CYIL Vol. 5, 2014

KAROLINA ŽÁKOVSKÁ

CYIL 5 ȍ2014Ȏ

2. The CITES compliance procedure: effective, but unfair? Many, if not most, environmental treaty regimes can rightfully be criticised as being ‘soft’ in their nature; this means due to lacking effective enforcement mechanisms. The CITES represents a notable exception in this sense. Although the text of the convention itself remains very vague as far as non-compliance is concerned, an effective system of enforcement measures has evolved during the years by way of resolutions of the Conference of the Parties. The measures that can be used in cases of non-compliance include advice and assistance to the Party concerned as well as different types of coercive measures, or sanctions, 19 of which the collective sanctions in the form of the suspension of trade in specimen of CITES-listed species are the most important. The system has a very high success rate; its legitimacy – or fairness – is, however, questionable due to the fact that the trade sanctions almost exclusively The compliance procedure is codified in the Guide to CITES compliance procedures (hereafter ‘the Guide’) that is annexed to Resolution 14.3 of the Conference of Parties adopted in 2007. 20 The objective of the Guide is “to inform Parties and others of CITES procedures concerning promoting, facilitating and achieving compliance with obligations under the Convention and, in particular, assisting parties in meeting their obligations regarding such compliance”. 21 It should be pointed out that the Guide does not establish any new measures but merely “describes existing procedures in order to facilitate consistent and effective handling of compliance matters”. 22 When a potential ‘compliance matter’ – the term used by the Guide for non- compliance by a Party with obligations under the convention – is identified (from reports every Party is required to submit, legislative texts, responses to information requests or by any other means 23 ), the CITES Secretariat enters into communication which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other Parties in the control of trade” (CITES, art. II para. 3). As of October 2013, the number of species listed in Appendix III was 147 (plus 13 subspecies and one variety). See CITES. The CITES species , n. 11. 19 Neither CITES itself, nor the Guide use the term ‘sanction’ which is a common feature of most multilateral environmental law regimes. As pointed out in this context by Peter H. Sand “ [n] otwithstanding the advent of a whole range of innovative compliance procedures and institutions over the past few decades … treaty drafters as well as commentators seem to bend over backwards to avoid ‘coercive’ language – or the very word ‘sanctions’, for that matter” (SAND, P.H. Enforcing CITES: The Rise and Fall of Trade Sanctions , RECIEL, Vol. 22, Issue 3, 2013, p. 252). 20 CITES Resolution Conf. 14.3, entitled CITES compliance procedures , adopted at the fourteenth meeting of the Conference of the Parties, held in The Hague (Netherlands) in June 2007. 21 Guide to CITES compliance procedures, CITES Resolution Conf. 14.3, art. 1. 22 Ibid. 23 The Guide encourages Parties themselves “to give the Secretariat early warning of any compliance matter, including the inability to provide information by a certain deadline, and indicate the reasons and any need for assistance.” ( ibid. , art. 19). concern developing and less powerful countries. 2.1 The compliance procedure in a nutshell

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