Student Clinic

Improving Enforcement and Compliance
with the Convention on International Trade in Endangered Species

Prepared for the World Wildlife Fund
by the Yale Environmental Protection Clinic

[public document]

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .2

I. CITES-BASED MONITORING AND ENFORCEMENT  . . . . . . . . . . .4
     Scientific Collaboration and Coordination . . . . . . . . .4
     Listing Criteria. . . . . . . . . . . . . . . . . . . . . .5
     Information Collection and Dissemination. . . . . . . . . .6
     Permit Process. . . . . . . . . . . . . . . . . . . . . . .7
     Loopholes in CITES. . . . . . . . . . . . . . . . . . . . .9
     Capacity-Building . . . . . . . . . . . . . . . . . . . . 10

II. CITES-BASED INCENTIVES FOR COMPLIANCE. . . . . . . . . . . 13
     Publicity and Education Campaigns . . . . . . . . . . . . 13
     CITES Seal of Approval. . . . . . . . . . . . . . . . . . 14
     Funding Mechanisms for Enforcement and Compliance Incentives15

III. DOMESTIC ENFORCEMENT. . . . . . . . . . . . . . . . . . . 18
     Improving National Enforcement. . . . . . . . . . . . . . 18
     Incentives to Corporations and Private Parties. . . . . . 19

IV. INTERNATIONAL ENFORCEMENT. . . . . . . . . . . . . . . . . 21
     Trade Sanctions . . . . . . . . . . . . . . . . . . . . . 21
     Regional Regimes. . . . . . . . . . . . . . . . . . . . . 22
     International Criminal Justice Coordination . . . . . . . 24
     International Tribunals . . . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 27

INTRODUCTION

This options paper was prepared by three members of the Yale Environmental Policy Clinic at the request of World Wildlife Fund - USA to examine options to improve enforcement of and compliance with the Convention on International Trade in Endangered Species of Fauna and Flora (CITES). Section One suggests ways to improve CITES-based enforcement mechanisms. Section Two proposes incentives that could be implemented to achieve compliance. Section Three recommends measures to be taken at the national level. Section Four turns to international means of implementing the Convention.

CITES was signed in Washington, DC in 1973 and entered into force two years later. One hundred twenty-five nations are currently party to CITES, making it the most important international wildlife conservation treaty. CITES attempts to regulate international trade in endangered plant and animal species by requiring member nations to establish a system whereby export and/or import permits must be obtained from the appropriate government authorities before trade in species listed in the treaty's appendices can legally occur. Some 34,000 species are listed in these appendices, which reflect a graduated system. Trade in Appendix I species, defined as "endangered," is the most strictly regulated. Virtually all commercial trade in these species is prohibited. In the limited instances in which trade is allowed, both import and export permits are required. Commerce in Appendix II species, termed "threatened," requires export permits from the country of origin. Appendix III species, which are added to the list by countries wishing to protect their native flora and fauna, need export permits only if they originate in the listing country.

Although CITES has accomplished much to protect endangered species from the ravages of commercial over-exploitation, there remain major difficulties in achieving enforcement of and compliance with its provisions. One obvious problem is that there exists no supranational government or structure capable of ensuring that states honor their international obligations. Instead, the global political order is characterized by the ideology of national sovereignty. In this respect, the problems faced by CITES in convincing sovereign nations to act in ways perceived to conflict with their national interests are shared by every international convention or regime. Another major problem is that CITES itself is weakly drafted in places and contains several critical loopholes which are extensively exploited by black marketeers. In addition, CITES parties have failed to commit sufficient financial resources to implement and enforce CITES both domestically and internationally. The massive underfunding of government agencies mandated to enforce the Convention and the severe financial constraints faced by the CITES Secretariat are inevitably reflected in the inability of CITES countries and the Secretariat to monitor the legal trade in wildlife effectively, let alone eliminate the lucrative black market. Again, these problems are not unique to CITES, but are weaknesses of the international system in general.

The following analysis draws on lessons learned from other international treaties and regimes, both in the environmental arena and in other areas such as human rights, trade, intellectual property, and arms control. Some of the suggestions presented below are taken from these lessons, while others stem from a recognition that innovative measures are needed to provide incentives for private actors to comply with CITES.

I. CITES-BASED MONITORING AND ENFORCEMENT

Scientific Collaboration and Coordination
CITES parties should cooperate in scientific research and population estimation efforts to evaluate the status of Appendix I and II species and any detrimental effects of legal trade under CITES. A Scientific Authority could be established as a permanent staff function of the CITES Secretariat to coordinate and disseminate scientific information on CITES-listed species.

Populations of many species are in decline due to habitat modification or destruction as well as the pressures of legal and illegal trade. Increased scientific research and population estimation are needed to enable CITES parties to reevaluate the status of listed species on a regular basis and to allocate scarce resources available for wildlife protection and CITES enforcement. To evaluate the status of threatened or endangered species, nations should cooperate in gathering scientific data on species, using ecosystemic or bioregional research strategies. Specific examples of joint research efforts that might be conducted are the evaluation of the effects of noncommercial trade in Appendix I species and the evaluation of legal trade in the most critically threatened Appendix II listed species. This information would be invaluable in determining whether further measures such as uplisting a species from Appendix II or banning all trade in an Appendix I species are necessary.

Nations should endeavor to make the results of scientific research on wildlife available to other CITES parties. To facilitate the compilation and dissemination of this data, member nations should consider establishing a Scientific Authority with a permanent staff under the direction of the Secretariat to act as a central collection point and clearinghouse for all scientific information relating to CITES-listed species. The Scientific Authority could provide technical training and support to national scientific authorities, management authorities, and enforcement officials, and coordinate international scientific research efforts.

Listing Criteria

CITES parties should consider moving Appendix II listed species to Appendix I within five years unless population levels adequate to sustain trade are demonstrated to exist. Member nations should reconsider changing the scope of CITES to allow trade only in specifically approved animal species.

Unfortunately, current and accurate data on the populations and distributions of many Appendix II species is lacking. In the absence of such data, many countries may be trading in Appendix II species which are actually endangered rather than merely threatened, thereby undermining the purpose of CITES. Member nations should consider uplisting all Appendix II species to Appendix I after five years unless CITES parties or individuals wishing to continue trade in these species submit evidence to the proposed CITES Scientific Authority that populations sufficient to sustain trade exist. Those plant and animal populations that are validated within the five-year period and remain on the Appendix II list should be revalidated on a definitive time schedule.

Member nations should reconsider substantively revising the current listing procedures to implement a reverse listing approach. Only those species shown to be non-endangered or non-threatened would be permitted in international commercial trade. No other species could be legally traded until member nations or individuals wishing to place it in commerce demonstrated to CITES that the species is neither endangered nor threatened. The newly listed species could only be exported from those specific countries to which the scientific information pertains. This procedure would shift the burden to those wanting to trade in a species for which data on population and range is nonexistent or inadequate to prove that commercial trade would not jeopardize its survival. As an experiment, a reverse listing appendix for a narrow category of species, such as mammals, could be implemented. If successful, this could serve as a model for other categories of species.

Information Collection and Dissemination

The CITES Secretariat or other competent organization should consider compiling information about listed species on CD-ROM.

The Secretariat or other competent agency could computerize and disseminate CITES parties' annual reports and infractions reports.

These databases and the training and equipment to use them should be acquired by or provided to member nations and other interested parties.

One of the most crucial tools available in the monitoring and policing of international wildlife trade is information. Thus, another option to consider would be to develop an efficient mechanism to manage the vast quantities of information relevant to CITES and the wildlife trade. Following the lead of such organizations as Australia's CSIRO (Commonwealth Scientific and Industrial Research Organization) and the U.S. Department of Agriculture, which have developed CD-ROM systems for cargo inspectors to identify beetle larvae and fruit flies, CITES should computerize a standardized identification system for all CITES listed species, derivatives, and parts.

This information would include scientific data as to range and population, treaty reservations, and identification techniques for species, parts, and derivative products, as well as look-alike species. The database should be configured in such a way that non-experts in wildlife (e.g., customs agents and inspectors) can easily identify the species of a specimen or derivative product by its notable characteristics. Each species should be cross-referenced by scientific nomenclature, common names in the treaty's working languages, and a unique database reference number to be used on all import and export permits. Where possible, the CD-ROM should include pictures and other descriptive graphics as well as text.

This database, and the training and equipment to use it, should be acquired by or provided to all member nations for use by customs and enforcement agents at all designated ports of entry. The advantages of this system would be its universality of use, its accessibility to non-experts, its facilitation of rapid specimen identification, and its ability to be updated to reflect changing scientific information.

A computerized system for cataloging and cross-referencing annual reports and infractions reports would also significantly enhance the ability of the CITES Secretariat and other interested parties to monitor legal and illegal wildlife trade. Organizing the information on a CD-ROM database would enable the Secretariat, government officials, and non-governmental organizations to study the effects of wildlife trade by species, nation, region, year, or any other logical parameter.

The barriers to the implementation of a computerized data management system are obvious: the startup costs of establishing this database would require significant funding commitments. Moreover, effective implementation would require all CITES parties to acquire potentially expensive technology and to train their enforcement officers to use it. These barriers, while formidable, are not insurmountable. To begin with, the scientific data necessary to establish such a database already exists, so constructing a database is a matter of compiling and organizing current information into a useful format. The money, technology, and training necessary to implement a computerized data management system might be donated by developed nations, philanthropic foundations, and computer companies. If implementation barriers can be overcome, a computerized system has an enormous potential to increase enforcement through more efficient monitoring and information exchange.

Permit Process

The CITES Secretariat should consider assuming the responsibility of providing member nations with standardized permit forms.

All exporters, importers and transporters of live species should be registered with the CITES Secretariat.

A permit tracking system should be developed to require exporters, importers and transporters to maintain copies of the permit and to report their trading activities to the CITES Secretariat at scheduled intervals.

The permit process needs to be strengthened to prevent forgery and fraud and to improve accountability and record reconciliation. A uniform and tamper-resistant permit that government officials charged with enforcing CITES can easily recognize as genuine will help to eliminate some of the problems of forgery and corruption that plague the current permitting system. The CITES Secretariat should create and distribute a standard permit form in the three official CITES languages using printing techniques, such as watermarked security paper, that inhibit the production of forged copies. Unique numbered sets should be issued to each member nation, which should be required to provide records of the permits it issues.

CITES parties should also consider implementing an international registration system whereby all individuals or organizations that wish to export or import listed species or transport live species must register with CITES. If the application were approved, a unique registration number would be issued. Requirements established for registration could include: a commitment to open and accurate record-keeping, an agreement to allow inspection of records and facilities, a written plan for the safe transport of live animals and plants in accordance with internationally accepted standards, and a prescribed certification statement signed by an individual owner or organization official validating the authenticity of the registration application and agreeing to be held personally liable for criminal or civil penalties if found in violation of CITES provisions. The registration numbers of the importer, exporter, and transporter would be included on the import and export permits issued by national management authorities.

The permit process might build on the model offered by the manifest requirements for shipping hazardous wastes within the United States under the Resource Conservation and Recovery Act. Both importers and exporters must keep records and supporting documents and make them available to national and international inspectors. Exporters would be required to reconcile their records to prove shipments were delivered with all the necessary approvals. Importers, in addition to keeping copies of the export/import permit, would also maintain verifiable records on the final disposition of the species. The records of transporters, importers, and exporters should be subject to inspection for a period of years as determined by CITES.

The registered exporters, importers and transporters would submit information such as the registration of the parties involved in the transaction, the quantity of species, the identification number of the species, and the date to CITES on a periodic basis. The data should be submitted in a standard format. CITES should integrate this information into a computerized database to facilitate identification of trends that could point to abuse of the system and decline of populations, as well as other parameters that would be useful in gathering scientific information or identifying illegal traders.

Loopholes in CITES

CITES should be amended to forbid nations from taking reservations to listed species.

No wildlife trade should occur with non-party nations or with member nations whose procedures are not in compliance with CITES standards.

Oversight provisions of the captive-breeding program should be strengthened.

Exemptions for sports hunting of Appendix I species, for household and personal effects, and for pre-existing stocks should be eliminated.

Parties to CITES should no longer issue reservations that exempt them from the requirements of the Convention with respect to specific species. Although the ability to take reservations may once have been an important inducement to sovereign nations for signature and ratification, a current trend in international environmental law is towards conventions that specifically forbid signatories from taking reservations to its provisions. Two significant examples are the Montreal Protocol on Substances that Deplete the Ozone Layer and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.

In addition, member nations should discontinue wildlife trade with non-CITES parties as well as other member nations whose procedures are not in compliance with CITES provisions. This is necessary as illegally traded species are often obtained by taking advantage of the relaxed standards applied to imports or exports from non-party states or by using forged documents from parties with poor enforcement procedures. Again, both the Montreal Protocol and the Basel Convention have precedential value, as both contain provisions banning trade with non-member nations in the substances subject to treaty regulation.

Furthermore, the current lack of oversight mechanisms in the captive-breeding exemption enables smugglers to launder wild-caught animals through these operations. All newborn captive-bred animals should be registered with the government by a certain age. Registration should include a government-licensed non-removable identification number that will remain with the animal throughout its life. The live birth registration and number must be noted on the export/import permits. Animals not registered and marked by a certain age should be considered wild-captured and ineligible for the captive-breeding exemption.

Exemptions for sports hunting of Appendix I species should be eliminated, as should exemptions for household and personal effects and exemptions for stocks of listed species and products claimed to have been in existence prior to ratification by a member nation. These exemptions facilitate illegitimate trade in protected species and make it very difficult for customs and wildlife agents to ascertain the origin of species and derivative products. These exemptions also perpetuate the public perception that the individual taking of endangered species is acceptable as long as the specimen is not blatantly intended for organized commercial trade.

Capacity-Building

The CITES Secretariat should consider developing a comprehensive and uniform training curriculum, including video tapes, manuals, and interactive CD-ROM disks, and should have the authority to approve each nation's CITES training program.

The CITES Secretariat and CITES parties should cooperate in providing technical training to all customs and wildlife agents as well as awareness training for local police forces. Wildlife enforcement agents should receive highly specialized police training to combat smuggling and poaching.

Member nations to CITES should consider developing an independent international corps of wildlife inspectors.

Technical training of wildlife and customs agents is frequently inadequate because of the scientific complexity of species identification, the intricacy of the permitting process, and the lack of national resources devoted to training. A uniform program of instruction in the basics of CITES implementation, supplemented by information developed for regions or specific countries, would be of enormous benefit in improving enforcement. The CITES Secretariat, in consultation with experts in customs, international law enforcement, and international law, should consider developing a training curriculum and sponsoring "train the trainer" sessions. The Secretariat should have the responsibility of reviewing a member nation's entire training program periodically and approving it or suggesting improvement measures. This oversight authority might include access to each country to audit the training program and test individuals randomly. Unapproved training programs or ineffectively run programs could be viewed as non-compliance with CITES.

Trained individuals need access to basic and advanced training materials that they can take back to their countries. The Secretariat could develop a uniform series of video tapes and manuals explaining the entire CITES program, to be dubbed or translated into the local language as necessary. These materials may need to be supplemented by regional or local information. As discussed above, a CD-ROM database of the listed species containing pictures and keying information needs to become the working tool for all field agents. Training to use this tool is particularly important since non-scientists are required to make science-based decisions about species on a regular basis.

Each nation could designate an official to coordinate the CITES training program. Nations could enact legislation that requires a minimum number of hours of training, including initial and refresher courses, for each customs and wildlife agent. Successful completion of this training could be a condition for employment as for wildlife agents. In addition, highly specialized police training for wildlife law enforcement personnel engaged in combatting smuggling and poaching should be encouraged. Cooperation between developed and developing states is particularly important in this regard. To a lesser extent, police officers should receive CITES awareness training, to gain knowledge of the potential for criminal activity.

CITES parties should consider developing an independent international corps of inspectors under the direction of the CITES Secretariat. This corps would function to verify compliance with CITES provisions, and would inspect a nation's or corporation's compliance and enforcement procedures either at the invitation of the nation or when violations are reported by other nations, non-governmental organizations, or private parties. The membership of the corps would be drawn from experts in the fields of natural science, law, administrative policy, and enforcement. They would have access to all parts of the country including habitat areas, zoos, scientific research labs, records and facilities of wildlife import/exporters, governmental records (for example, training records, import/export permits, enforcement actions), and captive-breeding farms. Reports of the corps, including suggestions for improving compliance and enforcement, would go back to the Secretariat for verification, then to the inspected entity for clarification, rebuttal, and implementation of suggestions. Final reports would be released to the public.

Various international agreements have set precedents for inspections to verify compliance with treaty obligations. These agreements include: the Intermediate Nuclear Forces Treaty, the Treaty on Conventional Armed Forces in Europe, and the International Atomic Energy Agency's Safeguards Agreements. In addition, the International Convention for the High Seas Fisheries of the North Pacific Ocean, contains enforcement provisions which allows appropriate officials of any party to board a fishing vessel found in waters where that party has agreed to avoid exploiting a species of fish. The vessel and records may be inspected. The observation of an violation or probable cause to believe a violation has occurred enables the inspection team to arrest the crew and seize the vessel.

II. CITES-BASED INCENTIVES FOR COMPLIANCE

Publicity and Education Campaigns

Information about offending states, companies, individuals and goods should be well publicized.

Education about the benefits to humans of endangered species and biodiversity should be encouraged on a grand scale.

Education about alternatives to endangered species products should be provided to reduce consumer demand.

Publicity and education are two critical elements to increase public awareness and decrease the demand for commercial trade in endangered species and derivative products. Commercial over-exploitation of many wildlife species is driven by the demands of zoos, circuses, museums, traditional healers and craftspeople, the fashion and pet industries, and collectors. Without a reduction in demand, increased enforcement will never succeed in diminishing legal trade and eliminating illegal trade. The success in drastically reducing the ivory trade serves as one example of the effectiveness of education and publicity in decreasing the demand for a wildlife product. In the current international regime, information is one of the most important tools states, organizations and individuals can employ to effect change.

Negative publicity about governmental corruption or the ineffectiveness of a nation's implementing legislation and internal enforcement mechanisms may affect its ability to engage in diplomacy and negotiation with other countries, attract investment, and promote tourism. In addition, doubt may be cast on a state's legitimacy and reliability, especially with regard to its image as a dependable participant in the international community. Negative publicity about private offenders can have profound effects on their actions as they seek to improve their images in the eyes of their customers and the general public.

Education programs are equally important in addressing the endangered species problem. Individual consumers must understand the dangers posed to the earth and its component ecosystems by their choice of products. This requires education about the effects of species utilization and the alternatives to endangered species products. Consumers must realize that products derived from endangered species, such as certain traditional medicines, must be replaced by those containing more commonplace or synthetically derived substances. Individuals must recognize that their demand for these products is contributing to the destruction of the global environment.

Many organizations and the CITES Secretariat have engaged in publicity and education campaigns. These projects should be continued and expanded in both producing and consuming nations. Special attention should be given to the latter nations; without a market, producing states will not feel the compelling need to allow or engage in species-endangering actions.

CITES Seal of Approval

A CITES Seal of Approval could be developed as a positive incentive to private parties and corporations engaged in sustainable wildlife trade.

Publicity about the Seal of Approval to make consumers aware of its meaning would provide an incentive for zoos, manufacturers, and wildlife importers and exporters to participate in this program.

A CITES Seal of Approval would acknowledge compliance with CITES standards pertaining to species, permits, shipping and handling methods, and documentation. The Seal could also acknowledge contributions to wildlife conservation efforts by private parties and corporations involved in wildlife trade, farming, or research into alternatives to wildlife for use in consumer goods. Zoos, merchants, corporations, and individuals would qualify for the CITES Seal of Approval, as would goods derived from species harvested in a sustainable manner. Wildlife traders and shipping companies could be recognized for their compliance with international guidelines to minimize the risks to live specimens of cruel treatment, injury, and mortality during shipment. This Seal of Approval, if publicized sufficiently in conjunction with an education campaign, could increase the market competitiveness of the recipients and act as a financial and public relations incentive for compliance.

The member nations would follow Secretariat guidelines in granting the Seal of Approval to qualified entities within their jurisdiction; these grants would be reviewable by the appropriate governmental agency on an annual or biennial basis to ensure continuing compliance. The grant of the seal would also be reviewable by the Secretariat, which would be empowered to consider relevant information submitted by other CITES parties or non-governmental organizations. Each member nation would bear the responsibility for ensuring that only qualified organizations, persons, or goods would receive the Seal; governmental abuses of the grants would be sanctionable as a violation of CITES. Funding for the Seal of Approval program could come from a tax on wildlife products as well as from fines levied on illegal wildlife trade.

The member nations and the Secretariat would annually publicize those parties certified, decertified, and refused certification under the Seal of Approval program, and the reasons for the certification or lack thereof. Such positive publicity would provide important incentives for private actors to come into compliance with CITES. As most people are essentially law-abiding citizens, they seek to associate with those who they feel are the same. In addition, if environmentally conscious organizations and individuals seek to promote those institutions receiving the Seal within their clientele, the purchasing power and charitable contributions of conservation-minded people can be brought to bear directly in overcoming the economic incentives in illegal wildlife trade.

Funding Mechanisms for Enforcement and Compliance Incentives

Member nations should consider the effectiveness of the current financial apparatus and evaluate new funding mechanisms and sources.

Funds could be used to increase the capability of the Secretariat by providing more money for monitoring enforcement, publicity and education campaigns, scientific research and evaluation, database development and enforcement agent training.

Finding more funding and developing creative financing methods should be a top priority. It will require large amounts of money to carry out necessary scientific research, monitor wildlife trade, and effect the necessary enforcement measures as well as to implement the education programs needed to reduce public demand for endangered species.

CITES is currently funded by its member nations, who contribute to the triennial budget of the Trust Fund based on their contributions to the United Nations. However, this funding is insufficient to develop and manage adequate enforcement mechanisms. Funding must be increased if the CITES Secretariat is to undertake any significant new enforcement initiatives. Member nations should consider renegotiating the method by which contributions to the CITES budget are currently allocated. One possibility is to replace it with an assessment system based on a percentage of the gross national product of each nation, with developing countries assessed a lower percentage than developed countries. This system would have the advantage of replacing the outmoded United Nations scale, which no longer reflects global economic realities, and basing national contributions to CITES on equitable principles.

In addition, programs to solicit private contributions to the CITES Trust Fund from concerned individuals, corporations, and environmental organizations could be an important source of funds. Publicity campaigns such as the proposed CITES Seal of Approval that highlight the names of contributors, if they wish to be known, could be highly effective in this regard.

For those states concerned about raising the funds for contributions to CITES, wildlife consumption taxes and tariffs could be used. A possible danger, however, is that a country will become dependent on trade in endangered species to provide the funds for its CITES assessment. This should be avoided by applying these taxes and tariffs to nonendangered wildlife trade in addition to those species listed under CITES.

Developing states could also receive bilateral or multilateral financial assistance as an incentive to forego the economic advantages of trade in endangered species and to fund enforcement mechanisms and personnel. The Montreal Protocol provides an example of successful multilateral assistance: it creates a fund to provide money and technology to assist developing countries in decreasing their dependency on chlorofluorocarbons (CFCs). This is an excellent demonstration of how a multilateral fund established under an international treaty can help developing countries implement environmentally sound policies that will not unduly hinder their economic growth.

Many of the suggestions presented in this paper need funding to be effective. Although not all of these alternatives are discussed in this analysis, activities for which funding is needed include:

          Strengthening the CITES Secretariat to enhance its enforcement and compliance
          monitoring capabilities.
          Scientific research about endangered species, their habitats and their populations.
          Development of international databases of endangered species, parts and
          derivative products, wildlife traders and CITES violators.
          Development of a computer network to track and verify permits.
          Training of national and international enforcement agents.
          Education and publicity campaigns.
          Research into alternatives to wildlife products.
          Research and promotion (if appropriate) of sustainable use and farming methods.
          Preservation of endangered species in zoos and captive breeding programs for
          reintroduction into the natural habitat.
          Economic alternatives for native gatherers of wildlife.
          Funding for wildlife sanctuaries and habitat protection.
          Debt-for-wildlife swaps.
          Reparations for wildlife-caused damage.

III. DOMESTIC ENFORCEMENT

Improving National Enforcement

Member nations of CITES that have not done so should implement legislation to establish or increase criminal and civil liability for illegal wildlife trade.

CITES parties should grant non-governmental organizations and foreign nationals standing to press charges under civil statutes against illegal wildlife traders and to apply for injunctive relief to block the issuance of import or export permits to suspicious shipments.

Member nations must make information on their activities relevant to CITES available to interested parties and the general public.

CITES parties might consider conditioning military and development aid on the fulfillment by recipient nations of their CITES obligations.

All member nations should implement or improve national legislation establishing civil and criminal penalties for persons who capture, destroy, or trade illegally in endangered species inside and outside their borders. Furthermore, member nations should seriously consider harmonizing these penalties, the better to deter illegal traders. (See Cyrille de Klemm, Guidelines for Legislation to Implement CITES, IUCN Environmental Policy and Law Paper No. 26, 1993). The implementing legislation should grant legal standing to conservation organizations to bring civil suits against the government or individuals. It should also provide for extradition to other member countries of individuals accused of violating CITES requirements. In addition, non-governmental organizations and other appropriate private parties should have standing to appeal the granting of import and export permits, and should have the ability to submit relevant information to the tribunal adjudicating such an appeal.

At the national level, compliance with CITES requirements needs to be evaluated by the appropriate authorities within the government and by independent organizations. This can only be accomplished if CITES parties undertake to disseminate information on their official activities relevant to CITES. Governments should provide in their implementing legislation for the publication of information on export and import permits granted by the Management Authority, and should make available to the public their Annual Reports filed with the Secretariat.

Member nations might consider the possibility of unilaterally conditioning security and/or economic assistance on compliance by recipient nations with their CITES obligations. This mechanism has proved effective in the United States aid allocation process in the context of human rights. Congress is required by statute to evaluate the human rights record of a recipient state before granting military assistance (22 U.S.C.  2304) or financial assistance (22 U.S.C.  2151n). If a recipient government engages in a consistent pattern of gross violations of internationally recognized human rights, Congress may not approve assistance to that regime (with the exception of assistance that directly benefits needy people). To facilitate this evaluation process, the State Department compiles and publishes country-by-country human rights reports annually. The United States is also required, under  701 of the International Financial Institutions Act, to use its vote in international financial institutions such as the World Bank to advance human rights by seeking to channel international assistance to non-human rights abusers. Despite the likely effectiveness of parallel measures to promote wildlife protection through the granting or withholding of foreign assistance, realistically, the political will to develop these measures is not likely to be high.

Incentives to Corporations and Private Parties

Tax and tariff relief can be given to corporations and individual wildlife traders who comply with CITES provisions.

Government funds should be committed to promote research and development of substitutes for wildlife products.

Governments could fund publicity, reward, and protection programs for individuals providing information on criminal and civil violations of CITES.

Incentives to corporations and private individual, if developed and aggressively implemented, could encourage full compliance with wildlife trade laws, provide positive publicity to responsible actors, and make "business as usual" less economically viable for illegal traders.

Companies and traders that comply with CITES trade provisions could be given tax and tariff relief as incentives to ensure their present and future cooperation with and adherence to CITES standards. Such a program would require nations to adopt standards for measuring compliance by trading entities. These standards could be the same as those used in awarding the CITES Seal of Approval. Any product carrying the Seal would automatically receive tariff relief and any company qualifying for the Seal would be given a tax rebate or deduction.

Unfortunately, this type of tariff or tax relief may not be allowed under the General Agreement on Tariffs and Trade (the GATT). GATT panels have been reluctant to recognize the legitimacy of environmental regulations that hinder free trade, as demonstrated in the decision in the tuna-dolphin dispute between Mexico and the United States. The same lack of an exemption for international environmental concerns that hinders the effective use of trade sanctions could negate the proposed relief provisions. Free trade agreements must be amended to provide adequate means for effectuating global environmental policy.

Member nations, especially consumer nations, should fund research on the development of alternative products as substitutes for wildlife products. Corporations, research institutes, and universities should receive government incentives to develop new substitute products. These incentives should include not only research funding but also positive publicity such as the CITES Seal of Approval.

Member nations could also provide funds to publicize (if appropriate), reward, and protect (if necessary) persons who provide information regarding criminal and civil violations of CITES. Encouraging people to come forward by promising financial rewards and protection from retribution has had a long and successful history in the criminal justice system of the United States. One source of funds for this program could be the seizure and sale of the personal and real property of illegal wildlife traders, such as cars, boats, and houses. The United States has used this approach in combatting the drug trade under the Racketeer Influenced and Corrupt Organizations (RICO) Act. Other funding sources might include fines levied on illegal operations and taxes on wildlife products.

IV. INTERNATIONAL ENFORCEMENT

Trade Sanctions

Member nations should utilize trade sanctions against states which do not comply with CITES provisions when other mechanisms do not work.

Sanctions could be imposed unilaterally or multilaterally either without relying on a specific CITES mechanism or within the CITES framework.

CITES parties could impose trade sanctions on non-wildlife products to achieve swifter compliance with treaty obligations.

Trade sanctions are a historically effective method of compelling states to comply with environmental objectives. The United States has authorized the use of trade sanctions to enforce compliance with CITES via the Pelly Amendment to the Fisheries Protection Act of 1967. The first actual use of the Pelly Amendment is the current imposition of sanctions against Taiwan to gain its compliance with CITES standards on rhinoceros, tiger and other endangered species trade. The United States has also previously employed sanctions and the threat of sanctions to obtain compliance with the International Convention for the Regulation of Whaling and the current whaling moratorium. In fact, in the case of the whaling treaty, the application of sanctions seems to have been the only method that achieved compliance as other nations have effectively blockaded all other means of enforcement described in that convention. In a move to enhance formal trade sanctions as an international treaty enforcement mechanism, the Montreal Protocol has implicitly included trade sanctions as a means to compel states to comply with the treaty's requirements to decrease chlorofluorocarbon (CFC) usage.

However, trade sanctions should be applied only when no other options are available, as there are dangers inherent in their use. First, many governments are unwilling to apply sanctions to major trading partners but may use them freely against less important nations. For example, the U.S. may be unwilling to use sanctions against Japan for fear of starting a trade war. The U.S. would, however, be less reluctant to use sanctions against smaller, less economically powerful states.

Another problem with sanctions is their often unilateral nature. The international community frequently regards unilateral sanctions as retaliatory, mean-spirited and protectionist. Imposition of multilateral trade sanctions by a unified international community or bloc of nations would contribute to a perception that such sanctions are effective and legitimate instruments of international diplomacy. Multilateral sanctions could be imposed by groups of nations operating outside the official CITES framework. Alternatively, a resolution/protocol could be added to CITES to provide an official mechanism for instituting sanctions against recalcitrant states. The Standing Committee currently has power to suggest that sanctions be used, as in the recent case of Italy, but this language needs to be strengthened to encourage action.

A further impediment to the use of trade sanctions against CITES violators is that sanctions are usually limited to wildlife and wildlife products. Although these are not negligible import and export items they are certainly only a small part of a much larger picture. States should be willing to extend sanctions to goods other than wildlife products. Such a move would have much greater impact on non-complying states and demonstrate the seriousness of the international community with respect to protection of endangered species.

Finally, it is possible that trade agreements such as the GATT may hinder the use of trade sanctions by declaring them violative of the free trade provisions of those treaties. Previous decisions of GATT panels seem to indicate that trade sanctions against countries based upon their nonperformance of environmental treaty duties may not be interpreted as valid exceptions to free trade requirements. For trade sanctions to be acceptable, agreements such as the GATT must be modified to allow exceptions for international environmental treaty obligations.

Regional Regimes

CITES parties could negotiate and implement regional agreements to enhance cooperation in monitoring and enforcing CITES.

Regional agreements signed pursuant to global environmental treaties may pose several advantages over the global treaty standing alone. The smaller number of states involved allows the agreement to be more narrowly tailored to suit the geographical, biological, economic, and political considerations affecting the region in question. A regional agreement allows similarly situated countries to pool their resources and take advantage of shared information and increased cooperation. It also enhances the possibilities of protecting threatened ecosystems and species across coherent bioregions.

One example of a regional agreement signed under the auspices of a global environmental treaty is the 1991 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, negotiated by African nations as a regional agreement under the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. The Bamako Convention, which has not yet received the necessary ratifications to come into force, bans the importation of all hazardous wastes into African member nations. This agreement could provide a useful model for CITES nations in particular regions that want to curtail or eliminate trade in certain highly endangered species.

Other examples of regional regimes are found in the areas of human rights and trade. Organizations such as the Commission for Environmental Cooperation (established by the North American Free Trade Agreement) as well as the European Commission of Human Rights (established by the European Convention for the Protection of Human Rights and Fundamental Freedoms) are empowered to mediate inter-governmental disputes and receive information from non-governmental organizations and private parties on violations of treaty agreements.

Regional agreements may enhance the effectiveness of CITES monitoring by promoting exchange of scientific data and information on individuals and corporations engaged in legal and illegal wildlife trade. They may also facilitate multilateral cooperation in prosecuting illegal trade in the region carried out by multinational corporations or syndicates. The first such agreement was signed in September of 1994, when ministers from Kenya, South Africa, Swaziland, Tanzania, Uganda, and Zambia signed the Lusaka Agreement on Cooperative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora. This agreement, open to accession by any African nation, will combat the illegal trade in wildlife by forming a multinational task force to facilitate cooperation among the CITES parties and carry out cross-border investigations.

Member nations who enter into regional agreements should strive to ensure that their legislation implementing both CITES and the regional agreement brings their operating requirements and procedures into conformity, standardizes incentives and penalties, and harmonizes reporting requirements. The regional agreement should not derogate from or undermine CITES provisions in any way. The intergovernmental taskforce empowered to coordinate or enforce the actions of the member nations should emulate the regional human rights regimes in establishing a system for receiving and investigating evidence of illegal trade brought by non-governmental organizations or private parties. This intergovernmental taskforce should also be empowered to examine allegations of corruption or improper conduct on the part of national officials.

International Criminal Justice Coordination

Member nations should cooperate with Interpol in establishing a system to track criminal activity in the international wildlife trade.

CITES parties could sign an international extradition agreement.

An international system is needed to maintain records of criminals convicted of violating wildlife laws. An agreement should be reached with Interpol to provide a mechanism for gathering and disseminating information about criminal activity involving wildlife trade. Member nations could provide technical, financial, and human resource support to the system.

A general extradition agreement signed by all member nations could be implemented. This would provide a simple and effective mechanism for the extradition of accused persons from one member nation to another to stand trial for violating the extraditing nation's laws with respect to CITES. This proposal is similar to the enforcement provision contained in the 1976 Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the American Nations.

International Tribunals

CITES parties could form international or regional tribunals in which civil and/or criminal charges can be brought against state and/or individual violators.

The tribunal(s) could allow the CITES Secretariat, member nations and/or private parties to bring suits to enforce CITES provisions or to prosecute wildlife violators.

The tribunal(s) could have the power to order declaratory judgments, injunctive relief, civil damages, trade sanctions (in the case of state violators) and criminal penalties (in the case of individual violators).

Member nations could enact domestic legislation giving full faith and credit to the decisions of the tribunal(s).

International or regional tribunals, capable of hearing civil or criminal complaints, would be useful to encourage the implementation of CITES in individual countries and to prosecute wildlife violators when domestic remedies are inadequate due to nonenforcement of treaty obligations or lack of an independent judiciary that can competently adjudicate CITES complaints. Civil tribunals have been organized pursuant to the American Convention on Human Rights (under the auspices of the Organization of American States) and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Both instruments create a commission and a court. The commission under both conventions has jurisdiction to accept petitions against states from individuals, organizations, and other states. If it finds merit in the petition it can attempt to mediate a friendly settlement between the petitioner and the state involved. If this effort is unsuccessful, the commission may refer the case to the court. Other than the commission, only states may bring claims before the court. The courts in both conventions may order declaratory or injunctive relief as well as damages. Unfortunately, both treaties allow a state party to accept or reject the court's jurisdiction at any time. In addition, there are no specific enforcement mechanisms that the court can implement to guarantee that its orders are carried out.

This situation raises the concern that judgments of an international court will be ignored by affected states. National courts must become more willing to enforce judgments against a state or individuals that have been ordered by foreign and international courts. There has been some progress in achieving national enforcement of international arbitral awards under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Many national courts have been willing to accept and enforce awards from independent arbitral tribunals without additional judicial review except where the order is explicitly contrary to the public policy of the enforcing state.

Furthermore, states have submitted themselves to arbitral tribunals under rules described in the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID). This treaty allows nations to resolve disagreements with investors by agreeing at the time the original investment contract is executed to submit any disputes to arbitration before a private tribunal. This convention has seen a significant number of successful outcomes, as awards allocated through this process have been upheld in national courts. It is important to note that in these cases the states agreed to the court's jurisdiction in contracts with individual investors. In the CITES case, however, where there is no contract there is a need for automatic jurisdiction without explicit consent from CITES members.

The proposal for a criminal court is based upon the examples of the post-World War II Nuremburg and Tokyo Tribunals and the current War Crimes Tribunal associated with the Bosnian conflict. However, these international criminal courts have only been implemented under the most limited of circumstances. Although there has been persistent talk of creating a permanent international criminal court for the purpose of prosecuting human rights abusers, such a court has never been considered a serious political objective in the current international arena.

We include this suggestion on our list of possible enforcement mechanisms as something to work towards for the future. Both international civil and criminal tribunals will be a necessary part of enforcement of international treaties if independent states are not diligent in their own enforcement actions. Unfortunately, such fora will not come into existence until states become willing to relinquish part of their sovereignty and allow themselves and their citizens to be tried in courts outside their boundaries.

CONCLUSION

The major difficulty with CITES, lack of enforcement, is a common characteristic of most, if not all, international treaties. However, movement is being made toward rectifying some of these shortcomings. The pace may seem glacially slow, but change is occurring, as nations become more cognizant of the global scope of the harms we are inflicting on our planet. Despite the weaknesses and imperfections of current environmental treaties, nations must be encouraged, cajoled, and pressured to fulfill their treaty obligations, even if only in an incremental fashion. It is important to remain aware of how other international treaties are approaching the problem of enforcement, and how their evolutions and innovations can be applied to CITES.

It is also evident that international commercial over-exploitation, the primary subject of CITES, is only one threat faced by wildlife. The 34,000 species extended a measure of protection by CITES represent a tiny fraction of the planet's threatened biodiversity, when compared to the 1.5 million species currently known to science and the millions more species estimated to exist. These species may disappear from the face of the earth before we ever discover them, let alone find a commercial use that would make them eligible for CITES protection. The species-by-species approach is already outdated, and must be augmented if not replaced by an ecosystemic approach to habitat conservation. The international community must ensure that existing and future environmental agreements address environmental conservation and species protection in a holistic manner.

Nonetheless, for all of its philosophical and practical weaknesses, the CITES agreement has an important role to play in combatting one highly visible and lucrative component of the wildlife holocaust. The options presented in this paper should be viewed within this context. Any one of these proposals, if implemented alone or in tandem with others, will improve CITES enforcement or compliance. Realistically, it will require an intensive cooperative effort on the part of the CITES Secretariat, member nations, and non-governmental organizations to bring any of these proposals to fruition. Perhaps more practically, future enforcement efforts will have to be directed at putting pressure on the root cause of commercial over-exploitation of endangered species - the workings of the market and its private actors.

Yale Center for Environmental Law and Policy
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