CYIL Vol. 5, 2014

CITES AT THE BEGINNING OF ITS FIFTH DECADE… question whether this “impunity” relates to the fact that Japan is the second largest financial contributor to the CITES budget (after the United States of America) 50 and a member of the Standing Committee remains open. 3. Marine species: good news on the way? Regardless of its general application, CITES can be characterised by a rather terrestrial approach. Marine animals and plants count for only a very small part of CITES listed species, with Appendix I marine species being almost exclusively limited to charismatic air-breathing animals: marine mammals and turtles. The “truly” marine species, i.e. fish and marine invertebrates, were until recently represented only by several coral reef species listed in Appendix II in order to protect them against excessive aquarium trade demand. There are, however, many more marine species fulfilling the CITES listing criteria, 51 including several species of both bony and cartilaginous fish. The main reasons for the reluctance of Parties to include them in CITES appendices are twofold. First, marine fish species often fall under the competence of regional fisheries management organisations (RFMOs) and there is a risk of conflict in management of the species concerned. The Atlantic Bluefin tuna example shows, however, that a proposal to include such a species in one of the CITES appendices may well pursue another goal: to exert pressure on actors responsible for its management. Second, listing of certain marine species would make their exploitation on the high seas more complicated and would entail economic losses for fishermen and, consequently, their States of origin. The argument that it can help their survival did not seem to be persuasive enough, at least until the 2013 meeting of the Conference of Parties. 3.1 The Atlantic Bluefin tuna case: listing proposal as a means of pressure? The argument against inclusion of a marine species managed by a RFMOs in CITES appendices is comprehensible: the listing would subject it to a legal regime that would very likely be not entirely compatible with the one of the relevant fisheries organisation. The consequences for the listed species might well be the opposite of what was expected: in a situation of two disparate regimes and with the possibility of reservation to both of them, the exploitation of the species concerned could easily become unregulated. 52 The convention itself tries to prevent such situations by (adopted in 1946). The Japanese whaling programme in the Southern Ocean targets three whale species (minke, humpback and fin whales), all of which are listed in CITES Appendix I (Japan has entered a reservation only in relation to the first one). The court has found, among others, that the special permits granted by Japan “for killing, taking and treating of whales in connection with … [the relevant Antarctic scientific whaling programme] are not ‘for purposes of scientific research’ pursuant to Article VIII, paragraph 1 of the [International] Convention [on the Regulation of Whaling] ” (ICJ. Whaling in the Antarctic (Australia v. Japan). Judgment of 31March 2014, para. 227). 50 See the scale of contributions to the CITES Trust Fund: CITES. How is CITES financed? [online]. 2014. Available at: http://www.cites.org/eng/disc/fund.php [ accessed 20-06-2014]. 51 Provided for in the CITES and the relevant resolutions of the conference of Parties, especially resolution Conf. 9.24 (Rev. CoP16), Criteria for amendment of Appendices I and II , mentioned supra , note 17. 52 The special relationship that exists between the CITES and the International Convention for the

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