Special Edition

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ULTRA VIRES
Open letter to the Secretary General of CITES

Dear Secretary General,

The term that serves as a title to this letter means, as you know, to commit an abuse of power. To declare that the Conference of the Parties would be ultra vires in taking a particular action is therefore a serious action which, especially when originating from the Secretariat, should be fully justified. Such a statement was made, at CoP13, in what was probably the last document produced by the Secretariat, document CoP13 Doc. 51 Addendum. In fact we should rather say a non-document since it was not considered at all by the Conference and was not published on the web-site of the Secretariat. Nevertheless it was drafted and circulated, possibly with the hope that the debate on the matter would be reopened in a plenary session, and its content is worrying. Even more when, as we were told from various reliable sources, this was done after a meeting of the Conference Bureau during which the Secretariat tried, without success, to impose its views, claiming that it was the authority in charge of interpreting the Convention and decisions of the Conference of the Parties. Such a claim, if confirmed, would actually be ultra vires.

What about the justification? That appearing in the document is not acceptable, for the following reasons. The document in question referred to the debate about the revision of Resolution Conf. 11.11 on the Regulation of trade in plants, and was directed especially to the definition of the term 'artificially propagated', including the use of wild-collected seeds. The debate, which started in meetings of the Plants Committee, was very controversial, because the United States of America, which was designated to chair a working group, had put in question the interpretation given by most Parties to that part of the Resolution. This was exacerbated by the sudden change of opinion of the Secretariat sometimes in 2003.

Before going further, let us recall that, when the first definition of the term 'artificially propagated' was considered and adopted by the Conference of the Parties, at CoP2 in San José de Costa Rica, in 1979, the omission of the qualifier 'wild' before seeds, and other propagules, was not due to an oversight by absent-mindedness but was decided consciously. This was to follow the views expressed first by Australia, which, in a document submitted to the meeting, indicated that, under their legislation, plants produced from seeds in a controlled environment were considered as artificially propagated, whether the seeds were from wild origin or not. This was not changed until CoP13, in spite of various revisions of the original resolution.

The possibility to use wild seeds for the production of artificially-propagated plants is accepted by most Parties, at least, and was by the Secretariat (e.g. in its Participant Manual, CITES Training Seminar, South Africa, 1997, and through the registration of a Chilean nursery so propagating specimens of the species Araucaria araucana), as well as by you Mr Secretary General. Indeed, in a note in chapter 14 of the seventh edition of The Evolution of CITES (2003) you wrote "… we can grow live plants from wild-collected seeds, cuttings, etc.; these plants are then considered as artificially propagated" [translation from the French version].

To justify its position, the Secretariat, in the 'document' in question here, repeats what was said peremptorily by its representative in the fifth session of Committee I, i.e. "a specimen of a plant that has been taken from the wild can never be described as artificially propagated". How to disagree with such a truism? This would be absurd, as to dispute that five minutes before his death, Marshal La Palice was still alive. The problem resides in the fact that this Secretariat's sentence implies that, in its views, a seed and the plant grown from it are one and the same specimen, so a whole plant. On this basis, the Secretariat concludes that the adoption of an interpretation like that proposed in document CoP13 Com. I. 10, agreed by Committee I before being adopted by the Conference, is ultra vires. Although the Conference of the Parties, not the Secretariat, could have or might so decide, it never did and never intended to do. It has never considered seeds as plants but always as 'specimens' described in Article I of CITES as 'parts and derivatives'. This destroys the Secretariat's argument.