On the feasibility of an automated mechanism to list species on the CITES Appendices

Introduction

In February 2019 Frank & Wilcove published a short paper in Science in which they argued that due to long delays in the processes of listing species on Appendix I and II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) effective conservation cannot be guaranteed (here). They even went so far as to refer to the ultimate goal of having an immediate vote on the inclusion of a species in Appendix I and II once it has been identified by the IUCN as ‘threatened’ on the IUCN Red List of Threatened Species (ibid., p. 688). In this post, I will briefly discuss the idea of an automated mechanism to include IUCN-listed species in the CITES Appendices without a vote and based solely on biological criteria, going further than the idea Frank & Wilcove put forward. I will also pick up on some of the points raised by Challender et al. in “Mischaracterizing wildlife trade and its impacts may mislead policy processes” (here).

However, there is also a third Appendix which includes species that are protected in one CITES party, which has asked others for assistance in controlling trade. An important element of the CITES Appendices is also that not only species that are threatened are included, but also so-called ‘lookalike species’, meaning species that resemble those that are subject to conservation concerns. In this manner the lookalike species are protected in a precautionary manner in order to avoid that they might become threatened at some point.

Currently there are more than 38,700 species, including their parts and derivates, included in the three Appendices. Of these, close to 6,000 are animal species and around 32,800 are plant species (here).

Amending the Appendices of CITES

Amendments to the Appendices follow two distinct procedures. Appendix I and II can be amended at the Conferences of the Parties (CoP) after one or more parties have formally proposed an amendment and at least 2/3 of the parties support this proposal. Appendix III can be amended unilaterally by that state that has filed for an inclusion of a species in that Appendix.

As per the provisions of CITES and as stipulated by Resolution Conf. 9.24 (Rev. Cop17) from 1994, amendments to the Appendices are to follow certain biological as well as trade criteria. In a nutshell, in order for a species to be included in Appendix I, a species 1. must have a small population size; 2. have a restricted area of distribution of the wild population; and 3. must show a marked decline in the population size in the wild. In order to be included in Appendix II, at least one of two criteria must be in effect: 1. an inclusion is necessary for a species not to qualify for an inclusion in Appendix I in the near future; and 2. an inclusion is necessary so that trade regulation prevents unsustainable harvest of a species.

When taking into account merely biological criteria, some species included in Appendix I do not fulfil the criteria (anymore). For instance, when making reference to a ‘small population size’, Annex V to Resolution Conf. 9.24 (Rev. CoP17) stipulates that a population of less than 5,000 individuals is considered ‘small’. For instance, the global population of the Common minke whale (Balaenoptera acutorostrata) is estimated to hold 200,000 mature individuals and is therefore considered as ‘least concern’ (LC) by the IUCN (here). However, since the International Whaling Commission (IWC) has imposed a zero-catch-quota (‘moratorium’) on all commercial whaling, CITES has responded by also banning international trade in specimens, parts and derivates of minke whales.

In other words, also other criteria than trade and biology play a role when maintaining the Appendices. Several attempts, especially by whaling nations, to downlist different whale species from Appendix I to Appendix II have failed. In the case of the African elephant (Loxodonta africana) as well as in the case of the minke whale, a so-called split listing has occurred, however. This means that subpopulations of these species can be found on different Appendices: While the minke whale as a species is included in Appendix I, the population of West Greenland is included in Appendix II. While the African elephant as a species is included in Appendix I, the populations of Botswana, Namibia, South Africa and Zimbabwe are listed on Appendix II.

A mechanism of automated listing

When sticking to purely biological criteria, automated mechanisms of conservation are in fact quite reasonable. This is to say, once there is indisputable (or nearly indisputable) evidence that a species is (becoming) threatened by IUCN criteria, it could be automatically included in Appendix I, as Frank and Wilcove suggest. However, the question is, would this be the ultimate goal? In my view, this automated listing would bring about quite a few challenges and would not be necessarily helpful.

Amendments to the Convention

The provisions of the Convention concerning the procedure as to how to amend Appendices I and II are rather clear. These are stipulated in Article XV while the amendment procedure for Appendix III is included in Article XVI. Especially concerning Appendices I and II it is worth mentioning that a procedural difference can be found between marine species and others: while for non-marine species the Secretariat is to communicate an amendment proposal directly to the CITES parties, for marine species additional scientific data is to be collected via intergovernmental bodies dealing with these species in order to coordinate conservation efforts.

An automated listing would require that the provisions included in Articles XV and XVI would have to be amended, i.e. that the amendment procedure for the Convention would have to be set in motion. Since its adoption in 1973, CITES has seen merely two amendments: the Bonn amendment from 1979 and the Gaborone amendment from 1983. These amendments, however, dealt with administrative issues regarding the Secretariat as well as with the accession procedure for regional economic integration organisations (REIO) such as the European Union (EU). This means, the Convention was extended by some paragraphs.

An automated mechanism for the inclusion of species would mean a fundamental change of the Convention’s set-up and would require a 2/3 majority at an extraordinary meeting to accept this change. This appears rather unlikely since CITES has become a rather intense forum of value-clashes concerning conservation and sustainable use. The extremely heated discussions surrounding the split-listings of elephants in the late 1990s has demonstrated this. The rift between the two ‘camps’ would become even wider and deeper if species that are traded in between several countries would suddenly be included in one of the Appendices.

The discussions surrounding the Appendix II-listing of mako sharks (Isurus oxyrinchus and Isurus paucus) demonstrates yet another element that needs to be considered. There does not even need to be an active trade in a species in order to fuel discussions. These are issues of a normative nature and especially developing countries frequently lament issues of food security, also for the future. In other words, even though there is no significant trade in mako sharks, they might become important in the future. An automated listing would torpedo any of these issues before they would even arise.

In light of the recent developments under the IWC when Japan left the organisation, it does not appear unlikely that in case a 2/3 majority would be reached to amend the Convention, countries would withdraw from CITES, essentially rendering it obsolete in the end. In light of these possibilities, amending the Convention to automatically include species in the IUCN Red List is not advisable.

Human and indigenous rights

An automatic inclusion of IUCN-listed species into the CITES Appendices also brings about issues related to basic human as well as indigenous rights. If one were to approach species conservation from a purely scientific angle, this would not be an issue, meaning, that if a species has raised conservation concerns, the species should not be utilised by anybody. Modern conservation, however, is significantly more complex as resource users are, by and large, recognised as rights holders. In fact, two of the most fundamental human rights instruments – the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) – stipulate in their identical (‘common’) Article I.2:

“All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.” – Common Article I, ICESCR and ICCPR

At the same time, also the widely supported UN Declaration on the Rights of Indigenous Peoples (UNDRIP) stresses in several articles the right of indigenous peoples to use their traditionally owned resources. Also the 2018 UN Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNROP) stresses repeatedly that peasants have a right to make use of their natural resources.

While there are compelling reasons for resource users not to make use of a species when there are conservation concerns, the mere fact that so-called ‘indigenous exemptions’ in resource management regimes exist shows (e.g. the EU seal regime holds such as exemption while in the IWC ‘Aboriginal Subsistence Whaling’ is a legitimate type of whaling despite the moratorium) that the issue goes beyond biological criteria.

At CoP18 in 2019 CITES has failed to establish a Rural Communities Committee that would have placed great emphasis on including local resource users in the decision-making process. Especially the United States have argued against it over concerns regarding its status and because of the fact that the UNROP – upon which the proposal to establish the committee was built – was not universally accepted (here, p. 22-25). In other words, CITES is already now failing to adequately consult indigenous peoples and local communities. In case of an automated mechanism, this situation would be worsened significantly.

One of the major rights under international human and indigenous rights standards is the right to free, prior and informed consent (FPIC). If an automated mechanism were to be established, indigenous peoples and local communities would be stripped of this right entirely. Not to speak of the implications this would have on the sovereign rights of a nation states to freely dispose of its own natural resources. Automated listing would nullify this right and create massive human rights problems.

Compliance and enforcement

Already with more than 38,700 species listed on the Appendices, national agencies have problems with the enforcement of the regulations and prohibitions under CITES. As Tanya Wyatt has shown (here, p. 95), this starts already with the reporting concerning the existing trade in CITES-listed species. Not surprisingly, also border guards often are not aware of the proper enforcement of the Convention since they are not wildlife experts and may not even be aware of the fact that certain species are no longer eligible for international trade.

An automated mechanism would aggravate this problem. While it is not clear how the mechanism would work (would a species be immediately and automatically listed once it has crossed a certain threshold in the IUCN Red List?), it can be assumed that the number of listed species would consistently increase. This would cause significant enforcement problems since there is no international entity that oversees the Convention’s proper implementation. While the CITES Secretariat uses soft means to encourage compliance and enforcement, based on Article XII of the Convention, its role is not to be an enforcement body. While there is a subdivision of INTERPOL dealing with wildlife crime, this rather deals with illegal trafficking and not with the enforcement of CITES.

Since compliance and enforcement of the Convention are in urgent need of reform to make it more efficient, automated listing would also contribute to increasing problems in this regard.

Automated down- or de-listing

A rather obvious question that comes with an automated listing approach is that of an automated mechanism for down- or de-listing of species. Again, when a species has been shown to have recovered so much that it is no longer listed in the IUCN Red List and that is has thus cross a certain (positive) threshold, it should also be removed from the Appendices. A logical step would therefore be to establish exactly such a mechanism, which would also have to be part of the amendments to the Convention.

In practical terms, this would add to the overall confusion: how would anybody know which resources can or cannot be used? National scientific and management authorities, border agencies, and, of course, resource users would have to be consistently, strategically and concisely be trained and updated in order to make sure to comply to the Convention. This appears rather impossible given the massive logistical and financial efforts this would require, especially since resource users in remote regions might not even have access to this kind of information.

Conclusion

While from a purely biological perspective an automated listing approach might seem reasonable, taking a broader perspective and taking into account just a few elements that are relevant in the context of CITES shows that this appears unrealistic and unfeasible. It also begs the question in how far CITES is even the right instrument for such an approach. After all, Challender et al., Wyatt and many more have argued, it is far from clear how international trade has ever been a main driver for species decline. Also Frank & Wilcove noted that “listing under CITES is not sufficient by itself for conservation” (p. 688). Or, in other words, it is far from clear how specifically CITES has effectively contributed to species conservation.

Therefore, to focus on an automated listing mechanism for CITES is, first, not in the spirit of the drafters of the Convention who have always emphasised international cooperation; second, it may create significant logistical and practical problems concerning amendments to the Convention, enforcement and compliance; and, third, this would enhance the human and indigenous rights concerns – an issue that CITES is already struggling with now.

I can consequently conclude by saying that while CITES is in need of reform and biodiversity conservation needs to be made more effective, automated listing cannot be the answer, but could make things even worse.