Were China and Japan to be considered as having continuing permission for ‘trading partner’ status there are a number of legal options to definitively end any perceived permission.
1.1 The annotations to Appendix II of the Convention provide two triggers for revoking the trading partner status of a country in relation to the sale of registered government ivory stocks (below para h) .
1.2 The first is ‘non-compliance’ by a trading country. This presumably refers to non-compliance with the requirements of the annotations, which include requirements to ‘have been verified by the Secretariat…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’ . It would be fair to assume that this could be breached not only by failing to get verification from the Secretariat, but also by failing to meet any of the subsequent requirements.
1.3 The second trigger is the ‘proven detrimental impacts of the trade on other elephant populations’. In the absence of a demonstrated causal link between the ‘legal’ ivory trade under these provisions and harm to elephant populations, this would be hard to invoke.
1.4 To facilitate either trigger, the Secretariat must make a proposal that the Standing Committee decide whether to cease the trade partially or completely.
1.5 Another mechanism to remove any legal permission is found in Annex II to the Decisions of CITES in effect after the 15th meeting of the Conference of the Parties . The Action Plan for Trading in Elephant Ivory, para 5, states Conference of Parties shall recommend that Parties authorise no commercial trade in any CITES species with any state that breaches the Action Plan, or where significant amounts of ivory are found to be illegally sold.
1.6 To facilitate this, the Secretariat would have to issue a Notification to the Parties, following consultation with the Standing Committee
2 Altering the legal provisions of CITES is another method to remove any apparent continuing status that China and Japan may have.
2.1 This could be achieved by a Decision adopted by the Conference of the Parties. The Decision could either clarify that the initial grant of trading partner status was for a single trade only, or it could end a perceived continuing permission. The next Conference of the Parties is due to open on 3 March 2013.
2.2 Alternatively, the terms of reference for developing the decision making process for trading in ivory could clarify that there are at present no trading partners that continue to be approved under CITES for any future commercial trade in ivory.. This will be proposed at the conference , including a set of ‘criteria for consumer States to qualify for trade in ivory’ . It is acknowledged by the Secretariat that it is unlikely that agreement can be achieved on this matter at the upcoming Conference, and therefore proposes an action plan that will only see final resolution at the 17th Conference of the Parties, in two years . Agreement will, however, be more complicated if it is not clear what current permissions are held by China and Japan.
It appears that there are not legal grounds for stating that China and Japan have continuing trading partner status. Given the uncertainty that remains amongst the relevant stakeholders, it would be appropriate to consider declaring an authoritative interpretation at the forthcoming Conference of the Parties as a priority. This interpretation would ideally state that no country currently holds ivory trading partner status.
Authors: Sam Littlejohns is at City Law School and was former 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 for Conflict and Conservation