CITES - a model of bureaucratic ineffectiveness.
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- 1 INDEPENDENT PRO BONO LEGAL ANALYSIS FOR ITEM 38 ON THE AGENDA FOR THE 65TH MEETING OF THE CITES STANDING COMMITTEE CONCERNING ASIAN BIG CATS FOCUSING ON THE CURRENT STATUS OF CITES DECISION 14.69 AND THE GUIDANCE ISSUED IN SUPPORT OF IT PLUS ADDITIONAL INFORMATION FOR THE STANDING COMMITTEE ON THE TRADE IN LION BONES FROM SOUTH AFRICA TO ASIA Report for the 65th meeting of CITES the Standing Committee Richard Hargreaves LLB, FCILEx1 Table of Contents Section Page Executive Summary 1 1. The full assessment of Asian big cat measures at CoP16 2 2. Decision 14.69 incorrectly marked as 'superseded 3 3. Legal analysis of why Decision 14.69 has not been 'superseded' 4 4. Notification to the Parties No. 2008/059 incorrectly marked as 'Not valid' 6 5. Legal analysis of why, objectively, the guidance in the Annex to Notification 2008/059 should still be considered 'Valid' 7 6. Why Decision 14.69 and the guidance in the Annex to Notification No. 2008/059 are important 8 7. Implementation of the CITES provisions on managing captive breeding facilities 9 8. Additional and new photographic evidence relevant to Decision 14.69 11 9. Concluding remarks concerning Decision 14.69 and Notification No. 2008/059 23 10. Additional and new photographic evidence concerning the lion bone trade 25 11. Recommendations 32 Annex Late 2012 Review of implementation of Decision 14.69 for CoP16 34 Executive Summary The writer has prepared the following report for the assistance of the CITES Standing Committee at its sixty-fifth meeting in Geneva, Switzerland from 7-11 July 2014. This report is specifically with regard to the Standing Committee's deliberations under Agenda item 38 concerning Asian big cats. The writer has read and reviewed the Asian big cats documents posted on the CITES website, under Agenda item 38, for the present meeting and also the Environmental Investigation Agency's document titled 'EIA Briefing Document on Asian big cats for the 65th Meeting of the CITES Standing Committee'. 1 The writer is an English qualified lawyer who has, since 2009, researched and written a number of articles and briefings on a pro bono basis focusing on the issues facing wild cats from a legal perspective. Four of these articles have been published in a specialist American legal journal at the time of writing in late June / early July 2014 whilst further briefings were prepared for the GTI, TRAFFIC and numerous other non-governmental organizations.
- 2 For the purposes of this report it can generally be taken as read that the writer agrees with the Environmental Investigation Agency's recommendations and proposed amendments of the Secretariat's recommendations in SC65 Doc. 38, as set out in their briefing document referred to above2 . The only exceptions to this are where the writer's recommendations below differ slightly as to the approach to be taken concerning Decision 14.69 and the guidance in the Annex to Notification 2008/059. The writer also makes additional recommendations with regard to the worrying trade lion 'bodies', 'bone' and 'skeletons', the scale of which should not be underestimated. Aside from the matters covered in this report the writer also observes generally that the terminology used for the Secretariat's recommendations under Agenda item 38 could usefully be strengthened from e.g. requesting reviews of implementation to instructing implementation where it is clear this has been lacking or even non-existent. The writer has prepared this report on a pro bono basis, free of charge. Pro bono is a term frequently used within the legal profession often translated as 'for the public good'. It is hoped that the contents of this report will complement and in some places expand upon the information and conclusions in the reports at SC65 Doc.38 and its first Annex and also EIA's briefing referred to above. It is further hoped that, for the public good of Asia's big cats and their natural habitats, this report may even help to persuade the Standing Committee to agree some robust and meaningful actions on these issues at its sixty-fifth meeting. 1. The full assessment of Asian big cat measures at CoP16 Within Resolution Conf. 12.5 (Rev. CoP15) on the Conservation of and trade in tigers and other Appendix-I Asian big cat species it was previously stated in 2010 that the CITES Conference of the Parties: INSTRUCTS the Secretariat to report to the Standing Committee and the Conference of the Parties on the status of Asian big cats in the wild, their conservation, and trade controls in place in Parties, using information provided by the range States on measures taken to comply with this Resolution and related relevant Decisions and any relevant additional information provided by relevant countries3 . On 3 September 2012 the Secretariat issued Notification to the Parties No. 2012/054 stating that: In order to facilitate the reporting of the Secretariat required under Resolution Conf. 12.5 (Rev. CoP15), and to enable a full assessment at the 16th meeting of the Conference of the Parties (CoP16), all Parties, and particularly range States of Asian big cats are requested to inform the Secretariat of: i) all measures taken to comply with Resolution Conf. 12.5 (Rev. CoP15), in relation to all species of Asian big cats; ii) stockpiles of captive-bred or confiscated tiger body parts and derivatives; and iii) any actions proposed to deal with the stockpiles4 . 2 http://eia-international.org/wp-content/uploads/EIA-Asian-big-cats-briefing-for-SC65-FINAL.pdf 3 http://www.cites.org/eng/res/all/12/E12-05R15.pdf 4 http://www.cites.org/eng/notif/2012/E054.pdf
- 3 Within Notification No. 2012/054 the Secretariat also stated that: All Parties with intensive operations breeding tigers on a commercial scale are requested to fully implement Decision 14.69 in respect of the number of breeding operations and also for the total number of tigers, and report to the Secretariat on the measures implemented to comply with this Decision5 . The Secretariat advised Parties that it would appreciate receiving this information by 25 September 20126 . At the time of writing of its Asian big cats document for CoP16, in early October 2012, the Secretariat had received just one response to Notification No. 2012/054, from Thailand. The Secretariat confirmed that it would continue to pursue the submission of the reports requested to enable a full assessment at CoP167 . By the end of January 2013, however, only one further response has been received, from China. This meant that the hoped for 'full assessment' of implementation of the CITES Asian big cat measures at CoP16 simply did not happen. Whilst the proposed administrative amendments of Conf. 12.5 (Rev. CoP15)8 were agreed9 , the standard reporting Decisions that were proposed10 were adopted as Decisions 16.68 16.7011 (after slight amendment12 ) and it was agreed that Decisions 15.46 to 15.49 would be deleted13 it is understood that: Over the course of the 10-day meeting there was only about 15 minutes available for Parties to intervene from the floor to share their concerns with the rest of the international community14 . 2. Decision 14.69 incorrectly marked as 'superseded' The situation outlined above meant that important matters such as Parties' efforts towards implementation of and compliance with CITES Decision 14.69 were not addressed. Firstly due to lack of submissions from Parties in response to Notification 2012/054 and secondly owing to time constraints at CoP16 itself. Whilst that situation is itself concerning it is of equal, if not more, concern that Decision 14.69 was then subsequently placed on the list of Decisions 'superseded' following CoP1615 , where it remains at the time of writing in late June / early July 2014. Decision 14.69 was adopted as a result of the 14th meeting of the Conference of the Parties to CITES in 2007 (Cop14). It remains to this day a clear and robust statement by the Conference of the Parties that: Parties with intensive operations breeding tigers on a commercial scale shall implement measures to restrict the captive population to a level 5 Id. 6 Id. 7 See Paragraphs 6 and 7 at: http://www.cites.org/eng/cop/16/doc/E-CoP16-50.pdf 8 Set out in Annex 2 at: http://www.cites.org/sites/default/files/eng/cop/16/doc/E-CoP16-50.pdf 9 http://www.cites.org/sites/default/files/common/cop/16/sum/E-CoP16-Plen-06.pdf 10 http://www.cites.org/sites/default/files/common/cop/16/com/E-CoP16-Com-II-30.pdf 11 http://www.cites.org/eng/dec/valid16/212 12 http://www.cites.org/sites/default/files/common/cop/16/sum/E-CoP16-Com-II-Rec-14.pdf 13 Id. 14 http://eia-international.org/too-little-time-at-cites-cop16-for-threats-to-tigers 15 http://www.cites.org/sites/default/files/eng/dec/valid16/CoP15-Dec-remaining-after-CoP16.pdf
- 4 supportive only to conserving wild tigers; tigers should not be bred for trade in their parts and derivatives16 . It is stated on the 'CoP16 source documents for the changes to the list of Resolutions' page on the CITES website at the time of writing that: () a number of Decisions were not reviewed [at CoP16]. As such, they remain valid but are now superseded17 . A link to the list of superseded Decisions referenced above then follows that statement. Conflictingly, however, Decision 14.69 then fails to appear on the list of 'Decisions of the Conference of the Parties in effect after its 16th meeting'18 . This is despite the fact that list is introduced on the 'Decisions of the Conference of the Parties to CITES in effect after the 16th meeting' page on the CITES website, at the time of writing, as the list of (...) all valid Decisions (writer's emphasis added). Not surprisingly the Secretariat has been asked to provide clarification on this matter by at lea