CYIL Vol. 5, 2014

KAROLINA ŽÁKOVSKÁ CYIL 5 ȍ2014Ȏ one of its three appendices. The action that triggers application of CITES ‘trade’ measures is the movement of a specimen between States or, more precisely, across a State border, realised or intended by men. The commercial dimension is not relevant, even if it may prove decisive for legal regime of the transaction. 8 The word ‘species’ means “any species, subspecies, or geographically separate population thereof ”; 9 it is, however, the word ‘specimen’ that is crucial from the point of view of trade control measures: it includes animals and plants, whether alive or dead, and their readily recognizable parts or derivatives thereof; 10 it also means products made of CITES- listed animals or plants or containing their parts. The part of the title that most conceals the real scope of the convention is the expression ‘endangered species’. This expression is not defined in the text, but it is generally understood as referring to species that are threatened with extinction due to their unfavourable conservation status. A number of species threatened by extinction are indeed covered by the convention – they are included in its Appendix I ; they represent, however, only a small portion of CITES-listed species. 11 The trade in these species is subject “to particularly strict regulation in order not to endanger further their survival and must only be authorised in exceptional circumstances”. 12 These exceptional circumstances are not specified; the convention only requires the specimen not to be used “for primarily commercial purposes” after its importation. 13 The question whether the intended use satisfies this requirement must be answered in each particular case by the management authority of the State of import. 14 The purpose of the strict rules 8 See below. 9 CITES, art. I (a). 10 Ibid . art. I (b). Resolution Conf. 9.6 (Rev. CoP16) specifies that “the term ‘readily recognizable part or derivative’ … shall be interpreted to include any specimen which appears from an accompanying document, the packaging or a mark or label, or from any other circumstances, to be a part or derivative of an animal or plant of a species included in the Appendices, unless such part or derivative is specifically exempted from the provisions of the Convention ”. 11 As of October 2013, the number of species listed in Appendix I was 931 (plus 47 subspecies) out of the total of more than 35 000 CITES-listed species. See CITES. The CITES species [online]. 2013. Available at: http://www.cites.org/eng/disc/species.php [ accessed 20-06-2014]. 12 CITES, art. II para. 1. 13 Ibid. , art. III para. 3 (c). It must be stressed that this requirement concerns only the use of the specimen from the time of importation onwards; the transaction between exporter and importer itself may very well be of a commercial nature. See WIJNSTEKERS, W. The evolution of CITES. 9 th edition. International Council for Game and Wildlife Conservation, 2011, p. 128. 14 This task may turn out to be quite difficult in practice. The extreme possibilities – use only for commercial purposes or use that lacks any commercial aspect – are easy to deal with, but do not appear very often. In most cases, the intended use combines both commercial and non-commercial aspects. The convention does not provide any guidance as far as the terms ‘commercial purposes’ or ‘primarily’ are concerned, but the general principles, accompanied by several examples, are provided for in Resolution Conf. 5.10 (Rev. CoP15), entitled Definition of primarily commercial purposes . Without mentioning it expressly, the resolution applies the precautionary principle by requiring States to define expression ‘commercial purposes’ “as broadly as possible so that any transaction which is not wholly ‘non- commercial’ will be regarded as ‘commercial’” and by stating that “all uses whose non-commercial aspects do not clearly predominate shall be considered to be primarily commercial in nature, with the result that the

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