The Significance of CITES for Biodiversity Conservation: Semi-century Experience

Rednikova Tatiana Vladimirovna PhD in Law Senior Scientific Associate, Department of Environmental, Land an Agrarian Law, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 trednikova@gmail.com Other publications by this author

Components of biological diversity have been an integral part of human life since ancient times, ensuring its existence. They are sources of food, heat, building materials, medicines. And this list can be continued. Products of plant and animal origin make up a huge volume in world trade. An equal share of the turnover is accounted for by the trade in the individuals of animal and plant species themselves, as well as their parts and derivatives. The more rare and valuable a particular species is, the more sensitive the increase in production becomes for its population due to the possible extraction of maximum profit from sales. In the XXI century, the annual volume of trade in flora and fauna objects is from 10 to 20 billion euros and covers tens of millions of individuals, and only legal trade in sturgeon caviar brings 100 million euros per year ^{[1, p. 32]}. And this is the volume of trade turnover carried out on a legal basis. At the same time, the profit from the illegal trade in rare animal species alone amounts to 6-10 billion US dollars per year. The cost of one individual of individual species is impressive: the Mongolian saker falcon – 20 thousand US dollars, the Chinese crocodile – 15 thousand US dollars, the Angolan python – 65 thousand US dollars ^{[2, p. 100]}. The smuggling of animals and plants that are on the verge of extinction is second only to drug trafficking in scale ^{[3, p. 71]}. It is obvious that in this situation, the international community should make consolidated efforts to preserve the biological diversity of the planet, and this is especially true for those species whose numbers are declining significantly. As A.V. Kukushkina notes, natural resources in the interests of current and future generations of people "should be protected by well-thought-out planning and use" ^{[9, p. 143]}, the basis for which should be the norms and rules agreed at the level of international cooperation. It is not for nothing that the Declaration of the 1972 United Nations Conference on the Human Environment (Stockholm Declaration), among the principles designed to provide common approaches and leadership in the preservation and improvement of the human environment, enshrined the principle of international environmental cooperation taking into account the sovereign interests of all States. The effective implementation of this principle is extremely important in the conservation of biological diversity and its components, including because geographically the habitats of species are often not located within the state borders of one country. International cooperation is of particular importance for the protection of rare and endangered species.

In historical perspective, the first proposal to introduce rules for international trade in exotic animal species was made by the Swiss ecologist Paul Sarasin in 1911. The next step was the London Convention on the Protection of Fauna and Flora and Their Natural Habitats, which included, among other things, provisions on the control of export-import operations in 1933, which actually did not work due to the non-accession of a sufficient number of countries to it. An unprecedented growth in both legal and illegal trade in components of biological diversity was noted in the 1960s and 1970s. In 1963, at the General Assembly of the International Union for Conservation of Nature and Natural Resources (IUCN), it was stated that it was necessary to sign an international agreement in the form of convention regulating the export, transit and import of rare and threatened species. 10 years later, in 1973, such an agreement was concluded in Washington – the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which entered into force in 1975. Currently, 183 States and the European Union are parties to the Convention (List of Contracting Parties // [Electronic resource]: URL: https://cites.org/eng/disc/parties/chronolo.php (accessed: 02.03.2023)). The Convention covers more than 40,900 species, including approximately 6,610 animal species and 34,310 plant species, a list of which is contained in three annexes to the document. According to CITES, trade is defined as import, export, re-export and introduction from the sea (for marine species harvested on the high seas). The purpose of CITES is to protect protected species from overexploitation in the framework of international trade (CITES species // [Electronic resource]: URL: https://cites.org/eng/disc/species.php (accessed: 02.03.2023)). The Convention is perhaps one of the most effective means of protecting biological diversity and its components in international law. This can be explained by the fact that its fundamental principles are extremely clear and understandable, and are also approved by the widest possible range of states that have joined it ^{[4, p. 484]}.

Despite the fact that the scope of regulation of the convention falls exclusively on the regulation of species trade between States and it does not contain any measures for the direct protection of species in their habitat, its effectiveness is explained precisely by the indirect reduction in the removal of individuals by limiting their turnover.

CITES introduces a ban on international trade in endangered species (Annex I to the Convention). The Convention also introduces a mechanism for controlled trade in species that may become threatened (Annex II to the Convention), in the absence of such control, determining their permissible export at a level that does not threaten the survival of the species. Annex III to the Convention contains species whose turnover is subject to regulation by definition of any CITES member State within its jurisdiction in order to prevent or limit exploitation and in respect of which the cooperation of other States Parties to the CITES Convention in trade control is necessary. For the export of CITES objects included in Annex III, it is necessary to obtain a certificate of origin (the Russian Federation issues a CITES export permit).

An appropriate permit must be obtained for international trade in species included in any of the three CITES annexes. The condition for issuing such a permit is the applicant's compliance with a number of requirements. Each of the member countries of the Convention defines the relevant CITES scientific bodies, as well as CITES administrative bodies authorized to issue export permits, and a separate permit (certificate) is required for each batch of CITES objects.

As A.M. Solntsev notes, the peculiarity of the Convention lies in the absence of provisions in its text that directly establish procedures for its compliance, that is, the obligations of the parties at the national level to ensure the implementation of its requirements through legal and scientific approaches. However, a number of articles can be interpreted as ways to comply with it both at the international and national levels ^[8].

The biological diversity of the planet is a dynamically changing entity within which, in interaction with the environment, there is a constant quantitative and qualitative change in its components – biological species. For example, the number of some of them in the absence of natural enemies and their extraction by man, as well as under the influence of other factors, including in the case of the application of legal protection measures, can grow, while others, also for a number of different reasons, can catastrophically decrease. In order to ensure a prompt response to such changes, Conferences of the Parties meet on a regular basis within the framework of CITES, during which appropriate decisions on regulating trade in endangered species are discussed and taken. During the existence of the convention, 19 meetings of the CITES Conference of the Parties (CITES CoP) have already been held. The meeting of the Conference of the Parties to CITES CoP20 is due to take place in 2025. The Conference decides on the inclusion, exclusion or modification of the list of species in the CITES annexes, on policies and measures to implement the provisions of the convention taken to improve its effectiveness. The meeting of the Conference of the Parties to CITES CoP19 was held from November 14 to 25, 2022 in Panama City (Panama). During the meeting, delegates considered 52 proposals concerning more than 500 species, deciding whether to strengthen or weaken controls on international trade in animals and derivatives. The agenda of the conference consisted of 91 items containing new measures and policies related to the international trade in wild animals. The key topics of the CoP19 agenda also related to finance and resources for the functioning of CITES; law enforcement issues, including corruption, financial crimes and demand reduction (see, for example, CoP19 agenda document 33); proposals to strengthen the protection of trafficked species, including sharks and elephants. A wide range of other issues were considered at the conference. Among them is the issue of including samples obtained with the help of biotechnology in the scope of CITES, which may acquire significant relevance in the foreseeable future.

The Russian Federation has been a party to CITES since 1992. Since then, a significant number of programs have been carried out in the country to control the number and turnover of rare, valuable species, and the area of specially protected natural territories is constantly increasing. The Criminal Code of the Russian Federation has been amended to tighten criminal liability for the extraction of species protected by international agreements, including CITES, and introduced liability for trade in rare and endangered species, as well as their derivatives on the Internet (Article 2581 of the Criminal Code of the Russian Federation). Decree of the Government of the Russian Federation No. 212-r of February 17, 2014 approved the Strategy for the Conservation of Rare and Endangered Species of Animals, Plants and Fungi in the Russian Federation until 2030. The Russian Federation is successfully implementing a number of comprehensive scientific programs to preserve and increase populations of the Near Asian and Far Eastern leopards, Amur tiger, polar bear, Przhevalsky horse, bison, red Book falcons, sturgeon and other species (The Head of the Ministry of Natural Resources of Russia Dmitry Kobylkin opened the 70th meeting of the Standing Committee of CITES. For the first time the session is held in Russia // [Electronic resource]: URL: https://www.mnr.gov.ru/press/news/glava_minprirody_rossii_dmitriy_kobylkin_otkryl_70_e_zasedanie_postoyannogo_komiteta_sites_vpervye_s / (accessed: 03/14/2023)).

The scientific bodies of CITES in the Russian Federation are: All-Russian Scientific Research Institute of Environmental Protection (FSBI "VNII Ecology") The Ministry of Natural Resources of the Russian Federation, the Institute of Ecology and Evolution of the Russian Academy of Sciences (IPEE RAS) (Decree of the Government of the Russian Federation of May 04, 2008 No. 337 "On Measures to Ensure Compliance with the Obligations of the Russian Federation Arising from the Convention on International Trade in Endangered Species of Wild Fauna and Flora, dated March 3, 1973, in in relation to endangered species of wild fauna and flora, except for sturgeon species of fish" // SZ RF. 2008. No. 19. St. 2175) and the All-Russian Scientific Research Institute of Fisheries and Oceanography (FGBNU "VNIRO") of Rosrybolovstvo (Decree of the Government of the Russian Federation of September 26, 2005 No. 584 "On measures to ensure the fulfillment of the obligations of the Russian Federation arising from the Convention on International Trade in Endangered Species of Wild Fauna and Flora, dated March 3, 1973, in relation to sturgeon species of fish" // SZ RF. 2005. No. 40. St. 4037).

Their functions, on the example of the Federal State Budgetary Institution "VNII Ecology", include: collection, processing and storage of information on conventional species, subspecies, populations of animals and plants, including the state of populations in nature of these animals and plants; examination of CITES samples; preparation of scientific recommendations (conclusions) for the CITES administrative body in Of the Russian Federation on the possibility for legal entities and individuals to export (re-export) CITES samples, as well as import to Russia CITES samples included in Annex I of CITES; development of recommendations on amendments and additions to Annexes I and II of CITES and proposals for the formation of Annex III of CITES from the Russian Federation in order to strengthen control over the use of protected and (or) especially valuable species of animals and plants of the domestic fauna and flora; and a number of other expert and informational functions, the performance of which contributes to ensuring the scientific validity of measures taken at the national level within the framework of CITES requirements. An open list of all functions is contained in the order of the Ministry of Natural Resources of the Russian Federation No. 206 dated July 4, 1994 "On the Scientific Body of CITES in the Russian Federation" (the document was not published / access from the SPS "Consultant Plus").It seems that it is a comprehensive study of the problems and scientific justification for the inclusion or exclusion of certain species in the lists of annexes to CITES that allow us to respond promptly to changes in the state of their population, a decrease or increase in the number of such species, which should positively affect the increase in the degree of their protection by conventional and other legal means adopted at the national and interstate level.

In the Russian Federation, the administrative bodies of CITES are the Federal Service for Supervision of Nature Management (Rosprirodnadzor) in relation to objects other than sturgeon species, and the Federal Agency for Fisheries (Rosrybolovstvo) in relation to sturgeon species, including caviar. Control over the movement of conventional types is carried out by customs authorities, which, according to the requirements of Article 351 of the Customs Code of the EAEU, ensure compliance with the relevant prohibitions and restrictions on goods transported across the customs border of the EAEU. The list of CITES objects is located in Section 2.7 "Species of wild fauna and flora subject to the CITES Convention", the unified list of goods to which non-tariff regulation measures are applied in trade with third countries (Appendix No. 2 to the Decision of the Board of the Eurasian Economic Commission dated April 21, 2015 No. 30 "On non-tariff regulation measures"). (CITES objects // [Electronic resource]: URL: https://customs.gov.ru/fiz/pravila-peremeshheniya-tovarov/poryadok-peremeshheniya-ob-ektov-sites,-naxodyashhixsya-pod-ugrozoj-ischeznoveniya-#:~:text=В%20Российской%20Федерации%20Административными%20органами,осуществляют%20выдачу%20разрешений%20(сертификатов)%20SITES (accessed: 03/04/2023)). The customs authorities of the Russian Federation play an important role in suppressing illegal trade in CITES objects, and the effectiveness of such counteraction depends on the qualifications of employees. As mechanisms of illegal movement across the State border, it should be noted such as the non-declaration of parts and derivatives of wild plants and wild animals and the movement of these goods in specially equipped caches and structural cavities of vehicles. There are also cases of false declaration, as well as falsification of permits, in particular the use of invalid or forged documents. In 2020, 828 cases were initiated on the basis of operational materials of the customs authorities under Article 2261 of the Criminal Code of the Russian Federation ^{[5, p. 675]}. It is obvious that increasing the level of education of customs officers inspecting goods subject to certification under CITES in the field of biology of conventional species will allow them to more effectively identify the substitution of some species by others, as well as determine which species actually belong to derivatives transported across the state border of the Russian Federation. The development and implementation of special professional development programs for employees in this area should have a positive impact on the effectiveness of customs authorities' detection of violations related to export-import operations of conventional types.

One of the problems associated with the detection of violations during the transboundary movement of conventional species is the need to create special conditions for the placement of live animals detained by customs authorities, as well as ensuring their timely transfer to detention and rehabilitation centers ^{[10, p. 58]}.

It should be noted that when moving species falling under the Convention across the state borders of the member states of the Eurasian Economic Union (EAEU) (which are also parties to CITES) within the territory of the EAEU, permits (certificates) are also required.However, the absence of customs control within the EAEU creates additional opportunities for organizing illegal traffic of convention facilities. Thus, from the Far Eastern territories there is the largest flow of contraband from Russia to one of the EAEU countries, and only then to China, Japan, the Republic of Korea, Singapore, Taiwan ^{[6, p. 48]}. In this regard, the proposals expressed in the scientific literature on the creation of a unified information system on the territory of the EAEU containing data on "the issuance, use and cancellation of permits for the export, import of CITES objects, their detentions, seizures of CITES objects; on the illegal movements between the EAEU member states that have been prepared and occurred", as well as on "the development and the approval of the Rules for the Turnover of CITES objects and other Wildlife objects operating within the common customs zone and the formation of appropriate bodies at the EAEU level to ensure control over the turnover within the EAEU" ^{[7, p. 8]} seem quite justified, and their implementation should in practice help to more effectively counteract the smuggling of flora and fauna objects, falling under the regulation of CITES.

For comparison, here is a list of problems that a supranational entity such as the European Union, which is a party to the convention, faces when implementing the provisions of CITES. It should be noted that the problems of a general nature related to the implementation of its provisions in the EU member States are quite similar to the problems existing in the EAEU and the Russian Federation. Among them are insufficient development of national legislation in this area, lack of border control, issuance or acceptance of forged or invalid CITES documents, etc. The main problem of the European Union as a party to the convention is that it implements CITES as if it were a single State, but its governing bodies are practically independent, and procedures vary greatly from one member State to another. In addition, as mentioned above, internal border controls between Member States have been abolished, and the degree of implementation of CITES varies significantly depending on the country. Accordingly, in reality, the degree of implementation of CITES in the European Union corresponds to the level of the State with the lowest level of such implementation. Other problems faced by the EU: issuance of certificates for the re-export of samples that were not imported into the EU in accordance with the Convention; import of samples that contradict the provisions of the Convention and resolutions; issuance of permits for the export of illegally obtained samples.

In conclusion, I would like to note that over the past 50 years since the signing of the convention, a stable global structure has been created within the framework of CITES, which makes it possible to ensure with a sufficient degree of effectiveness, within its scope of legal regulation, the minimization of threats from legal trade to the survival of wild animal and plant species, and it has also created a basis for combating illegal trade in wild animals. species between the States parties to the convention. Nevertheless, many more issues need to be resolved. Thus, in order to ensure the sustainability of the legal trade in wild animals and the effective fight against illegal trade, it is necessary to attract even more resources from all States parties to the Convention. National legal systems around the world should provide for effective sanctions for illegal encroachments on wildlife components, as well as include measures to counteract new forms of their illegal trafficking, in particular using the legal Internet, and especially the Darknet, where advertising of goods and services prohibited for legal circulation has been moving in recent years.