CITES and the regulation of international trade in coral reef specimens and products

8  CITES and the regulation of
international trade in coral
reef specimens and
products

1 Introduction

Although wildlife products have been traded for hundreds of years, the twentieth century witnessed a growing realisation that some species were being exploited to such an extent that their very survival was being put in danger. Fashion placed at risk populations of snow leopards and crocodilians; traditional medicine in Asia, the populations of rhino and bears. This exploitation went beyond purely domestic consumption. The demands and interests of people living far from the ranges of species were driving this cross-border trade. Whilst this led to the possibility of substantial export revenue generation, it could also drive unsustainable practices. It therefore became increasingly recognised that species could be faced with global or local extinction in the absence of cooperation between range states and importing nations. Thus, in 1963 the General Assembly of IUCN called for ‘an international convention on regulations of export, transit and import of rare or threatened wildlife species or their skins and trophies’.1 The result of this call was the negotiation and adoption of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Fauna (CITES).²

CITES has been regarded as one of the most successful and effective of all the international treaties for the conservation of wildlife within its field of operation.³ Its effect upon the conservation of coral reefs therefore demands consideration, not least because of the annual scale of international trade in coral reef products. Whilst reef fisheries are important for the provision of food for local populations, some reef inhabitants are the subject of targeted fishing in an effort to supply international demand. This demand may come from the aquarium trade, jewellery and curio markets, traditional medicine practices or pharmaceutical companies, and restaurants wishing to offer highly valued dishes such as shark-fin soup or grouper selected live from display tanks.4 This chapter will therefore consider the approach of CITES to regulating such international trade in coral reef specimens. As will become clear, the convention can only make a limited contribution to securing the future of these habitats on account of its narrow focus and the few species that are endangered by international demand and trade.

2 The CITES system for regulating trade

When the treaty text was adopted in 1973, the contracting parties acknowledged that cooperation was urgently needed to protect fauna and flora from over-exploitation because of international trade.5 Much of this cooperation under the agreement takes place between national authorities that the contracting parties are obliged to create and task with implementing CITES, namely a ‘Management Authority’ and a ‘Scientific Authority’.⁶ Thereafter, the system introduced to regulate trade between contracting parties is deceptively simple.

2.1 Key concepts

The broad aim of the convention is to control exports and imports of specimens or products derived from species that are at risk of extinction, or that become so endangered because of trade. It does not seek to regulate all trade in wildlife.

Species have been defined so as to include subspecies or geographically separate populations of species and subspecies.⁷ Further, a specimen is understood as fauna and flora (dead or alive) in whole or readily recognisable, part or derivative.⁸ Thus trade in live parrots, the fins of sharks, or sand created by crushing coral, could all fall within the definition of a specimen.

Trade is defined as exporting, re-exporting or importing a specimen of a species, as well as introducing that specimen from the sea.⁹ Given the focus of this book, the way the treaty defines such ‘introduction from the sea’ is of particular importance. CITES initially defined it as transporting into a state a specimen of a species that had been taken in the marine environment not under the jurisdiction of any state.¹⁰ Difficulties initially arose with respect to this definition because CITES was concluded before the 1982 UN Convention on the Law of the Sea confirmed the coastal state’s jurisdiction over resources within the EEZ.11 Clarification was finally provided in 2007 when the contracting parties passed Resolution 14.6, agreeing that for the purposes of implementing the convention ‘“the marine environment not under the jurisdiction of any State” means those marine areas beyond the areas subject to the sovereignty or sovereign rights of a State consistent with international law, as reflected in the United Nations Convention on the Law of the Sea.’¹² Thus introduction from the sea effectively refers to the landing of marine species captured on the high seas. It also means that the system for dealing with such introductions is largely irrelevant for coral reef species, for the reasons given in chapter 3.

2.2 Appendices and permits

CITES does not seek to control international trade in all wildlife. For instance, the convention focuses on those species that are already threatened with extinction and that may be, or are, traded.¹³ These species are listed in CITES Appendix I and are subject to particularly strict regulation regarding their export and import.

The convention also focuses on a second group of species; those that, although not yet threatened with extinction, may become so unless trade in them is regulated at levels compatible with their survival.¹⁴ These species are described in Appendix II of the treaty. This listing contains additional species included so as to ensure the effective protection of others.¹⁵ By allowing ‘look-alike’ listings it is hoped that traders will be prevented from attempting to pass off a regulated species as one that is unregulated.

There is also a third group of species; those that, pursuant to Article II(3), a state party regulates at the national level so as to control exploitation, and for whose protection the state party needs the cooperation of other nations to render local laws effective. These species are listed in Appendix III of CITES.

Article II(4) reconfirms that for all specimens of species listed in the three appendices to CITES, international trade is only permitted in accordance with the provisions of the treaty.

2.2.1 Trade in Appendix I species

Commercial trade in these endangered species is prohibited. For a specimen of such a species to be exported, both an export permit and an import permit must accompany the shipment. These permits are issued by the relevant Management Authority in each state concerned, although they may only do so once they have also received certain assurances on the trade from their national Scientific Authority.

i. be advised by their national Scientific Authority that ‘such export will not be detrimental to the survival of that species’;16 and

ii. themselves be satisfied that:

(a) ‘the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora’;

(b) ‘any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment’; and

(c) ‘that an import permit has been granted for the specimen’.¹⁷

As per (ii)(c), the country of destination must issue a matching import permit before any trade can occur. This permit is issued by the Management Authority in the state of destination; once again following certain assurances from their own Scientific Authority. These assurances are that the Scientific Authority in the destination state must be satisfied that the import will be for purposes that are not detrimental to the survival of the species involved and further that they are satisfied that the proposed recipient of a living specimen is suitably equipped to care for it.¹⁸

Once such advice has been given to the Management Authority in the country of destination, then an import permit may be issued by that authority when they are also satisfied that the specimen is not to be used for primarily commercial purposes.¹⁹ As Simon Lyster comments, this requirement ‘effectively prohibits international commercial trade . . . and limits legal trade among the Parties to specimens required for scientific and educational purposes and, in limited circumstances, to hunting trophies.’²⁰

These restrictions on Appendix I species are relaxed if the species has been bred in captivity or propagated artificially. Trade in specimens of such species are treated as if they were in Appendix II.²¹

For such an export, one permit is required from the Management Authority of the country of origin. The permit must be demanded and presented upon arrival in the importing state. CITES Article IV(2) provides that these export permits may only be issued by the Management Authority when the Scientific Authority confirms that the trade is non-detrimental to the survival of the species. In addition, the Management Authority must be satisfied that the specimen was legally acquired, and that it will be shipped so as to minimise the risk of cruelty, injury or damage to its health.22 Again, and reflecting the leeway afforded to specimens produced via captive breeding or artificial propagation programs, these do not require a permit.²³ Instead the Management Authority issues a certificate verifying their origins as such.²⁴

2.2.3 Trade in Appendix III species

CITES supports a state’s decision to list a species under this appendix by stipulating that any international trade originating from that party must be accompanied by an export permit issued by their Management Authority.²⁵ Significantly, these provisions of the treaty do not require a ‘non-detriment finding’ on the part of a Scientific Authority.²⁶ For specimens derived from the same species but captured or taken in another state, only a certificate of origin is required.²⁷ These rules bolster the conservation choices of member states whilst not inhibiting trade in specimens of the same species resident in other contracting state parties.

2.2.4 Trade with non-contracting parties

Whilst the convention cannot regulate trade between two non-state parties, it does seek to impose some control upon transactions involving at least one contracting party, the former scenario being very rare given that CITES enjoys the participation of the vast majority of states.²⁸ Nevertheless, trade does occasionally take place through a state or territory that is not bound by the treaty. A significant example is Taiwan, which, because of its contested status as a state, has been unable to become a party. Article X requires that comparable documentation be required from a state for any such dealings. Indeed, the parties have agreed that the presumption should be that permits or documentation should never be accepted from non-state parties unless they meet a catalogue of requirements.29 This includes certification that a competent Scientific Authority in the non-state party has advised that the export is not detrimental to the survival of the species; with an actual copy of this advice to be requested if in any doubt.³⁰

Given the number of member states to the treaty, non-members have found themselves only free to trade within an ever-shrinking unregulated market. As a result, the tendency has been for these states to ratify CITES so as to have a voice in its operation, and increase the number of potential trading partners.³¹

2.2.5 How fishers of coral reef species are affected

Given the recent clarification on introductions from the sea, and the implications this has for trade in regulated coral reef species, it is worth clarifying the permutations concerning permits that may be required. If the coral reef-sourced specimen is landed in the coastal state of origin, that introduction requires no permit.³² Once landed, any later cross-border movement would require the appropriate export and import permits, depending upon the species’ listing status. However, if the fishers land their coral reef-sourced specimen in the port of another state, that activity is tantamount to an export.³³ As an export, that action must be accompanied by the appropriate permits from both the source coastal state and possibly the port state, depending again upon the species’ listing status.

2.3 Rules on the constitution of the CITES appendices

States are free to propose amendments to Appendix I and II under Article XV. Such amendments are usually considered at conferences of the parties (COP) where they may be adopted with a two-thirds majority of those present and voting.³⁴ Appendix III is amended in a unilateral fashion befitting its purpose. In this instance, the Secretariat to CITES is notified by the proposing state of the desired listing, and that listing takes effect after the passing of 90 days following the communication of this proposal to all other contracting parties by the Secretariat.35

A particular problem that the contracting parties have faced concerns agreeing fair and clear criteria for placing species in the correct inventory.

2.3.1 The Bern Criteria

Basic guidance for inscribing species was provided in the treaty, but elaboration on these soon followed in 1976 at COP1 in Bern. The ‘Bern Criteria’ proved controversial, however, because of the relative ease with which species could be listed or given greater protection through a transfer from Appendix II to Appendix I, compared to the difficulty in getting species deleted or downgraded. For example, in relation to potential Appendix II listings, the Bern Criteria required that there be some indication that a species might become threatened with extinction and that that species was or might be traded.³⁶ Conversely, parties were warned that the premature deletion or downgrading of a species could lead to its loss and that they should therefore err towards protection if in doubt.³⁷ Scientific evidence that a species could withstand trade was needed. This evidence transcended lay or informal evidence, which may have been sufficient for the initial listing.³⁸ Whilst this reflects a strong precautionary principle, for many state parties it also represented a protectionist approach that incorrectly saw all trade as inimical to the conservation of species.³⁹ Further, given that population data was only required for deletions or downgrading of species, many ‘smaller developing countries argued that under the Bern Criteria, the decision to list was not a biological call, but a political one, and was unduly influenced by major participants in the convention (such as the United States).’⁴⁰

The Bern Criteria therefore produced tension⁴¹ and ultimately led to two measures. The first was a resolution recognising that trade can be beneficial to the conservation of species and ecosystems (as well as the development of local people) provided it is conducted at levels that do not threaten the species.⁴² The second was the production of new listing criteria in 1994 at the Fort Lauderdale COP.⁴³

The new criteria have been recommended as ‘the first attempt by any country or government body to engage in the listing of endangered species based on objective, scientific criteria’.44 In essence, they provide for the listing of traded species in Appendix I where wild populations are either (a) small, (b) are distributed across a small area, (c) show a present, projected or historic (but with potential to resume) marked decline, or (d) likely to find themselves in any one of the previous situations within five years if not listed.⁴⁵ Appendix II listings are to take place where regulation of trade is needed to prevent a species finding itself in situation (a), (b) or (c) within the next five to ten years, or where regulation of trade is needed to ensure harvesting is not reducing the wild population to a point where more trade or other factors threaten its survival.⁴⁶ These situations are clarified by detailed definitions that go a long way towards providing the suggested objectivity, particularly where they rely on measurable indices. Thus, for example, an historical decline of a species is felt to be a 5–30 per cent reduction from a baseline population figure whilst a marked recent decline is 50 per cent or more over the longer of the last ten years or three generations.⁴⁷

In addition to such measurable factors, the new criteria are clear about when a species may be deleted or downgraded. An Appendix I species may not be deleted without having first spent approximately four years in Appendix II.⁴⁸ Further, that initial downgrading is permitted only where the species no longer meets the objective criteria for inclusion in Appendix I and when range states meet certain safeguards, such as appropriate enforcement controls for trade under Appendix II conditions.⁴⁹

Despite the new listing criteria, Article XV still governs the amendment process during COPs. Thus inscriptions, deletions or movements between appendices still require a two-thirds majority of those present and voting. Whilst this allows some space for contracting parties to vote according to subjective considerations still, such bargaining becomes increasingly difficult as the new criteria dictate legitimate forms of reasoning over others.⁵⁰ Nevertheless, important issues remain over the substance of the criteria and their application to marine species; particularly fish stocks.

Marine species that are subject to large-scale commercial harvesting pose particular problems for the CITES system. Given the number of specimens that may be caught and landed, finding practicable ways of issuing export permits are needed. For instance, should permits refer to each individual specimen, or a given weight of the species caught? How can the exporting management authority make effective non-detriment findings for marine species? How well do the listing criteria apply to marine species? After all, as Douglas Butterworth suggests with respect to the latter, fish exist in large numbers as larvae or juveniles, which can mislead on the size of populations.51 He also observes that common fisheries management deals in stocks rather than species, whilst a reduction in stock size of 50 per cent is close to optimal sustainable utilisation levels.⁵²

General concerns over the operation and usefulness of CITES for regulating trade in marine species was raised at COP10 in Harare, where a Resolution was proposed to establish a working group on marine fish.⁵³ This move was ultimately rejected because it was felt large-scale commercial fishing was not a CITES issue; more appropriate agencies were responsible for this – principally the UN’s Food and Agriculture Organization (FAO).⁵⁴ The initiative did, however, lead to closer cooperation between FAO and CITES, and ultimately the signing of a Memorandum of Understanding between the two in autumn 2006.⁵⁵ This has secured FAO input on the ‘introduction from the sea’ investigations and the implementation of the Fort Lauderdale Criteria for marine species.⁵⁶

As to the latter, the recent memorandum confirms that the FAO is to provide advice on them generally, and provide scientific and technical evaluations of proposals for listing, deleting or moving marine species between the appendices.⁵⁷ In turn, the Secretariat promises to provide information on proposals and communicate the FAO findings to the parties.⁵⁸ The Secretariat also promises to respect the FAO findings on proposals to the greatest extent possible.⁵⁹ As will be seen later in the chapter, these arrangements have given the FAO a significant influence on the level of protection accorded coral reef species.

Mention has already been made to resolutions and decisions adopted by the contracting parties at the COP, the biennial meetings that were established pursuant to Article XI. The attending contracting parties are collectively authorised to amend the appendices, review progress towards the restoration and conservation of species, review reports presented by other parties or the Secretariat, make provisions for supporting the Secretariat and make recommendations for improving the effectiveness of the treaty. The latter can include recommendations prohibiting acceptance of permits from some parties if non-compliance has been identified. This occurred in relation to Fiji in January 2002, and was only withdrawn following, in part, evidence of implementation of an action plan to control exports of regulated coral specimens.60 Such recommendations are effective as they carry very real ‘economic clout’.⁶¹ As Peter Sand observes, ‘CITES secures access to a very lucrative export market (up to $50 billion annually)… [A]n embargo practically excludes the country concerned from all legitimate trade.’⁶²

2.4.2 The Secretariat

The work of the COP and activities conducted between meetings are supported by a Secretariat based in Geneva, Switzerland. The Secretariat’s functions are therefore varied, ranging from communicating proposals to the parties, to making recommendations on proposals for amendments to the appendices.⁶³

2.4.3 The Standing Committee

The COP is given further support by three permanent committees. The most senior of these is the Standing Committee to the COP, which Lyster dubbed the ‘Inner Cabinet’ of the convention.⁶⁴ The Standing Committee has 33 members elected from the contracting parties, principally on the basis of equitable representation of the six geographical regions and according to the proportion of contracting states from each region.65 This committee exists to meet and perform tasks as directed by the COP. Amongst other responsibilities it oversees and directs the operation of the treaty between the biennial plenary meetings, monitors the budget allocated to the Secretariat, creates working groups to focus on specific issues and can be approached for advice by the Secretariat or any other committee.⁶⁶

The Standing Committee’s power to respond to instances of non-compliance independently of that already described for the COP is less certain. Whilst this may be desirable if a serious problem is identified some time before the next plenary meeting, it also raises the interesting question of whether an executive body can enforce the treaty without the prior approval of the parties acting in plenary. As was seen in the context of the World Heritage Convention, this can have a significant effect upon the degree of compliance pull exerted by a treaty.

Susan Biniaz asserts that whilst the Standing Committee can draft recommendations on compliance issues, ‘some are recommendations to the COP, some implement delegations from the COP, and some appear to be direct recommendations to the parties’.⁶⁷ She goes on to note that where direct recommendations for trade suspensions have been made, the committee has cited Resolution 11.3 as its legal basis but that ‘the Secretariat has called this authority “questionable” ’.⁶⁸

Guidelines on compliance procedures have since been adopted, although the independent power of the Standing Committee remains contentious. These guidelines permit direct recommendations for trade suspension so far as they are ‘specifically and explicitly based on the Convention and on any applicable Resolutions and/or Decisions by the Conference of the Parties.’⁶⁹ The question of whether the treaty allocates such power is left open, but it is also apparent that any sanctioning authority can still be limited by order of the COP. Further, the new guidelines state that when ‘the Conference of the Parties decides to carry out itself the tasks delegated to the Standing Committee, it follows the same procedures as those described… for the Standing Committee.’⁷⁰ In comments on the effect of this provision, the Chairman of the Working Group drafting the guidelines stated that this reflected the COP’s ultimate authority to ‘seize itself of any matter it pleases’.⁷¹ This suggests that whilst the committee may attempt to suspend trade for a time, the COP could take control of a matter at the next plenary meeting if it disagreed with the committee’s executive action.

The remaining permanent bodies are the Animals and Plants Committees. These committees have key responsibilities. For example, they advise on all matters pertaining to international trade in animals or plants listed in the appendices, help to produce identification manuals, review nomenclature, identify and advise on Appendix II species that are being significantly affected by trade, and draft resolutions on scientific matters.72 Their membership is determined in the same way as for the Standing Committee but with the addition of specialists in zoological and botanical nomenclature.⁷³ There are currently 21 members on both the Animals Committee⁷⁴ and the Plants Committee.⁷⁵

3 International trade in coral reef species

A small number of researchers have conducted investigations into international markets for coral reef species, from which an impression can be gained of the species (and likely exporting and importing states) CITES might consider for control.76 Broadly, as observed by Amanda Vincent, international demand for coral reef products originates in five sectors: (i) luxury live food, (ii) aquarium and ornamental display, (iii) curiosities, (iv) traditional medicine and (v) bioprospecting.⁷⁷

3.1 Luxury live food

Some coral reef species are targeted because of overseas markets where they are prized as food. As a case in point, the large abductor muscle of the giant clam has been recorded as valued in Taiwan and Japan.⁷⁸ Certain reef fish are also captured and transported live to meet the demands of restaurants predominantly offering Asian cuisine.

Charles Sheppard and others note that whilst there has long been a market in Asia for certain high-value live fish to be offered for consumption, demand in Hong Kong and rapidly developing China has increased considerably.⁷⁹ Vin-cent also records demand coming from Australia and other parts of South-East Asia that have large ethnic Chinese populations.⁸⁰ In 2003, the estimated annual trade was 30,000 tonnes per year, most of which was captured in the coral triangle of South-East Asia, the western Pacific and off the east coast of the United States of America.81

Only certain species are valued and captured in this fishery. Vincent lists groupers, wrasses and snappers as being particularly desirable commodities.⁸² Groupers are by far the most heavily exported, accounting for over 50 per cent of the international trade.⁸³ Specimens are caught using lines, traps or cyanide⁸⁴ and exported by air to a destination where they may be sold to restaurants or reared further until reaching a commercial size.⁸⁵

3.2 Live fish for aquaria and ornamental display

It has been estimated that 1.5–2 million people keep marine aquaria, mainly in the United States and the European Union.⁸⁶ Demand exists both for fishes, corals and other invertebrates; a demand principally met from the wild, rather than from farms.⁸⁷

In terms of target species, Elizabeth Wood notes that for fish, 1,000 species are caught and an estimated 25–35 million specimens are traded annually.⁸⁸ The most commonly traded are low individual value species such as butterflyfish, anemone-fish, damselfish, gobies, angelfish and wrasse, with this being supplemented by low-volume trade in high-value fish such as clown triggerfish.⁸⁹ In terms of identifying the major exporters, Colette Wabnitz and others indicated that between 1997–2002 these were the Philippines (43 per cent), Indonesia (26 per cent), and the Solomon Islands (12 per cent), the remaining trade being sourced from Australia, the Maldives, Fiji, Palau and Sri Lanka.⁹⁰ Over the same period, specimens from these states were mainly destined for the USA, the UK, France, Germany and the Netherlands.⁹¹

In addition, Vincent reports that species of stony coral have increasingly been exported for aquaria; the volume of shipments having increased 30–50 per cent per year from the late 1980s to 1997.92 In 1999, over 1 million pieces of wild-sourced live coral were exported.⁹³ Identifying the precise species subjected to such trade, however, is not easy since hard corals are difficult to distinguish quickly, leading to customs authorities recording shipments by genera or even order (i.e. Scleractinia).⁹⁴ The main exporters of live coral are Indonesia, Tonga, the Solomon Islands and Fiji, which collectively accounted for 95 per cent of the trade from 1997–2001.⁹⁵ Again, the principal destinations were the USA and the EU.⁹⁶

The final group of species bought by aquarists in the USA and the EU are invertebrates that are valued for controlling algal growth and parasites.⁹⁷ The main target species are gastropod molluscs (e.g. Trochus), various shrimps (cleaner, banded coral and camel), sea anemones, carpet anemone, giant clams and certain hermit crabs.⁹⁸

The aquarium trade is clearly very active. Whilst it can be criticised for encouraging harmful capturing techniques and high levels of mortality of fish during transportation, it is a sector that promises the highest value returns per specimen. If the industry can therefore be managed in a sustainable manner, supplying the aquarium industry offers long-term support for rural coastal communities.⁹⁹

3.3 Curiosities

The curio trade relates to a broad spectrum of uses such as jewellery, ornaments and crafts. It encompasses sharks’ teeth, shells, dried puffer fish and seahorses, and ornamental fragments of coral.¹⁰⁰ Unfortunately, it is a poorly studied industry, meaning that only tentative assertions can be made on volume and value of trade, and about the states involved.¹⁰¹ For example, Vincent notes that the Indo-West Pacific appears to be the main source, with the USA the largest importer.¹⁰²

3.4 Traditional medicines