CITES Listing Criteria and Fisheries Management
A cause for Concern
by Halvard P. Johansen, Fisheries Counsellor
Fisheries management is about the conservation and sustainable use of living marine resources. The 1982 UN Law of the Sea Convention, the 1995 Fish Stocks Agreement and the 1995 FAO Code of Conduct for Responsible Fisheries define the globally accepted norms for conservation and management of living marine resources. On the basis of this global framework, a comprehensive system of regional and national management and conservation regimes has been developed.
The Convention on International Trade in Endangered Species of Fauna and Flora, CITES, was established to remedy a situation where international trade was endangering the survival of certain species. Species can be listed in one of three appendices according to the degree of threat trade poses to their existence. CITES is therefore based on ideas and objectives that are substantially different from those of fisheries management regimes.
Over the last decade there have been recurrent attempts to apply the CITES mechanism to commercial fisheries. There are several reasons for opposing such a move. Neither the listing criteria, the procedures nor the administrative mechanism in CITES are structured to take account of the natural dynamics of commercial fish stocks in general. Also, as has become evident through the work of FAO, there are a number of additional issues embedded in the CITES regulative framework that need to be addressed.
In the context of FAO, the Committee on Fisheries, COFI, has recurrently pointed out these problems, and has set up two Technical Consultations addressing the problems of applying CITES criteria to commercial fisheries. The last such consultation, in Namibia ~2-25 October 2001, addressed the issue of listing criteria in detail, and provided a report setting out some important principles:
I want to emphasise three sets of concerns relating to the recommendations in the report of the second Technical Consultation:
First of all, the listing criteria must be designed to take account of the natural dynamics of fish stocks, such as the rapid natural fluctuations of many fish stocks.
The second concern relates to the quality of scientific advice and the arrangements for its provision. The 1982 UN Law of the Sea Convention requires coastal states to use the best scientific advice available in fisheries management. A no less stringent standard should be applied here. This means that regional fisheries management organisations with a proven scientific record and national fisheries research institutions are the relevant providers of scientific assessments and advice.
The third issue is that of administrative capacity and ability to modify regulations on a timely basis in response to changes in stock status. This is a concern that needs to be seriously addressed. Current CITES practices demonstrate that it is extremely difficult to modify listings once they are in place. De-listings rarely occur, even when they are warranted by valid scientific assessments. And the current decision-making machinery only allows for changes every second year. Both are serious obstacles to a CITES involvement in this realm.
Exploring CITES fish trade issues
If a CITES mechanism should be applied to commercial fisheries, a number of issues remain unresolved:
1. The look-alike clause
The look-alike clause of CITES [art.II 2 (b)] provides that also species that are difficult to distinguish from one that is listed on appendix II, may be listed correspondingly independent of population status. In relation to commercial fisheries, such an approach is questionable for several reasons:
First, fish products that enter trade are often processed. It is often extremely difficult to distinguish between listed and not-listed species when they are processed. The tracing mechanisms required to follow products to avoid such difficulties, would be very demanding and costly and could easily be used for trade-distorting purposes.
Secondly, in a notification to the parties [2001/037], the CITES secretariat defines a look-alike species as when a non-expert is unlikely to be able to distinguish between a listed species and a look-alike species. Such an approach is, however, contravening the fundamental principle that decisions should be based on the best scientific evidence available. It is critical that such assessments are made by the appropriate scientific expertise rather than laymen.
Thirdly, aquaculture products will fall within the look-alike provision unless tagged or marked. This is problematic, inter alia with regard to the like products clause under articles I and XIII of the General Agreement on Tariffs and Trade (GATT).
Finally, fisheries management is carried out on a stock-by-stock, rather than species basis. Different stocks, or sub-populations, of a species may be very different in terms of their population size relative to a baseline size and with regard to depletion rates. Managing fisheries on a species basis is therefore not a sensible approach. CITES does, however, not allow for different treatment of different stocks of the same species, or "split-listing", except in special circumstances. This is problematic in relation to a huge number of fisheries worldwide, and is likely to pose serious difficulties to fish trade as well as management.
2. Administrative and monitoring issues
First, the procedures for transfer and removal of species from CITES appendices are complex and cumbersome. Down-listing and de-listing in particular have proved to be very difficult, even when the scientific evidence is clear. This is particularly problematic in fisheries where populations can fluctuate widely from one year to the next.
Secondly, current and proposed procedures may not only lead to unwarranted listing and prevent de-listing. They may also bring about costly administrative burdens, among other things as Parties to CITES may request import permits.
Thirdly, it can also be questioned whether CITES has the administrative mechanism required to carry out the frequent listing, down-listing and de-listing from the appendices which will be foreseen if commercial fish stocks are listed. This issue must be regarded as equally important as the listing criteria themselves.
3. Definition of introduction from the sea
The notion of introduction from the sea is not well defined in the Convention and may give rise to serious problems in terms of fish trade. Article 1(e) of the Convention defines introduction from the sea as "the transportation into a State of specimens which were taken in the marine environment not under the jurisdiction of any state". However, what constitutes marine areas within the "jurisdiction" of a State is not clearly defined.
This lack of clarity is cause for concern and may cause problems in the context of fish trade.
4. Relation with other international legal instruments
COFI has emphasised that the relationship between the CITES rules and other legal instruments needs to be addressed. This pertains in particular to the Law of the Sea Convention, the 1995 Fish Stocks Agreement and the 1994 GATT and its covering agreements. Among the issues that need to be clarified are that of the appropriate best scientific evidence available and the relationship between the like products clause of GATT and the look-alike provision.
Fundamentally, the UN Law of the Sea Convention leaves coastal states with the authority to decide on conservation and management of fish stocks in their EEZ. The current proposals for a greater CITES involvement in this realm represents a challenge to that principle. The nature of that challenge is fundamental, indeed, and needs to be addressed in a comprehensive manner.
Consequently, there is a need for further exploring with regard to consequences of listing commercial fish stocks before anything is decided on this matter by CITES.
To summarise:
Compared to the current CITES criteria, the new criteria developed by the Second technical consultation are more relevant in addressing the conservation issues in commercially exploited species, provided that the proposal for listing is subject to a scientific evaluation by appropriate fisheries expertise. However, in Norway we reiterate our concerns, that the CITES mechanism established by the Washington Convention does not provide for an adequate decision-making process of listing, down-listing and de-listing commercially exploited marine species.
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http://www.iwmc.org/fish/020517-1.htm