163 / 532
147
CITES AT THE BEGINNING OF ITS FIFTH DECADE…
adopt stricter domestic measures, including the complete prohibition of international
trade in CITES listed-species.
39
The compliance mechanism that has been gradually developed by the Conference
of the Parties certainly goes beyond the text of the convention; it would, however, be
difficult to argue that the trade sanctions (in the form of species-specific our country-
specific trade embargoes) are inconsistent with international law. The fact that it is
the Standing Committee who recommends the trade suspensions can be justified by
the possibility of the Conference of the Parties, as the highest governing authority, to
establish any subsidiary body it deems appropriate for the proper implementation of
the convention and to delegate its powers to such a body. The use of collective trade
sanctions is limited both from the point of view of compliance matters concerned
(only the most serious cases of non-compliance) and in time
(their prompt withdrawal
is guaranteed once the matter is resolved). In addition, the trade sanctions only have
the form of a recommendation of the Standing Committee; their application by other
Parties is thus not mandatory.
40
If a Party decides to respect the recommendation,
the suspension of trade is introduced as a stricter domestic measure authorized by
the convention. In the light of the CITES Preamble, the trade sanctions can certainly
be considered as
“appropriate measures”
stemming from international cooperation
and having for their objective
“the protection of certain species of wild fauna and flora
against over-exploitation through international trade”.
41
The international legal rules the trade embargoes seem to conflict with the
most are those promoting trade liberalization; this means rules of the
World Trade
Organization
(WTO) and especially of the
General Agreement on Tariffs and Trade
(GATT). Despite the considerable academic debate on the legality of CITES trade
sanctions under the GATT/WTO regime,
42
the WTO Dispute Settlement Body has
never had the occasion to express itself on this issue. Although the author of this
paper is convinced that the collective CITES trade sanctions meet the requirements
of article XX GATT,
43
the possibility that such a sanction should become the object of
39
“The provisions of the present Convention shall in no way affect the right of Parties to adopt … stricter
domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species
included in Appendices I, II and III, or the complete prohibition thereof…”
[CITES, art. XIV para. 1 (a)].
40
As one author points out, no one knows how many Parties actually implement recommendations
to suspend trade. See REEVE, R.
Wildlife Trade, Sanctions and Compliance: Lessons from the CITES
Regime
. International Affairs, Vol. 85, Issue 5, 2006, p. 892.
41
CITES, Preamble, para. 4 and 5.
42
SAND, P.H.,
op. cit. supra
note 19, p. 258.
43
Article XX GATT provides for general exceptions from the free-trade rules. It authorises States to
adopt,
inter alia
,
“measures relating to the conservation of exhaustible natural resources if such measures
are made effective in conjunction with restrictions on domestic production or consumption”
[article XX
(g)], providing that they
“are not applied in a manner which would constitute a means of arbitrary or
unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction
on international trade”
(article XX,
chapeau
).