MARCH 22, 2023 / KATHRYN LODEN*
I. Introduction
The protection and promotion of wild plants and animals is a critical yet controversial element of international environmental law. For centuries, unregulated and exploitative trophy hunting and trade of species occurred, often to the point of significant reductions in population sizes, genetic instability, and damaged ecosystems. Recognizing the dangers of these unregulated activities, the international community established the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) “the Convention.” To implement the objectives of CITES, each nation party to the convention must enact domestic legislation according to the National Legislation Project. The purpose of this paper is to conduct a comparative analysis of nations from each of the three categories under the CITES National Legislation Project to understand the causes and effects of different implementation strategies such as the competing interests of state sovereignty and economic development versus wildlife conservation, the effect of noncompliant states and weak legislation on the functionality of the Convention as a whole, and the impact of illegal trade in wildlife on international treaties.
II. History of International Trophy Hunting
International trophy hunting is a global industry that generates billions of dollars per year and impacts biodiversity, wildlife conservation, international trade, domestic and international economics, and public opinion. A sport-hunted trophy is defined in U.S. law as:
“a whole dead animal or a readily recognizable part or derivative of an animal specifically identified on accompanying CITES documents that meets the following criteria: is raw, processed, or manufactured; was legally obtained by the hunter through hunting for his or her personal use; is being imported, exported, or re-exported by or on behalf of the hunter as part of the transfer from its country of origin ultimately to the hunter’s country of usual residence; and includes worked, manufactured, or handicraft items made from the sport hunted animal…”[1]
Sport-hunted trophies vary greatly in size, value, and location and include items such as tusks, antlers, and pelts; as well as entire animals namely elephants, lions, leopards, and rhinoceroses among other various plant species.
This practice has a long and controversial history with origins dating back to the Roman Empire and Ancient Egypt.[2] Modern international trophy hunting can be said to have originated in the late 19th century with President Theodore Roosevelt and the founding of the Boone & Crockett Club and Scoring System.[3] Following shortly thereafter, the Horn Measurements and Weights of the Great Game of the World was created,[4] leading to the International Council for Game and Wildlife Conservation. Over the last few decades, international trophy hunting has increased and expanded at significant rates. Concerns over regulation, conservation, and sustainability produced the need for a binding international agreement and cooperation among importing and exporting nations as well as individual hunters. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) was drafted in the 1960s in response to these concerns. Currently, there are 183 nations party to the agreement and varying degrees of protection for more than 37,000 species of plants and animals.[5]
III. Overview of CITES
CITES is an international agreement for the purpose of ensuring that “international trade in specimens of wild animals and plants does not threaten the survival of the species.”[6] While CITES is a binding agreement on the Parties, the Convention does not create domestic law, but rather provides a framework for parties to base their own legislation. Each party must adopt its own laws to ensure that CITES is implemented on a domestic level.
A. History
The Convention was constructed to address concerns over the sustainability, regulation, and environmental impact of international trophy hunting, and quickly developed into an enduring global framework. CITES was signed in Washington D.C. in March of 1973 and has been amended twice in 1979 and 1983. The convention separates species into three categories: Appendix I for “all species threatened with extinction which are or may be affected by trade,” Appendix II for “all species which although not necessarily now threatened with extinction may become so unless trade…is subject to strict regulation,” and Appendix III which includes “all species which any Party identifies as being subject to regulation…for the purpose of preventing or restricting exploitation.”[7] Species listed under these appendices require proof of both an export and import permit in order to qualify for trade.[8] The attainability of these permits varies based on the level of threat to the species, though there are some exceptions such as for species bred in captivity. Each party to the convention is required to enforce the provisions of the convention, maintain records of trade, and prepare periodic reports on their implementation processes among other things.[9]
In the nearly fifty years since the adoption of CITES, regulations on the export and import of endangered species have reduced the over-exploitation of many species such as elephants, rhinoceroses, and leopards. There has also been an increase in awareness and consciousness regarding the consequences of international trade in wildlife.[10] Despite these successes, there are considerable differences in the implementation of CITES among nations and the problem of exploitative and unsustainable trophy hunting is still rampant across every continent.
B. Export Quotas
In order to regulate the import and export of specimens, the convention established an export quota system to serve as a “management tool, used to ensure that exports of specimens of a certain species are maintained at a level that has no detrimental effect on the population of the species.”[11] A quota is an upper limit on the number of specimens of a given species that may be exported from a particular country over a 12-month period. This system accounts for the unique needs of various species as well as the ecosystems they are a part of and the impact of hunting on their sustainability. While this export system has the ability to monitor trade and regulate hunting practices between nations and on a regional level, the system has flaws including the inability to account for time-sensitive factors such as climate issues like drought, famine, wildfires, hurricanes, and other natural disasters as well as the possibility of other unforeseeable events that affect the number of specimens in a given country. Setting a quota without consideration of these factors increases the likelihood of over-exploitation.
C. Permits Systems
At the twelfth meeting of the Conference of the Parties, a universal permit system was created for the purpose of simplifying the process of producing and obtaining permits for trade in wildlife and to discourage fraudulent and or exploitative uses of permits and certificates.[12] In standardizing the permit system, the Parties agreed that permits must contain, among other things, the purpose of the transaction, the reason for trade, the intended use of the specimens, source and final destination of the specimens, quantity and type of specimens, as well as a statement of compliance to specific parameters such as quotas.[13] These permits must be either in paper or electronic form and must include the name of the applicant, number of permit, and a stamp or seal of the issuing authority.
Despite the high hopes for this unified system, notable and widespread abuses of permits and certificates have been documented over the last decade. These abuses include: intentional declaration of false information by applicants, unauthorized modification of documents after issue, improper expedition of permit obtaining process, counterfeit documents, reuse or repeated use of documents, and expired or stolen documents.[14] These abuses are due, in part, to corruption among government officials caused by financial incentives, challenging and overburdensome bureaucratic processes, and wide discretion given to decision-makers.
D. Compliance
In regard to compliance with the Convention, the Conference of Parties released a non-legally binding guide to inform and assist the Parties in meeting their obligations. The guide covers issues such as designating authorities, regulating trade according to the convention, domestic implementation, and maintenance of records and reports. Matters of compliance are handled in a “supportive and non-adversarial,”[15] manner through the Secretariat and Conference of Parties. Parties’ compliance with obligations are primarily monitored through annual reports, legislative texts, and responses to information requests. Parties are given a “reasonable,”[16] amount of time to address and rectify compliance issues once they are discovered. If a Party fails to take action, the Standing Committee may do one or more of the following: provide advice, information, and assistance; request special reporting; issue a caution; recommend specific actions; send a public notification to all Parties regarding the non-complying Party; issue a warning; or recommend the suspension of trade.[17]
These compliance procedures have had a seemingly positive impact on Parties’ compliance to the Convention. Many countries that have been subject to recommendations of trade suspensions have made efforts to improve their procedures. However, there have been several cases of countries refusing to implement trade restrictions or failing to respond to compliance recommendations.[18]
E. National Legislation Project
Given that CITES does not create domestic law, each Party is tasked with adopting their own legislation to implement the provisions of the Convention. The National Legislation Project, established in 1992, was designed to aid Parties by identifying provisions that their domestic legislation should contain. Each domestic policy should provide the Parties with the authority to: “designate at least one management authority and one scientific authority; prohibit trade in specimens in violation of the convention; penalize such trade; or confiscate specimens illegally traded or possessed.”[19] The Secretariat reviews and evaluates each Party’s national laws and places them into one of three categories.
In assessing the implementation of the four requirements outlined in the Convention, the Secretariat looks to several factors. Regarding the designation of authorities, the Secretariat will look for a specific legal instrument that clearly provides CITES authorities the power to grant permits, establish quotas, and review reports. Next in regard to the prohibition of trade, the Secretariat will look for legislation regulating all forms of trade in all species and specimens listed by the Convention. Third, regarding the penalization of illegal trade, the Secretariat will look for legislation that clearly defines prohibited actions and outlines specific punishments for violating the provisions. Finally, for a Party to adequately meet the fourth requirement, the legislation must enable permanent confiscation of illegally trades specimens as well as the equipment used in the offense.[20]
IV. Analysis and Comparison of International CITES Implementations
Countries party to the Convention are divided into three categories based on the ability of their domestic legislation to meet the four major requirements of the National Legislation Project. Category 1 includes countries whose legislation is believed to generally meet the requirements for the implementation of CITES; Category 2 includes countries whose legislation is believed not to generally meet all of the requirements for the implementation of CITES; and Category 3 which includes the remaining nations, whose legislation is believed generally to not meet the requirements for the implementation of CITES. [21]
A. Category 1 – Countries that Have Met CITES Requirements
Category 1 countries are those that the Secretariat has found to have met the four major requirements of the Convention through their domestic legislation. Countries in this category represent the six continents and include primarily developed states.
1. South Africa
South Africa was one of the first nations to join CITES in 1975 and has been considered an active participant in the Convention. This country is home to the “Big Five,” a term that was coined by trophy hunters in reference to lions, leopards, rhinoceroses, elephants, and Cape buffalo, which are all highly valued and consequentially highly exploited species. South Africa is one of the most popular locations for trophy hunting generating an estimated $100 million per year according to the nation’s DEA (Department of Environmental Affairs).[22] While South Africa has been applauded by the CITES community for its efforts in regulating international trade in wildlife, many critical issues exist in the application of legislation leading to the continuation of exploitative practices.
a. Legislation
In 2004, the country enacted the National Environmental Management: Biodiversity Act “NEMBA,”[23] to implement CITES. NEMBA sets out to manage and conserve biological diversity within the country and to promote sustainable use of indigenous biological resources while also giving effect to the Convention.[24] Established by NEMBA is the Managing Authority, the South African National Biodiversity Institute, which is broadly tasked with establishing, maintaining, preserving, and protecting plants and animals in the country. NEBMA also establishes a Scientific Authority in compliance with the Convention.[25] The Scientific Authority has the power to monitor the legal and illegal trade of specimens, advise the Minister on various issues, make recommendations on permit applications and assist the Minister with enforcement procedures.[26] In addition to these authorities, the legislation outlines a “national biodiversity framework,”[27] to create a uniform approach to the management of biodiversity aimed at “ensuring the long-term survival in nature of the species.” Within this plan is the designation of “threatened or protected ecosystems and species,” which categorizes species and systems as either critically endangered, endangered, vulnerable, or protected.[28] To engage in trade of threatened or protected species, South Africa has adopted the permit system recommended by the Convention.[29]
b. Application of NEMBA
Despite being given a position in the highest category of compliance to the Convention and receiving praise from both the international community and the South African government, exploitative trade in wildlife remains a significant problem in South Africa. A practice called canned hunting, “trophy hunting of captive-bred lions in confined spaces,” is a major market for South Africa with over 8,000 lions being held in captivity for use in the tourist industry.[30] In 2006, the government attempted to ban canned hunting because lions are one of the species included in NEMBA. The Supreme Court of Appeals held that this practice was outside of the regulatory capacity of the government because “the breeding of lions in captivity plays no role in the conservation and survival of lions as a species.”[31] Additionally, while the international trade in rhinoceros horns was banned by CITES in 1977,[32] South Africa’s Constitutional Court recently made the controversial decision to lift the ban on the domestic trade of horns[33] despite concerns from the government regarding difficulties in regulating and monitoring trade and the potential impact on the conservation of the species. This decision came shortly after South Africa hosted the 17th Conference of the Parties to CITES in 2016.
c. Evaluation of NEMBA
South Africa may have met the requirements of the National Legislation Project through the enactment of NEMBA but in application, this legislation has significant failures. The Act establishes both a management and scientific authority, prohibits trade in endangered species, penalizes such trade, and provides mechanisms for confiscating illegally traded specimens. However, in practice, NEMBA falls short of providing the government with substantive power to regulate trade in wildlife demonstrated by the court decisions regarding canned hunting of lions and domestic trade of rhinoceros horns, both of which activities are directly opposed by CITES. NEMBA presents several administrative concerns such as a lack of cohesive, integrated policies allowing for differences in trade across the country; inadequate coverage for threatened and endangered species; too much discretion in the issuance of permits for trade; inconsistent terminology between provinces; discrepancies in punishments for violations between provinces, and inadequate resources allocated to both regional and national authorities.[34] Despite these concerns, the implementation of NEMBA in accordance with CITES has led to some positive results including “a marked increase in the numbers of southern right whales and humpback whales.”[35]
2. Thailand
Thailand is considered a regional leader in the effort to combat illegal trade of ivory and was removed from the list of countries affected by this industry.[36] While this advancement is certainly commendable, several legal loopholes in the law allow for exploitative practices and gaps in protection for many species.[37]
a. Legislation
Thailand became a party to CITES in 1983 and was placed in Category 1 under the National Legislation Project for sufficiently enforcing the major goals of the Convention through the enactment of the Wild Animal Preservation and Protection Act, B.E. 2535, “WARPA,”[38] in 1992. WARPA was amended in 2003 and again in 2014. According to the Secretariat, WARPA is in compliance with the Convention. The Department of National Parks, Wildlife and Plant Conservation of the Ministry of Natural Resources (DNP) fulfills both the requirements for a management authority and scientific authority. In addition to the DNP, the Department of Fisheries and the Forest Department have the authority and responsibility to administer WARPA. WARPA provides these departments with the power to penalize trade, issue permits, and provide for the confiscation of illegally traded specimens.[39] The original version of WARPA listed only fifteen preserved species of wildlife that cannot be hunted or traded without permission from the Director-General. Since the amendment in 2014, WARPA still protects “fewer than half of all the CITES-listed taxa, and includes just 12 non-native CITES-listed species.”[40]
b. Application of WARPA
Major challenges in regulating trade in wildlife exist in Thailand especially in regard to two important native species; the elephant and the tiger. Prior to 2015, Thailand was considered a country of “primary concern,” due to its domestic and international ivory trade. The elephant population shrunk dramatically from 300,000 wild and 100,000 domesticated animals at the beginning of the 20th century to only 3,000 wild and 3,700 domesticated individuals in 2017.[41] With the passage of the National Ivory Act, Thailand has seen great improvement in the control of trade and the ability to fight illegal poaching. In contrast to the improving condition of elephants in Thailand, the exploitation of tigers within the country is of growing concern. Legal possession of tigers in Thailand is restricted to non-commercial licensed zoos. As of March 2017, 49 licensed zoos in the country housed 1,287 tigers.[42] Breeding of these tigers is strictly prohibited. In 2016, the Royal Thai Police conducted an investigation and eventual raid of the Tiger Temple near Bangkok. During the raid, “a total of 137 tigers were removed to a rehabilitation centre, 40 deceased tiger cubs were found in a freezer, and a further 20 preserved in jars.”[43] This raid found evidence that the breeding of captive tigers has been occurring for decades in many zoos.
c. Evaluation of WARPA
Despite meeting the criteria, WARPA has several inherent weaknesses that make enforcement of CITES very difficult. The definition section provides loopholes for trade in wildlife that are not compatible with CITES. First, the definition of “trade,” used by WARPA does not align with the definition established by CITES. WARPA includes import, export, and transit but does not include re-export and introduction from the sea. Second, while cross-border import and export of specimens are regulated under the Act, domestic trade is not. Meaning that once a specimen is inside the country, the government has limited ability to impose any control. This has created an environment where “animals are smuggled into Thailand and laundered as captive-bred specimens throughout the world.”[44] Additionally, the burden of proof falls on the government rather than individual possessors to establish whether a specimen in the country has been illegally trafficked. Third, WARPA does not provide for the protection of many non-native species, even those listed in CITES such as the six species of great ape. Finally, the process of confiscating illegally trafficked specimens is not clearly defined in the legislation which contributes to confusing and delayed legal proceedings. Like South Africa, Thailand has theoretically enacted legislation to further the mission of CITES but is hindered by administrative barriers such as lack of regulatory capabilities in addition to the WARPA specific problem of weak and inconsistent language.
3. Germany
Germany became a party to CITES in 1976. Unlike the previous two nations which are high exporters of sport-hunted trophies, Germany plays a significant role in the import of wildlife. Germany is the second-largest importer of specimens[45] (after the U.S.), is home to one of the highest populations of trophy hunters[46], and hosts some of the largest hunting fairs in the world.[47] A majority of Germany’s imports come from Namibia, South Africa, Zimbabwe, and Russia[48] and include animals such as zebras, black and brown bears, and elephants.
a. Legislation
In 2010, Germany entered into force the Act on Nature Conservation and Landscape Management (Federal Nature Conservation Act) “FNCA,” for the purpose of safeguarding biological diversity, balanced and sustainable resources, and the natural beauty and recreational value of the environment.[49] In compliance with the Convention, FNCA established the Federal Agency for Nature Conservation as both the Management and Scientific Authority. FNCA contains 74 articles including provisions regarding the general and special protections of species, duties and responsibilities of government authorities and individuals, the processes and availability of obtaining permits and licenses for the trade in wildlife, as well as penalties and confiscation provisions in the event of a violation. In many aspects, this legislation is highly detailed and expansive.[50] However, when it comes to the import of species from other nations, FNCA is notably lenient. According to Article 45, animals and plants of specially protected species that were “legally bred in captivity,” or “imported into the Community from third countries,” are exempt from the prohibition on possession.[51]
b. Application of FNCA
While there are guidelines in place to review the applications of import permits, data shows that the Federal Agency for Nature Conservation accepts nearly all of these applications, even for protected and endangered species.[52] In addition to legal trade in wildlife, there is a substantial criminal enterprise in Germany that smuggles specimens across the borders. Germany is considered a transit country for illegal ivory trade between originating Africa and South-East Asian destination countries.[53] Between 2005-2014, German authorities confiscated over 25 shipments containing over 160kg of ivory[54]. These specimens included carvings, earrings and other jewelry, as well as tusks and toenails.[55] Additionally, Germany is a destination country for the import of domestic pets, dietary supplements, and rare plant species.[56] Between 2005-2014, government officials confiscated thousands of shipments containing specimens such as 370 tortoises, bird eggs, 2600 dead songbirds, 1.4 tons of caviar, 500 cacti, 40 turtle eggs, 253 live orchids, 98 rare tortoises and turtles, lizards and snakes, and rhino horns, 143 protected live reptiles, 570 exotic reptiles, and various oils made from cacti.[57] While these shipments were violations of domestic and international law, there are several legal routes to get protected species of wildlife into the country. For example, Germany is also the host of the world’s largest trophy hunting fair, Jagd & Hund. At this event, some individuals sell and trade trophies from hunts while others sell hunting excursions, mostly in Southern and Western Africa, for specimens that are prohibited by both CITES and the EU.[58]
c. Evaluation of FNCA
Germany plays a significant role in the international trade of wildlife. Because Germany has been listed as a Category 1 nation, the Secretariat has determined that the country is generally acting in compliance with CITES, and based solely on a reading of FNCA, this determination would be correct. Germany does meet the four major obligations of the National Legislation Project. However, the lenient language and application of permits allow for Germany to import specimens that have been illegally or exploitatively hunted in other nations and also to hold hunting fairs where thousands of specimens of protected species are on display or advertised.
B. Category 2 – Countries that Have Generally Not Met CITES Requirements
Category 2 countries are those whose legislation is generally believed to not meet all four of the criteria necessary to be considered in compliance with the National Legislation Project. Some of these nations are actively working towards compliance while others are not. Like Category 1, Category 2 includes nations from each continent but only includes those with either transitioning or developing economies.
1. Botswana
Botswana became a party to the Convention in 1978 and has maintained its status as a controversial actor ever since. Botswana is home to the world’s largest African elephant population with just over 30% of the continental population.[59] With this population size comes an increased risk of exploitative practices to feed the still powerful international ivory trade, and therefore an increased responsibility of the government to protect and promote the species. Botswana also contains a large yet dwindling population of African lions. Due to the government’s inability to protect these and other species through mostly ineffective legislation, Botswana has been placed in Category 2 under the National Legislation Project.
a. Legislation
Botswana enacted the Wildlife Conservation and National Parks Act “WCNPA,” in 1992 “for the conservation and management of the wildlife in Botswana.”[60] The WCNPA established the Directors of the Department of Wildlife and National Parks and the Department of Forestry and Range Resources as the Management Authorities and Scientific Authorities in compliance with the Convention.[61] While the legislation does technically ban some forms of hunting and trade and provides mechanisms to penalize illegal trade and to confiscate specimens; overly lenient language means that these mechanisms are rarely called upon. The language of WNCPA provides the government nearly unlimited power to grant permits for trophy hunting. For example, under Part VIII of the Act, the Director may grant a permit authorizing “the killing or capturing of any animal in the interests of the conservation, management, control or utilization of wildlife,”[62] this subjective language allows for essentially unrestricted hunting of wildlife. WCNPA designates 52 controlled hunting areas in the Ngamiland District, 12 areas in the Chobe District, 4 areas in the Central District, and 14 areas in the Ghanzi District making up a significant portion of the country’s natural landscape and wildlife habitats.[63] The Director also established 9 wildlife management areas and 4 national parks throughout the country where hunting is either restricted or prohibited, unless the Director determines that “such a killing or capturing is necessary for scientific purposes…or in the interests of the conservation, management, control or utilization of wildlife.”[64]
b. Application of WNCPA
Botswana recently gained international attention for the decision to lift a five-year ban on elephant hunting.[65] This ban was initially created by President Ian Khama in 2014 to protect the species from poachers and trophy hunters. This policy was considered by many to be excessively strict as it included arming anti-poaching units to shoot known poachers on sight.[66] There is notable debate over the true population size of elephants in Botswana and continentally owing to governmental corruption and difficulty of reporting on migratory species, but some statistics demonstrate that the elephant hunting ban helped to reverse the decline. The current Botswana administration justified lifting the ban by emphasizing the destruction to rural areas of the country that elephants have created.[67] Generally, policies regarding elephants in Botswana are two-fold. First, there is a need to conserve the species for genetic stability and biodiversity as well as for the tourism industry which is largely fueled by wildlife activities. Second, there is a need to manage populations because of the negative effects of human-elephant interactions such as the impact on crops, livestock, water supply, buildings, and human lives. Many conservationists argue that this policy had little to do with elephant destruction and more to do with the political motivations of the administration.[68]
c. Evaluation of WNCPA
It is evident from the return to elephant poaching and hunting that Botswana’s legislation is not capable of protecting this endangered species nor was it particularly designed to do so. While there is international outrage from other countries as well as nonprofit organizations regarding Botswana’s elephant policies, addressing this issue from a greater context reveals that this developing nation may be acting on its best financial interests to the detriment of its natural resources. The demand for ivory exists, especially in countries like China, France, UK, and the United States, in spite of CITES and other international ivory bans.[69] With a rich population of elephants and an economy dependent upon tourism and wildlife activities, Botswana is uniquely positioned to fill this demand. Even though many countries play a role in the continuation of illegal ivory trade, developing nations often receive the most blame and consequences.
2. Namibia
Namibia joined the Convention in 1990 and has been placed in Category 2 under the National Legislation Project for generally failing to meet the four major criteria. Over the past few years, frustrations towards CITES and the international community over bans on the ivory trade have grown in Namibia causing the government to seriously consider pulling out of the Convention. This government, in addition to other African nations, has frequently petitioned the Conference of Parties to amend the categorization of specific species allowing for increased trade. These proposals have been routinely rejected contributing to the growing tension among African nations.
a. Legislation
In 2008, Namibia introduced the Controlled Wildlife Products and Trade Act “CWPTA,” to give force to the provisions of the Convention.[70] CWPTA established the Ministry of Environment and Tourism as both the Management and Scientific Authorities. This short legislation prohibits the import, export, re-export, or introduction from the sea of any specimen listed in the convention unless authorized by a permit. Additionally, CWPTA includes specific penalties for violations including a maximum of 20 years in prison or a maximum fine of N$200,000.[71] Despite meeting the four requirements of the National Legislation Project, this legislation is regarded as noncompliant due to the application and enforcement mechanisms as well as the government’s refusal to accept classification of certain species.
b. Application of CWPTA
In 2013, Namibia first proposed that the CITES amendment regarding African elephants be changed to allow for a quota export of ivory as well as trade in ivory products and goods.[72] Then in 2016, Namibia sent another proposal to the Conference of Parties to loosen restrictions on ivory trade for African countries.[73] In 2019, Namibia, along with Angola, Botswana, Zimbabwe, and Zambia, again proposed that the ban on ivory trade be lifted.[74] These proposals, in addition to separate proposals regarding lessening restrictions on trade and hunting of rhinoceroses and giraffes in Africa, were ultimately rejected by the Conference. Namibia in particular views these decisions as an unwanted and unnecessary interference with domestic conservation and control efforts. Within the last month, there have been discussions surrounding the potential for Namibia to begin exporting live elephants in direct defiance of the Convention. [75]
c. Evaluation of CWPTA
Much of Namibia’s argument stems from the belief that elephants, rhinos, giraffes, and all other species native to the country are simply natural resources to be used and traded as the government sees fit. After the proposal rejection in 2019, Minister Pohamba Shifeta said “there is a limit to how much external interference we will accept,”[76] in reference to the regulation of ivory trade. Namibia has argued that species conservation is an issue of state sovereignty and not international politics. The government has attempted to justify their interest in relaxed regulations by stating that there is a need to protect rural communities. While this interest is relevant, the main incentive driving these proposals appears to be the money gained from selling off ivory stockpiles and opening the country to further trophy hunting. Concerns over state sovereignty are becoming more prevalent as developing nations seek to lift restrictions on trade.
3. The Philippines
The Philippines became Party to the Convention in 1981. The country is home to many CITES-listed species including 46 from Appendix I, 1,955 from Appendix II, and 6 from Appendix III. The state has been placed into Category 2 for failure to meet all of the requirements of the Convention. Like many countries, the Philippines is a consumer, source, and transit point for trade in wildlife. Despite ambitious legislation, the application and enforcement of CITES have been difficult for the Philippines due to the high demand for native species and illegal trade networks.
a. Legislation
In 2001, the Philippines adopted the Wildlife Resources Conservation and Protection Act “WRCPA,” to “conserve and protect wildlife species and their habitats to promote ecological balance and enhance biological diversity.”[77] WRCPA designates the Protected Areas and Wildlife Bureau and the Bureau of Fisheries and Aquatic Resources as the Scientific and Management Authorities with the power to regulate trade, issue permits, prohibit trade of CITES-listed species, penalize illegal trade, and confiscate specimen involved in trade. With respect to the indigenous populations of the State, WRCPA provides exceptions to hunting and fishing regulations done for religious or cultural purposes.[78]
b. Application of WRCPA
One of the major issues facing the Philippines with regards to the implementation of the Convention is the trade of seahorses. In 2004, CITES added all 47 species of seahorses to Appendix II meaning that all Parties are required to ensure that trade will be limited to legal sources, captive environments, as to not damage the wild populations.[79] Prior to this amendment, in an attempt to comply with the Convention, the Philippines passed Republic Act (RA) 8550 Section 97 which states that “it shall be unlawful to fish or take rare, threatened or endangered species as listed in the CITES,”[80] without distinction among the Appendices. When CITES amended the classification of seahorses, RA 8550 effectively imposed a blanket ban on the export of the species which was previously a significant market for the country. Prior to 2004, the Philippines was estimated to have exported between 2 million and 6 million dried seahorses annually.[81] Many countries, specifically China, Hong Kong, Taiwan and Singapore, still have high demand for seahorse specimens for use in traditional medicines[82] and despite the blanket ban on export, the Philippines is still a major contributor to this market.[83]
c. Evaluation of WRCPA
Because RA 8550 does not account for the distinctions between Appendices, the law is in conflict with other states’ trade provisions and more broadly with CITES. A less strict domestic law would allow for the Philippines to regulate and monitor trade to harmonize the interests of conservation and economic development. Consequentially, the banning of all exports has not reduced trade in any capacity but rather opened the market for unregulated and exploitative practices. Despite the ambitious attempt to regulate trade in wildlife through strict legislation, the Philippines has been generally unable to meet the requirements of the Convention because the domestic legislation is incompatible with CITES and the current state of trade in specific species.
C. Category 3 – Countries that Do Not Meet CITES Requirements
Category 3 countries are those whose legislation is believed to generally not meet the requirements for the implementation of CITES. These countries are typically newer to the convention and include only economically developing states.
1. Belize
Belize became Party to the Convention in 1981 but didn’t demonstrate much commitment for several years. Like many developing nations, Belize is considered resource-dependent meaning that natural resources available in the country are highly important economically – in tourism, fisheries, agriculture, and forestry industries – as well as for basic needs such as food, medicine, and building materials.[84] The main resources used in trade are timber, specifically rosewood, mahogany, and cedar; various species of deer; aquatic species, specifically conch, lobster, and sharks; as well as various birds and exotic plants.[85]Belize was placed in Category 3 because it has not met the requirements of the Convention.
a. Legislation
Belize has not yet enacted legislation giving force to the Convention but it has made some progress. In 1981, Belize introduced the Wildlife Protection Act “WPA,” which was amended in 1990 and 2000.[86] Belize has not yet established a Scientific Authority but the Ministry of Sustainable Development, Climate Change and Disaster Risk operates as the Management Authority. The WPA prohibits the hunting and possession of species listed in the Act, the hunting and possession of any wildlife without a license as well as carrying a weapon or other means of hunting. Section 15 provides the Game Warden with the power to “issue permits for the import into or export out of Belize of specimens of wildlife or parts thereof.”[87] This legislation is not considered to be in compliance because it does not give force to the provisions of the convention such as protection for CITES-listed species or regulating international trade.
b. Application of WPA
As a result of outdated and difficult to enforce legislation, Belize is faced with unregulated activities harming the sustainability and survivability of many natural resources. One of the greatest environmental threats facing the country is deforestation. Due to illegal logging practices and a shift from forestry to agriculture as the primary economic driver, rapid deforestation has taken place across the country. As of 2010, Belize was experiencing deforestation at a rate of 2.3% which is double the average rate for Central America.[88]In some areas of the country, the deforestation rate is at 13%.[89] Current legislation in Belize incentivizes landowners to clear forested areas in order to develop them for other uses. The rate of deforestation has only accelerated since 2010. Between 2010 and 2012, Belize’s forest cover was reduced by 25,264 hectares which is an increase of about 2,000 ha per year from previous rates.[90]
c. Evaluation of WPA
Under CITES, several species of timber are protected and regulated.[91] This includes species that native to Belize and other countries in the region such as rosewood, mahogany, and cedar. Enacting updated legislation with specific connections to CITES would give the country power to regulate the valuable and diminishing timber industry. Simply enacting legislation without more would not solve the problem of deforestation given the expansive criminal enterprise dedicated to trade in timber[92] but it would be a productive step for the state to take.
2. Somalia
Somalia became Party to the Convention in 1986 but has failed to ratify legislation giving force to CITES and has therefore been placed in Category 3. In 2004, the Conference of Parties made a recommendation to suspend all commercial trade in specimens with Somalia due to the country’s lack of appropriate legislation.[93] As of October 2021, this recommendation is still in effect.[94] Despite not having a legislative act to enforce the Convention, Somalia has made several efforts to regulate trade in wildlife.
a. Legislation and Evaluation
Over the last few years, Somalia’s Environment Ministry has been working to combat the illegal trafficking of cheetahs from Eastern Africa to Gulf countries. Somalia is both a range country and transit point for illegal trafficking of cheetahs making regulation more difficult. According to a study on 145 cases involving trafficked cheetahs, a majority of the recorded specimen in this industry are in Somaliland[95], which is a self-declared autonomous region of Somalia that does not consider itself to be a part of greater Somalia. Over 70% of recorded cases between 2010-2020 were recorded in Somaliland.[96] After being captured in Eastern Africa, cheetahs are transported to countries such as Iraq, Kuwait, Qatar, and Saudi Arabia to be used as exotic pets. In October of 2020, The Somaliland Ministry of Environment and Rural Development working with Somaliland police secured the arrest of 10 individuals suspected in trafficking a total of cheetah cubs.[97] While this arrest and confiscation of specimens is admirable, it does not begin to scratch the surface of the illegal trafficking problem taking place in Somalia and across the Horn of Africa.
Somalia is a unique and challenging nation in that is has no central government structure in place[98]. Due to political and economic instability within the country dating back decades, Somalia is at an even greater disadvantage in the fight against illegal trade in wildlife. Without a formal regulatory body or legislation to enforce, the exploitation of natural resources was an inevitable consequence.
V. Discussion
There are several issues to consider when comparing the implementation strategies of various states under the Convention. First, the competing interests of state sovereignty and economic development versus wildlife conservation and the inherent power dynamics responsible for shaping these perspectives. Second, the effect of noncompliant states and weak legislation on the functionality of the Convention as a whole. And third, the impact of illegal trade in wildlife on international treaties.
The conflict between state sovereignty and wildlife conservation is a relatively new phenomenon. With the emergence of animal protection groups came a movement focused on the morality of hunting and trade.[99] This ideology disproportionately affects developing nations trying to compete on a global market as well as indigenous communities who use sustainable practices necessary for their survival and cultural identities. Developed nations have a long history of exploiting resources domestically and internationally for the purpose of economic development. Though detrimental to the environment, this strategy led to rapid industrialization, medical and technological advancements, and improved quality of human life. Developing countries looking to follow this example are now faced with Western ideologies and standards restricting the same processes that developed countries took advantage of only decades earlier. The “sovereign right of a country to sustainably exploit its natural genetic resources, and benefit when those resources are used by others,”[100] otherwise known as access and benefit sharing, is one of the foundational elements of globalization and international trade. For Western nations to restrict this process of trade and economic growth is to deprive developing nations of their sovereign right to utilize their natural resources. One of the underlying sources of this conflict is the use of the word “sustainable,” and the determination of who has the power to define it. Many developing countries would prefer a self-determination approach giving them the power to utilize resources within their own economic, cultural, and recreational confines while developed countries would opt for uniformity where hunting and trade regulations are applied equally to all parties. Understandably, this issue has created tension between the developing and developed world which threatens not only the enforceability of the Convention but its likelihood of survival as well. If these concerns are not addressed, it is more than likely that nations such as Namibia will forego the Convention all together and resume exploitative and unregulated trade in wildlife. This could create a domino effect and lead to the eventual deterioration of the Convention and the progress made thus far.
For any international treaty to be effective, each party must fulfill its obligations and commit to the implementation and enforcement of the provisions. This is made more difficult when states have different goals, procedures, and needs addressed in their domestic legislation. In each category under the National Legislation Project there are countries committed to the Convention and countries taking advantage of economically established power dynamics. Importantly, many nations who facially appear to be committed to the Convention are frequently the worst contributors to illegal and exploitative trade in wildlife. In one way or another, every country benefits from exploitative hunting and trade. For example, developed import-based countries like Germany benefit from these practices by receiving the products, hosting conventions, and participating in hunting excursions. Developing export-based countries like Belize benefit from these practices economically through increased trade, tourism, and recreational activities. These benefits come at the cost of biodiversity among species and ecosystems which lead to further environmental consequences such as deforestation, climate change, disruption of the food chain, and famine as well as the sustainability of the planet as a whole, as all life is dependent upon a thriving natural world. In time, non-compliant and under-committed states have the potential to undermine the Convention as a whole and to detrimentally impact endangered and protected species.
Exploitative trade in endangered or protected species impacts every region of the world and threatens the enforceability of the Convention. While the general attitude towards illegal trade is that of disdain, it is clear that many countries benefit from the industry and are therefore incentivized to maintain it. Despite being in compliance with the convention, several countries in Category 1 such as the U.S., EU countries, Russia, and China are significant importers of illegally obtained sport-hunted trophies. The high demand for specimens and economic value of trade incentivizes Category 2 and 3 countries to keep their legislation lenient and for governments to underreport or directly permit illegal trafficking. Because CITES is an intentionally non-adversarial treaty, consequences for trade violations or noncompliant legislation are often not compelling enough to influence policy changes. On a domestic level, penalties for illegal trade vary nation to nation but are additionally not generally strict enough to be truly deterring. Apart from government actions, individual poachers and those involved in the trafficking industry are financially incentivized to exploit resources and to take advantage of weak regulations. It is no surprise that trafficking of wildlife occurs at significantly higher rates in economically developing nations where tourism and wildlife play a significant part in the economy and where legislation is less restrictive.
VI. Conclusion
International trade in wildlife has a long and sorted history originating with exploitative and unregulated activities that threatened thousands of species. The past 50 years have seen substantial progress in these areas through the creation of numerous international laws and treaties including CITES. While this progress is not to be diminished or ignored, it is important to address the fundamental problems in the application of the Convention across the world. Through the National Legislation Project, the Convention attempts to regulate trade in a sustainable way to promote biodiversity and wildlife conservation. One of the most important features of this treaty is the emphasis on domestic legislation. Permitting nations to enact their own legislation is a positive policy decision in that it allows countries to address their unique populations, resources, and needs. However, inconsistent domestic laws allow for differences in definitions, standards, and procedures that ought to be uniform in order to serve the purpose of enforcing an international treaty. The main differences in implementation between Category 1, 2, and 3 countries are the strengths of their legislation and the abilities to enforce them, differing interpretations of sustainable use of natural resources, and degrees of economic dependency on trade. These differences have led to various application strategies for regulating trade in wildlife allowing for many problematic practices to continue. For the Convention to accomplish the goals it set out to achieve, these differences must be addressed and reconciled.
*Kathryn Loden is a Juris Doctorate candidate at the University of Oregon School of Law and
anticipates graduating in May 2023. She graduated from the University of Utah in 2019 with a B.S.
in psychology and a honors B.S. in political science and has worked in the environmental law field
since entering law school.
[1] 50 CFR § 23.74, (2014).
[2] Blumm, M.C. & Ritchie, L., The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, 35 Envtl. L. 673, 677, (2005).
[3] Baldus, R.D., Damm, G.R. & Wollschied, K., Best Practices in Sustainable Hunting – A Guide to Best Practices from Around the World pp. 5-11, (2008).
[4] Ward, Rowland, Horn Measurements and Weights of the Great Game of the World, Being a Record for the Use of Sportsmen and Naturalists. Nature 47, (1892).
[5] What is CITES? Convention on International Trade in Endangered Species of Wild Fauna and Flora, https://cites.org/eng/disc/what.php (last visited Oct. 14, 2021).
[6] Id.
[7] Convention on International Trade in Endangered Species of Wild Fauna and Flora, (1983), https://cites.org/sites/default/files/eng/disc/CITES-Convention-EN.pdf (last visited Nov. 10, 2021).
[8] Id.
[9] Id.
[10] Fish & Wildlife News – Winter 2013, U.S. Fish & Wildlife Service, p. 13, (2013).
[11] Conf. 14.7, Rev. CoP15, Management of Nationally Established Export Quotas, (2007).
[12] Conf. 12.3, Rev. CoP18, Permits and Certificates, (2002).
[13] Id.
[14] Outhwaite, W., Addressing Corruption in CITES Documentation Processes. Targeting Natural Resource Corruption, (2020).
[15] Conf. 14.3, Rev. CoP18, CITES compliance procedures, (2007).
[16] Id.
[17] Id.
[18] Reeve, R. Wildlife Trade, Sanctions and Compliance: Lessons from the CITES Regime. International Affairs (Royal Institute of International Affairs 1944-), Sep. 1, 2006, Vol. 82, No. 5 Sep. 1, (2006).
[19] Conf. 8.4, Rev. CoP15, National laws for implementation of the Convention, (1992).
[20] Implementing CITES in National Legislation, Convention on International Trade in Endangered Species of Wild Fauna and Flora, https://cites.org/sites/default/files/eng/prog/Legislation/CITES_implementation_in_National_Legislation.pdf (last viewed on Oct. 14, 2021).
[21] Id.
[22] Saayman, A., Saayman, M., Van der Merwe, P. The Economic Impact of Trophy Hunting in the South African Wildlife Industry, Global Ecology and Conservation, Vol. 16, (2018).
[23] Government Gazette, 467, No. 26436, National Environmental Management: Biodiversity Act, (2004).
[24] Id. at p. 2.
[25] Id. at § 60.
[26] Id.at § 61.
[27] Id. at § 38.
[28] Id. at § 52.
[29] Id. at Ch. 7.
[30] Bauer, H., Nowell, K., Sillero-Zubiri, C., Macdonald, D.W., Lions in the Modern Arena of Cites. Conservation Letters, (2018).
[31] SA Predator Breeders Association et al v. Minister of Environmental Affairs (72/10) [2010] ZASCA 151, (29 November 2010).
[32] Conf. 9.14, Rev. CoP17, Conservation of trade in African and Asian rhinoceroses, (1994).
[33] Kruger and Another v. Minister of Water and Environmental Affairs (57221/12) ZAGPPHC 1018, (28 November, 2015).
[34] Bodasing, A., Mulliken, T.A., South Africa’s Wildlife Trade at the Crossroads. Traffic East/Southern Africa, (1996).
[35] South Africa as a Party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), South Africa Department of Forestry, Fisheries and the Environment https://www.environment.gov.za/legislation/international_agreements/sapartytocites, (last viewed Oct. 14, 2021).
[36] Thailand Delisted From CITES’s List of Countries Affected by Illegal Traffic in Ivory, Thai PBS World https://www.thaipbsworld.com/thailand-delisted-from-citess-list-of-countries-affected-by-illegal-traffic-in-ivory/ (last viewed Oct. 14, 2021).
[37] Moore, P., Prompinchompoo, C., and Beastall, C.A., CITES Implementation in Thailand: A review of the legal regime governing the trade in great apes and gibbons and other CITES-listed species. TRAFFIC, (2016).
[38] Wild Animal Preservation and Protection Act, B.E. 2535, (1992).
[39] Id.
[40] Criminal Justice Response to Wildlife Crime in Thailand: a rapid assessment. United Nations Office on Drugs and Crime, (2017).
[41] Nijiman, V., An Assessment of the Live Elephant Trade in Thailand, TRAFFIC, (2014).
[42] See footnote 40.
[43] Ramsey, A. What Really Happened at Thailand’s Tiger Temple? Al Jazeera, https://www.aljazeera.com/features/2016/6/5/what-really-happened-at-thailands-tiger-temple (last viewed Oct. 14, 2021)
[44] See footnote 40.
[45] Killing for Trophies: An Analysis of Global Trophy Hunting Trade, International Fund for Animal Welfare, (2016).
[46] Knapp, A., A Review of the European Union’s Import Policies for Hunting Trophies, TRAFFIC, (2007).
[47] Trophy Hunting by the Numbers: the European Union’s Role in Global Trophy Hunting, Humane Society International, (2018).
[48] See footnote 45.
[49] Act on Nature Conservation and Landscape Management (Federal Nature Conservation Act-BNatSchG), July 29, 2009.
[50] Id.
[51] Id.
[52] See footnote 45.
[53] Klaas, K., Sina, S., Gerstetter, C., Wildlife Crime in Germany, European Parliament’s Committee on the Environment, Public Health and Food Safety, (2016).
[54] Biennial Reports of the Federal Republic of Germany 2005-2014.
[55] Id.
[56] See footnote 43.
[57] See footnote 54.
[58] Brown, F., Inside Euroe’s Largest Trophy Hunting Fair Offering Cheap Deals on ‘easy’ Animal Killing Trips. Metro. https://metro.co.uk/2020/02/06/inside-europes-largest-trophy-hunting-fair-offering-cheap-deals-easy-animal-killing-trips-12187401/ (last viewed Oct, 14, 2021).
[59] Blackie, I.R., Sowa, I. Dynamics of Social Ecology of Elephant Conservation Implications on Environmental Development. Journal of African Interdisciplinary Studies, (2019).
[60] Wildlife Conservation and National Parks Act, Ch. 38:01, (December 11, 1992).
[61] Id.
[62] Id.
[63] Id.
[64] Id.
[65] Lifting of The Hunting Suspension in Botswana, Press Release, Ministry of Environment, Natural Resources, Conservation and Tourism. https://www.facebook.com/www.mewt199.co.bw/posts/2293856854025306 (last viewed Oct. 14, 2021).
[66] Mogomotsi, G., Madigele, P., Live by the Gun, Die by the Gun. SA Crime Quarterly No. 60, (2017).
[67] Human-Elephant Conflict, International Union for Conservation of Nature (IUCN). https://www.iucn.org/ssc-groups/mammals/african-elephant-specialist-group/human-elephant-conflict (last viewed Oct. 14, 2021).
[68] De Greef, K., Botswana Ends Ban on Elephant Hunting, The New York Times, (2019).
[69] UK is the Largest Supplier to the World’s Ivory Markets. Environmental Investigation Agency, (2017).
[70] Government Gazette, No. 4190, Controlled Wildlife Products and Trade Act, (2008).
[71] Id.
[72] CoP13 Prop. 7, Consideration of Proposals for Amendment of Appendices I and II, CITES, (2013).
[73] CoP17 Prop. 14, Consideration of Proposals for Amendment of Appendices I and II, CITES, (2016).
[74] CoP18 Prop. 10, Consideration of Proposals for Amendment of Appendices I and II, CITES, (2019).
[75] Statement on Trade in Live African Elephants under Articles III and IV of the Convention, CITES, (2021).
[76] Shikongo, A., Namibia Frustrated by CITES Ivory Trade Ban, The Namibian. https://www.namibian.com.na/206454/archive-read/Namibia-frustrated-by-Cites-ivory-trade-ban (last visited Oct. 14, 2021).
[77] Wildlife Resources Conservation and Protection Act, Republic Act No. 9147, (2001).
[78] Id.
[79] Relating to CITES Art. IV, Regulation of Trade in Specimens of Species Included in Appendix II.
[80] The Philippines Fisheries Code, Republic Act No. 8550, (1998).
[81] Pajaro, M.G. & Vincent, A.C.J., The Catch and Export of the Seahorse Trade in the Philippines, Pre-CITES. The University of British Columbia, Fisheries Centre, (2015).
[82] McDermott, A., Millions of Seahorses Wind up Dead on the Black Market, Oceana, (2018).
[83] Foster, S.J., Kuo, T.C., Wan, A.K.Y., Vincent, A.C.J., Global Seahorse Trade Defies Export Bans Under CITES Action and National Legislation. The University of British Columbia, Fisheries Centre, (2018).
[84] Illegal Wildlife Trade in Belize: Millions Lost Annually, Wildlife Conservation Society, (2020).
[85] Id.
[86] Wildlife Protection Act, Chapter 220, (2000).
[87] Id.
[88] Young, A., Belize’s Ecosystems: Threats and Challenges to Conservation in Belize. Tropical Conservation Science, (2008).
[89] Id.
[90] Cherrington, E., Escalante, A., Cho, P., Forest Cover & Deforestation in Belize 2010-2012. CATHALAC, (2012).
[91] CITES I-II-III Timber Species Manual, USDA, (2006).
[92] Blundell, A., Mahogany and CITES: Moving Beyond the Veneer of Legality, Oryx Vol. 37, No. 1, (2003).
[93] Notification of the Parties No. 2004/005.
[94] Notification of the Parties No. 2021/059.
[95] Tricorache, P., et al, Pets and Pelts: Understanding and Combating Poaching and Trafficking in Cheetahs. Felidae, (2018).
[96] Tricorache, P., Stiles, D., Live Cheetahs, Global Initiative Against Transnational Organized Crime, (2021).
[97] Somaliland Government Press Release, Arrests 10 Suspects in Two Separate Cases of Cheetah Trafficking. https://saxafimedia.com/somaliland-breaks-up-cheetah-trafficking-ring-arrests-10-suspects/ (last viewed Nov. 22, 2021).
[98] Stremlau, N., Governance without Government in the Somali Territories, Columbia University Journal of International Affairs, (2019).
[99] Fakhri, M., The WTO, Self-Determination, and Multi-Jurisdictional Sovereignty, ATJL Unbound, Vol. 108, (2015).
[100] Hinsley, A., & Roberts, D., Assessing the Extent of Access and Benefit Sharing in the Wildlife Trade: Lessons Learned from Horticulture Orchids in Southeast Asia. Environmental Conservation, 45(3), 261, (2018).
