CYIL Vol. 5, 2014

KAROLINA ŽÁKOVSKÁ CYIL 5 ȍ2014Ȏ a complaint presented to the WTO Dispute Settlement Body is purely hypothetical given “the near-universal and closely matching current membership of both regimes”. 44 The legality of CITES trade sanctions is, however, not the only criterion that must be examined in order to properly evaluate their actual and possible future contribution to proper implementation of the CITES regime. As Peter H. Sand, the first CITES Secretary-General, points out in his paper on CITES trade sanctions, their legitimacy or – as we can also call it – fairness is equally important. 45 The concept of legitimacy involves “trust that an institution will make decisions appropriately”; 46 this means, in relation to CITES trade sanctions, that the Standing Committee will recommend their use in all cases when the defined conditions are met, regardless the position of the State concerned. It must be noted that from this point of view the legitimacy of CITES trade sanctions does not always seem to be guaranteed. In fact, the CITES trade sanctions rarely target developed or powerful (be it from the point of view of international politics or their position within CITES itself ) countries. Of the 43 countries that have been subject to country-specific trade embargos (recommendations to suspend all trade or all commercial trade) since 1985, only two – Italy (from 1992 to 1995) and Greece (from 1998 to 1999) – were developed countries; this means less than 5%. Of the 31 currently targeted countries only the Russian Federation (subject to a species-specific trade embargo concerning the European sturgeon) is an important player of international politics. While this disproportion can partially be explained by the lack of capacities typical for developing countries, finding important compliance deficits almost exclusively on their side “comes as something of an empirical surprise”. 47 The unequal treatment of “important” and “less important” CITES State Parties is best illustrated by the example of Japan, which has never been targeted by CITES trade sanctions, in spite of several compliance failures similar to those that gave rise to sanctions in case of other countries. 48,49 The 44 SAND, P.H., op. cit. supra note 19, p. 258. 45 Ibid. , p. 260. 46 Ibid. Quoting BODANSKY, D. Legitimacy . In BODANSKY, D., BRUNNEE, J., HAY, E. (eds). The Oxford Handbook on International Environmental Law . Oxford University Press, 2007, p. 721. 47 SAND, P.H., op. cit. supra note 19, p. 261. 48 The compliance failures on the side of Japan concern trade in CITES-listed marine species. First, Japan does not fulfil the requirement of the scientific authority being independent of the management authority (in fact, the scientific authority for marine species, the Resources and Environment Research Division of the Japan Fisheries Agency , is part of the management authority, the Japan Fisheries Agency ). Second, between 2000 and 2009 Japan did not submit any of the mandatory annual reports on permits issued for CITES-listed marine species introduced from the sea. Last, but not least, Japan takes and introduces from the sea outside its jurisdiction every year tens of specimens of North Pacific sei whale, an Appendix I species, for which it does not have a valid reservation. Most of the whale meat being sold in Japan or illegally exported, this allegedly scientific whaling raises serious doubts as to its compatibility with the requirement of Appendix I species not being introduced for primarily commercial purposes. For more details see ibid. , p. 261-263. 49 In this context, it is interesting to mention the ICJ judgment rendered on 31March 2014 in the case Whaling in the Antarctic (Australia v. Japan). The case concerned Japanese allegedly scientific whaling in the Antarctic and its conformity with the International Convention on the Regulation of Whaling

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