CYIL Vol. 5, 2014

CITES AT THE BEGINNING OF ITS FIFTH DECADE… adopt stricter domestic measures, including the complete prohibition of international trade in CITES listed-species. 39 The compliance mechanism that has been gradually developed by the Conference of the Parties certainly goes beyond the text of the convention; it would, however, be difficult to argue that the trade sanctions (in the form of species-specific our country- specific trade embargoes) are inconsistent with international law. The fact that it is the Standing Committee who recommends the trade suspensions can be justified by the possibility of the Conference of the Parties, as the highest governing authority, to establish any subsidiary body it deems appropriate for the proper implementation of the convention and to delegate its powers to such a body. The use of collective trade sanctions is limited both from the point of view of compliance matters concerned (only the most serious cases of non-compliance) and in time (their prompt withdrawal is guaranteed once the matter is resolved). In addition, the trade sanctions only have the form of a recommendation of the Standing Committee; their application by other Parties is thus not mandatory. 40 If a Party decides to respect the recommendation, the suspension of trade is introduced as a stricter domestic measure authorized by the convention. In the light of the CITES Preamble, the trade sanctions can certainly be considered as “appropriate measures” stemming from international cooperation and having for their objective “the protection of certain species of wild fauna and flora against over-exploitation through international trade”. 41 The international legal rules the trade embargoes seem to conflict with the most are those promoting trade liberalization; this means rules of the World Trade Organization (WTO) and especially of the General Agreement on Tariffs and Trade (GATT). Despite the considerable academic debate on the legality of CITES trade sanctions under the GATT/WTO regime, 42 the WTO Dispute Settlement Body has never had the occasion to express itself on this issue. Although the author of this paper is convinced that the collective CITES trade sanctions meet the requirements of article XX GATT, 43 the possibility that such a sanction should become the object of 39 “The provisions of the present Convention shall in no way affect the right of Parties to adopt … stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II and III, or the complete prohibition thereof…” [CITES, art. XIV para. 1 (a)]. 40 As one author points out, no one knows how many Parties actually implement recommendations to suspend trade. See REEVE, R. Wildlife Trade, Sanctions and Compliance: Lessons from the CITES Regime . International Affairs, Vol. 85, Issue 5, 2006, p. 892. 41 CITES, Preamble, para. 4 and 5. 42 SAND, P.H., op. cit. supra note 19, p. 258. 43 Article XX GATT provides for general exceptions from the free-trade rules. It authorises States to adopt, inter alia , “measures relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption” [article XX (g)], providing that they “are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade” (article XX, chapeau ).

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