Between March 3-14 the sixteenth meeting of the Conference of Parties (CoP) to CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) will meet in Bangkok.
While the meeting coincides with the 40th anniversary of CITES it takes place against a background of increasing polarization between its supporters and critics (who consider CITES ineffective) as well as mounting concern about a ‘tipping-point’ in the plight of megafauna in Africa where the interaction of poaching and regional insecurity is playing a large role.
One very divisive issue is the legality of the ‘trading partner’ status in elephant ivory accorded by CITES to some nations: here Sam Littlejohns and Professor Richard Sullivan provide analytical background and a conclusion. (This will be the first of two ‘posts’).
There have been two one-off ivory sales since the 1989 ivory trade ban. At CoP10 (1997) there was an annotation that 50 tons ivory from Botswana, Namibia and Zimbabwe may be exported to Japan subject to certain conditions. At SC41 (1999), pursuant to a verification mission to Japan, the CITES Secretariat concluded that Japan had fulfilled all conditions stipulated by CoP10 in Decision 10.1. The Standing Committee (SC) approved Japan as a trading partner for the “experimental” one-time sale of registered raw ivory from Botswana, Namibia and Zimbabwe that took place in 1999.
A second one-off sale was approved at CoP12 (2002) from Botswana, Namibia and South Africa “only to trading partners that have been verified by the Secretariat, in consultation with the Standing Committee, to have sufficient national legislation and domestic trade controls to ensure that the imported ivory will not be re-exported and will be managed in accordance with all requirements of Resolution Conf. 10.10 (Rev. CoP12) concerning domestic manufacturing and trade.”
COP12 revised the COP10 Decision (10.2) but the following condition was retained: “It is understood that this decision provides for a one-off purchase for non-commercial purposes of government stocks declared by African elephant range States to the CITES Secretariat within the 90-day period before the transfer to Appendix II of certain populations of the African elephant takes effect.”
COP12 also adopted Decision 12.10 which directed the Standing Committee to “determine how it would conclude that a detrimental impact on other elephant populations had occurred as a result of approved trade in ivory.”
At SC54 (October 2006), Japan was designated as a trading partner for the second one-off sale of ivory. Decisions about China were deferred until SC57 (July 2008), when China was approved as an ivory trading partner following a verification mission in March 2005.
Despite the wording of the grants of permission for sale, there is a lack of clarity around whether the status of Japan and China as trading states was one-off or continuing. The language that grants the legal basis for any sale, laid down by the Conference of the Parties, implies a grant of permission for one trade only. Later documents from the Secretariat and others have created confusion, as they use wording that assumes a wider permission. The difference between these understandings is critical to the management of ivory trading. Gaining clarity is both urgent and crucial to effective regulation under CITES. It is also vital in order to establish the context for decisions on a decision-making mechanism for trade in elephant ivory, if such a mechanism is developed between CoP16 and CoP17.
1. There is a conflict between existing provisions as to whether the granted trading partner status for ivory only extended to a single sale, or whether it is continuing. These provisions have different levels of authority however.
1.1 While the current legal status of China and Japan is currently interpreted differently, the authoritative documents do provide a number of avenues to definitively end any potential permission that China and Japan could be argued to hold.
1.2 In addition to this, there are mechanisms to adopt new documents that could clarify the current legal position, or remove any implied, continuing status China and Japan may have
2 Different official CITES documents either state or suggest different outcomes as to the length of permission granted to trading partner states
2.1 The annotations to the population of Loxodonta africana in Appendix II of the CITES convention, as amended at the 14th meeting of the Conference of the Parties , create a range of limitations on the permission for sale. While no specific time-limit is mentioned, para h explicitly prohibits any further proposals to allow trade ‘for the period…ending nine years from the sale of the single ivory trade that is to take place in accordance with provisions in paragraphs g) i), g) ii), g) iii), g) vi) and g) vii)’. Without directly referring to a requirement of a ‘one-off trade’, this makes clear that only one transaction with trading partners is permissible under the system.
2.2 The CITES Secretariat appear to assume in official documents that China and Japan retain a continuing trading partner status. In a proposal to be placed before the 16th meeting of the Conference of the Parties , they refer to China and Japan having been included in a consultation due to their status as ‘trading partners’ (for example, at para 5 ).
2.3 In contrast, an official decision revised at the 12th meeting of the Conference of the Parties stated that ‘It is understood that this decision provides for a one-off purchase for non-commercial purposes of government stocks’. It is noted that this decision is no longer in effect – this is because the sale has been completed.
2.4 While much of the literature around CITES refers to a ‘one-off’ sale being agreed, the legal limitations based on time seem unclear. The Convention itself, as annotated by the full Conference of the Parties should be considered the most authoritative document. It makes reference to a ‘single sale of ivory’ being permitted.
2.5 It therefore seems more probable that there is a legal basis for a time-limit on China’s and Japan’s trading party status, and that this status has expired after the initial sale of registered government stocks.
2.6 The lack of clarity in this area is demonstrated by the wide range of stakeholder views that the Secretariat have received in response to the call for a decision making mechanism for a process of trade in ivory, in terms of what mechanism should be designed to achieve, as well as the structure that it might take .
6 CoP 16 Doc. XX, Trade control and marking. Paras 12 and 13 http://www.cites.org/common/cop/16/doc/E-CoP16-36.pdf
Sam Littlejohns is at City Law School and was a recent President of Cambridge University ‘Lawyers Without Borders’; Professor Richard Sullivan is at Kings Health Partners and is a member of the Advisory Board of the Marjan Centre.