The Big Bite of CITES

Last week, the CITES Parties considered including four shark species in Appendix II of CITES: the oceanic whitetip shark, scalloped, great, and smooth hammerhead sharks, and the porbeagle. The Parties had a heated debate on the appropriateness of CITES to protect sharks but also the wasteful nature of shark finning. Senegal, for example, stated that, after the shark is finned, “the rest of the shark is thrown back to the sea – what a waste!” Senegal mentioned that the fin only accounts for two percent of the meat of the shark, and pointed out that the rest of the shark could be used to combat malnutrition throughout Africa. Egypt, a co-sponsor of the porbeagle proposal, said that “[i]f we continue business as usual, shark will not exist anymore.”

China and Namibia, two opponents to these proposals, maintained that fins are difficult to identify, particularly since fins from different species are shipped together. Pew Environment Group, however, noted that it has published an identification guide on shark fins to address this very issue. Opponents also claimed regional fisheries management organizations should manage fisheries, not CITES, and that Parties would have difficulties implementing a high seas permit regime.

Due to the clear divide in the room, the Chair called for a vote on all shark proposals with all of them unsurprisingly taken by secret ballot. To list a species, the proposal needs a two-thirds majority. The oceanic whitetip shark proposal passed by a slim three vote margin, the hammerhead proposal by four votes, and the porbeagle by five.

After each of the votes, at least twenty-four Parties joined the US in showing their dislike for secret ballots by announcing their vote for the record. Most Parties that announced their vote indicated that they voted “yes,” but Chile announced that it voted “no” for the porbeagle. These voting announcements reflect how many parties value transparency. The number of voting statements grew after each proposal to the point that the mood in the room grew jubilant. Observers endlessly clapped for the success of the listings and the growing number of voting statements. 

Supporters of shark conservation left the room energized, but their work was not done. With such a slim margin, they needed to prepare for the final plenary session of the meeting, when Parties could potentially open debate and vote again to reject the proposals. After a couple of tense days of continued work, however, the Parties rejected motions to open debate on the oceanic whitetip shark and the hammerhead proposal.

At last, the tide has changed. With these votes, the CITES Parties said loud and clear that they are no longer willing to sit idly by while RFMOs do little to manage shark populations sustainably. They are now willing to use the permit regime of CITES to protect species from overutilization due to trade. These listings will not stop trade, but they will require Parties to determine that trade is not detrimental to the survival of the species. That may be difficult to do. As such, CITES should begin the process of limiting trade in shark fins and other shark products.

- Mandy Rude and Victoria Johnston

CITES – It’s Not Over ‘Til It’s Over

After eight hard-fought days of debating and negotiating species proposals and implementation issues, the Parties met in plenary for the final two days to adopt the recommendations from Committees I and II. The plenary session makes the final decision on all agenda items at this time, whether the Committee reached its recommendation by consensus or by vote after extensive and contentious debate. During the plenary session any Representative of a Party may move to open debate on any Committee recommendation, which another Party must then second. Then, two Parties on each side, two supporting and opposing the motion, are allowed to speak on whether debate should be opened or not. This debate is not supposed to include arguments on the merits of the agenda item, but rather why the item requires additional discussion. After this, the item is put to a vote and debate is opened if 1/3 of Representatives present and voting support the motion.

The Parties adopted most of the recommendations from the Committees by consensus without further debate. This included adoption of rules implementing Introduction from the Sea, which means that after 40 years the CITES permitting regime is finally complete. However, Parties moved to open debate on several species recommendations, notably on recommendations to list the oceanic whitetip shark and three hammerhead shark species on Appendix II. Both motions relied on claims that there was new information that the Parties had not considered in earlier debate. Opposing Parties explained that the issues had been fully debated, and urged Parties to adhere to the Committee recommendations.

Japan’s motion to open debate on the oceanic whitetip shark recommendation failed by an incredibly narrow margin, with a vote of 44 in favor of the motion, 93 opposed, and 4 abstentions – failing to obtain the required 1/3 majority by 2 votes. Immediately after that vote, Grenada moved to open debate on the hammerhead shark recommendation. This motion failed by a slightly less narrow margin of 40 in favor of the motion, 96 opposed, and 6 abstentions. After both votes, the plenary room erupted in cheers as delegates celebrated adoption of these recommendations. Perhaps in light of the momentum building in favor of the shark and ray proposals, no Parties sought to open debate on the recommendations to list porbeagle sharks and manta rays on Appendix II. 

Japan and Grenada’s motions to open debate on the oceanic whitetip and hammerhead shark recommendations highlighted one of the most hotly contested issues at the CoP — secret ballots. The votes to open debate on both of these species were by secret ballot. After the vote results were announced, many Parties — in the name of transparency — intervened to make their votes public. Besides being an emotional moment for many Parties, this “transparency revolution,” as one delegate from Congo (Republic of the Congo) referred to it, highlighted the need in future meetings for the Parties to revisit the use of secret ballots in CITES.

This meeting resulted in several historic decisions — listing several shark and ray species on Appendix II, adoption of rules for Introduction from the Sea that bring us one step closer to full implementation of CITES, listing of a number of commercially valuable timber species, as well as a number of other species listings and improvements in implementation. Momentum coming from this meeting seemed to favor broader conservation, perhaps a reaction of widespread, organized criminal involvement in illegal wildlife trafficking. Indeed, 89 elephants were poached in Chad while we all sat in the convention center developing new rules to protect elephants. We hope that the Parties are able to build on these historic achievements in future meetings of the CoP, in addition to taking further steps necessary to fully implement the basics of CITES for all Parties.

- Lia Comerford and Michael Kearney 

No Commercial Trade Ban in Polar Bear Parts

One of the most publicized and controversial issues at COP16 involved the United States’ proposal to ban international commercial trade in polar bear parts by listing the polar bear in Appendix I of CITES. Appendix I includes those species that are “threatened with extinction which are or may be affected by trade.” The U.S. Fish and Wildlife Service reported that the best available science indicates that polar bear populations are projected to decline by 66% by 2050. This decline will primarily result from loss of sea ice habitat due to climate change. The polar bear proposal was unique because it marked the first time that a Party has proposed for a species to be included in Appendix based on the projected impacts of climate change. The United States argued that the effects of climate change will lead to a marked decline in polar bear populations, and that commercial international trade in polar bear hides is unsustainable.

Canada is currently the only polar bear range state that allows international trade in polar bear skins, hunting trophies, and other parts. Polar bear hunts are legally permitted in the northern territories, and quotas establish the number of bears that can be taken in a given year. Canada vehemently opposed the U.S. proposal, responding that polar bear hunting is a necessary subsistence activity with immense cultural significance to indigenous Inuit communities. Canada argued that climate change, not trade, constitutes the greatest threat to the polar bear, and Inuit First Nation communities should not be punished for the emissions of developed countries. According to Canada, the polar bear does not meet the criteria required for an Appendix I listing: populations are not declining, the range is expansive, and the current rate of population decline is slight.

However, data indicates that polar bears are affected by legal and illegal trade. More than 400 polar bears are killed each year for their fur and body parts, and between 2001 and 2010, more than 32,350 polar bear specimens (including dead or live polar bears and their parts and derivatives) were traded internationally for all purposes. The number of polar bear hides offered at auction in the past five years increased from 40 to 150 hides. Moreover, specialists estimate that approximately 200 polar bears are killed illegally each year in Russia to fuel domestic and international demand for polar bear skins.

The ensuing debate regarding the uplisting of the polar bear from Appendix II to Appendix I reflected the divergent positions of the Parties. The United States stressed that their proposal would give the polar bear the best opportunity to continue to exist in the wild into the future. Its proposal was supported by Russia, India, and a number of African countries. Speaking for Canada, an elected member of the legislative assembly for the Nunavut Territory gave an emotionally-charged intervention emphasizing the polar bear’s importance to Inuit culture. The EU proposed a compromise that would allow commercial trade in countries that had established national export quotas, but neither Canada nor the United States supported the proposal. In introducing its amendment, the EU pointedly noted that the polar bear would be better served if countries mitigated their greenhouse gas emissions. The EU’s statement, of course, was pointed directly at the United States and designed to alert Parties to the fact that the United States was “greenwashing” its climate policy by trying to do something for polar bears.

In the end, Parties rejected both the EU amendment and the U.S. proposal. The U.S. delegation expressed disappointment at the outcome of the vote, but remained determined to achieve an Appendix I listing for the polar bear in the future.

- Amelia Schlusser & Lia Comerford

CITES and … Facts?

Perhaps the most common lobbying tool at a CITES meeting is the “fact sheet.” These one-page documents intend to inform Parties of the issues up for debate. These fact sheets are written and distributed, most often, by non-governmental organizations, and they usually represent a distillation of a complex issue—likely one that a group has been working on for years. For this reason, these fact sheets often embody as much passion as fact. As seen in the fact sheet below, groups may get fast-and-loose with the facts in their attempt to persuade Parties of their positions. We describe a few ways that this fact sheet may be less factual than hoped.

• “CITES controls on trade in 100s of shark products cannot be effectively implemented.” This is false. Appendix II contains about 1,400 animal and 25,000 plant species. Parties to the Convention should already have a program in place which implements the permitting requirements and existing fisheries management tools can assist in the implementation of a CITES Appendix II listing for marine species. The fact sheet implies that implementation will also be difficult because the end user will not be able to identify different food items as shark meat. However, it is a country’s CITES Authority and customs officials that must implement CITES with respect to listed species. To assist with implementation, the Parties develop identification guides. Lastly, products must be accurately packaged and labeled, thereby assisting authorities to recognize products for which CITES permits are required.
• “Legal trade will become illegal.” This is false. All ten shark and manta proposals are for “Appendix II listings,” under which commercial trade is allowed. Trade will be illegal only if it is conducted without the permits that are required by CITES.
• “Trade data will become worthless.” This is false. Trade data will likely be more important than ever. The CITES Parties use trade data to help determine what levels of trade are sustainable. Also, because statistics on shark trade are incomplete, the CITES permit regime will help Parties and scientists better understand the scale of trade in shark fins and other products.
• “The livelihoods of fishermen will decline.” This is false. First, CITES listings do not affect the harvest of fish; CITES only relates to international trade. Second, as noted above, an Appendix II listing allows international commercial trade that is determined to be sustainable. Third, permit requirements of CITES to not apply to domestic trade; thus, if fishermen catch sharks and mantas in coastal waters for sale in local markets, no CITES permits are required at all. Fourth, a CITES listing may have a positive benefit on the livelihoods of fishermen because the listing will prevent over-exploitation and ensure the long-term viability of the species as an economic resource. Fifth, the current proposals will be delayed by 18-months to allow Parties to make appropriate arrangements to implement the listing, and consider dealing with impacts on livelihoods of the poor. Delayed implementation has been identified by UNEP as an effective method to mitigate impacts of implementation on livelihoods.
• “No conservation benefits would accrue.” This is false. A CITES listing will result in the monitoring and regulation of international trade in marine species, even for specimens taken in areas beyond any national jurisdiction. The permitting requirements of CITES will ensure that trade is sustainable and not detrimental to the survival of the species. The requirement that species be legally acquired will support compliance with RFMOs and may help address the issue of illegal, unregulated, and unreported fishing.

Unfortunately fact sheets, even ones with incorrect statements, can be very persuasive. Next week, when the negotiations resume and the Parties consider the 10 proposals to protect sharks and rays, we will see whether fact or fiction prevails. 

- Don Gourlie

Combating the Elephant Poaching Crisis

The plight of the African elephant has been well documented in recent history. The rising price of ivory, as well as international demand, has led to significant increases in the incidents of poaching since 2006.  A report from the CITES program “Monitoring the Illegal Killing of Elephants” (MIKE) discussed today highlighted four factors that correlate with the number of elephants illegally killed: poverty and food insecurity, law enforcement capabilities, the quality of local governance, and demand.   Swaziland noted its approval of this report as it marked the first time a CITES report linked increasing demand to an increase in illegal poaching.  Many African range states expressed the opinion that reducing demand was a necessary component in decreasing illegal poaching.

While no Party has submitted a proposal to trade in ivory at the meeting this year, the Parties are completely reviewing  the manner in which CITES manages the ivory trade.  Delegates continued to express their concern with the increased sophistication of poaching and smuggling operations. Congo summed it up best when it said “We are not dealing with mere poaching, we are dealing with an international problem of organized crime….”   TRAFFIC, an NGO that tracks the enforcement of CITES mandates noted the troubling fact that no large scale ivory seizure has led to a successful prosecution. Kenya suggested that large scale seizures of ivory should be put through DNA testing in order to determine the country of origin.  This information would allow Parties to identify and focus resources on areas of high concern in order to combat this dire situation.

Not only have the number of elephants killed by poachers increased in the past few years, the killing of park rangers by poachers has increased to disturbing levels.  Thousands of rangers have been killed in the past 10 years.  While often the illegal trade of ivory is labeled as “unregulated”, the International Ranger Federation noted that “Our rangers did not die from unregulated bullets, they were killed by [highly regulated criminal syndicates].”  When rangers are killed, they leave behind their spouses and children. “These people are forgotten victims of this poaching war [and] [w]e must not forget families when they pay the ultimate price.” These comments highlight the importance of remembering the people on the front lines, who all too often make the ultimate sacrifice while implementing the measures formed by these negotiations.

- Ben Saver

The Return of Secret Ballots

As noted in a previous blog, the EU and Mexico submitted proposals that the Parties improve transparency by making it more difficult to vote by secret ballot. Today, the Parties, by multiple secret ballots, rejected those proposals. That leaves the previous rule in place: Parties may vote by secret ballot if one Party moves for a secret ballot and that motion is seconded by ten other Parties.

The chair began the day by deciding that a vote to amend the Rules of Procedure was a “procedural” vote that required a simple majority for adoption. China challenged that decision of the chair. In response to China’s challenge, the Parties were asked to vote to overturn the chair’s decision — by a simple majority. Japan called for a secret ballot on this issue, a request that long-time CITES observers believe is the first time a secret ballot has been used to challenge the decision of the chair. The vote easily passed (71 voting to overturn the chair’s decision and 56 to affirm it). As a result, votes to change rules of procedure require a two-thirds majority.

That decision proved decisive. A series of amendments were proposed in an attempt to find the magical number of Parties needed to approve a secret ballot vote, but all were rejected. Many, however, received a simple majority. Had the chair’s initial decision stood, the Parties would have approved new rules for improving transparency in CITES. The votes on this issue are illuminating: the Parties clearly view the Rules of Procedure as an important aspect of CITES. They are not to be taken lightly and they are not to be amended by a simple majority of the Parties. Yet, the votes also reflected that a majority of Parties want improved transparency. If the trend of the past several CoPs continues — to use secret ballots for votes on contentious issues such as sharks and the ivory trade — today’s vote on secret ballots will have significant implications for the work of the Parties.

Later in the day, IELP students got a personal briefing from the US delegation, during which the U.S. explained its position on secret ballots. During the briefing, Dan Ashe, the Director for the US Fish & Wildlife Service and head of the U.S. delegation, and Bryan Arroyo, the Assistant Director for International Affairs, reported that more transparency is better in all cases than less transparency. The US delegation has never requested a secret ballot and likely “never will.” In fact, when voting occurs by secret ballot, the US reports to the Parties and to the public how it voted on the issue.

- Victoria Johnston and Chris Wold

Secret Ballots and Accountability at CITES

The first plenary session of CoP16 opened with perhaps the most contentious debate ever seen on Day 1 of a CITES meeting as the Parties wrangled over the issue of secret ballots. The European Union and Mexico have each proposed changes to the Rules of Procedure of the Convention to make voting by secret ballot more difficult.

The Rules of Procedure provide that secret ballots “shall not normally be used.” In recent years, the Parties have frequently used secret ballots to vote on controversial proposals, such as elephants, sharks, and whales. Over the last six meetings, the Parties have taken 69 votes by secret ballot, 48 of which related to marine species or marine-related issues (whales, turtles, sharks and other fish, and corals) and 17 related to the African elephant or ivory trade. As Japan reported during the debate, apparently without irony, “only 29% of the voting [on species proposals] was done by secret ballot.”

Before the Parties may vote on this controversial issue, the Chairman must decide whether an amendment to the Rules of Procedure constitutes a procedural issue subject to a simple majority vote or a substantive issue requiring a two-thirds majority to be adopted.  On this question, the Parties could not agree.

The Rules of Procedure state that “… all votes on procedural matters relating to the conduct of the business of the meeting shall be decided by a simple majority of the Representatives present and voting, while all other decisions shall be taken by a two-thirds majority of the Representatives present and voting.” The debate that followed is something any lawyer or law student would appreciate.

Is amending the Rules of Procedure a procedural matter, which requires only a simple majority or a substantive matter requiring a two-thirds vote? Consensus could not be reached on this question, and it was left to be decided another day, although the Chairman indicated that he believed amending a Rule of Procedure would only require a simple majority. But, the Chairman’s decision is not necessarily final and may be overturned by … a simple majority! So a simple majority will get to decide whether a proposal to amend the Rules of Procedure needs a simple majority or two-thirds majority of Parties present and voting to pass.

Because proposals relating to African elephants, rhinos and ten species of sharks and rays are on the agenda, deciding this voting issue will determine whether voting will be transparent.  Japan, China, and others claim that secret ballots allow Parties to vote without pressure from conservation organizations and other Parties. The representative from Congo, however, perhaps summed up the counterargument best, stating that “[a]s a sovereign state, we have nothing to fear.” After another morning of debate on this issue, the Parties remain deadlocked.