Alternative approaches to the CITES "non-detriment" finding for Appendix II species.

AuthorMurphy, James B.
PositionConvention on International Trade in Endangered Species of Wild Fauna and Flora
  1. INTRODUCTION II. OVERVIEW OF CITES A. Basic Procedural Requirements. B. Non-Detriment Finding Limitations III. EXISTING EFFORTS TO IMPROVE "NON-DETRIMENT" FINDINGS ARE INSUFFICIENT A. Quotas B. Significant Trade Review IV. PROPOSAL: SYNTHESIZE CONSERVATION EFFORTS OF RFMOs AND CITES A. RFMOs Unable to Adequately Protect Commercial Marine Species 1. General Problems with Conservation Methods of RFMOs 2. Patagonian and Antarctic Toothfish Survival Threatened 3. Liminatations of CCAMLR's Current Protection of Toothfish B. Cooperation Between CITES and RFMOs 1. Benefits of CITES Listing 2. Legal and Technical Compatibility a. Non-Detriment Finding b. Legally Obtained c. Humane Transport d. Additional Potential Pitfalls i. Split Catches ii. Separation of Patagonian and Antarctic Toothfish iii. Look-alikes e. Permits, Certificates, and Documents 3. Political Feasibility V. PROPOSAL: SYNTHESIZE CONSERVATION EFFORTS OF THIRD PARTY CERTIFICATION ORGANIZATIONS AND CITES A. Overview of Conservation Efforts of Third Party Certification Organizations. B. Mahogany Survival Threatened C. Legal and Technical Compatibility 1. Non-Detriment Finding 2. Legally Obtained 3. Humane Transport 4. Permits and Certification D. Political Feasibility VI. CONCLUSION I. INTRODUCTION

    Although widely perceived as the flagship international agreement protecting wildlife, (1) the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (2) faces major challenges to its implementation. Lack of accurate information on the health of a species as a whole, its populations, and levels of trade consistently hampers the ability of member States to make the requisite finding that exports of CITES protected species "will not be detrimental to the survival of the species." (3) As a result of this information gap, CITES parties export species without undertaking the necessary evaluation of the export's impact on the species through this "non-detriment" finding. (4) The non-detriment finding is particularly important for restricting levels of trade to sustainable levels for species listed in Appendix II of CITES, such as the great white shark, polar bear, and hippopotamus, (5) because the non-detriment finding is the only significant check on commercial trade in specimens of Appendix II species. Unlike species currently threatened with extinction for which trade is prohibited except in exceptional circumstances, (6) Appendix II species can be traded commercially. (7) As a result of the Appendix II allowance for commercial trade, the non-detriment determination is critical for ensuring trade does not jeopardize the survival of the species. Additionally, 32,540 of the 33,658 species regulated by CITES are included in Appendix II. (8) The magnitude of this problem is obvious: The combination of the commercial trade allowance for Appendix II species, and the overwhelming percentage of total CITES species regulated in Appendix II (over ninety-six percent) demonstrates that accurate, non-detriment findings are critical to achieving CITES' goal of guaranteeing that international trade does not threaten the survival of wild animals and plants. (9)

    Unfortunately, CITES' initial reliance solely on states to provide non-detriment findings has inadequately protected many Appendix II species because many states lack sufficient information on these species. For example, the national Scientific Authority, (10) which is charged with making the non-detriment finding, is under-resourced, under-staffed, and in some cases, non-existent or marginalized in many countries. (11) CITES also requires that each State designate a Management Authority to grant permits and implement measures necessary to protect species. (12) This scheme of national implementation requires parties to invest substantial resources to determine on a species-by-species, export-by-export basis whether a species has been negatively impacted. The thousands of already regulated species and the increase in regulated species since the treaty's entry into force in 1975 further exacerbate this burden.

    The CITES parties have developed strategies to overcome the well-recognized problems associated with non-detriment findings, but these approaches, specifically national export quotas and Significant Trade Review, (13) also suffer from inadequate information. The quota concept stems from ad hoc approaches to curb population declines in a few severely threatened species. (14) As a result of the unstructured birth of the use of quotas in CITES, no specific mandate exists for their use in particular circumstances, and several different quota regimes have been established. (15) Many Parties view these quotas as a de facto, non-detriment finding even though the specific quotas are often set without accurate or up to date information. In 1999, for example, sixty-nine quotas were potentially exceeded and about half of the overages exceeded the reported quota by at least 150%. (16) Often incorporating quotas but more comprehensive in scope, Significant Trade Review attempts to compel enforcement for significantly traded Appendix II species. The Animals or Plants Committee of CITES conducts reviews of the levels of trade and population levels of these highly traded species. After this analysis, the respective Committee recommends actions to improve CITES compliance, including changes in national management and legislation and set quotas that are enforceable with the threat of sanctions to States that exceed them. Many criticize this process for being complex, difficult to understand, and ineffective. (17) One study indicates that between 1994 and 1999 quotas established under the Significant Trade Process were consistently exceeded, were not based on accurate biological information, and even omitted exporting states. (18)

    Because of the limitations of the current system to make accurate non-detriment findings, delegating the role of national Scientific and Management Authorities to third parties to make non-detriment findings for specific species provides a new approach capable of remedying problems with the current scheme of national implementation. Regional Fisheries Management Organizations (RFMOs), such as the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), (19) currently monitor population levels and trade flow data on commercial marine species and require permits for their trade, such as Patagonian toothfish, a species considered for an Appendix II listing at the twelfth meeting of the Conference of the Parties (COP). Additionally, certification organizations, such as the Forest Stewardship Council (FSC), currently certify sustainable timber takings, including mahogany, already listed in Appendix II. Drawing upon the resources and expertise of an established and funded organization can remedy some of the informational deficiencies in the current approach to non-detriment determinations. For non-CITES organizations to become part of the CITES framework, however, they must demonstrate legal compatibility with CITES, political feasibility, and sufficient ability to make the non-detriment finding.

    Because CITES requires a Party's Scientific Authority to make a non-detriment finding and its Management Authority to issue permits based on this finding, (20) the provisions of non-CITES organizations must meet or exceed the substantive requirements of CITES. The Parties must also develop an appropriate legal mechanism to link the conservation measures of non-CITES organizations to the permit requirements of CITES. Permits and documents, population assessment methods, harvest limits, measures to verify the legality of harvest, and species-specific requirements must all demonstrate compatibility to establish an effective, legally sound synthesis of conservation efforts.

    This Comment argues that third parties can perform non-detriment findings for Appendix II species accurately and in compliance with the procedural mandates of CITES. Part II of this Comment provides a general overview of CITES and its basic requirements, focusing particularly on the procedural framework for non-detriment findings and related implementation problems. Part III discusses methods CITES has used to address inadequate compliance with the non-detriment finding requirement, specifically quotas and the Significant Trade Review process, and looks at the limitations of these approaches. Part IV explores the idea of using RFMOs to make non-detriment findings, with specific investigation into the relationship between CITES and CCAMLR concerning Patagonian toothfish. Part V analyzes the potential for third party certification organizations to provide non-detriment findings, using FSC certification of sustainable mahogany logging as an example. This Comment concludes in Part VI with suggestions for making accurate, scientifically based non-detriment findings that effectively protect Appendix II species.

  2. OVERVIEW OF CITES

    1. Basic Procedural Requirements (21)

      CITES regulates international trade in exports, re-exports, imports, and introduction from the sea of specimens of wild fauna and flora, which include live and dead animals, as well as plants species, subspecies, and populations, and their parts and derivatives. (22) CITES developed "in response to concerns that unregulated international trade ... was having a detrimental impact on species and their ecosystems." (23) It seeks to ensure that no species of wild fauna or flora becomes or remains subject to unsustainable exploitation because of international trade. (24) For CITES Parties, all international trade in listed species must be in accordance with the terms of the Convention. (25) The 169 Parties to CITES (26) regulate listed species based on a system of permits and certificates, which can be issued if certain conditions are met and that must be presented before consignments of specimens are allowed to leave or enter a...

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