Inter‐Treaty Cooperation, Biodiversity Conservation and the Trade in Endangered Species
| Date | 01 November 2013 |
| Published date | 01 November 2013 |
| DOI | http://doi.org/10.1111/reel.12039 |
| Author | Richard Caddell |
Inter-Treaty Cooperation, Biodiversity Conservation
and the Trade in Endangered Species
Richard Caddell
In recent years, concerns have been raised over the
ability of multilateral environmental agreements to
effectively coordinate their policies and activities on
issues of mutual interest. This article examines the
current initiatives pursued by the 1973 Convention on
International Trade in Endangered Species (CITES) to
synergize its activities for the conservation of biodiver-
sity with allied regimes. It examines cooperative poli-
cies undertaken alongside the two key biodiversity
treaties with which CITES operates most closely –
namely the 1992 Convention on Biological Diversity
and the 1979 Convention on the Conservation of
Migratory Species of Wild Animals. The article out-
lines broad thematic and species-specific interactions,
suggesting that while there is considerable scope to
develop cooperative working practices, a degree of
caution is appropriate as to the current level of prior-
ity placed upon synergies between these regimes as a
solution to operative challenges.
INTRODUCTION
In the forty years since the conclusion of the 1973 Con-
vention on International Trade in Endangered Species
of Wild Fauna and Flora (CITES),1multilateral regimes
with an application to threatened biodiversity have
steadily proliferated. Although this development ought
to be considered highly encouraging, indicative of a
maturation of international environmental law gener-
ally and a clear global interest in the plight of imperilled
species specifically, concerns have nonetheless arisen
over the practical coordination of this sprawling
network of actors and instruments. In particular, reser-
vations have long been expressed over the perils of
so-called ‘treaty congestion’,2where poor inter-regime
cooperation may generate competing and potentially
conflicting conservation priorities, alongside adminis-
trative and managerial duplication, inconsistencies and
wastage.
The continued preference for autonomous multilateral
environmental agreements (MEAs) as the modern
regulatory model of choice3has rendered international
efforts to regulate particular species a deceptively com-
plicated and, arguably, counter-productive affair.4
Increasingly, a core task of multilateral biodiversity
management has involved marshalling the interrela-
tionship between MEAs to facilitate uniform and
complementary conservation strategies.5To take a
practical example, the regulation of a single species
such as the iconic blue whale (Balaenoptera musculus)
currently categorized as ‘endangered’,6requires the
coordination of a disparate mosaic of multilateral
bodies. As a (previously) commercially hunted species
it is governed by the 1946 International Convention for
the Regulation of Whaling (ICRW)7and is thereby
subject to managerial oversight by the International
Whaling Commission (IWC). Additionally, as a migra-
tory species, blue whales have long been listed on the
Appendices of the Convention on the 1979 Conserva-
tion of Migratory Species of Wild Animals (CMS)8and
are subject to particular measures to address impedi-
ments to migration and rehabilitate wild stocks and
habitat ranges. As a species considered vulnerable to
the adverse impacts of international trade it has also
been listed on the Appendices to CITES and is thereby
subject to protective trade policies. More recently, the
1Convention on International Trade in Endangered Species (Wash-
ington, DC, 3 March 1973; in force 1 July 1975) (‘CITES’).
2See especially E. Brown Weiss, ‘International Environmental Law:
Contemporary Issues and The Emergence of a New World Order’,
81:3 Georgetown Law Journal (1993), 675; and B.L. Hicks, ‘Treaty
Congestion in International Environmental Law: The Need for Greater
International Coordination’, 32:5 University of Richmond Law Review
(1999), 1643.
3On the emergence of such regimes and the legal issues raised
thereby, see R.R. Churchill and G. Ulfstein, ‘Autonomous Institutional
Arrangements in Multilateral Environmental Agreements: A Little-
noticed Phenomenon in International Law’, 94:4 American Journal of
International Law (2000), 623.
4For a searching critique of the fragmented status quo, see A.
Jóhannsdóttir, I. Cresswell and P. Bridgewater, ‘The Current Frame-
work for International Governance of Biodiversity: Is it Doing More
Harm than Good?’, 19:2 Review of European Community and Inter-
national Environmental Law (2010), 139. For a more cautiously opti-
mistic prognosis of the current status of inter-treaty coordination, see
R. Caddell, ‘The Integration of Multilateral Environmental Agree-
ments: Lessons from the Biodiversity-related Conventions’, 22:1
Yearbook of International Environmental Law (2011), 37.
5See R. Caddell, n. 4 above, at 39–48.
6As designated on the current version of the International Union for
Conservation of Nature (IUCN) Red List of Threatened Species. See
<http://www.iucnredlist.org>.
7International Convention for the Regulation of Whaling (Washing-
ton, DC, 2 December 1946; in force 11 October 1948).
8Convention on the Conservation of Migratory Species of Wild
Animals (Bonn, 23 June 1979; in force 1 November 1983) (‘CMS’).
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Review of European Community & International Environmental Law
RECIEL 22 (3) 2013. ISSN 2050-0386
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264
1992 Convention on Biological Diversity (CBD)9has
substantially expanded its marine programme, with
further regulatory implications for blue whales. In addi-
tion to these prominent global instruments, regional
agreements will also be highly relevant, including the
Antarctic regime10 and CMS subsidiaries addressing
southern Europe11 and the Pacific region.12 Further-
more, blue whales face particular conservation threats
that fall under the purview of other regimes. By-catches
are considered to be an especially pernicious hazard to
cetaceans;13 managerial coordination with a plethora of
fisheries management organizations is therefore a vital
conservation strategy. Likewise, engagement with a
multitude of pollution control bodies will be required to
improve habitat quality. Meanwhile, the management
of international shipping activities – such as the miti-
gation of anthropogenic noise14 and the proactive
reduction of vessel-strike mortality15 – will also play a
key role, necessitating a mutually supportive working
relationship with the International Maritime Organiza-
tion (IMO). Multilateral efforts to actively conserve an
individual species – whether marine, terrestrial or
avian – accordingly involve a significant operational
undertaking.
Against this backdrop, and with CITES presently exer-
cising responsibility over almost 35,000 individual
species of flora and fauna, effective coordination with
allied MEAs constitutes a significant institutional
priority. Indeed, at the recent Rio+20 Conference
in 2012, the international community formally
acknowledged
the important role of the Convention on International Trade
in Endangered Species of Wild Fauna and Flora, an interna-
tional agreement that stands at the intersection between
trade, the environment and development, promotes the con-
servation and sustainable use of biodiversity, should con-
tribute to tangible benefits for local people, and ensures that
no species entering into international trade is threatened
with extinction....In this regard, we emphasize the
importance of effective international cooperation among
relevant multilateral environmental agreements and inter-
national organizations.16
Institutional synergies are frequently championed as a
means of improving the performance of MEAs, yet the
operational effectiveness of inter-treaty collaborations
remains decidedly under-assessed. Although prosaic,
the integrative practices of such bodies nonetheless
remain quietly significant,17 and offer important
lessons in modern regime interaction.18 Under pres-
sure to achieve substantially more with considerably
less, and with performance and wastage fastidiously
audited, MEAs are becoming increasingly obliged to
integrate and align their activities further – a trend
that has implications both for individual regimes
and for the future of international environmental
governance.19 This article accordingly examines the
current state of cooperation between CITES and two
leading MEAs for the conservation of biodiversity –
namely the CBD and the CMS. It first appraises the
cooperative models adopted by CITES in addressing
inter-treaty liaison, before considering the thematic
and executive synergies developed with the CBD to
address overlapping issues of concern. Finally, it
evaluates collaborative activities with the CMS, with
which CITES arguably maintains the greatest scope
for interaction due to the number of overlapp-
ing species regulated under the umbrella of both
regimes.
9Convention on Biological Diversity (Rio de Janeiro, 5 June 1992; in
force 29 December 1993) (‘CBD’).
10 Convention for the Conservation of Antarctic Marine Living
Resources (Canberra, 20 May 1980; in force 7 April 1982). Under
Article VI of the Convention, regulatory authority over Antarctic whale
stocks is expressly deferred to the IWC, although the Commission for
the Conservation of Antarctic Marine Living Resources (CCAMLR)
does exercise oversight over krill, the staple prey of the blue whale.
CITES interests in Antarctic whales have been increasingly engaged
in recent years. See P.H. Sand, ‘Japan’s “Research Whaling” in the
Antarctic Southern Ocean and the North Pacific Ocean in the Face of
the Endangered Species Convention (CITES)’, 17:1 Review of Euro-
pean Community and International Environmental Law (2008), 56.
11 Agreement on the Conservation of Cetaceans of the Black Sea,
Mediterranean Sea and Contiguous Atlantic Area (Monaco, 24
November 1996; in force 1 June 2001) (‘ACCOBAMS’).
12 Memorandum of Understanding for the Conservation of Cetaceans
and Their Habitats in the Pacific Islands Region (Noumea, 15 Sep-
tember 2006; in force 15 September 2006).
13 A.J. Reid, ‘The Looming Crisis: Interactions between Marine
Mammals and Fisheries’, 89:3 Journal of Mammalogy (2008), 541.
14 On this issue, see A. Gillespie, ‘Noise Pollution, The Oceans and
the Limits of International Law’, 21:1 Yearbook of International Envi-
ronmental Law (2010), 114.
15 On current International Maritime Organization (IMO) policies in
this regard, see R. Caddell, ‘Shipping and the Conservation of Marine
Biodiversity: Legal Responses to Vessel-strikes of Marine Mammals’,
in: R. Caddell and D.R. Thomas (eds.), Shipping, Law and the Marine
Environment in the Twenty-first Century (Lawtext, 2013), 86, at
95–114.
16 The Future We Want (UN Doc. A/RES/66/288, 11 September
2012), at paragraph 203 (emphasis added).
17 For an illuminating account of the legal difficulties concerning the
operational powers of MEA institutions, see B.H. Desai, Multilateral
Environmental Agreements: Legal Status of the Secretariats
(Cambridge University Press, 2011), at 133–170.
18 On the importance of such case studies, see M.A. Young,
‘Regime Interaction in Creating, Implementing and Enforcing Inter-
national Law’, in: M.A. Young, Regime Interaction in International
Law: Facing Fragmentation (Cambridge University Press, 2012),
85.
19 Following its ‘Future Shape’ deliberations the CMS considers that
closer coordination with other regimes and resource sharing will be
vital to its future activities, while the amalgamation of the core
biodiversity treaties within the CBD is also advocated. See A.
Jóhannsdóttir, I. Cresswell and P. Bridgewater, n. 4 above, at
147–149. The so-called ‘chemical cluster’ of treaties is undertaking
a process of administrative and executive fusion, although this
remains at an early stage. See R. Caddell, n. 4 above, at 60–61.
Commentators have nonetheless warned that linkages are not
a panacea against the current challenges facing biodiversity
MEAs. See A. Long, ‘Developing Linkages to Preserve Biodiver-
sity’, 21:1 Yearbook of International Environmental Law (2010),
41.
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