164 / 532
148
KAROLINA ŽÁKOVSKÁ
CYIL 5 ȍ2014Ȏ
a complaint presented to the WTO Dispute Settlement Body is purely hypothetical
given
“the near-universal and closely matching current membership of both regimes”.
44
The legality of CITES trade sanctions is, however, not the only criterion that must
be examined in order to properly evaluate their actual and possible future contribution
to proper implementation of the CITES regime. As Peter H. Sand, the first CITES
Secretary-General, points out in his paper on CITES trade sanctions, their legitimacy
or – as we can also call it – fairness is equally important.
45
The concept of legitimacy
involves
“trust that an institution will make decisions appropriately”;
46
this means, in relation
to CITES trade sanctions, that the Standing Committee will recommend their use in
all cases when the defined conditions are met, regardless the position of the State
concerned. It must be noted that from this point of view the legitimacy of CITES
trade sanctions does not always seem to be guaranteed.
In fact, the CITES trade sanctions rarely target developed or powerful (be it
from the point of view of international politics or their position within CITES itself )
countries. Of the 43 countries that have been subject to country-specific trade embargos
(recommendations to suspend all trade or all commercial trade) since 1985, only two –
Italy (from 1992 to 1995) and Greece (from 1998 to 1999) – were developed countries;
this means less than 5%. Of the 31 currently targeted countries only the Russian
Federation (subject to a species-specific trade embargo concerning the European
sturgeon) is an important player of international politics. While this disproportion
can partially be explained by the lack of capacities typical for developing countries,
finding important compliance
deficits almost exclusively on their side
“comes as
something of an empirical surprise”.
47
The unequal treatment of “important” and “less
important” CITES State Parties is best illustrated by the example of Japan, which
has never been targeted by CITES trade sanctions, in spite of several compliance
failures similar to those that gave rise to sanctions in case of other countries.
48,49
The
44
SAND, P.H.,
op. cit. supra
note 19, p. 258.
45
Ibid.
, p. 260.
46
Ibid.
Quoting BODANSKY, D.
Legitimacy
. In BODANSKY, D., BRUNNEE, J., HAY, E. (eds).
The
Oxford Handbook on International Environmental Law
. Oxford University Press, 2007, p. 721.
47
SAND, P.H.,
op. cit. supra
note 19, p. 261.
48
The compliance failures on the side of Japan concern trade in CITES-listed marine species. First,
Japan does not fulfil the requirement of the scientific authority being independent of the management
authority (in fact, the scientific authority for marine species, the
Resources and Environment Research
Division of the Japan Fisheries Agency
, is part of the management authority, the
Japan Fisheries Agency
).
Second, between 2000 and 2009 Japan did not submit any of the mandatory annual reports on permits
issued for CITES-listed marine species introduced from the sea. Last, but not least, Japan takes and
introduces from the sea outside its jurisdiction every year tens of specimens of North Pacific sei whale,
an Appendix I species, for which it does not have a valid reservation. Most of the whale meat being sold
in Japan or illegally exported, this allegedly scientific whaling raises serious doubts as to its compatibility
with the requirement of Appendix I species not being introduced for primarily commercial purposes.
For more details see
ibid.
, p. 261-263.
49
In this context, it is interesting to mention the ICJ judgment rendered on 31March 2014 in the case
Whaling in the Antarctic
(Australia v. Japan). The case concerned Japanese allegedly scientific whaling
in the Antarctic and its conformity with the
International Convention on the Regulation of Whaling