Source: "Whaling in the North Atlantic - Economic
and Political Perspectives," Ed. Gudrun Petursdottir, University of
Iceland, 1997, ISBN 9979-54-213-6. Proceedings of a conference held in Reykjavik
on March 1st, 1997, organized by the Fisheries Research Institute and the
High North Alliance.
Author: Jaques Berney Adviser, CITES Secretariat,
What is CITES?
CITES, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, is an international legal instrument that was signed in Washington D.C., on March 3rd 1973. It entered into force on July 1st 1975. It has now a membership of 135 States, the Parties, including all those surrounding the North Atlantic, except Iceland and Ireland. Although the Faeroe Islands are covered by the ratification of Denmark, the Convention is still not implemented in that territory due to the absence of appropriate legislation.
The aim of the Convention is to ensure the co-operation of the Parties to prevent international trade in specimens of wild animals and plants from being detrimental to their survival.
Basic Principles
CITES works by subjecting trade in specimens of species of wild fauna
and flora included in three appendices to certain controls, through a system
of permits and certificates granted by Management Authorities, on the advice
of Scientific Authorities. Each Party must designate at least one Management
Authority and one Scientific Authority.
In the context of CITES, “trade” means import, export, re-export
and introduction from the sea. “Introduction from the sea”, this
is of significance for whales, means transportation into a State of specimens
of any species which were taken in the marine environment not under the
jurisdiction of any State. CITES has nothing to say about sale or movement
of specimens within a country, including about the landing of specimens
taken in the national waters of any country with sea coasts, or about the
way the species are managed, used and conserved, and even killed. This
is left entirely to national legislation.
The species covered by CITES are listed in three appendices, according to the degree of protection they need. Appendices I and II are revised at the regular meetings of the Conference of the Parties, which take place every two and a half years. The next meeting will be held in Harare, Zimbabwe, in June this year (1997). In case of urgency, Appendices I and II may be amended between regular meetings through a postal procedure rarely used. Appendix III may be revised at any time, but a Resolution of the Conference of the Parties recommends that this be done at the time of regular meetings.
Appendix I includes species threatened with extinction. Trade in specimens of these species is permitted only in exceptional circumstances. Import permits and export permits or re-export certificates are required. In case of introduction from the sea, a certificate must be issued by the Management Authority of the country of introduction under strict conditions.
Appendix II includes species not necessarily threatened with extinction, but for which the trade must be controlled in order to avoid utilization incompatible with their survival. It includes also species which must be subject to regulation in order that the trade in other listed species is brought under effective control. Export permits or re-export certificates only are required. In case of introduction from the sea, a certificate must also be issued by the Management Authority of the country of introduction under specified conditions but less strict than for Appendix-I species.
Appendix III contains species that are protected in at least one country, which has asked other CITES Parties for assistance in controlling the trade in their specimens. Export permits are required from the countries that have required the listing while certificates of origin are required from the other countries. By definition, introduction from the sea does not exist for Appendix-III species.
Criteria for Amendment of Appendices I and II
When CITES was adopted in 1973 with the original Appendices I and II, these lists were adopted on the basis of lists prepared by IUCN-the World Conservation Union and of proposals submitted by participants to the plenipotentiary conference held in Washington D.C. While we can expect that the IUCN lists were based on certain criteria, it is obvious that a number of species were added without scientific justifications. Apart from the information provided above, the Convention does not provide for listing criteria.
At its first meeting (Berne, 1976), the Conference of the Parties adopted criteria for the inclusion of species in Appendices I and II, for the transfer of species from one appendix to the other and for the deletion from the appendices. It must be recognized, and it was, that under the Berne criteria the transfer of a species from Appendix I to Appendix II, or the deletion of a species from these appendices, was almost impossible, unless the species was listed under the criteria for addition. But none of the species included in Washington or in Berne were listed following the Berne criteria. Therefore, the Parties adopted special criteria to permit “downlisting” without meeting the Berne criteria.
At the eighth meeting of the Conference of the Parties (Kyoto, 1992), a Resolution was adopted to direct the CITES Standing Committee to undertake, with the assistance of the Secretariat, a revision of the criteria for consideration at the ninth meeting. The expertise of IUCN and other organizations and individuals was to be used for this process. A draft resolution was considered at the ninth meeting (Fort Lauderdale, 1994) and Resolution Conf. 9.24 was adopted by consensus, after long and difficult discussions.
The Resolution contains the criteria that have to be met to amend Appendices I and II in one way or another. There are biological and trade criteria. The Resolution refers also to special cases such as the listing of higher taxa than species and the listing of populations of the same species in various appendices (split-listing), and it includes precautionary measures to prevent decisions that could be detrimental to the conservation of the species concerned.
The new criteria will be used at the tenth meeting in Harare for the first time. It must be said however, that how good the criteria might be, this will have to be judged in the future, nothing would prevent the Conference of the Parties either to adopt amendments although the species concerned does not meet the criteria or, on the contrary, to reject amendments although the species concerned obviously meet the criteria. Politics, emotions and other non-scientific elements are not absent of CITES discussions and decisions, as has been demonstrated many times.
It is worthwhile to note also that if the criteria to amend the appendices have changed since the minke whale was included in Appendix I, resolutions adopted by the Conference of the Parties in relation to whale and whaling issues have not been significantly amended or repealed.
Specific Reservations
The provisions of the Convention are not subject to general reservations. However, specific reservations may be entered with regard to species listed in the appendices.
When a State is ratifying the Convention or acceding to it, it may, on depositing its relevant instrument, enter reservations with regard to species listed in Appendices I, II and III. However, it may not do so at a later stage, except for Appendix-III species.
When amendments to Appendices I and II are adopted by the Conference of the Parties, these amendments enter into force after a period of 90 days. During that period, and only during it, any Party may enter a reservation with regard to any of these amendments.
Until a Party withdraws its reservation it is treated as a State not party to the Convention with respect to trade in specimens of the species concerned.
The Conference of the Parties has adopted a resolution, Resolution Conf. 4.25 on the Effects of Reservations, which recommends that a Party having entered a reservation with regard to an Appendix-I species consider it as listed in Appendix II. Therefore, that Party should issue CITES trade documents and submit reports on the trade in that species.
It is important to note that if a Party with a reservation may trade freely in specimens of the species concerned, even if it is listed in Appendix I, the other Parties may not authorize such trade unless they have entered the same reservation or the trade is conducted in accordance with the relevant provisions of the Convention.
Regarding whale species, Japan has entered reservations with regard to the Baird’s beaked whale Berardius bairdii, the sperm whale Physeter catodon, the minke whale Balaenoptera acutorostrata, except the West Greenland stock, the sei whale Balaenoptera borealis, except stocks (A) inthe North Pacific and (B) in the area from 0 degrees longitude to 70 degrees east longitude, from the equator to the Antarctic Continent, the Bryde’s whale Balaenoptera edeni and the fin whale Balaenoptera physalus stocks (A) in the North Atlantic off Iceland, (B) in the North Atlantic off Newfoundland and (C) in the area from 40 degrees south latitude to the Antarctic Continent, from 120 degrees west longitude to 60 degrees west longitude. Norway has entered reservations with regard to the sperm whale Physeter catodon, the minke whale Balaenoptera acutorostrata, except the West Greenland stock, the sei whale Balaenoptera borealis, except stocks (A) in the North Pacific and (B) in the area from 0 degrees longitude to 70 degrees east longitude, from the equator to the Antarctic Continent, and the fin whale Balaenoptera physalus. Peru has entered reservations with regard to the minke whale Balaenoptera acutorostrata, except the West Greenland stock, the Bryde’s whale Balaenoptera edeni and the pygmy right whale Caperea marginata. Finally, Saint Vincent and the Grenadines has entered a reservation with regard to the humpback whale Megaptera novaeangliae. All the species and stocks concerned are included in Appendix I.
Consequently, under CITES, nothing would prevent Japan and Norway, for example, to introduce from the sea and/or to trade between them in specimens of sperm whale, of minke whale and of some stocks of sei whale as both countries are considered as not party to CITES with regard to such introduction and trade.
Special Provisions
In addition to exceptions and special provisions included in Article VII of the Convention, e.g. concerning pre-Convention specimens, personal effects and captive breeding, that are not really relevant to the purpose of this conference and on which I will therefore not insist, special provisions are made in CITES regarding other treaties, conventions or international agreements. These are very relevant to whales and are the following.
Article XIV on “Effects on Domestic Legislation and International Conventions” states in its paragraph 4 that “A State party to the present Convention, which is also a party to any other treaty, convention or international agreement which is in force at the time of the coming into force of the present Convention and under the provisions of which protection is afforded to marine species included in Appendix II, shall be relieved of the obligations imposed on it under the provisions of the present Convention with respect to trade in specimens of species included in Appendix II that are taken by ships registered in that State and in accordance with the provisions of such other treaty, convention or international agreement.”
Paragraph 5 of the same Article states that “Notwithstanding the provisions of Articles III, IV and V [the reference to Article III and V is obviously an error in this paragraph because it is not relevant to trade in Appendices-I and -III species], any export of a specimen taken in accordance with paragraph 4 of this Article shall only require a certificate from a Management Authority of the State of introduction to the effect that the specimen was taken in accordance with the provisions of the other treaty, convention or international agreement in question.”
Finally, paragraph 6 indicates that “Nothing in the present Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea convened pursuant to Resolution 2750 C (XXV) of the General Assembly of the United Nations nor the present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction.”
Regarding whales, if they are listed in Appendix II, the above-mentioned provisions clearly indicate that the role of CITES is very limited for those States that are bound to the provisions of the International Convention on the Regulation of Whaling. However, all great whales, except the West Greenland stock of the minke whale, are included in CITES Appendix I at present.
CITES and the Minke Whale
The minke whale Balaenoptera acutorostrata was included in CITES Appendix
II at the second meeting of the Conference of the Parties (San José,
1979) when all cetaceans not yet included in CITES appendices were included
in that appendix. It is at the fourth meeting (Gaborone, 1983) that the
minke whale, except the West Greenland stock, was transferred to Appendix
I but the entry into force of this amendment, instead of normally taking
place ninety days after the meeting, was postponed by the Conference until
1 January 1986, to coincide with the entry into force of the IWC moratorium
on commercial whaling.
The proposal for the transfer, submitted by Seychelles, concerned in fact
all species of the order Cetacea the catches of which were regulated by
the IWC. It is of course not possible to report here details of the arguments
of the proponent. The following, however, would appear of interest. The
proposal stated: “There is no positive evidence that any putative
population of minke whales is endangered in terms of the literal interpretation
of the Berne criteria for CITES. On the other hand, given the total absence
of scientific assessments for any minke whale stock we can not reasonably
assume that they are less endangered than some of the stocks of other baleen
whale species that now enjoy full protection by IWC and by inclusion in
CITES Appendix I.” At the meeting itself, the delegation of Seychelles
decided, as allowed within CITES, to amend its proposal to exclude from
the transfer to Appendix I the West Greenland stock, because it was the
only population from which there was a take to meet aboriginal needs for
local consumption, and the intention of the IWC was certainly that the
decision regarding a zero commercial catch limit did not preclude such
taking.
Some Parties expressed their opposition to the proposal already before the meeting and also during it, and the CITES Secretariat recommended that the proposal be rejected because it neither met the Berne criteria nor the provisions of the Convention. A CITES committee set up to review the species listed in CITES appendices had concluded earlier that no changes be made for cetaceans. After intense discussions, the Conference of the Parties voted upon the proposal, which was adopted as amended by 29 votes in favour, five votes against and 23 abstentions.
The Norwegian Proposal
The Government of Norway has submitted a proposal to transfer the Northeast Atlantic and North Atlantic Central stocks of minke whale from Appendix I to Appendix II for consideration at the tenth meeting of the Conference of the Parties. Two questions have been raised by the High North Alliance in their letter to me concerning this presentation. What criteria will be decisive regarding the proposal and what will be the arguments in favour or against it?
The criteria to be used are those provided by Resolution Conf. 9.24. In my opinion, it is obvious that the minke whale is or may be affected by trade and it is known, inferred or projected that unless the trade is regulated the stocks in question will meet at least one of the criteria for inclusion in Appendix I, sooner or later. Therefore, the minke whale, or the stocks in question, should be listed at least in Appendix II. To decide whether they should be listed in Appendix I, the criteria for inclusion in that appendix must be considered. In summary, they are the following:
I am not here to answer to these questions, and since the Secretariat has not yet adopted its formal position, I will not make any further comments on this although I have my own idea.
Regarding the arguments in favour or against the proposal, I believe that those in favour are well known to you as they are contained in the proposal itself. For those against, it is possible to refer to the discussion held in Fort Lauderdale on a similar proposal already submitted by Norway. We can refer also to the comments sent to IWC by some of its members in response to the communication of the proposal.
To these arguments, which, to a large extent, derive from discussions
within and decisions from the IWC, and on which I will not comment, it
is of course necessary to add the emotional views expressed by animal welfare
and animal rights groups. They are certainly not negligible as they also
influence the decisions of certain governments.
CITES Trade-Control Measures
I have been asked whether CITES may impose control measures to avoid legal trade hiding illegal trade. The answer is yes and no. The fact that species may be included in Appendix II because they look like other listed species is an example of such imposed control measures. This serves to prevent that an endangered or threatened species be traded under the name of a common species similar to it. In addition, all control measures established under the Convention and enforced by the Parties have as objective to prevent illegal trade, including that hidden by legal trade.
Through Resolutions, the Conference of the Parties has adopted a number of additional trade-control measures but they are not imposed as the Resolutions are not binding for the Parties, unless the provisions of these Resolutions are included in the national legislation of the Parties themselves. Amongst others, I can mention the control of shipments in transit through the territory of a Party, the marking of specimens from certain categories of species, strict rules concerning the issuance of retrospective permits and certificates, the establishment of export quotas (quotas may also be imposed if they are included in the appendices trough specific annotations). In certain circumstances, it is also recommended to the Parties to suspend the trade in CITES specimens with a particular Party, in general or regarding designated species. Such suspensions are usually recommended by the Standing Committee.
The self imposition of additional trade controls by a Party asking for the transfer of a species from Appendix I to Appendix II might of course help the adoption of such a proposal. For example, several proposals submitted for consideration at the tenth meeting include such measures, in particular those concerning the African elephant or the vicuna. In the case of whales, measures concerning the identification and the marking of the products in trade, as well as controls on the markets might be a prerequisite for any proposal to be adopted.
Relations between the IWC and CITES
Although the IWC is not mentioned in the text of the Convention, Article XIV, as indicated previously under Special Provisions, does actually refer to the IWC, as far as Appendix-II species are concerned. In addition, for marine species, Article XV of the Convention directs the Secretariat to “consult inter-governmental bodies having a function in relation to those species when a proposal to amend Appendix I or II is submitted”. This obviously refers also to the IWC and has been so interpreted by the Secretariat.
The IWC Secretariat is always invited to participate as an observer to meetings of the Conference of the Parties to CITES and, in reciprocity, CITES Secretariat has obtained the observer status, and adviser status for trade matters, at meetings of the IWC and of its Scientific Committee.
The Conference of the Parties to CITES has adopted several Resolutions related to the IWC or to whales:
At the ninth meeting in Fort Lauderdale, the Secretariat, within the process of consolidation of Resolutions, suggested to repeal Resolutions Conf. 2.7, Conf 2.8 and Conf. 3.13, considering them as redundant or out of date. This was not accepted by the Parties and these Resolutions are still in force, although Resolution Conf. 2.7 was amended.
At the tenth meeting, the Secretariat will submit again a consolidated draft resolution, which will include the provisions of Resolutions Conf. 2.7 (Rev.), Conf. 2.9 and Conf. 9.12 and repeal all the Resolutions mentioned above, except of course Resolution Conf. 9.24 .
The most significant Resolution, in practical terms, is Resolution Conf. 2.9, although it is in fact redundant for as long as the species protected by the IWC are included in Appendix I. Its effect would be, if a whale species or stock is transferred to Appendix II, to prevent commercial trade in that species or stock by the Parties implementing the Resolution, although, if this Party is also a member of the IWC, it will be relieved of CITES obligations in accordance with Article XIV, paragraph 4, mentioned earlier.
For the Secretariat, the Resolutions of the Conference of the Parties are binding and, therefore, it will not be in a position to make any recommendation contrary to a Resolution. Does that mean that the Secretariat must recommend to the Parties to reject any proposal concerning the minke whale? My answer, not that of the Secretariat as far as I am aware, will be no, since Resolution Conf. 2.9 does not request such a recommendation. However, if the Secretariat recommends the acceptance of a proposal on the minke whale on the basis of the criteria provided by Resolution Conf. 9.24, it will have to recommend also that the transfer be associated with a zero export quota to be maintained until either Resolution Conf. 2.9 has been repealed or amended, or the IWC has lifted the moratorium or decided to lift the protection granted to the stock in question.
Accordingly, CITES, under the text of the Convention and within the
limits described in Article XIV, is not committed to act according to the
political considerations in the IWC and it may act solely on its own assessment
of the available scientific data. Under the Resolutions into force however,
the Conference of the Parties has agreed not to do so and to follow the
position of the IWC. This is of course reversible but would need a formal
decision of the Conference of the Parties and you may wish to know that
such a decision will require a two thirds majority vote as for amendment
proposals.
The Government of Japan has also submitted a draft resolution on the relationship
with the International Whaling Commission. Under this draft resolution,
if accepted, the Conference of the Parties would have to amend the CITES
Appendices I and II with regard to whale species under the criteria of
Resolution Conf. 9.24, taking into account scientific information from
the IWC and other sources; would affirm that it has not received scientific
justification for the moratorium and Southern Ocean Sanctuary, and that,
because CITES and the Whaling Convention are independent agreements, any
arrangements under CITES would not automatically be linked to the measures
taken by the IWC; and would repeal Resolution Conf. 2.9.
As a final remark, which should not be interpreted as a criticism, I would like to say that while whaling nations and/or organizations have for many years stated that the IWC was the organization responsible for whales and that CITES should keep a low profile regarding these species, it appears now that the same nations and organizations are trying to use CITES to their advantage because the IWC has adopted decisions contrary to their interests and does not seem to be ready to change its position. This is an interesting development, which would deserve to be followed!