CYIL 2014

144

KAROLINA ŽÁKOVSKÁ

CYIL 5 ȍ2014Ȏ

2. The CITES compliance procedure: effective, but unfair?

Many, if not most, environmental treaty regimes can rightfully be criticised as being

‘soft’ in their nature; this means due to lacking effective enforcement mechanisms.

The CITES represents a notable exception in this sense. Although the text of the

convention itself remains very vague as far as non-compliance is concerned, an

effective system of enforcement measures has evolved during the years by way of

resolutions of the Conference of the Parties. The measures that can be used in cases

of non-compliance include advice and assistance to the Party concerned as well as

different types of coercive measures, or sanctions,

of which the collective sanctions

in the form of the suspension of trade in specimen of CITES-listed species are the

most important. The system has a very high success rate; its legitimacy – or fairness

– is, however, questionable due to the fact that the trade sanctions almost exclusively

concern developing and less powerful countries.

2.1 The compliance procedure in a nutshell

The compliance procedure is codified in the

Guide to CITES compliance procedures

(hereafter ‘the Guide’) that is annexed to Resolution 14.3 of the Conference of

Parties adopted in 2007.

The objective of the Guide is

“to inform Parties and others

of CITES procedures concerning promoting, facilitating and achieving compliance with

obligations under the Convention and, in particular, assisting parties in meeting their

obligations regarding such compliance”.

It should be pointed out that the Guide does

not establish any new measures but merely

“describes existing procedures in order to

facilitate consistent and effective handling of compliance matters”.

When a potential ‘compliance matter’ – the term used by the Guide for non-

compliance by a Party with obligations under the convention – is identified (from

reports every Party is required to submit, legislative texts, responses to information

requests or by any other means

), the CITES Secretariat enters into communication

which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing

or restricting exploitation, and as needing the co-operation of other Parties in the control of trade”

(CITES,

art. II para. 3). As of October 2013, the number of species listed in Appendix III was 147 (plus 13

subspecies and one variety). See CITES.

The CITES species

, n. 11.

Neither CITES itself, nor the Guide use the term ‘sanction’ which is a common feature of most

multilateral environmental law regimes. As pointed out in this context by Peter H. Sand

“

[n]

otwithstanding

the advent of a whole range of innovative compliance procedures and institutions over the past few decades

… treaty drafters as well as commentators seem to bend over backwards to avoid ‘coercive’ language – or the

very word ‘sanctions’, for that matter”

(SAND, P.H.

Enforcing CITES: The Rise and Fall of Trade Sanctions

RECIEL, Vol. 22, Issue 3, 2013, p. 252).

CITES Resolution Conf. 14.3, entitled

CITES compliance procedures

, adopted at the fourteenth

meeting of the Conference of the Parties, held in The Hague (Netherlands) in June 2007.

Guide to CITES compliance procedures, CITES Resolution Conf. 14.3, art. 1.

Ibid.

The Guide encourages Parties themselves

“to give the Secretariat early warning of any compliance matter,

including the inability to provide information by a certain deadline, and indicate the reasons and any need

for assistance.”

(

ibid.

, art. 19).