Outline of possible amendments to wildlife trade laws

Sep 7, 2020 | Commentary

By John E Scanlon AO – Chair, Global Initiative to End Wildlife Crime

One of the two objectives of the Global Initiative to End Wildlife Crime (the initiative) is to amend existing international wildlife trade laws to include public health and animal health criteria into decision-making. The identified mechanism by which this might be achieved is through amending the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) to include public health and animal health criteria into the Convention’s decision-making processes.

The Initiative has been asked about the process for doing so and the possible content of any such amendments, both of which are addressed in this briefing paper.

RANGE OF AMENDMENTS

Amending CITES could involve several interrelated processes to:

  • 1 amend the Convention text,
  • 2 make changes to existing Resolutions,
  • 3 adopt new Resolutions,
  • 4 adopt related decisions,
  • 5 enhance implementation of existing partnerships, and
  • 6 establish new partnerships.

The processes and timelines for making these changes vary.

AMENDMENT PROCESS

Amending the Convention text is specifically provided for in Article XVII1 of the Convention. If one third of CITES Parties request it in writing, then the Secretariat will convene an extraordinary meeting of the Conference of the Parties (CoP)2 to consider and adopt amendments to the Convention. To be accepted, two thirds of Parties present and voting must adopt them. The text of any “proposed amendment” needs to be communicated to all Parties 90 days prior to the meeting.

Once amendments are adopted, they do not automatically come into force. Amendments enter into force once two thirds of Parties accept the amendments. At that point, the amendments come into force for those Parties that have accepted them, and they will automatically apply to any new Parties.

The amendments that are considered by the CoP are only the proposed amendments submitted in writing by the one third of Parties requesting the consideration and adoption of such amendments3.

Amending or adopting new Resolutions or decisions can be done at any regular meeting of the Conference of the Parties by submitting proposals within the time frames specified in Part V of the CITES CoP Rules of Procedure. Proposals for new Resolutions or decisions, or revisions to existing Resolutions or decisions, can be submitted by any Party to the Convention, the Secretariat, or by the CITES Animals, Plants, or Standing Committees. Decisions and Resolutions are adopted by the Parties at a regular CoP, and where there is no consensus, by a vote requiring a two thirds majority of those Parties present and voting. Extraordinary meetings of the CoP can be combined with regular meetings.

Partnerships can be established by the Secretariat or, in some cases, they can be established through the CoP or the Standing Committee. There is a broad mandate to establish partnerships found in Goal 5 of the CITES Strategic Vision 2021-2030. The previous version of this Vision was used to support the Secretariat entering into cooperative agreements with the OIE (World Organisation for Animal Health) in 2015, IATA (International Air Transport Association) in 2015, and UNCTAD (UN Conference on Trade and Development) in 2015, amongst others.

The Convention text, including its Appendices, are legally binding on Parties and form part of what is often called ‘hard law’.

Resolutions.4 interpret the Convention and the application of its provisions. Resolutions are generally intended to provide long-standing guidance while decisions are typically time-bound actions directed to a specific CITES body, such as its Committees and Secretariat. Both are important tools for the evolution and implementation of the Convention. They are not legally binding on Parties and are regarded as being part of ‘soft law’, but there is an expectation they will be implemented.

POSSIBLE AMENDMENTS TO THE
CONVENTION TEXT

There are multiple approaches that could be considered to amend the Convention text to achieve the objective of including public health and animal health (a “One Health” approach).  Here, we offer one such approach involving a relatively modest set of substantive amendments and several minor, technical amendments to the Convention text that could be considered to achieve this objective.

These amendments address the listing of species under the Appendices, the issuing of permits and certificates authorising trade and the capture, captive breeding, and transport of wild animals of concern. They could be interpreted and applied to enable the Parties to address the consumption of certain species and their sale in markets where there is a public or animal health concern. These suggested amendments are put forward in the context of the existing Convention text.

We are proposing a new Appendix IV that would include species or specimens of species considered to pose a threat to public health or animal health.  There is an existing Appendix IV to the Convention, namely the ‘Model Export Permit’. Although the text would remain unaltered, it would be amended to become Appendix V.

Additional or amended text to the Convention is shown in bold. Existing text is not in bold.

Preambular provisions

Recognizing that peoples and States are and should be the best protectors of their own wild fauna and flora;

Further recognising that the capture, transport, trade, marketing for sale and consumption of certain species of wild fauna can pose a risk to public health or animal health; 

Recognizing, in addition, that international co-operation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade and for the protection of public and animal health;

Article I Definitions

Insert a definition of ‘public health’ and ‘animal health’

Amend Article I(b)ii. and iii. as follows:

  • ii. In the case of an animal: for species included in Appendices I and II, any readily recognizable part or derivative thereof; and for species included in Appendix III and IV, any readily recognizable life stage5, part or derivative thereof specified in Appendix III or IV in relation to the species; and

5 For example, embryo, egg, or live specimen.

Article II – Fundamental Principles

Insert after paragraph 3:

Appendix IV shall include all fauna species the trade in which is considered to pose a risk to public or animal health that may be subject to strict regulation in order not to endanger public or animal health and may include species already included in Appendix I, II or III.

Renumber and amend paragraph 4. as follows:

The Parties shall not allow trade in specimens of species included in Appendices I, II, III and IV except in accordance with the provisions of the present Convention

New Article VI6

Regulation of Trade in Specimens of Fauna Species Included in Appendix IV

  1. All trade in specimens of species included in Appendix IV shall be in accordance with the provisions of this Article.
  2. Species listed in Appendix I, II or III may also be listed in Appendix IV. Such listings must meet the requirements of all relevant Articles.
  3. The export of any specimen of a species included in Appendix IV shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met:
    • a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State;
    • a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, cruel treatment, and risk to human or animal health;
    • a Management Authority of the State of export is satisfied that an import permit has been granted for the specimen by the relevant authorities of the importing country.
  4. The import of any specimen of a species included in Appendix IV shall require the prior grant and presentation of an import permit and either an export permit or a re-export certificate. An import permit shall only be granted when the following conditions have been met:
    • a Management Authority of the State of import, following consultation with relevant scientific, veterinary and human health authorities, is satisfied that such import will not result in significant risk to human or animal health, and that appropriate sanitary and biosecurity checks and measures are in place to prevent such risks from emerging.
  5. The re-export of any specimen of a species included in Appendix IV shall require the prior grant and presentation of a re-export certificate. A re-export certificate shall only be granted when the following conditions have been met:
    • a Management Authority of the State of re-export is satisfied that the specimen was imported into that State in accordance with the provisions of the present Convention;
    • a Management Authority of the State of re-export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, cruel treatment, and risk to human or animal health;
    • a Management Authority of the State of re-export is satisfied that an import permit has been granted for the specimen by the relevant authorities of the importing country.
  6. The introduction from the sea of any specimen of a species included in Appendix IV shall require the prior grant of a certificate from a Management Authority of the State of introduction. A certificate shall only be granted when the following conditions have been met:
    • a Management Authority of the State of introduction, following consultation with relevant scientific, veterinary and human health authorities, is satisfied that such import will not result in significant risk to human or animal health, and that appropriate sanitary and biosecurity measures and checks are in place to prevent such risks from emerging or increasing; and
  7. Article VIII (old Article VII), paragraphs 3-6, shall not apply to specimens of species included in Appendix IV.

6 Those Articles subsequent to Article VI that are not referenced (because there are no changes) would also need to be renumbered accordingly.

Article VII (formerly Article VI) – Permits and Certificates
  1. Permits and certificates granted under the provisions of Articles III, IV, V and VI shall be in accordance with the provisions of this Article.
  2. An export permit shall contain the information specified in the model set forth in Appendix V, and may only be used for export within a period of six months from the date on which it was granted.
Article VIII (formerly Article VII) – Exemptions and Other Special Provisions Relating to Trade
  1. The provisions of Articles III, IV, V and VI shall not apply to the transit or transhipment of specimens through or in the territory of a Party while the specimens remain in Customs control.
  2. Where a Management Authority of the State of export or re-export is satisfied that a specimen was acquired before the provisions of the present Convention applied to that specimen, the provisions of Articles III, IV, V and VI shall not apply to that specimen where the Management Authority issues a certificate to that effect.

7A Management Authority of any State may waive the requirements of Articles III, IV, V and VI and allow the movement without permits or certificates of specimens which form part of a travelling zoo, circus, menagerie, plant exhibition or other travelling exhibition provided that:

  • the Management Authority is satisfied that any living specimen will be so transported and cared for as to minimize the risk of injury, damage to health or cruel treatment and to public or animal health.
  • a Scientific Authority has advised, following consultation with relevant scientific, veterinary and human health authorities, that the movement will not pose a risk to public or animal health;
Article IX (formerly Article VIII) – Measures to be Taken by the Parties

6  Each Party shall maintain records of trade in specimens of species included in Appendices I, II, III and IV which shall cover:

  • a. the names and addresses of exporters and importers; and
  • b. the number and type of permits and certificates granted; the States with which such trade occurred; the numbers or quantities and types of specimens, names of species as included in Appendices I, II, III and IV and, where applicable, the size and sex of the specimens in question.
Article XII (formerly Article XI) – Conference of the Parties

3  At meetings, whether regular or extraordinary, the Parties shall review the implementation of the present Convention and may:

  • a. make such provision as may be necessary to enable the Secretariat to carry out its duties, and adopt financial provisions;
  • b. consider and adopt amendments to Appendices I, II and IV in accordance with Article XVI (formerly Article XV);
  • c. review the progress made towards the restoration and conservation of the species included in Appendices I, II, III and IV;
Article XIII (formerly Article XII) – The Secretariat

2  The functions of the Secretariat shall be:

  • to publish periodically and distribute to the Parties current editions of Appendices I, II, III and IV together with any information which will facilitate identification of specimens of species included in those Appendices;
Article XV (formerly Article XIV) – Effect on Domestic Legislation and International Conventions

1  The provisions of the present Convention shall in no way affect the right of Parties to adopt:

  • a. stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II, III and IV, or the complete prohibition thereof; or
  • b. domestic measures restricting or prohibiting trade, taking, possession or transport of species not included in Appendix I, II, III or IV.
Article XVI (formerly Article XV) – Amendments to Appendices I, II and IV
  1. The following provisions shall apply in relation to amendments to Appendices I, II and IV at meetings of the Conference of the Parties:
    • Any Party may propose an amendment to Appendix I, II or IV for consideration at the next meeting. The text of the proposed amendment shall be communicated to the Secretariat at least 150 days before the meeting. A proposal to amend Appendix IV shall include any readily recognizable life stages, parts or derivatives of the species concerned that are specified in relation to the species for the purposes of sub-paragraph (b) of Article I. The Secretariat shall consult the other Parties and interested bodies on the amendment in accordance with the provisions of subparagraphs (b) and (c) of paragraph 2 of this Article and shall communicate the response to all Parties not later than 30 days before the meeting.
  2. The following provisions shall apply in relation to amendments to Appendices I, II and IV between meetings of the Conference of the Parties: (a) Any Party may propose an amendment to Appendix I, II or IV for consideration between meetings by the postal procedures set forth in this paragraph.
Article XVII (formerly Article XVI) – Appendix III and Amendments thereto
  1. Any Party may at any time submit to the Secretariat a list of species which it identifies as being subject to regulation within its jurisdiction for the purpose mentioned in paragraph 3 of Article II. Appendix III shall include the names of the Parties submitting the species for inclusion therein, the scientific names of the species so submitted, and any readily recognizable life stages, parts or derivatives of the species concerned that are specified in relation to the species for the purposes of sub-paragraph (b) of Article I.
Article XXIII (formerly Article XXII) – Reservations

2   Any State may, on depositing its instrument of ratification, acceptance, approval or accession, enter a specific reservation with regard to:

  • a. any species included in Appendix I, II, III or IV;
  • b. any readily recognizable life stages, parts or derivatives in relation to a species included in Appendix III or IV.
POSSIBLE AMENDMENTS
TO RESOLUTIONS AND NEW RESOLUTIONS

The process for revising and amending Resolutions, and adopting new Resolutions, would follow amendment and adoption of the Convention text. Though it is not necessary to contemplate specific changes to Resolutions at this stage, Annex I contains a draft list of Resolutions that could be revised and amended, as necessary, to offer guidance on the implementation of these amendments to the Convention and to include references to public and animal health. These amendments could be contained in one omnibus Resolution that captured all the necessary changes to Resolutions.

Also included is a suggested new “One Health” resolution, which could offer guidance to the Parties on taking a “One Health” approach to wildlife trade.

This brief is not intended to offer a complete review of the changes that should be made to include public health and animal health into CITES decision making. Rather, it is intended to outline the process to be followed and offer some tangible ideas on possible amendments to the Convention to achieve the objective of taking a “One Health” approach to wildlife trade and thereby help advance discussion on these necessary reforms.

The Steering Group would like to acknowledge the contribution of its Special Adviser on CITES, Craig Hoover, in preparing this brief.

ANNEX I: LIST OF RESOLUTIONS FOR POSSIBLE REVISION:

Conf. 18.2 Establishment of committees. To establish a new public and animal health science committee and its terms of reference.

Conf 18.3 CITES Strategic Vision: 2021-2030.Conf. 18.6 Designation and role of Management Authorities.

Conf. 17.7 (Rev. CoP18) Review of trade in animal specimens reported as produced in captivity.

Conf. 17.8 Disposal of illegally traded and confiscated specimens of CITES-listed species.

Conf. 13.11 (Rev. CoP18) Wild meat.

Conf. 12.3 (Rev. CoP18) Permits and certificates.

Conf. 10.3 Designation and role of the Science Authorities.

Conf. 10.21 Transport of live specimens.

Conf. 9.7 (Rev. CoP15) Transit and shipment.

Conf. 9.24 (Rev. CoP17) Criteria for amendment of Appendices I and II. To include criteria for Appendix IV.

Conf. 8.4 (Rev. CoP15) National laws for implementation of the Convention.

Conf. 8.21 (Rev. CoP16) Consultation with range States on proposals to amend Appendices I and II. To include criteria for Appendix IV.

New “One Health” Resolution and associated decisions should be adopted on cooperation with OIE, WHO, FAO and other organisations with a mandate to address animal and human health.

1Article XVII.
Amendment of the Convention. 1. An extraordinary meeting of the Conference of the Parties shall be convened by the Secretariat on the written request of at least one third of the Parties to consider and adopt amendments to the present Convention. Such amendments shall be adopted by a two-thirds majority of Parties present and voting. For these purposes “Parties present and voting” means Parties present and casting an affirmative or negative vote. Parties abstaining from voting shall not be counted among the two-thirds required for adopting an amendment.

2 There have been two such extraordinary meetings of the CoP. The first extraordinary meeting was held in Bonn on 22 June 1979, where the CoP adopted the “financial amendment” to Article XI.3 (a). The second extraordinary meeting of the CoP took place in Gaborone, Botswana, on 30 April 1983, at which the CoP adopted an amendment to Article XXI regulating the accession to the Convention by regional economic integration organizations.

3 This interpretation is also supported by The Evolution of CITES, Willem Wijnstekers, 2018 11th Edition Chapter 32 – Amendments to the Convention at page 513.

4 Resolutions include recommendations on how to interpret the provisions of the Convention, the establishment of the permanent committees, the budgets of the Secretariat, rules for controlling the trade (such as issuing permits and marking specimens in trade), and the texts establishing long-term processes, such as the Review of Significant Trade and making Non-Detriment Findings. Resolutions are typically intended to remain in effect for a long period.

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