1973 CITES Convention & Approaches to the Marine Environment: New Science, Old Treaties & Regional Governance

1/5 We commence the first of two units focused formally on the 1973 Convention on the International Trade in Endangered Species (CITES) and the 1992 Convention on Biological Diversity (CBD) targeting preservation of flora and fauna largely in the land-based context. Nonetheless, there is a further underlying message tying into technical, legal issues concerning species preservation. The initial problem involves how environmental treaty instruments were drafted, versus current scientific approaches to the protection of living organisms. At the same time, there are basic differences typically captured in the stereotypes that (Western) developed CITES member states under the influence of environmentalists invariably favor preservation, while developing CITES member states are more oriented to monetization of their flora and fauna for economic development purposes (remember Dr. Mahatir on the tropical forests of Malaysia).

A broad spectrum of beliefs is commonly captured in the evolution under US circumstances from conservation, to environmentalism (sometimes referred to as preservationism for CITES purposes), to sustainability approaches. The initial problem is the mismatch between the traditional approach of targeting for preservation individual species of “charismatic megafauna” (e.g., tiger and rhinoceros) versus the scientific insight that habitat management and preservation are actually the more effective way to preserve targeted species. Larger species do not exist in a vacuum, so sources of food, place in the ecosystem, etc., are overwhelmingly important. The secondary problem with CITES is an enduring difference in beliefs between “greener” developed states members and more economic growth-oriented developing state members whether the true purpose of CITES is stopping international trade versus regulating permitted trade in endangered species. That is best understood in terms of national interests, once you reflect that the positions are the mirror image of developed and developing country positions in the hazardous waste context (Basel Convention).

2/5 There are few strict definitions involved, but the conservation-environmentalism-sustainability trio reflects coincidentally changing “Western” value judgments in the sense that “conservation” (think Teddy Roosevelt’s creation of the National Park system 100+ years ago, and the US-Canada [UK] Migratory Bird Treaty of 1916) originally was based upon ideas of preserving wildness for aesthetic or cultural reasons as the experience of the wilderness, rather than in the name of science. Nonetheless, conservationism is still prominent among many groups (outdoorsmen, think Ducks Unlimited), who may ally themselves with environmentalists pursuing preservation of the environment rather as an independent value (so both agree that no more wetlands would mean no more ducks, but in the case of environmentalists also prospective loss of wetlands’ filtering function). Conservationism and wildness traditionally favored a large species focus, but coexisted comfortably with environmentalism’s growing transition towards essential habitat starting by the mid to late 1970s (in the US in particular under the 1976 Magnuson-Stevens Fisheries Management and Conservation Act, particularly as amended in 1996).

The shift from environmentalism to sustainability involved for the most part a common understanding of moving the focus towards the environment and habitat preservation. The difference since the 1990s lies more in the express incorporation under sustainability of human beings’ usage, to the extent the question became sustainable for whom, or what, linked with intergenerational calculations concerning the availability of biological resources.

3/5 The problem is, much as it might be easier to draft a treaty with lists of prohibited or controlled chemicals, it is easier both technically and in political terms to draft a treaty listing individually endangered charismatic megafauna (like elephants, listed in CITES because of ivory trafficking). Who wants to run a species preservation campaign for endangered insects, despite their ecological importance (pro-pollinator campaigns seem mostly to be about the flowers, although cartoon honey bees are attractive too…)? The comparison to drafting a treaty modelled on environmentalism and sustainability might encounter issues both in technical drafting and in political terms (in the CBD you encounter both a habitat focus, but also technology transfer and recognition of effective inchoate rights in species by their host governments, which seems to have been the largest stumbling blocks leading to the US eventually not joining the CBD).

But politics aside, international lawyers face a practical question concerning the extent to which they now can or cannot, should or should not at the technical level pursue legal strategies to “update” treaties like CITES, considered generally as a successful treaty, albeit limited in scope. This typically involves strategies to protect endangered species by protecting their habitat, and vice-versa. The domestic implementing legislation for the CITES treaty is basically the Endangered Species Act, so the issues are analogous to those encountered with claims that endangered species are being used instrumentally to protect their old-growth forest habitat (think of the red cockaded woodpecker in Southeastern old-growth pine forests as example). The contests over regulating versus prohibiting trade in endangered species typically occur in periodic COP meetings, where individual states can suggest individual species for inclusion on differing CITES annexes, providing differing levels of protection and commercial treatment.

4/5 Meanwhile, in practical terms, in some ways conservation of living organisms in the marine environment has been both more advanced and regionalized in governance terms than land-based preservation of living organisms. There is a tradition of husbanding commercial fisheries resources on a binational treaty basis reaching back to the 19th century. What differs typically in the marine setting was a tradition of open access fisheries on the high seas until modern times (so the high seas presented the problem of the commons), followed by the potential for imposition of fishing restrictions in conjunction with legal changes under 1982 LOS. This resulted largely from the expansion of territorial seas and the creation of the 200-mile exclusive economic zone (EEZ), vesting much broader control of fishing in littoral states (coincidentally, EEZ designation removed roughly 40% of existing fishing grounds from the high seas). The economic stakes still raise their heads publicly on occasion. Perhaps the most intractable on-going negotiating point in BREXIT has proven to be French demands to retain access to fishing grounds under UK legal control post-BREXIT. Meanwhile, the UK (Johnson) government had seemingly promised UK fisheries voters that they would retain sole access to UK fishing grounds as recognized by international law following BREXIT (meaning they could increase their fishing take if quotas held by EU countries, having been previously “traded away” in periodic EU negotiations by successive UK governments were available for redistribution, etc.). Access to fishing grounds vested in the UK under the new 1982 LOS may tank in the short term any negotiated UK successor economic arrangement with the EU, post-BREXIT.

There is a long history of fishing treaties and more recently special circumstances involving high-value migratory species and regional bodies authorized under the 1982 LOS treaty formed to address recognized problems with commercial fisheries (overfishing, etc., also with the participation of trawler fleets from distant countries). At a certain level, this has now produced a new set of problems, as littoral developing countries begin to lay political claim to fishing rights in limited quota situations, where traditional fishing nations, often industrialized countries, are called upon to surrender part of their own quotas. At the same time, there is political pressure to expand aggregate quotas for obvious reasons, while science might recommend more caution in limiting quota expansion. This is an area where differing human uses collide, such as recreational fishing (tourism) versus commercial fisheries (trawlers) in the Southeast, and in developing country waters perhaps traditional fishing for local consumption, versus long distance, international trawler fleets. (We can only note in passing mostly domestic fisheries law with its essential fish habitat and marine reserves, but those having more interest might look into Mr. Eagle’s domestic coastal and fishery law course offerings.)

5/5 The above issues are separate and apart from climate change considerations in the marine species and habitat preservation context, chiefly involving changing shallow water essential habitat for breeding purposes, as well as ocean acidification’s effects on other essential habitats like coral reefs (coral bleaching). These are largely science-oriented general problems, that are appearing collaterally in conjunction with climate change (involving rising sea levels, acidic atmospheric pollution linked with precipitation, and temperature increases). Instead, we focus chiefly on CITES and the CBD as treaties aimed typically at land-based living organisms.

Beyond our orientation to preservation of land-based living organisms, if you watch TV you may have noticed over the past 12-18 months those NGO-sponsored public service commercials about the negative effects of shark-fin cutting on shark populations worldwide. This represents the public face of an EU-based campaign to add various shark species to the scheduled CITES endangered species list. (Those are the commercials with people in wetsuits talking about how sharks are probably more afraid of humans than vice-versa, and we are invading their territory after all when we swim. The gist seems to be that sharks are really like big dogs, perhaps because the ecosystem case may be that sharks as large predators are necessary for a healthy ocean, but it is an easier sell to the public that sharks are rottweilers with fins.)

Indirectly, growing wealth in Asia has increased pressure on certain marine species as regional consumption demand has climbed (the problem being that no upscale Chinese banquet is complete without shark-fin soup as traditional delicacy– ultimately, a cultural issue, like the Japanese affinity for whale meat). The point to notice there is that growing consumption demand may be regional, but it affects worldwide seafood stocks. The COVID-19 pandemic has also crashed Asian regional demand for Maine lobster, depressing traditional fisheries in New England and Maritime Canada. So apparently localized fisheries issues may still fit in international environmental law, without regard to whether they occur on the high seas as traditional fisheries location. Meanwhile, the broader problem with concerns like overfishing in the face of growing human populations is that for ordinary people in much of the world, seafood remains their primary animal protein source.

Copyright 2020–21 © David Linnan.