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Enforcing CITES: the rise and fall of trade sanctions

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Abstract

Among the most innovative – albeit least well known – features of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) regime is the use of trade sanctions for noncompliance with the treaty. Though not foreseen at all in the original text of the Convention, a unique system of ‘collective retorsion’ was gradually developed through a series of resolutions by the Conference of the Parties, by way of trade embargoes – that is, multilateral recommendations to suspend trade in CITES-listed specimens with the country concerned. Since 1985, this scheme – now codified in the 2007 Guidelines on Compliance with the Convention – has been enforced against at least 43 recalcitrant States (parties and non-parties). This article reviews the historical evolution of the CITES sanction scheme in practice over the past three decades, and its effectiveness in achieving compliance. The legality and legitimacy of the scheme is assessed in light of the Convention, other relevant international instruments and general rules of international law.
Enforcing CITES: The Rise and Fall of
Trade Sanctions
Peter H. Sand
Among the most innovative – albeit least well known –
features of the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES)
regime is the use of trade sanctions for noncompliance
with the treaty. Though not foreseen at all in the origi-
nal text of the Convention, a unique system of ‘collec-
tive retorsion’ was gradually developed through a
series of resolutions by the Conference of the Parties,
by way of trade embargoes – that is, multilateral rec-
ommendations to suspend trade in CITES-listed speci-
mens with the country concerned. Since 1985, this
scheme – now codified in the 2007 Guidelines on Com-
pliance with the Convention – has been enforced
against at least 43 recalcitrant States (parties and
non-parties). This article reviews the historical
evolution of the CITES sanction scheme in practice
over the past three decades, and its effectiveness in
achieving compliance. The legality and legitimacy of
the scheme is assessed in light of the Convention, other
relevant international instruments and general rules
of international law.
INTRODUCTION: ENFORCEMENT
OF COMPLIANCE ON THE
CITES AGENDA
The mandate of the 1973 Convention on International
Trade in Endangered Species of Wild Fauna and Flora
(CITES) placed the treaty in disputed territory –
namely the borderland of environmental conservation
and trade regulation.1This article reviews the practical
experience of the CITES regime in applying one of its
most potent regulatory and enforcement instruments:
the use of trade embargoes, in the form of recommen-
dations to suspend trade in CITES-listed species.
Enforcement issues have long been a ‘constant concern’
for the Conference of the Parties (CoP) to CITES.2In
1981, it had mandated a ‘Technical Expert Committee’
(established in 1979; renamed ‘Technical Committee’ in
1983) to ‘identify problems with enforcement of the
Convention and provide guidance to the secretariat and
the parties on measures that may be undertaken to
remedy these problems’.3After the abolition of the
Committee in the course of a re-organization in 1987,4
enforcement matters were left to the CITES Standing
Committee and the Secretariat, with advisory input
from ad hoc meetings (2004 and 2009) of an ‘Enforce-
ment Expert Group’ reporting to the Standing Commit-
tee.5Over the past few years, however, the problem
of illegal wildlife trafficking – and its connection
with organized crime and political security threats – has
come to the forefront. Following a series of Memoranda
of Understanding with other international institutions
(including INTERPOL) and regional networks active
in this field,6and through participation in the Interna-
tional Consortium on Combating Wildlife Crime created
in 2010,7the CITES Secretariat also intensified its
cooperation with the United Nations Commission on
Crime Prevention and Criminal Justice,8at whose
1‘International cooperation is essential for the protection of certain
species of wild fauna and flora against over-exploitation through
international trade.’ Convention on International Trade in Endangered
Species (Washington, DC, 3 March 1973; in force 1 July 1975)
(‘CITES’), preamble. See P.H. Sand, ‘Whither CITES? The Evolution
of a Treaty Regime in the Borderland of Trade and Environment’,
8:1 European Journal of International Law (1997), 29; and W.
Wijnstekers, The Evolution of CITES: A Reference to the Convention
on International Trade in Endangered Species of Wild Fauna and
Flora,9
th edn (International Council for Game and Wildlife Conserva-
tion, 2011).
2CITES Resolution Conf. 11.3 (Rev. CoP16), Compliance and
Enforcement (2000/2013).
3CITES Resolution Conf. 3.5 (Rev. CoP4), Technical Expert Com-
mittee (1981/1983).
4See R. Reeve, Policing International Trade in Endangered Species:
The CITES Treaty and Compliance (Earthscan, 2002), at 49–50.
5See Report of the CITES Enforcement Expert Group (SC58 Doc.23/
Add, 2009). On the promotion and coordination of enforcement at the
national level, see D. Kaniaru and E. Mrema (eds.), Enforcement of
and Compliance with MEAs: The Experience of CITES, Montreal
Protocol and Basel Convention, Vol. 1 (United Nations Environment
Programme (UNEP), 1999), 1, at 93–149; and the proceedings of the
International Network for Environmental Compliance and Enforce-
ment (1990–2011), found at: <http://www.inece.org>.
6For a list of MoUs concluded, see P.H. Sand, ‘Endangered Species,
International Protection’, in: R. Wolfrum (ed.), Max Planck Encyclo-
pedia of Public International Law, Vol. 3 (Oxford University Press,
2012), 423, at 427.
7Co-financed by the World Bank Development Grant Facility. See
International Consortium on Combating Wildlife (CoP16 Doc.15
(Rev.1), 2013).
8The commission services the UN Convention Against Transnational
Organized Crime (New York, 15 November 2000; in force 29 Sep-
tember 2003) and the UN Convention Against Corruption (New York,
31 October 2003; in force 14 December 2005). See M.E.
Zimmermann, ‘The Black Market for Wildlife: Combating Transna-
tional Organized Crime in the Illegal Wildlife Trade’, 36:5 Vanderbilt
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request the UN Economic and Social Council on 25 July
2013 adopted a resolution on ‘crime prevention and
criminal justice responses to trafficking in protected
species of wild fauna and flora’.9Illustrating the dimen-
sion of the problem, a recent report of the UN Office
on Drugs and Crime estimates illegal trade in wildlife
and wood-based products in/from East Asia and the
Pacific alone as approaching a value of US$20 billion
annually.10
Surprisingly perhaps, enforcement (defined as ‘the act
or process of compelling compliance with a law . . . or
agreement’11) is still approached with considerable hesi-
tation in most multilateral environmental regimes.
Notwithstanding the advent of a whole range of inno-
vative compliance procedures and institutions over the
past few decades,12 treaty drafters as well as commen-
tators seem to bend over backwards to avoid ‘coercive’
language – or the very word ‘sanctions’, for that
matter.13 In essence, many international lawyers today
‘do not so much shy away from addressing the topic of
coercion as simply deny its importance’.14
Yet, as pointed out by Jean Combacau, the concept of
sanctions lies at the centre of the debate on the effec-
tiveness or even the existence of international law.15
And contrary to the widespread assumption that ‘sanc-
tioning authority is rarely granted by treaty, rarely used
when granted, and likely to be ineffective when used’,16
CITES offers perhaps the most striking illustration of a
workable system of collective treaty sanctions, gradu-
ally developed in practice, and credited by some observ-
ers with ‘an almost 100 percent success rate’.17 Not
surprisingly therefore, an independent external evalu-
ation of the system commissioned by the Standing
Committee in 2004 concluded that unlike other multi-
lateral environmental agreements, CITES did not need
a special compliance control body as postulated by
some parties.18
TRADE EMBARGOES UNDER
CITES ARTICLE XIV.1
The formal legal basis for CITES sanctions is Article
XIV.1(a) of the Convention, which expressly reserves
the right of States to take ‘stricter domestic measures
regarding the conditions for trade, taking, possession
or transport of specimens of species included in
Journal of Transnational Law (2003), 1657, at 1686; M. Yeater, ‘Cor-
ruption and Illegal Wildlife Trafficking’, in: Corruption, Environment
and the United Nations Convention Against Corruption (UNODC,
2012), 17; and R. Torpy, ‘If Criminal Offenses Were Added to CITES,
Would Nations Be Better Able to Restrict International Trade in
Endangered Species and Protect Biodiversity?’, 9:3 Revista de
Direito Internacional/Brazilian Journal of International Law (2012), 57.
9Text in: Report of the Commission on Crime Prevention and Crimi-
nal Justice on its Twenty-second Session (UN Doc. E/2013/30,
2013), at 36. See also United States President Obama’s Executive
Order 13648 of 1 July 2013 (‘Combating Wildlife Trafficking’), 78
Federal Register 40619 (5 July 2013); and J.E. Scanlon, ‘CITES at Its
Best: CoP16 as a “Watershed Moment” for the World’s Wildlife’, 22:3
Review of European, Comparative and International Environmental
Law (2013).
10 UN Office on Drugs and Crime, Transnational Organized Crime in
East Asia and the Pacific: A Threat Assessment (UNODC, 2013), at
75–86 (based on 2008 FAO and TRAFFIC data). The largest black
market in wildlife products concerns marine wildlife: even when dis-
regarding illegal offshore fishing, that sector alone is estimated to net
an annual income of US$850 million for the criminal enterprises
involved (ibid., at 86). On the illegal ivory trade, see C. Nellemann
et al. (eds.), Elephants in the Dust: The African Elephant Crisis
(UNEP/CITES/IUCN/TRAFFIC, 2013). The overall value of wildlife,
fisheries and timber products in global trade was estimated at
US$332.5 billion in 2005. See M. Engler, ‘The Value of International
Wildlife Trade’, 22:1 TRAFFIC Bulletin (2008), 4.
11 B.A. Garner (ed.), Black’s Law Dictionary,9
th edn (Thomson/West,
2009), at 608.
12 See T. Treves et al. (eds.), Non-Compliance Procedures and
Mechanisms and the Effectiveness of International Environmental
Agreements (T.M.C. Asser Press, 2009).
13 See J. Brunnée, ‘Enforcement Mechanisms in International Law
and International Environmental Law’, in: U. Beyerlin et al. (eds.),
Ensuring Compliance with Multilateral Environmental Agreements: A
Dialogue between Practitioners and Academia (Martinus Nijhoff,
2006), 1, at 3. Both the UNEP Guidelines on Compliance with and
Enforcement of Multilateral Environmental Agreements (UN Doc.
UNEP/GCSS.VII/4/Add.2, 17 February 2002) and the UN Economic
Commission for Europe (UNECE) Guidelines on Compliance and
Enforcement/Implementation of Multilateral Environmental Agree-
ments (UN Doc. ECE/CEP/107, 23 May 2003) refrain from using the
term ‘sanctions’ and instead refer to ‘potential measures’ only.
14 A. D’Amato, ‘The Coerciveness of International Law’, 52 German
Yearbook of International Law (2009), 437, at 437. See also M.E.
O’Connell, ‘Enforcement and the Success of International Environ-
mental Law’, 3:1 Indiana Journal of Global Legal Studies (1995), 47,
at 53.
15 J. Combacau, ‘Sanctions’, in: R. Bernhardt (ed.), Encyclopedia of
Public International Law, Vol. 4 (Elsevier, 2000), at 311, equating
sanctions with the (preferred) term ‘countermeasures’. See also A.
Pellet and A. Miron, ‘Sanctions’, in: R. Wolfrum, n. 6 above, Vol. 9, 1,
at 1; G. Abi-Saab, ‘The Concept of Sanction in International Law’, in:
V. Gowlland-Debbas (ed.), United Nations Sanctions and Interna-
tional Law (Kluwer Law International, 2001), 29; N. White and A.
Abbas, ‘Countermeasures and Sanctions’, in: M.D. Evans (ed.), Inter-
national Law,3
rd edn (Oxford University Press, 2010), 531; and D.
Alland, ‘The Definition of Countermeasures’, in: J. Crawford et al.
(eds.), The Law of International Responsibility (Oxford University
Press, 2010), 1127.
16 A. Chayes and A.H. Chayes, The New Sovereignty: Compliance
with International Regulatory Agreements (Harvard University Press,
1998), at 32–33.
17 D. Brack, ‘Environmental Treaties and Trade: Multilateral Environ-
mental Agreements and the Multilateral Trading System’, in: G.P.
Sampson and W.B. Chambers (eds.), Trade, Environment and the
Millennium,2
nd edn (United Nations University Press, 2002), 321, at
334. For a more nuanced assessment of the system’s effectiveness,
see R. Reeve, ‘Wildlife Trade, Sanctions and Compliance’, 82:5 Inter-
national Affairs (2006), 881, at 892–895.
18 V. Koester, Compliance Committees within MEAs and the Desir-
ability and Feasibility of Establishing Special Compliance Bodies
under CITES (SC54 Doc.Inf.3, 2004); and see the proposal by
Germany (on behalf of the EU Member States), summarized in:
Guidelines on Compliance with the Convention (SC50 Doc.27, 2004),
Annex 1, at paragraph 12.
PETER H. SAND RECIEL •• (••) 2013
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Appendices I, II and III, or the complete prohibition
thereof’.19 Implicitly therefore, the Article also autho-
rizes the use of unilateral economic sanctions by way of
trade restrictions or trade bans (embargoes) against
other States,20 provided these are compatible with
applicable general rules of international law.21
The most prominent examples of unilateral state prac-
tice in this field are the trade embargoes imposed by the
United States under the Lacey Act of 1900 as amended
in 1935,22 the so-called ‘Pelly Amendment’ of 1971 to the
1954 Fishermen’s Protective Act,23 and the 1976 Fishery
Conservation and Management Act as amended.24
Those laws empower the American President to sanc-
tion other States infringing international environmen-
tal agreements such as CITES or the International
Convention for the Regulation of Whaling by way of
foreign-trade restrictions or denial of fishing rights in
American coastal waters, upon prior ‘certification’ of
such infringements through the United States Secretary
of Commerce.25
By implication, such findings of infringement are based
on treaty interpretation – that is, the alleged noncom-
pliance by other States with multilateral agreements.
While the interpretation so invoked is unilateral, it
may be motivated or supported by pronouncements of
competent intergovernmental treaty bodies, such as
the CITES CoP or Standing Committee authorizing/
recommending ‘stricter domestic measures’ under
Article XIV.1. Unilateral American trade measures have
thus repeatedly been applied in response to CITES
infringements, including an import ban under the Lacey
Act against Singapore in 1986,26 certifications under
the Pelly Amendment against Japan in 1991,27 and
against Taiwan in 1993.28 Along the same lines, EU
Member States enforced a strict import ban against
Indonesia for all species listed on CITES Appendix II
in 1991–1995.29 Significantly, though, the United
States Supreme Court made it clear in 1986 that the
imposition of trade sanctions lies within the exclusive
foreign policy discretion of the American government
and therefore cannot be mandated on the basis of
community concerns.30 That would in essence condi-
tion the enforcement of international environmental
law on whether or not it is currently opportune for any
one government – hardly a robust basis for the long-
term conservation of common natural resources.31
19 CITES, n. 1 above, Article XIV.1(a). See P.H. Sand, n. 1 above,
at 38.
20 See H.G. Kausch, ‘Embargo’, in: R. Bernhardt, n. 15 above, Vol. 2,
38; and H.K. Ress, Das Handelsembargo: Völker-, europa- und
aussenwirtschaftsrechtliche Rahmenbedingungen, Praxis und
Entschädigung (Springer, 2000), at 7.
21 For a caveat against excessive unilateral use of Article XIV.1 of
CITES, see J. Hutton, ‘CITES: The Issue of Endangered Species’, in:
P. Könz (ed.), Trade, Environment and Sustainable Development:
Views from Sub-Saharan Africa and Latin America (International
Centre for Trade and Sustainable Development, 2000), 143, at 145.
22 Lacey Act of 25 May 1900, as amended by the Act of 15 June 1935,
49 Stat. 378. See R.S. Anderson, ‘The Lacey Act: America’s Premier
Weapon in the Fight against Unlawful Wildlife Trafficking’, 16:1 Public
Land Law Review (1995), 27.
23 Fishermen’s Protective Act of 27 August 1954, as amended by the
Act of 23 December 1971, 85 Stat. 786. See S. Charnovitz, ‘Encour-
aging Environmental Cooperation through the Pelly Amendment’, 3:1
Journal of Environment and Development (1994), 3–28.
24 Starting with the 1979 Packwood-Magnuson Amendment to the
Fishery Conservation and Management Act of 13 April 1976, 93 Stat.
407. See E. Zoller, Enforcing International Law Through US Legisla-
tion (Transnational, 1985), at 84; and the import restrictions under
Sections 205 and 608 of the 2006 Magnuson-Stevens Fishery Con-
servation and Management (Reauthorization) Act, Public Law 109-
479.
25 See A.F. Upton, ‘The Big Green Stick: Reducing International Envi-
ronmental Degradation through US Trade Sanctions’, 22:3 Boston
College Environmental Affairs Law Review (1995), 671; and S.D.
Murphy, ‘US Sanctions against Japan for Whaling’, 95:1 American
Journal of International Law (2001), 149, at 150.
26 Following an American embargo on 25 September 1986 for all
wildlife imports from Singapore (which at the time was not a CITES
member), Singapore acceded to CITES on 30 November 1986, and
the embargo was lifted on 30 December 1986. See P.H. Sand, n. 1
above, at 39; and R. Reeve, n. 4 above, at 129–130.
27 Following Japan’s Pelly Amendment certification in March 1991 for
trade in endangered marine turtles (even though it had entered valid
reservations under CITES Article XXIII), the Japanese government
in April 1991 withdrew its reservation on olive ridley turtles
(Lepidochelys olivacea), and in 1994 its reservation on hawksbill
turtles (Eretmochelys imbricata). See C.D. Stone, The Gnat is Older
than Man: Global Environment and Human Agenda (Princeton Uni-
versity Press, 1993), at 45; S. Murase, ‘National Report: Japan’, 5
Yearbook of International Environmental Law (1994), 425, at 426; P.
Mofson, ‘Protecting Wildlife from Trade: Japan’s Involvement in the
Convention on International Trade in Endangered Species’, 3:1
Journal of Environment and Development (1994), 91, at 100; and M.
Dupree, ‘Passing through Enemy Waters: Marine Turtles in Japan’,
14:1 University of California at Los Angeles Pacific Basin Law Journal
(1995), 75. See also S. Charnovitz, ‘Environmental Trade Sanctions
and the GATT: An Analysis of the Pelly Amendment on Foreign
Environmental Practices’, 9:3 American University Journal of Interna-
tional Law and Policy (1994), 751.
28 See S. Patel, ‘The Convention on International Trade in Endan-
gered Species: Enforcement and the Last Unicorn’, 18:2 Houston
Journal of International Law (1995), 157, at 197–199; and E.
De Sombre, Domestic Sources of International Environmental Policy:
Industry, Environmentalists, and US Power (MIT Press, 2000), at
175–178.
29 The embargo was eventually lifted after an EU-sponsored field
inspection by an IUCN expert. See R. Reeve, n. 4 above, at 125–126.
See also L. Krämer, ‘Environmental Protection and Trade: The Con-
tribution of the European Union’, in: R. Wolfrum (ed.), Enforcing
Environmental Standards: Economic Measures as Viable Means?
(Springer, 1996), 413, at 437.
30 Japan Whaling Association v. American Cetacean Society (30 June
1986), 478 US 221. See J.K. Setear, ‘Can Legalization Last? Whaling
and the Durability of National (Executive) Discretion’, 44:3 Virginia
Journal of International Law (2004), 711, at 753.
31 P.H. Sand, ‘Japan’s “Research Whaling” in the Antarctic Southern
Ocean and the North Pacific Ocean in the Face of the Endangered
Species Convention (CITES)’, 17:1 Review of European Community
and International Environmental Law (2008), 56, at 68. See also U.
Beyerlin and T. Marauhn, Rechtsetzung und Rechtsdurchsetzung im
Umweltvölkerrecht nach der Rio-Konferenz 1992 (Erich Schmidt
Verlag, 1997), at 79; and L. Boisson de Chazournes, ‘The Use of
Unilateral Trade Measures to Protect the Environment’, in: A. Kiss
et al. (eds.), Economic Globalization and Compliance with Interna-
tional Law (Kluwer Law International, 2003), 181.
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THE EVOLUTION OF COLLECTIVE
RETORSION PROCEDURES
Meanwhile, the CoP to CITES gradually developed a
procedure of its own for collective measures against
noncompliance with the Convention, based on Article
XIII (‘international measures’), consolidated and codi-
fied in Resolution 14.3 (2007).32 The practice of the
CITES compliance regime, which amounts to a system
of ‘multilateral retorsion’33 (starting with the first trade
embargo against Bolivia in 1985),34 may be summarized
as follows:35
Whenever ‘specific compliance matters’ (a euphemism
for disputes over noncompliance) are not resolved by
direct communication between the party concerned and
the CITES Secretariat (pursuant to Article XIII) or the
Standing Committee (pursuant to its functions as del-
egated by the CoP), the Conference or the Standing
Committee may, as a last resort (‘where a party’s com-
pliance matter is unresolved and persistent and the
party is showing no intention to achieve compliance’),
recommend an embargo – that is, the ‘suspension of
commercial or all trade in specimens of one or more
CITES-listed species’.36 While a suspension may thus
focus on trade in particular species only (species-
specific;37 e.g., the embargo on imports of Nile crocodile
specimens and products from Madagascar imposed in
2010),38 the most effective sanctions of course are
general embargoes (country-specific) – that is, denying
recognition to all CITES export permits issued by the
targeted country as valid documentation for entry any-
where else in the world. As a result, the country is
excluded from access to the lucrative legal export
markets for some 35,000 species of commercially trad-
able wildlife and wildlife products listed in Appendix II
of the Convention. In view of the economic stakes
involved, therefore, the mere threat of denial of market
access often tends to produce near-instant compliance.39
Embargoes were not only imposed on parties to the
Convention, but also on non-party States failing to
comply with ‘comparable’ documentation standards
under Article X (‘trade with states not party to the Con-
vention’).40 During the early years of CITES, countries
unwilling to comply with the treaty’s standards still had
the option to preserve their ‘free-rider’ status by refus-
ing to join, in the hope of finding substitute markets or
alternative suppliers outside the regime. Consequently,
sanctions during those years also focused on the goal of
bringing recalcitrant outsiders under the rules of the
Convention (free-riders turned ‘forced-riders’).41 With
progressive expansion of the membership to its current
near-universal total of 178 States, external trade
options have virtually disappeared, and the new free-
riders are those parties that fail to implement basic
treaty rules and in the process exploit the resulting
inequality of trading standards to their own competitive
advantage.42
To cope with these changes, the CoP also expanded the
catalogue of offences triggering trade sanctions. While
32 CITES Resolution Conf. 14.3, CITES Compliance Procedures
(2007), Annex: Guide to CITES Compliance Procedures (‘CITES
Compliance Procedures’). See C. Payne, ‘Introductory Note’, 46
International Legal Materials (2007), 1174. As explained in the intro-
ductory paragraph of the guidelines, the codification is a description
of existing Convention practice; the authentic legal basis thus
remains CITES, n. 1 above, Article XIII (empowering the Conference
to review alleged infractions, and to make ‘whatever recommenda-
tions it deems appropriate’), and the five earlier Conference resolu-
tions and decisions listed in footnote 1 of the Guide.
33 See P.H. Sand, n. 6 above, at 427.
34 CITES Resolution Conf. 5.2, Implementation of the Convention in
Bolivia (1985). See R. Reeve, n. 4 above, at 96–99.
35 For a detailed account of the dynamic growth of the scheme, see
the valuable research work of Rosalind Reeve: R. Reeve, n. 4 above;
R. Reeve, n. 17 above, and R. Reeve, ‘Enhancing the International
Regime for Protecting Endangered Species: The Example of CITES’,
63:2 Heidelberg Journal of International Law (2003), 333. See also M.
Fitzmaurice, ‘Environmental Compliance Control’, in: R. Wolfrum, n. 6
above, Vol. 3, 541, at 554–555.
36 CITES Compliance Procedures, n. 32 above, at paragraph 30. See
W. Wijnstekers, n. 1 above, at 254.
37 Mainly for ‘significantly-traded’ Appendix II species and ‘high-
profile’ Appendix I species, in implementation of CITES Resolution
Conf. 12.8 (Rev. CoP13), Review of Significant Trade in Specimens
of Appendix-II Species (2002/2004). See R. Reeve, n. 4 above, at
159–205; R. Reeve, n. 17 above, at 889; W. Wijnstekers, n. 1 above,
at 137 and 142; and CITES Notification to the Parties No. 2013/013,
Review of Significant Trade in Specimens of Appendix-II Species
(2 May 2013).
38 CITES Notification to the Parties No. 2010/015, Madagascar (17
June 2010). For follow-up, see Overview of Trade in Crocodylus
Niloticus from Madagascar during the Period 2006–2011 (SC63/Inf.1,
2012).
39 See P.H. Sand, ‘Sanctions in Case of Non-compliance and State
Responsibility: Pacta Sunt Servanda – Or Else?’, in: D. Zaelke et al.
(eds.), Making Law Work: Environmental Compliance and Sustain-
able Development, Vol. 1 (Cameroon, May 2005), 259; reprinted in:
U. Beyerlin et al., n. 13 above, 259.
40 See CITES Resolution Conf. 9.5 (Rev. CoP15), Trade with States
not Party to the Convention (1994/2010); and W. Wijnstekers, n. 1
above, at 339–342. Given that third-party States are not bound by
CITES rules, conduct giving rise to sanctions in these cases (persis-
tent refusal to furnish documentation required pursuant to Article X)
cannot be characterized as a breach of the Convention, but as a
simple ‘unfriendly act’. On the compatibility with GATT/WTO law, see
A. Goyal, The WTO and International Environmental Law: Towards
Conciliation (Oxford University Press, 2006), at 84–85; but see M.
Fitzmaurice, n. 35 above, at 549 (‘controversial’).
41 P.H. Sand, ‘Commodity or Taboo? International Regulation of
Trade in Endangered Species’, 6 Green Globe Yearbook of Interna-
tional Cooperation on Environment and Development (1997), 19, at
22. See, e.g., the case of Singapore in 1986, n. 26 above, which at
the time was notorious for attracting international wildlife trade in
CITES-listed species, thereby diverting trade flows from other coun-
tries for the benefit of its local commerce. Three other non-parties
eventually acceded to CITES after being targeted by trade embar-
goes (El Salvador in 1987, Equatorial Guinea in 1992 and Grenada in
1999). The United Arab Emirates withdrew from the Convention fol-
lowing an embargo in 1988, but re-joined in 1990, and were targeted
again in 2001–2002.
42 See A. D’Amato, n. 14 above, at 439, on the need for coercion to
prevent this very kind of free-riding.
PETER H. SAND RECIEL •• (••) 2013
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4
the initial focus was on infractions of specific substan-
tive treaty obligations, inadequate domestic imple-
menting legislation has since 1999 become the most
frequently cited reason (on the basis of systematic
country-by-country reviews of national laws and
administration),43 followed since 2002 by cases of per-
sistent noncompliance with annual reporting require-
ments,44 and since 2008 by noncompliance with
specific requirements of the Action Plan for the Control
of Trade in African Elephant Ivory.45 Table 1 shows
the country-specific CITES embargoes imposed since
1985 against a total of 43 States, in chronological
order.46
The extraordinary effectiveness of the scheme is dem-
onstrated by the fact that in more than 80% of the cases,
trade suspensions could be lifted within less than a
year, on the basis of evidence that the targeted country
had returned to compliance (by enacting or amending
the necessary legislation, submitting overdue reports,
or complying with action plan requirements).47 Even in
cases where recommended trade bans were not imple-
mented by all member States,48 denial of market access
in a few key countries usually proved sufficient to
induce compliance.
TESTING THE LEGALITY OF THE
CITES SANCTION SCHEME
Legal evaluation of the current CITES scheme of sanc-
tions (in the form of country-specific trade embargoes
penalizing persistent noncompliance) must address
three basic questions: (i) the authority of the CoP or its
Standing Committee to initiate collective retorsion
measures; (ii) the compatibility of the scheme with
other relevant treaty regimes; and (iii) its conformity to
applicable general rules of international law.
DELEGATED LAW-MAKING
IN PRACTICE
Decision-making by CoPs to environmental agree-
ments has been described as ‘de facto law-making’.49
Whether or not these conferences are considered
autonomous intergovernmental organizations or quasi-
organizations,50 they unquestionably perform norma-
tive functions.51 In many respects, CITES is a prototype
of this growing ‘institutionalization of normative diplo-
macy’.52 What has evolved from the accumulated prac-
tice of the regime as codified in the Compliance
43 Under the ‘National Legislation Project’ initiated by CITES Resolu-
tion Conf. 8.4, National Laws for Implementation of the Convention
(1992, repeatedly revised up to CoP16/2013), domestic implementing
legislation is rated according to whether it meets ‘all’, ‘some’ or ‘none’
of four basic criteria: (i) designation of national CITES management
and scientific authorities; (ii) prohibition of trade in violation of the
Convention; (iii) penalization of such trade; and (iv) confiscation of
illegally traded or illegally possessed specimens. See R. Reeve, n. 4
above, at 134–147; and R. Wolfrum, ‘Means of Ensuring Compliance
with and Enforcement of International Environmental Law’, 272
Hague Academy of International Law: Collected Courses (1998), 9, at
50 (footnote 99).
44 Under CITES Resolution Conf. 11.17 (Rev. CoP14), National
Reports (2000/2007), providing for sanctions after a party’s failure to
submit reports for three consecutive years. See R. Reeve, n. 4 above,
at 147–152.
45 Action Plan for the Control of Trade in African Elephant Ivory,
adopted in 2005, found in: Trade in Elephant Specimens (CoP14
Doc.53/1, 2007), Annex 1 (‘African Elephant Action Plan’); and W.
Wijnstekers, n. 1 above, at 626–628. At the 64th meeting of the
Standing Committee (Bangkok, 14 March 2013), eight countries
identified as ‘source countries’ (Kenya, Uganda, Tanzania), ‘transit
countries’ (Malaysia, Philippines, Vietnam) or ‘destination countries’
(China, Thailand) were officially requested to submit national action
plans to combat illegal ivory trade, for review and possible compli-
ance action by the Committee at its 65th meeting (Geneva, 7–11 July
2013). See National Ivory Action Plans (SC64 Doc.2, 2013); but see
also the critical comments by S. Suresh, ‘CITES: Rhetoric and Tip-
toeing around Elephant Poaching’, Environmental Investigation
Agency Blog (15 March 2013), found at: <http://www.eia-international
.org/cites-polite-rhetoric-and-tiptoeing-around-elephant-poaching>.
46 In cases of suspensions for multiple reasons, States are grouped
between first-listed and last-lifted embargo.
47 For case-by-case assessments, see R. Reeve, n. 4 above, at
91–188; and R. Reeve, n. 17 above, at 892–895.
48 For example, Austria, Switzerland and the United States did not
implement the 1992 embargo against Italy; and the United States
implemented the 1993 embargo against Taiwan, though not against
China. See n. 28 above and n. 57 below.
49 J. Brunnée, ‘Reweaving the Fabric of International Law? Patterns
of Consent in Environmental Framework Agreements’, in: R. Wolfrum
and V. Röben (eds.), Developments of International Law in Treaty-
making (Springer, 2005), 101, at 115.
50 See J. Sommer, ‘Environmental Law-making by International
Organizations’, 56:3 Heidelberg Journal of International Law (1996),
628, at 632; R.R. Churchill and G. Ulfstein, ‘Autonomous Institutional
Arrangements in Multilateral Environmental Agreements: A Little-
noticed Phenomenon in International Law’, 94:4 American Journal of
International Law (2000), 623, at 658; and G. Ulfstein, ‘Treaty Bodies’,
in: D. Bodansky et al. (eds.), The Oxford Handbook of International
Environmental Law (Oxford University Press, 2007), 877, at 886.
51 See M. Chemillier-Gendreau, ‘La Création de “Normes” par les
Institutions des Conventions’, in: J.M. Lavieille (ed.), Conventions de
Protection de l’Environnement: Secrétariats, Conférences des
Parties, Comités d’Experts (Presses Universitaires de Limoges,
1999), 361; J. Brunnée, ‘COPing with Consent: Law-making Under
Multilateral Environmental Agreements’, 15:1 Leiden Journal of
International Law (2002), 1; E. Hey, ‘Sustainable Development,
Normative Development and the Legitimacy of Decision-making’, 34
Netherlands Yearbook of International Law (2003), 3; T. Gehring,
‘Treaty-making and Treaty Evolution’, in: D. Bodansky et al., n. 50
above, 467, at 491; L.K. Camenzuli, The Development of Interna-
tional Law at the Multilateral Environmental Agreements’ Conference
of the Parties and Its Validity (IUCN World Commission on Environ-
mental Law, 2007); A. Wiersema, ‘The New International Law-
makers? Conferences of the Parties to Multilateral Environmental
Agreements’, 31:1 Michigan Journal of International Law (2009), 231;
O. Kraft, La Réception des Conférences des Parties dans l’Ordre
Juridique International (Master thesis, University of Paris I, 2010);
and P.H. Sand, ‘Le Role des “Conférences des Parties” aux Conven-
tions Environnementales’, in: Y. Kerbrat et al. (eds.), Le Droit Inter-
national face aux Enjeux Environnementaux (Pedone, 2010), 101.
52 P.M. Dupuy, Droit International Public,9
th edn (Dalloz, 2008), at
387. See also V. Röben, ‘The Enforcement Authority of International
Institutions’, in: A. von Bogdandy et al. (eds.), The Exercise of Public
Authority by International Institutions: Advancing International Institu-
tional Law (Springer, 2010), 819, at 829.
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TABLE 1 SUSPENSION(S) OF ALL COMMERCIAL TRADE IN CITES-LISTED SPECIES (1985–2013)53
COUNTRIES TARGETED REASONS FOR TRADE SUSPENSIONS
GENERAL
PROBLEMS OF
IMPLEMENTATION
INADEQUATE
LEGISLATION54
INADEQUATE
REPORTING55
INADEQUATE
CONTROLS OF
IVORY TRADE56
Bolivia 1985–1987
United Arab Emirates 1985–1990, 2001–2002
El Salvador 1986–1987
Equatorial Guinea 1988–1992 2004
Grenada 1991–1992
Thailand 1991–1992
Italy 1992–1995
China and Taiwan57 1993
Greece 1998–1999
Guyana 1999
Senegal 1999–2000
Democratic Republic of Congo 2000–2001 2008
Vietnam 2002
Yemen 2002
Fiji 2002–2003
Bangladesh58 2002–2003
Dominica 2002–2003
Vanuatu 2002–2003
Afghanistan 2002–2003, 2013–date
Liberia 2004–2008 2002–2005
Rwanda 2004–2010 2002–2003 2008
Somalia 2004–date 2002–2003 2008–2012
Djibouti 2004–date 2002–2003, 2013–date
Mauritania 2004–date 2003–2010
Central African Republic 2004
Gambia 2004–2005
India 2004–2005
Algeria 2004–2005
Guinea-Bissau 2004–2008 2004–2006
Mozambique 2004
Panama 2004
Sierra Leone 2004
Nigeria 2005–2008 2008
Chad 2008
Ethiopia 2008
Nepal 2008
Sri Lanka 2008
Sudan 2008
Swaziland 2008
Gabon 2008–2012
Libya 2011–2012
Guinea59 2013–present 2008
Lesotho 2013–present
53 Revised/updated from Table 1 in R. Reeve, n. 17 above, at 890–891; and Table 1 in P.H. Sand, n. 39 above, 261–262.
Current CITES trade suspensions can be found at: <http://www.cites.org/eng/resources//ref/suspend.php>(updated 17 May
2013).
54 In light of the criteria listed in CITES Resolution Conf. 8.4, n. 43 above.
55 Suspensions for persistent inadequate reporting (over three consecutive years) are for all CITES trade.
56 Pursuant to the African Elephant Action Plan, n. 45 above.
57 Standing Committee Decision No. 6, 30th Mtg. See CITES Notification to the Parties No. 1993/774, Decisions of the Standing
Committee on Trade in Rhinoceros Horn and Tiger Specimens (15 October 1993).
58 Bangladesh was targeted by mistake. See CITES Notification to the Parties No. 2003/006, Bangladesh (7 February 2003).
59 Standing Committee, 63rd Mtg. See CITES Notification to the Parties No. 2013/017, Guinea (16 May 2013).
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Procedures60 thus is a kind of ‘derivative law-making’61
delegated to the Conference and its Standing Commit-
tee (which was not even foreseen in the original
treaty)62 that verges on quasi-legislation.63
The imposition of trade sanctions in this unorthodox
fashion did not go unchallenged. In the ‘Bolivian
Furskins case’ before the European Court of Justice
between 1986 and 199064 – involving imports of ocelot
furs from Bolivia to France after the trade embargo
imposed by CITES Resolution 5.2 (1985),65 and its
implementation by the EU under Regulation 3626/8266
– France contended that the resolution ‘was only a rec-
ommendation without any legal effect’.67 However, the
Court held that by authorizing the imports, France had
failed to fulfil its obligations under the regulation
implementing CITES by not following the ‘stricter
domestic measures’ adopted by the EU in light of the
1985 resolution.68
It has been contended that the practice of delegated
law-making by CITES resolutions ‘undermines’ the
rigid legality principle of international criminal law
(nulla poena sine lege).69 The reason given is that,
under Article VIII, parties are obliged to ‘penalize’ trade
in violation of the Convention and hence have to amend
their national criminal laws each time the CoP amends
the list of species on CITES Appendices I or II,70 without
any participation by the national legislatures solely
competent to enact penal norms.71 That academic criti-
cism underrates the corrective potential of the saving-
clause in Article XV.3: Parties are indeed free to ‘opt
out’ by entering reservations against any amendments
to Appendices I or II adopted by the Conference.72 In
practice, at least one party (Austria) has made actual
use of that provision for the declared purpose of giving
its legislature an opportunity to review all amendments
made by a CoP meeting, pending their transformation
into national law.73 While it is true that no such option
exists for EU Member States once a CITES resolution
(such as a recommendation to suspend trade with tar-
geted States)74 has been transformed into directly appli-
cable EU law,75 that is a general constitutional matter
for relations between the EU and its members,76 rather
than a legality problem for CITES.
CITES AND THE WORLD
TRADE REGIME
There has also been considerable debate on the legality
of CITES embargoes under the free trade rules of the
General Agreement on Tariffs and Trade (GATT) and
the World Trade Organization (WTO).77 While the
60 CITES Compliance Procedures, n. 32 above.
61 G. Bastid-Burdeau, ‘Quelques Remarques sur la Notion de Droit
Dérivé en Droit International’, in: N. Angelet et al. (eds.), Droit du
Pouvoir, Pouvoir du Droit: Mélanges Offerts à Jean Salmon (Bruylant,
2007), 161.
62 The Standing Committee was established by CITES Resolution
Conf. 2.2, Establishment of the Standing Committee of the Confer-
ence of the Parties (1979, with terms of reference repeatedly
restated/amended up to Rev. CoP15/2010). See W. Wijnstekers, n. 1
above, at 389–391.
63 See J. Brunnée, n. 49 above, at 125.
64 ECJ 29 November 1990, Case C-182/89, European Commission v.
French Republic, ECR [1991] I-4337.
65 CITES Resolution Conf. 5.2, n. 34 above.
66 Regulation 3626/82/EEC of 3 December 1982 on the Implementa-
tion in the Community of the Convention in International Trade in
Endangered Species of Wild Fauna and Flora, OJ [1982] L384/1,
Article 10.1(b). This Regulation was superseded by Regulation 338/
97/EC of 9 December 1996 on the Protection of Wild Species of
Fauna and Flora by Regulating Trade Therein, OJ [1997] L61/1, and
is currently implemented by Regulation 792/2012/EU of 23 August
2012 Laying Down Rules for the Design of Permits, Certificates and
Other Documents Provided for in Council Regulation (EC) No 338/97
on the Protection of Species of Wild Fauna and Flora by Regulating
Trade Therein and Amending Commission Regulation (EC) No 865/
2006, OJ [2012] L242/13. Even though the Union (then the European
Economic Community) is not a party to CITES (the ‘Gaborone
amendment’ of Article XII adopted for this purpose in 1983 still not
having received the required number of ratifications), it adopted regu-
lations implementing the Convention since 1982. See R. Parry-Jones
and A. Knapp (eds.), Enforcement of Wildlife Trade Controls in EU
Member States: Country Profiles (UK Department for Environment,
Food and Rural Affairs, 2006); T. Garstecki, Implementation of Article
16, Council Regulation (EC) No. 338/97, in the 25 Member States of
the European Union (TRAFFIC Europe, 2006), at 7; J.H. Jans and
H.H.B. Vedder, European Environmental Law,4
th edn (Europa,
2012), at 518.
67 Judge-Rapporteur P.J.G. Kapteyn, European Commission v.
French Republic, n. 64 above, Report for the Hearing, at 4344 and
4346.
68 European Commission v. French Republic, n. 64 above, at 4356.
See the comments by L. Krämer, European Environmental Law
Casebook (Sweet & Maxwell, 1993), at 207–215.
69 C. Fuchs, ‘Convention on International Trade in Endangered
Species: Conservation Efforts Undermine the Legality Principle’, in:
A. von Bogdandy et al., n. 52 above, 475.
70 For example, pursuant to CITES Notification to the Parties No.
2013/022, New CITES Appendices in Effect after the 16th meeting of
the Conference of the Parties (29 May 2013). See A. Nollkaemper,
‘Compliance Control in International Environmental Law: Traversing
the Limits of the National Legal Order’, 13 Yearbook of International
Environmental Law (2002), 165, at 170.
71 See C. Fuchs, n. 69 above, at 503–507.
72 On the CITES reservations system, see generally P.H. Sand, n. 1
above, at 40–41; W. Wijnstekers, n. 1 above, at 469; and G.G.
Steward, ‘Enforcement Problems in the Endangered Species Con-
vention: Reservations Regarding the Reservations Clause’, 14:3
Cornell International Law Journal (1981), 424.
73 Report of the Secretariat, Proceedings of the Sixth Meeting of the
Conference of the Parties, Ottawa (Canada), 12 to 24 July 1987 (Doc.
6.6, 1987), at 380, paragraph 4.
74 See, e.g., Regulation 578/2013/EU of 17 June 2013 Suspending
the Introduction into the Union of Specimens of Certain Species of
Wild Fauna and Flora, OJ [2013] L169/1, pursuant to CITES Notifi-
cation No. 2013/013, n. 37 above.
75 Under the Consolidated Version of the Treaty on the Functioning of
the European Union, OJ [2012] C326/47, Article 288. See; J.H. Jans
and H.H.B. Vedder, n. 66 above, at 159.
76 See also Directive 2008/99/EC of 19 November 2008 on the Pro-
tection of the Environment through Criminal Law, OJ [2008] L328/28.
77 See, e.g., J. Cameron and J. Robinson, ‘The Uses of Trade
Provisions in International Environmental Agreements and Their
Compatibility with the GATT’, 2 Yearbook of International Environ-
mental Law (1991), 3, at 8–12; T.M. Swanson, ‘The Evolving Trade
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general compatibility of unilateral environmental trade
restrictions with the GATT/WTO regime is beyond the
scope of this article,78 it is worth recalling that during
the preparatory negotiations for CITES in 1971, the
IUCN Secretariat did indeed consult the GATT Secre-
tariat and obtained confirmation that the proposed
treaty seemed ‘consistent with the Preamble of Article
XX’ of GATT.79 The actual practice of country-specific
trade embargoes (mentioned nowhere in the treaty, and
‘intentionally discriminatory’ in GATT terms)80 only
emerged during the 1980s and could hardly have been
foreseen at the time CITES was drafted. Interpretation
of the world trade rules by GATT/WTO panel jurispru-
dence likewise evolved in the meantime, with the two
treaty regimes virtually ‘leap-frogging’ each other as lex
posterior and lex specialis, respectively.81 Singapore
had raised the matter when it was first targeted (as
a ‘free-riding’ non-party at the time) by a unilateral
American trade embargo expressly based on CITES in
1986;82 and other CITES parties occasionally invoked
free-trade objections against Standing Committee rec-
ommendations of trade suspensions.83 Yet, none of the
parties affected ever brought a complaint under the
WTO’s dispute settlement mechanism, and in view of
the near-universal and closely matching current mem-
berships of both regimes the issue is purely hypotheti-
cal for the time being.84
RETORSION AND STATE
RESPONSIBILITY
More importantly, however, the CITES sanction
scheme must be evaluated in light of the applicable
general rules on the legality of counter-action, in
response either to persistent breaches of the Conven-
tion by a party, or to persistent refusal by other States to
provide trade documentation. The issue here is not the
binding force of recommendations by the CITES Con-
ference or Standing Committee,85 but the right of the
parties to impose foreign trade embargoes – individu-
ally or collectively – on the basis of Article XIV.1.86 In
essence, then, the scheme may be described as decen-
tralized concerted action, rather than centrally orga-
nized international decision making. Unlike a treaty
suspension under Article 60 of the 1969 Vienna Con-
vention on the Law of Treaties,87 a recommendation
by the CITES Conference or Standing Committee to
suspend trade does not have the effect of suspending –
let alone terminating – the treaty in whole or in part
vis-à-vis the State targeted, but merely authorizes other
States temporarily to derogate from their subsisting
obligations.88
The most authoritative reference source in this regard is
the 2001 draft of Articles on the Responsibility of States
for Internationally Wrongful Acts, prepared by the
Mechanism in CITES’, 1:1 Review of European Community and Inter-
national Environmental Law (1992), 57; C. Crawford, ‘Conflicts
between the Convention on International Trade in Endangered
Species and the GATT in Light of Actions to Halt the Rhinoceros and
Tiger Trade’, 7:2 Georgetown International Environmental Law
Review (1995), 555; and R. Wolfrum, n. 43 above, at 60.
78 See, e.g., E.U. Petersmann, International and European Trade and
Environmental Law after the Uruguay Round (Kluwer Academic,
1995); G. Marceau, ‘Conflicts of Norms and Conflicts of Jurisdiction:
The Relationship between the WTO Agreement and MEAs and Other
Treaties’, 35:6 Journal of World Trade (2001), 1081; D. Brack and K.
Gray, Multilateral Environmental Agreements and the WTO (Royal
Institute of International Affairs, 2003); and A. Goyal, n. 40 above.
79 On the Patterson-Nicholls correspondence of 24 February 1971,
see C. Wold, ‘The Convention on International Trade in Endangered
Species of Wild Fauna and Flora’, in: R. Housman et al. (eds.), The
Use of Trade Measures in Select Multilateral Environmental Agree-
ments (UNEP, 1995), at 165; and R. Tarasofsky, ‘Ensuring Compat-
ibility between Multilateral Environmental Agreements and GATT/
WTO’, 7 Yearbook of International Environmental Law (1996), 52,
at 52.
80 See R. Reeve, n. 4 above, at 312.
81 On the relationship of CITES and WTO under Article 30 of the 1969
Vienna Convention on the Law of Treaties (Vienna, 23 May 1969; in
force 27 January 1980) (‘VCLT’), see: U. Beyerlin and T. Marauhn,
International Environmental Law (Hart, 2011), at 434; and A. Goyal,
n. 40 above, at 365–370.
82 See nn. 26 and 41 above.
83 R. Reeve, ‘The Convention on International Trade in Endangered
Species (CITES)’, in: G. Ulfstein et al. (eds.), Making Treaties Work:
Human Rights, Environment and Arms Control (Cambridge University
Press, 2007), 134, at 160.
84 M. Yeater and J. Vasquez, ‘Demystifying the Relationship between
CITES and the WTO’, 10:3 Review of European Community and
International Environmental Law (2001), 271. See also U. Beyerlin
and T. Marauhn, n. 81 above, at 434 (‘there seems to be tacit
approval of the WTO compatibility of CITES measures’); and C. Wold
et al. (eds.), Trade and the Environment: Law and Policy,2
nd edn
(Carolina Academic Press, 2011), at 646–647. In an address to the
WTO Committee on Trade and Environment, CITES Secretary-
General John Scanlon emphasized that ‘CITES and the WTO have
harmoniously coexisted for the past 40 years’. CITES Press Release,
‘CITES Addresses WTO Committee on Trade and Environment’ (6
June 2013), found at: <http://www.cites.org/eng/news/sundry/2013/
20130606_wto_cte.php>.
85 Clearly labelled ‘non-legally binding’ in Resolution Conf. 14.3. See
CITES Compliance Procedures, n. 32 above, Annex, Article 1. See,
however, on the potential role of CoP resolutions as subsequent
agreements on the interpretation or application of the treaty under
Articles 31 or 32 of the VCLT, n. 81 above: G. Nolte, ‘Subsequent
Agreements and Subsequent Practice of States Outside of Judicial or
Quasi-judicial Proceedings: Third Report for the ILC Study Group on
Treaties Over Time’, in: Treaties and Subsequent Practice (Oxford
University Press, 2013), 307, at 378.
86 CITES, n. 1 above, Article XIV.1. See also n. 19 above.
87 VCLT, n. 81 above. See I.M. Sinclair, The Vienna Convention on
the Law of Treaties,2
nd edn (Manchester University Press, 1984), at
188–190. On the irrelevance of Article 60 in this context, see J.
Klabbers, ‘Compliance Procedures’, in: D. Bodansky et al., n. 50
above, 995, at 1002 (‘rather useless’); and S. Rosenne, Breach of
Treaty (Grotius, 1985), at 35–44 (doubting the adequacy of the article
to enforce environmental treaties). See also B. Simma, ‘Reflections
on Article 60 of the Vienna Convention on the Law of Treaties and Its
Background in General International Law’, 20:1 Österreichische
Zeitschrift für öffentliches Recht und Völkerrecht (1970), 5; and R.
Wolfrum, n. 43 above, at 57.
88 Analogous to the effect of countermeasures. See the introductory
commentary by Special Rapporteur J. Crawford on Part III/Chapter II
of the Draft Articles on State Responsibility adopted by the Interna-
tional Law Commission (‘ILC Draft Articles’), Report of the Interna-
tional Law Commission on its 53rd Session (UN Doc. A/56/10, 2001)
(‘ILC Report’), 29, at 326.
PETER H. SAND RECIEL •• (••) 2013
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UN International Law Commission (ILC).89 Part III/
Chapter II of the Draft Articles deals with the condi-
tions and limitations on the taking of countermeasures
by States ‘injured’ by the wrongful conduct of another
State.90 The Draft Articles do not, however, cover mea-
sures traditionally defined as ‘retorsion’ in customary
international law – that is, ‘unfriendly’ conduct that is
not inconsistent with any international obligation of the
State engaging in it.91 In fact, the ILC expressly excluded
acts of retorsion (such as ‘embargoes of various kinds’)
from the scope of its Draft Articles.92 Moreover, while
recognizing the legal interest of all parties (as distinct
from States individually ‘injured’) to respond to
breaches of ‘collective obligations’ owed erga omnes or
erga omnes partes (such as environmental treaty obli-
gations in particular),93 the ILC commentary goes on to
note that ‘such cases are controversial and the practice
is embryonic’,94 and therefore ‘leaves the resolution of
the matter to the further development of international
law’.95
Yet, even though retorsion measures thus are ‘not cir-
cumscribed by the international legal order’,96 it does
not follow that they ‘do not require the establish-
ment of a legal regime’.97 On the contrary, even ‘solidar-
ity measures’ (to use a term coined by Martti
Koskenniemi98) that are considered lawful responses
to treaty breaches or otherwise unfriendly acts must
respect certain limits set by international law, lest they
cease to be lawful and in turn become internationally
wrongful acts.99 It may be useful, therefore, to compare
current enforcement practice under the CITES sanction
scheme to the corresponding conditions specified by
the ILC for the lawful exercise of countermeasures
(Table 2), including their temporary or reversible char-
acter, proportionality to the injury100 and procedural
conditions such as prior notification and negotiation.101
In addition, Article 50 of the ILC Draft Articles stipu-
lates that countermeasures may not infringe certain
‘sacrosanct’ rules of general international law,102 such as
the prohibition of the use of force, the protection of
human and humanitarian rights, other peremptory
norms, or diplomatic and consular immunities – an
overarching requirement that may be considered as eo
ipso applicable in the CITES context. For its part, para-
graph 32(d) of the CITES procedures adds a further
specific element not found in the ILC Draft Articles,
which could well qualify as a new ‘sacrosanct’ concern
of international environmental law – namely ‘the pos-
sible impact on conservation and sustainable use with a
view to avoiding negative results’.103
In light of all these elements, the CITES sanction
scheme, as codified in Resolution 14.3 (2007) after
25 years of continuous practice (rather an
89 Ibid. See also J. Crawford, The International Law Commission’s
Articles on State Responsibility: Introduction, Text and Commentaries
(Cambridge University Press, 2002).
90 See ILC Report, n. 88 above, at 324.
91 Ibid., at 325. See generally O. Schachter, ‘International Law in
Theory and Practice’ (Martinus Nijhoff, 1985), at 185–186; L.
Damrosch, ‘Enforcing International Law through Non-forcible Mea-
sures’, 269 Hague Academy of International Law: Collected Courses
(1997), 9, at 54; and T. Giegerich, ‘Retorsion’, in: R. Wolfrum, n. 6
above, Vol. 8, 976, at 976.
92 See ILC Report, n. 88 above, at 325. But see M. Fitzmaurice, n. 35
above, at 542, who treats trade sanctions as countermeasures, which
would bring them directly within the ambit of State responsibility and
hence subject them to the ILC conditions of legality listed in Table 2.
93 See, generally, K. Sachariew, ‘State Responsibility for Multilateral
Treaty Violations: Identifying the “Injured State” and Its Legal Status’,
35:3 Netherlands International Law Review (1988), 273, at 282–285;
and A.E. Boyle, ‘State Responsibility for Breach of Obligations to
Protect the Global Environment’, in: W.E. Butler (ed.), Control Over
Compliance with International Law (Nijhoff, 1991), 69, at 73. During
the negotiations for the CITES Compliance Procedures, n. 32 above,
the Japanese delegation unsuccessfully tried to restrict the right to
initiate CITES compliance procedures to States ‘directly affected’.
94 See ILC Report, n. 88 above, at 327 and 351; but see A. Pellet and
A. Miron, n. 15 above, at 11 (‘hardly convincing’).
95 See ILC Report, n. 88 above, at 355. On the somewhat sibylline
suggestion (ibid., at 183 and 328) that it is ‘without prejudice to the
right of any state identified in Article 48(1) to take lawful measures
against a responsible state to ensure cessation of the breach’, see J.
Klabbers, International Law (Cambridge University Press, 2013), at
170.
96 E. Zoller, Peacetime Unilateral Remedies: An Analysis of Counter-
measures (Transnational, 1984), at 5.
97 E. Klein, ‘Gegenmassnahmen’ in: W. Fiedler et al. (eds.),
Gegenmassnahmen/Counter Measures (C.F. Müller, 1998), 39, at 44
and 69.
98 M. Koskenniemi, ‘Solidarity Measures: State Responsibility as a
New International Order?’, 72 British Yearbook of International Law
(2001), 337, at 339. See also the reference to ‘purely solidary obli-
gations’ under multilateral environmental agreements in an earlier
ILC report: Third Report on State Responsibility (UN Doc. A/CN/4/
507, 15 March 2000), at paragraph 108; D.N. Hutchinson, ‘Solidarity
and Breaches of Multilateral Treaties’, 59 British Yearbook of Inter-
national Law (1988), 151, at 164 (‘solidarity lato sensu’); and A.
Nissel, ‘The ILC Articles on State Responsibility: Between Self-help
and Solidarity’, 38:1–2 New York University Journal of International
Law and Politics (2006), 355.
99 T. Oppermann, ‘Discussion’, in: W. Fiedler et al., n. 97 above, at
120 (contra E. Klein, n. 97 above); N. White and A. Abbas, n. 15
above, at 538; and T. Giegerich, n. 91 above, at 978–980.
100 See E. Cannizaro, ‘The Role of Proportionality in the Law of
International Countermeasures’, 12:5 European Journal of Interna-
tional Law (2001), 890.
101 See the commentary by J. Crawford in ILC Report, n. 88 above, at
182 and 327; Y. Iwasawa and N. Iwatsuki, ‘Procedural Conditions’, in:
J. Crawford et al., n. 15 above, 1149, at 1151–1152.
102 See ILC Report, n. 88 above, at 333; and L. Boisson
de Chazournes, ‘Other Non-derogable Obligations’, in: J. Crawford
et al., n. 15 above, 1205.
103 Reflecting the sic utere tuo maxim in Principle 21 of the 1972
Stockholm Declaration and Principle 2 of the 1992 Rio Declaration,
‘now part of the corpus of international law relating to the environ-
ment’; ICJ 8 July 1996, Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons, [1996] ICJ Rep. 226, at paragraph 29.
See also L. Boisson de Chazournes, n. 103 above, at 1211 (naming
international environmental protection as an additional limiting factor
for countermeasures).
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advanced age for an ‘embryo’),105 would appear to
satisfy the general requirements for lawful response
(‘collective retorsion’) to persistent noncompliance by
parties to the Convention, as well as to unfriendly acts
(persistent refusal to comply with documentation
requirements) by non-parties.106 Even if CITES trade
embargoes are not considered ‘countermeasures’ in the
sense of the 2001 ILC Draft Articles, the essential stan-
dards precluding wrongfulness of solidarity measures,
as codified by the ILC, are indeed matched by the 2007
Compliance Procedures, which surely constitute a
notable contribution to ‘the further development of
international law’ in this field.107
EPILOGUE: LEGITIMACY IN
THE BALANCE?
The question remains as to whether the unique CITES
scheme of collective retorsion against noncompliance
also meets other criteria which an international regula-
tory regime must take into account if it expects to con-
tinue to be viable and effective. In the words of
Laurence Boisson de Chazournes, ‘the viability of the
“regulatory phenomenon” is linked to a major chal-
lenge: that of its legitimacy’.108 Legitimacy in this
104 Furthermore, according to ILC Draft Article 52.3(b), n. 88 above, at
345, countermeasures cannot be taken or continued when formal
procedures for third-party dispute settlement are pending – a require-
ment not matched in the CITES Guide, which merely states that ‘the
procedures described in this Guide are without prejudice to any rights
and obligations and to any dispute settlement procedure under the
Convention’. See CITES Compliance Procedures, n. 32 above, para-
graph 3.
105 See n. 94 above.
106 See n. 40 above.
107 See the commentary by J. Crawford in ILC Report, n. 88 above;
and the introductory note by C. Payne, n. 32 above.
108 L. Boisson de Chazournes, ‘Gouvernance et Régulation au 21ème
Siècle: Quelques Propos Iconoclastes’, in: L. Boisson de Chazournes
and R. Mehdi (eds.), Une Société Internationale en Mutation: Quels
TABLE 2 CRITERIA FOR THE LEGALITY OF SOLIDARITY MEASURES AGAINST NONCOMPLIANCE
ILC DRAFT ARTICLES (2001) CITES GUIDELINES (2007)
Temporary/revisable measures
49.3 ‘As far as possible, taken in such a way as to permit
resumption of performance of the obligations in
question.’
30 ‘Recommend suspension’ of trade in specimens of
CITES-listed species ‘until further notice’.
52.3 ‘May not be taken, and if already taken must be
suspended without undue delay, if the internationally
wrongful act has ceased.’
33–34 ‘Monitoring and review of progress in
implementation.’
53 ‘Terminated as soon as the responsible State has
complied with its obligations.’104
34 ‘Withdrawn as soon as the compliance matter has
been resolved or sufficient progress has been made.’
Proportionality
51 ‘Commensurate with the injury suffered, taking into
account the gravity of the internationally wrongful act
and the rights in question.’
32.2 ‘Commensurate with the gravity of the compliance
matter.’
Prior notification and opportunity to negotiate
52.1 ‘(a) Call on the responsible State, in accordance with
article 43 [notice of claim], to fulfil its obligations; (b)
Notify the responsible State of any decision to take
countermeasures and offer to negotiate with that State.’
20 ‘Parties are given every opportunity to correct
[compliance matters] within reasonable time limits.’
25 ‘The Party concerned is given the opportunity to
provide comments within a reasonable time limit.’
27 ‘The Party concerned has the right to participate in
discussions with respect to its own compliance.’
29(c) ‘Written caution, requesting a response and offering
assistance.’
29(g) ‘Warning to the Party concerned that it is in
noncompliance.’
29(h) ‘Request for compliance action plan identifying
appropriate steps, timetable and means to assess
satisfactory completion.’
PETER H. SAND RECIEL •• (••) 2013
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context is more than normative legality of a decision-
making process. It includes elements of democracy,
equity, transparency and ‘safeguards that take account
of minority viewpoints’;109 above all, however, it
involves trust – ‘trust that an institution will make deci-
sions appropriately’.110
Looking at the decision outcomes of the CITES sanction
scheme over the past thirty years (as summarized in
Table 1), the time may have come for a critical review
not only from an effectiveness perspective, but also
from what has been defined as the empirical/
sociological or ‘popular’ dimension of legitimacy.111 The
first, most striking finding is that more than 95% of the
States targeted by all-out trade embargoes were Third
World countries. Even accounting for the fact that
world trade flows in wildlife and wildlife products run
predominantly South-to-North (from ‘suppliers’ in
developing countries to ‘consumers’ in industrialized
countries), one would expect the global CITES system
to represent a balance of export, transit and import
controls – with corresponding compliance failures
and loopholes likely to show up at both ends. While
inadequate implementation of the Convention is
undoubtedly often attributable to shortcomings in
administrative and financial capacity,112 to find sanc-
tionable compliance deficits almost exclusively in the
South comes as something of an empirical surprise.
(The CITES Secretariat’s infraction reports from 1979
to 1997, which regrettably were discontinued after
objections from some of the parties ‘shamed’, had
shown a fairly constant involvement of North and South
alike.113) The good news is that most of the developing
countries targeted rapidly returned to compliance with
the help of external technical assistance; and there
clearly is a continuing need for reliably funded multi-
lateral and bilateral foreign aid in this field.114
Under the circumstances, however, a less charitable
alternative explanation for the skewed geographical
distribution of CITES trade embargoes could also be
that there is an inherent hidden bias in the system as
currently practised. It is now more than 15 years since
the Standing Committee recommended trade suspen-
sions against the only ‘Northern’ countries ever tar-
geted (Italy 1992–1995 and Greece 1998–1999),115 but it
seems unlikely that there were no further cases since
involving serious and persistent noncompliance with
the Convention in the industrialized part of the world.
The point is perhaps best illustrated by the well-
documented example of Japan.
In terms of the criteria for domestic implementing
legislation, as specified in Resolution 8.4 (1992),
the CITES Secretariat invariably ranks Japan in
category 1 (‘legislation that is believed generally to
meet the requirements for implementation of
CITES’).116 Yet, Japan still does not meet the first
Acteurs pour une Nouvelle Gouvernance? (Bruylant, 2005), 19, at 40;
and see E. Hey, n. 51 above, at 13.
109 G. Handl, ‘International “Lawmaking” by Conferences of the Parties
and Other Politically Mandated Bodies’, in: R. Wolfrum and V. Röben,
n. 49 above, 127, at 140. See generally T.M. Franck, The Power of
Legitimacy Among Nations (Oxford University Press, 1990), who
relates legitimacy to concepts of fairness. See also T.M. Franck,
Fairness in International Law and Institutions (Clarendon, 1999), at 7
and 22–26.
110 D. Bodansky, ‘Legitimacy’, in: D. Bodansky et al., n. 50 above,
704, at 721.
111 Ibid., at 709; and D. Bodansky, ‘The Legitimacy of International
Governance: A Coming Challenge for International Environmental
Law’, 93:3 American Journal of International Law (1999), 596, at
600–603.
112 P.H. Sand, ‘Institution-building to Assist Compliance with Interna-
tional Environmental Law: Perspectives’, 56:3 Heidelberg Journal of
International Law (1996), 774, at 775; and J. Brunnée, ‘Enforcement
Mechanisms in International Law and International Environmental
Law’, 5:1 Environmental Law Network International Review (2005), 3,
at 11 (‘non-complying parties are most likely to be states with genuine
capacity limitations’).
113 See CoP Proceedings, Docs. 2.6/Annex1 (1979); 3.6/Annex3
(1981); 6.19/Rev. (1987); 7.20 (1989); 8.19/Rev. (1992); 9.22 (1994);
and 10.28/Rev. (1997). On diplomatic protests by Germany (repeat-
edly identified for infractions of the treaty in the 1980s), see: P.H.
Sand, n. 1 above, at 49 (footnote 120); and P.H. Sand, Transnational
Environmental Law: Lessons in Global Change (Kluwer Law Interna-
tional, 1999), at 239. After CITES Decision 10.122, Regarding
Reports on Alleged Infractions and Other Implementation Problems
(1997), the Secretariat changed the format of the reports from a
detailed country-specific list of infringements to an unspecific over-
view of ‘trends in non-compliance’. See W. Wijnstekers, n. 1 above, at
258. For criticism of this severe ‘loss of public access to information’,
see R. Reeve, n. 4 above, at 72–75.
114 See W. Wijnstekers, n. 1 above, at 771–775; L. Gündling and D.
Navid, ‘Compliance Assistance in International Environmental Law:
Capacity-building through Financial and Technology Transfer’, 56:3
Heidelberg Journal of International Law (1996), 796. Significantly, the
very first CITES sanctions case (Bolivia in 1985–1987) was resolved
at the time through a capacity-building and training programme jointly
financed from bilateral and EU foreign aid sources. See E. Fouéré,
‘Emerging Trends in International Environmental Agreements’, in:
J.E. Carroll (ed.), International Environmental Diplomacy: The Man-
agement and Resolution of Transfrontier Environmental Problems
(Cambridge University Press, 1988), 29, at 38.
115 Case histories in R. Reeve, n. 4 above, at 120–125. See also P.
Birnie, ‘The Case of the Convention on Trade in Endangered
Species’, in: R. Wolfrum, n. 29 above, 233, at 258–259.
116 The initial ranking was based on an analysis of Japanese imple-
menting legislation undertaken on behalf of the CITES Secretariat in
December 1996 under the National Legislation Project, n. 43 above,
for which Japan is one of the principal financial donors. See Imple-
mentation of the Costed Programme of Work for 2012 (CoP16
Doc.8.2 (Rev.1), 2013), Annex 2. But see, on major legislative and
administrative deficits, K. Ishibashi, ‘The Effectiveness of Mecha-
nisms for the Monitoring or Compliance Control of Multilateral
Environmental Agreements: A Critical Analysis of CITES Implemen-
tation’ [in Japanese], 15:2 Kagawa Ho¯gaku (1995), 53; M. Taguchi,
International Regimes and Cooperation: An Analysis of the Conven-
tion on International Trade in Endangered Species of Wild Fauna
and Flora and Japan (Masters thesis, University of Oregon, 1996);
J.V. Feinerman and K. Fujikura, ‘Japan: Consensus-based Compli-
ance’, in: E. Brown Weiss and H.K. Jacobson (eds.), Engaging
Countries: Strengthening Compliance with International Environ-
mental Accords (MIT Press, 2000), 253, at 269–273 (concluding
that ‘Japan’s performance in complying with the CITES obligations
has not been satisfactory’).
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of those criteria (‘designation of national CITES
management and scientific authorities’ under
Article IX), as specified by Resolution 10.3 of
1997, which requires scientific authorities to be
‘independent of management authorities’.117 In
actual practice, the national scientific authority
for marine species in Japan (the Resources and
Environment Research Division of the Japan
Fisheries Agency, JFA) is directly subordinate to
the JFA Director-General, who as head of the des-
ignated management authority for CITES-listed
marine species issues all ‘certificates of vessel
research’ – for example, for whale specimens
introduced from the sea. This dual function of the
JFA squarely contravenes the mandatory criteria
for designation of scientific authorities.118 Yet,
while in 1999–2002 Afghanistan and Rwanda
were targeted by CITES trade embargoes for per-
sistent failure to designate appropriate scientific
authorities,119 Japan never was.
In terms of the mandatory requirements for sub-
mission of annual reports by national manage-
ment authorities under Article VIII.7, as specified
in Conference Resolution 11.17 of 2000,120 the JFA
abruptly ceased to submit any reports on permits
issued for CITES-listed marine species introduced
from the sea after the adoption of Resolution 11.4
of 2000,121 and only resumed its annual reporting
nine years later in 2009. Yet, while between 2002
and 2013 a total of 14 other CITES member coun-
tries were targeted (with Japanese consent) by
trade embargoes for persistent inadequate report-
ing over three consecutive years,122 Japan never
was.
• Moreover, the Japanese Institute of Cetacean
Research (ICR), under contract and permit
from the JFA, has from 2001 to 2012 taken and
introduced from high sea areas outside Japanese
territorial jurisdiction a total of 887 North Pacific
sei whales (Balaenoptera borealis),123 which are
listed on CITES Appendix I and for which Japan
does not have a valid reservation under Article
XXIII.2 or XV.3 of the Convention.124 Most of the
whale meat from these catches was commercially
sold in Japan,125 some of it (identified by DNA
analysis) illegally exported to the United States
and the Republic of Korea.126 The permits issued
by the JFA for sei whales thus contravene Article
III.5 of the Convention, which requires that the
specimens so introduced are ‘not to be used for
primarily commercial purposes’.127
The matter was first drawn to the attention of the
CITES Secretariat in 2007 by a nongovernmental-
organization-sponsored legal expert panel in
London,128 and by the United Kingdom CITES
117 See W. Wijnstekers, n. 1 above, 336–338.
118 P.H. Sand, ‘ “Scientific Whaling”: Whither Sanctions for Non-
compliance with International Law?’, 19 Finnish Yearbook of Interna-
tional Law (2008), 93, at 112–113. According to the official text of the
JFA permits, they are also to serve as ‘certificate under Articles III(5)
and IV(6) of the CITES, as appropriate, when samples and the parts
thereof obtained are subject to the provisions of these articles’. It is
clear from Article XIV.4 of the Convention, however, that only speci-
mens listed on Appendix II (and not species listed on Appendix I) may
so be certified, subject to confirmation by an (independent) scientific
authority that the introduction will not be detrimental to the survival of
the species involved.
119 See R. Reeve, n. 4 above, at 153.
120 See W. Wijnstekers, n. 1 above, at 304.
121 Resolution Conf. 11.4 (Rev. CoP12), Conservation of Cetaceans,
Trade in Cetacean Specimens and the Relationship with the Inter-
national Whaling Commission (2000/2002) was apparently viewed
by the JFA as ‘anti-whaling’ and hence hostile. On the other hand,
the Japanese Ministry of Economy, Trade and Industry, as the
designated management authority for CITES-listed non-marine
species, continued to submit reports in accordance with Article
VIII.7.
122 See Table 1 and n. 44 above.
123 See the International Whaling Commission’s statistics of ‘special
permit catches since 1985’ (2013), found at: <http://iwc.int/
table_permit>. The JFA has issued permits for the taking and intro-
duction from the sea of another 100 sei whales during the current
pelagic whaling season in the Northwest Pacific (July–October 2013),
for research purposes including new ‘abundance estimates’. See ICR
Media Release, ‘2013 IWC/Japan Joint Cetacean Sighting Survey
Cruise in the North Pacific’ (12 July 2013), found at: <http://
www.icrwhale.org/pdf/130712ReleaseENG.pdf>; and ICR Media
Release, ‘2013 JARPN-II Offshore Cruise Research Vessels
Depart’ (25 July 2013), found at: <http://www.icrwhale.org/130725
ReleaseENG.html>.
124 According to the official CITES reservations list, found at: <http://
www.cites.org/eng/app/reserve.php>(updated 12 June 2013), the
reservation entered by Japan on 6 June 1981 against the listing of
Balaenoptera borealis on Appendix I is not applicable to sei whale
populations in the North Pacific. See M. Koyano, ‘Whaling Issues:
International Law and Japan’, 63:5 Hokkaido Law Review (2013) 201,
at 239.
125 See T. Kasuya, ‘Japanese Whaling and Other Cetacean Fisher-
ies’, 14:1 Environmental Science and Pollution Research (2007), 39,
at 46; and generally A. Ishihara and J. Yoshi, A Survey of the Com-
mercial Trade in Whale Meat Products in Japan (TRAFFIC Japan,
2000), at 9.
126 See C.S. Baker et al., ‘Genetic Evidence of Illegal Trade in Pro-
tected Whales Links Japan with the US and South Korea’, 6:5 Royal
Society: Biology Letters (2010), 647. On 31 January 2013, the Los
Angeles District Court returned a grand jury indictment against the
importers. See NOAA v. Typhoon Restaurant, Yamamoto and Ueda,
Press Release No. 13-018, US Attorney’s Office, Central District of
California (1 February 2013). The trial is scheduled for 3 December
2013.
127 Specified by CITES Resolution Conf. 5.10 (Rev. CoP15), Defini-
tion of ‘Primarily Commercial Purposes’, (1985/2010) to mean ‘that all
uses whose non-commercial aspects do not clearly predominate shall
be considered to be primarily commercial in nature, with the result
that the importation of specimens of Appendix-I species should
not be permitted’. See W. Wijnstekers, n. 1 above, at 128–129; P.H.
Sand, n. 31 above, at 64; and P.H. Sand, n. 118 above, at
108–111.
128 K. Cook et al. (eds.), The Taking of Sei and Humpback Whales by
Japan: Legal Issues Arising Under the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (International
Fund for Animal Welfare, 2007).
PETER H. SAND RECIEL •• (••) 2013
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12
management authority.129 In response, the Secretariat
opined that the JFA permitting practice appeared to be
in conformity with Article III.5 of the Convention,130
and subsequently declined to take further action under
Article XIII and the compliance procedures of Resolu-
tion 14.3.131 It so happens that Japan is the second-
largest financial contributor (after the United States) to
the CITES budget,132 and an influential member of the
Standing Committee (chaired by a key whaling country,
Norway).133 Under these circumstances, even a perfectly
legal and effective sanction system could well risk
losing its credibility and certitude once it begins to
operate selectively, ‘Sicilian’ fashion: ‘Law is applied to
enemies – but interpreted for friends.’134
Peter H. Sand, of the RECIEL Editorial Board, is Lec-
turer in International Environmental Law at the Faculty
of Law, University of Munich. He was Secretary-General
of CITES from 1978 to 1981, and subsequently served as
Assistant Director-General of IUCN; Chief of the UNEP
Environmental Law Unit; Senior Environmental Affairs
Officer at the UN Economic Commission for Europe;
Principal Programme Officer at the Rio Conference
(UNCED); and Legal Adviser for Environmental Affairs
at the World Bank. Comments by Cymie Payne, Rosalind
Reeve, Veit Koester and an anonymous reviewer on an
earlier draft of this article are gratefully acknowledged.
ADDENDUM: UPDATE
1. On 15 October 2013, the Japanese Fisheries
Agency (JFA, CITES Management Authority and
Scientific Authority for marine species) announced
the results of the 2013 North Pacific pelagic whale
hunt (July-October 2013): Of the total catch of 162
whales, 100 were sei whales, 28 Bryde’s whales, 3
minke whales, and 1 sperm whale. Consequently,
the Northwest Pacific population of sei whales
(Balaenoptera borealis, CITES Appendix I) has
now become the principal target species of this
annual hunt, reflecting a major shift of consumer
demand from the lower-quality minke whale meat
to the high-priced sei whale meat on the Japanese
sushi market.
2. US District Judge Audrey B. Collins, Central Dis-
trict of California in Los Angeles, has set 3 Decem-
ber 2013 as the trial date for all three defendants in
the criminal case of NOAA v. Typhoon Restaurant,
Yamamoto and Ueda (grand jury indictment for
the sale of North Pacific sei whale meat illegally
imported from Japan, with potential fines up to
US$ 1.2 million and 77 years in prison).
3. The next North Pacific pelagic whale hunt, as part
of the ‘Japanese Whale Research Program under
Special Permit in the North Pacific’ (JARPN-II), is
scheduled to begin in June 2014, with a catch
target of another 100 specimens of sei whales
expected to be permitted by the JFA for scientific
research purposes.
129 E-mail dated 7 November 2007 from T. Salmon (UK Department
for Environment, Food and Rural Affairs, DEFRA) to W. Wijnstekers
(CITES Secretary-General), re ‘commercial sale of whale meat’ (on
file with author).
130 E-mail dated 7 November 2007 from W. Wijnstekers to T. Salmon.
The correspondence was leaked to the Japanese Institute of Ceta-
cean Research (ICR), whose legal counsellor then quoted it trium-
phantly in: D. Goodman, ‘Japan’s Research Whaling Is Not Unlawful
and Does Not Violate CITES Trade Rules’, 13:2 Journal of Interna-
tional Wildlife Law and Policy (2010), 176, at 181–182. As pointed out
in a comment by V. Papastavrou and P. Ramage, ‘Commercial
Whaling by Another Name? The Illegality of Japan’s Scientific
Whaling: Response to Dan Goodman’, 13:2 Journal of International
Wildlife Law and Policy (2010), 183, at 185 (footnote 9), the CITES
Secretariat of course has no mandate for authentic treaty interpreta-
tion, which is the sole prerogative of the CoP.
131 E-mails dated 3 and 5 September 2012 from M. Yeater (CITES
Chief of Legal Affairs) to the author, in response to evidence of illegal
trade in sei whale meat from Japan, n. 126 above (on file with author).
132 See the status of contributions in Implementation of the Costed
Programme of Work for 2012, n. 116 above. Japan has also been a
principal donor of voluntary funding in 2010–2012 (including the
National Legislation Project, see nn. 43 and 116 above), and is
expected to make further donations to the second phase of the CITES
Secretariat’s joint Timber Programme with the Yokohama-based
International Tropical Timber Organization.
133 In the entire history of the CITES sanctions scheme since 1985,
trade suspensions were never targeted against a current member of
the Standing Committee, and in only two instances against alternate
members (Vanuatu in 2002 and India in 2004). The embargoes
against China, the Democratic Republic of Congo, Dominica,
Ethiopia, Fiji, Italy, Nepal, Senegal, Sudan and Thailand (see
Table 1) were recommended at a time when the countries targeted
did not serve on the Committee.
134 La legge si applica ai nemici – ma si interpreta per gli amici’;
aphorism attributed to Giovanni Giolitti (1842–1928), former Italian
Prime Minister.
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International Judicial Practice on the Environment - edited by Christina Voigt April 2019
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