A reform of CITES: Integrating the voices of indigenous peoples and local communities?
CITES listings, indigenous peoples and local communities
In a contribution to the journal Frontiers in Ecology and Evolution, Cooney et al. (2021) argue for the consideration of socio-economic factors when Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) decide on the listing of species on one of the Appendices. As a brief explanation, CITES regulates trade through either prohibiting it, unless for very exceptional circumstances (Appendix I); by regulating and controlling it to ensure ecological sustainability (Appendix II); and by domestically regulating it, but asking CITES Parties for support in doing so (Appendix III).
At each Conference of the Parties (COP), new species are placed on the Appendices, now amounting to more than 38,700 plant and animal species. The logic of the Convention is that by regulating international trade, the conservation status of one of the listed species would improve. Whether or not this direct correlation can be established remains subject to controversy.
Be that as it may, CITES listings, especially Appendix I-listings, have impacts on indigenous peoples and local communities (IPLCs) and their livelihoods. This accounts particularly to plant species, which are important parts of the livelihoods of many poor communities. Therefore, from the year 2000 onward, a discourse on the link between Appendix-listings and impacts on the livelihoods of the poor evolved, which led to the establishment of a Working Group on CITES and Livelihoods in 2008.
Throughout the 2010s, however, the matter did not move forward in a way which appeased all sides. On the one hand, Parties, particularly from the developing world, have called for a strengthening of the voices of IPLCs in the CITES processes. Other Parties, on the other hand, have aimed to focus even more on trade and biological criteria so as to not imperil the raison d’être of the Convention. At COP18 in Geneva in 2019, the establishment of a Rural Communities Committee was rejected by the majority of Parties since its legal role and mandate within the construct of the Convention were not clear. The discussion on IPLCs and their voices is consequently still very relevant — as shown also by the fact that the issue of community participation and livelihoods were on the agenda of the Standing Committee meeting in March 2022.
Diverging views on IPLCs and CITES
Enters Cooney et al.’s (2021) contribution. Here, the authors call for a much more nuanced approach to Appendix-listings. At present, according to Resolution 9.24 (Rev. CoP17), Appendix I and II listing-decisions should follow certain biological and trade criteria. That means that if a plant species is to be listed on Appendix I — i.e. that international trade should generally be suspended — the plant’s conservation status and the degree to which international trade in it is being conducted are taken into account.
While that may be so, as Challender and MacMillan (2019) has shown, also other criteria, such as animal rights and ethics factor in when listing-decisions are made.
In other words, while said Resolution 9.24 (Rev. CoP17) may provide for guiding principles concerning Appendix listings, one should bear in mind George Orwell’s proclamation: “All animals are equal, but some animals are more equal than others” (Orwell, 1945, no pagination). Meaning, reality is somewhat different and while in principle all species should be considered equally under the guidance of CITES listing criteria, charismatic species tend to experience a higher degree of protection than uncharismatic species (Webb, 2013).
It is therefore highly unrealistic that listing occurs purely on scientific and trade-based grounds. Instead, other factors play a role as well. The problem is that these factors are nowhere stipulated as (il)legitimate. Either way, it is rather clear that emotional responses also play a role when listing-decisions are made.
Cooney et al. (2021) acknowledge this in so far as they argue that when Parties decide whether or not to include a species in one of the Appendices, the multifaceted impacts of such inclusion should be taken into account. In principle, they call for a social impact assessment (SIA). While this methodology usually refers to projects of different natures on the cultures, livelihoods, ways of life or health and well-being of communities that are affected by a project (IISD, Undated), there is no reason, other than structural ones, to exclude this from decisions taken at the international level. In that sense, Cooney at al. (2021) call for a truly scientific basis of CITES decision-making — ‘science’ not merely referring to biological or natural sciences, but taking into account the social sciences, i.e. socio-economic factors, as well.
While this seems logical and conclusive, the contribution triggered a response from Orenstein et al. (2022). In their response, the authors strongly disagree with Cooney et al. (2021) and consider their argumentation “fundamentally flawed” (Orenstein et al., 2022, p. 1). This is because they consider the scientific basis of CITES undermined if socio-economic factors were to be included while the root cause of inequalities remain unaddressed. They argue that by taking into account economic factors which are the key drivers for inequality and overexploitation would undermine the purpose of the Convention. Moreover, including these factors into the CITES decision-making process, and thereby changing the listing criteria, would not address the systemic imbalances that IPLCs suffer from. Doing so — by which means the authors are silent about — would benefit them much more.
Interpreting CITES and considering the rights of IPLCs
Quite interestingly, while Cooney et al. (2021) argue for an expansion of the treaty to include elements and discourses which are not part of the treaty text, Orenstein et al. (2022) argue along the treaty text. Here, a classic clash between the interpretation of treaties is occurring: Cooney et al. (2021) apply a teleological interpretation of the treaty — meaning they focus on the telos, the overarching goal of the treaty and its subsidiary bodies —, Orenstein et al. (2021) apply a textual interpretation of the treaty — meaning they focus on the actual text of the treaty without any extension.
In the context of the International Convention for the Regulation of Whaling (ICRW), the same problem is occurring on a regular basis. However, in that case, the arguers approach the issue from the respective opposite sides: while so-called ‘sustainable use’ defenders regularly refer to the treaty text itself and the textual object and purpose of the convention (“the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry”), ‘anti-whaling’ proclaimers predominantly focus on the conservation-aspect of the convention and argue that it has evolved from its original purpose (see Fitzmaurice, 2016). In other words, depending on the regime in question, arguing for a strict interpretation of one treaty, does not necessarily mean that the same arguments are being used in another.
As I have argued elsewhere, especially CITES and the ICRW and with it the International Whaling Commission (IWC) show significant shortcomings with regard to the inclusion of indigenous peoples and local communities (Sellheim, 2018). And in my view it does not matter which stance is being taken in the argument, because what is clear is that neither of the treaties in question acts in isolation. Of course, each has its own mandate which could be interpreted differently, but once indigenous peoples and local communities are affected by decisions of the COPs, other international standards start to be relevant as well.
First and foremost, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has been quasi universally accepted. This declaration provides for fundamental standards with regard to the rights of indigenous peoples, inter alia the right to free, prior and informed consent (FPIC). In other words, when decisions are made that affect them, they must be consulted and must agree to these decisions. When a country like Germany, for instance, which does not host its own indigenous people, proposes the Appendix I-listing of a plant species that has a direct impact on an indigenous people in, say, Suriname, this indigenous people must be consulted prior to the proposal at a COP. It must be established what the impacts are, what potential remedies could be and whether the impacts cause problems for the people affected. This is essentially what Cooney et al. (2021) argue for.
In my view, this does not undermine the purpose of the Convention, but instead links it with other international fora. This approach would put CITES on a level that accepts international standards for indigenous rights and could strip it of its many different problems, especially when taking into account the failed establishment of the Rural Communities Committee. Similarly, even though it has not been universally accepted, the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) provides for important standards for local communities, including indigenous peoples. Many CITES Parties have signed the declaration and, even though it is not binding, should nevertheless follow its provisions. However, as was shown in the report from the 74th meeting of the CITES Standing Committee (The Digest, 2022), while there is political will to strengthen the voices of IPLCs, the practical implementation lacks significantly behind.
Conservation does not occur without effects on people. The dramatic mode of ‘fortress conservation’, such as the scandal surrounding violence against locals by WWF-funded rangers (Warren & Baker, 201), is the best example for this. This consequently means that the term ‘conservation’ itself should be rethought. Within a CITES context, conservation merely refers to the respective conservation status, i.e. abundance, of a respective species and apparently does not imply that this term, or concept even, merely occurs when people are directly involved. Nature itself does not conserve wildlife, people do.
A reform of CITES cannot stick to the textual interpretation of the treaty text. After all, the zeitgeist of the early 1970s, when CITES was adopted, is not the same anymore as it is now. The entire conservation discourse has changed dramatically and has shifted from individual species to ecosystems and socio-ecological systems. As a consequence, people are inevitably part of this.
To argue that CITES should be devoid of the impacts on people ignores the fact that, indeed, effective conservation can only occur with the involvement of people. Even the WWF states: “Over the past 60 years we have found that conservation efforts benefit most when people benefit from conservation” (WWF, Undated). To leave benefits and disadvantages out of the CITES-equation is likely to lead to more conflict within the Convention in the long run. This is especially true since the recent adoption of the UNDROP in 2019 is a sign for an ongoing trend that is likely to continue: empowerment of marginalised people(s) all over the world.
In addition, by not putting in place a mechanism that considers the benefits and disadvantages of CITES listings for IPLCs stands in stark contrast to the UN’s Sustainable Development Goals (SDGs). Very broadly, the SDGs “recognize that ending poverty and other deprivations must go hand-in-hand with strategies that improve health and education, reduce inequality, and spur economic growth – all while tackling climate change and working to preserve our oceans and forests” (UN, Undated). The 17 SDGs thus provide a blueprint for action that includes means and ways to benefit people(s) and the planet.
By remaining a Convention that merely repeats what it has done close to 50 years ago, CITES will eventually become outdated — if it isn’t already. Even though it is a fact that many indigenous representatives are indeed present at the meetings as observers, as Orenstein et al. (2022) argue, this does not tackle the inherent injustice towards IPLCs that rests in the structural set-up of the Convention’s bodies. If there is no mechanism that enables them to have their voices heard, a reform of CITES would only be superficial and without much meaning. Because then it fails to take up a modern approach to conservation, failing its own purpose.
Challender, D. W. S., & D.C. MacMillan. (2019). Investigating the influence of non-State actors on amendments to the CITES Appendices. Journal of International Wildlife Law Policy 22, 90–114. doi: 10.1080/13880292.2019.1638549.
Cooney, R., D.W. S. Challender, S. Broad, D. Roe & D.J. D. Natusch. (2021). Think Before You Act: Improving the Conservation Outcomes of CITES Listing Decisions. Frontiers in Ecology and Evolution. https://doi.org/10.3389/fevo.2021.631556.
Fitzmaurice, M. (2016). The Whaling Convention and Thorny Issues of Interpretation. In M. Fitzmaurice & D. Tamada (Eds.), Whaling in the Antarctic: Significance and Implications of the ICJ Judgement (pp. 53– 138). Leiden: Brill.
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Orenstein, R.I., D. Freyer, S. Lieberman, E. Lyman, R. Reeve, T. Sanerib & D.J. Schubert. (2022). Commentary: Think Before You Act: Improving the Conservation Outcomes of CITES Listing Decisions. Frontiers in Ecology and Evolution, https://doi.org/10.3389/fevo.2022.889234
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