‌in tuna: Eaten away, THE ECONOMIST ONLINE,
Mar. 18, 2010, http://www.economist.com/science-technology/displaystory.
cfm?story_id=15745509&source=features_box_main (last visited Apr. 18,
2010); Summary of the Fifteenth Conference of the Parties to the Convention
on International Trade in Endangered Species of Wild Fauna and Flora, EARTH
NEGOTIATIONS BULLETIN (Int’l Inst. for Sustainable Dev., New York, N.Y.), Mar.
29, 2010, available at http:// www.iisd.ca/download/pdf/enb2167e.pdf [herein-
after ENB CITES COP-15].
Endnotes: Getting on the List continued on page 54

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