COFI:FT/VIII/2002/4  |
| COFI:FT/VIII/2002/4 |
Item 5.2 of the Provisional Agenda |
COMMITTEE ON FISHERIES |
SUB-COMMITTEE ON FISH TRADE |
Eighth Session |
Bremen, Germany, 12-16 February 2002 |
DEVELOPING A WORKPLAN FOR EXPLORING CITES ISSUES WITH RESPECT TO INTERNATIONAL FISH TRADE |
ADMINISTRATIVE AND MONITORING ISSUES
DEFINITION OF INTRODUCTION FROM THE SEA
RELATION WITH OTHER INTERNATIONAL LEGAL INSTRUMENTS
1. The First Technical Consultation on the Suitability of CITES Criteria for Listing Commercially-exploited Aquatic Species1 recommended FAO, inter alia, to:
2. COFI, during its Twenty-fourth Session5, supported the recommendations of the First Technical Consultation and requested FAO to consider the problems and potential solutions in relation to listing fishery resources under Article II, including the "look alike" provision, introduction from the sea, and the precautionary approach. COFI agreed that the follow up on these matters should be dealt with by COFI-FT under the title Developing a workplan for exploring CITES issues with respect to international fish trade6.
3. Subsequently, the Second Technical Consultation on the Suitability of CITES Criteria for Listing Commercially-exploited Aquatic Species7 proposed COFI-FT to include, under its agenda item 5.2 Developing a workplan for exploring CITES issues with respect to international fish trade, the following topics:
4. This paper analyses the above topics within the framework of an FAO workplan on CITES and international fish trade. The Annex of this paper gives a set of possible options for future FAO involvement in the scientific evaluation of CITES listing proposals in accordance with the request made by the Second Technical Consultation9.
5. The basic documents analysed during the preparation of this paper are the CITES Convention and two of its derived instruments:
6. CITES Appendix II includes all species which, although not necessarily threatened with extinction, may become so unless trade in their specimens is subject to strict regulation -CITES Article II.2(a)- and other species which must be subject to regulation to bring trade in listed species under effective control -Article II.2(b)-. According to Resolution 9.24 and Notification to the Parties 2001/037, Article II.2(b) mainly refers to the species which "look alike" Appendix II listed species. In the new definition of "look alike" proposed by Notification 2001/037, under its Annex 2b(A), a species "looks alike" another species when the proponent demonstrates that a non-expert, using basic identification material and with basic efforts, is unlikely to be able to distinguish between them.
7. The look-alike clause might entail substantial difficulties in implementation and enforcement if it were applied to processed products which may be unrecognisable from similar products derived from listed fish. This concern was raised by some member States during the First Technical Consultation on the Suitability of CITES Criteria for Listing Commercially-exploited Aquatic Species11. The difficulties associated with identifying the taxonomic origin of processed white fish fillets provide an obvious example.
8. Look alike products may be exempted from listing only when accompanying documents, branding, marks, labels or other circumstances show that these products do not derive from a listed animal (CoP Resolution 9.6 "Trade in readily recognisable parts and derivatives12"). Setting up mechanisms to trace the origin of some processed fisheries products would be complicated and expensive13, especially for some developing countries. Meanwhile, in some developed countries, traceability assessment techniques are progressing fast through the development of DNA technology and software tools. Pilot projects and test kits have already been launched with the aim to progressively improve the user-friendliness of those tools 14.
9. Notification 2001/037, Annex 2b(B), also proposes the listing of other species for any "compelling reason" other than the look alike clause to achieve effective control of trade. This new formulation, if endorsed by CoP 12, could lead to differing interpretations and possible controversy and may require more precise specification.
10. According to Article VII.5 of CITES, international trade in listed animals or parts of animals bred in captivity would require a certificate from the Management Authority in lieu of the documentation required for Appendix I, II or III specimens. According to CoP Resolution 7.12 "Marking requirements for trade in specimens of taxa with populations in both Appendix I and Appendix II", aquaculture products would fall within the look-alike provision unless tagged or marked, therefore made "readily recognisable". The different treatment allowed to readily recognisable aquaculture specimens needs to be considered in the light of the World Trade Organization (WTO) principle of similar treatment of "like" products15.
11. The CITES mechanism does not encourage listing a species in more than one Appendix, due to enforcement problems (Annex 3 to Resolution 9.24). Resolution 9.24 simply states that "(...) Split-listings that place some populations of a species in the appendices, and the rest outside the appendices, should normally not be permitted." The proposed new formulation of Annex 3 allows split-listing, as a precautionary measure, only as a means to transfer a population from Appendix I to Appendix II prior to removing it from CITES Appendices. According to both formulations of Annex 3, when split listing does occur, it should be on the basis of national or regional16 populations. The Annex has potential, important, implications for fisheries where management is usually on a "stock by stock" (i.e. "population") basis.
12. Annex 4 to Resolution 9.24, also in its proposed new formulation, sets rather complex procedures for transfer and removal of species from CITES Appendices. These procedures, together with the required two-thirds majority of Parties present and voting to amend a CITES Appendix -Article XV.1(b)- have been found not to allow flexibility in de-listing and down-listing. As some member States remarked during the First and Second Technical Consultation17, not allowing flexibility in de-listing and down-listing may create problems for fisheries where populations can be very dynamic.
13. The absence of flexibility in de-listing in addition to criteria and/or a process which could lead to unnecessary listing, would result in superfluous and costly administrative burdens on States. Trading wild species listed under Appendix II requires an export permit (CITES Article IV.2). However, some Parties may also request an import permit as a stronger domestic measure18. The bureaucratic burden in terms of paperwork to complete might be too heavy when trading exploited fish species, especially when said species are re-exported or exported in a mixed or processed form.
14. According to Article I(c) of CITES, the definition of trade includes "introduction from the sea" as well as import, export, and re-export. Introduction from the sea can be considered -Article I(e)- as the "transportation into a State of specimens which were taken in the marine environment not under the jurisdiction of any State". However, the Convention does not define the "marine environment not under the jurisdiction of any State", and CoP has not yet agreed on, thus far, a standard CITES certificate of introduction from the sea19. The lack of clarity on how the term "introduction from the sea" will be applied in practice on exploited fish species was cause for concern, among some member countries, at the Second Technical Consultation.
15. Article XIV of CITES Convention contains provisions on the compatibility of CITES with domestic (XIV.1 and .2), regional (XIV.3) and international law (XIV.4, .5 and .6). CITES Article XIV.6, in particular, states that:
"(...) Nothing in the present Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea (...) nor the present or future claims and legal views of any State concerning the law of the sea (...)"
16. During the Twenty-fourth Session of COFI, several members stated that CITES criteria as applied to commercially-exploited aquatic species should be consistent with the United Nations Convention on the Law of the Sea (UNCLOS) and other subsidiary instruments such as the Code of Conduct for Responsible Fisheries (CCRF)20. The relations between those instruments needs to be addressed, including the relation between CITES and other instruments such as WTO rules.
17. Many of the issues raised in connection with the implications of a CITES listing for exploited fish species have not been explored in depth, although lessons can be learned from the listing of some species, such as sturgeon (Acipenseriformes spp.) and the Caribbean queen conch (Strombus gigas). Therefore, developing a workplan for exploring CITES issues with respect to international fish trade would require, as a first step, the convening of an expert consultation. This consultation should preferably be held before CoP 12. The consultation should discuss the trade implications of listing exploited fish species, including, but not limited to, the points listed above, and any other points identified by this meeting.
18. At the 24th Session of the FAO Committee on Fisheries (COFI) it was agreed that "decisions concerning listing and de-listing of species (in CITES appendices) should be based on the best possible scientific evidence and an effective scientific evaluation process.21" COFI discussed, on the basis of a Secretariat paper22, the process for scientific evaluation on listing proposals. It left the mandate to elaborate mechanisms to strengthen the scientific evaluation process to COFI FT, while recognising that solely CoP would have been in charge of a final decision. The Second Technical Consultation considered this issue and expressed some preferences for strengthening the existing evaluation process23.
19. A comprehensive scientific evaluation need not to take into consideration the sole biological aspects, but the trade and development implications of listing as well. The Annex to this document includes a set of options on the future FAO involvement in the scientific evaluation of listing exploited fish species.
20. The convening of the expert consultation and the implementation of further stages of the workplan, as identified by the consultation, as well as the implementation of either option 4 or 5 for the scientific evaluation of listing proposals24 may require extra-budgetary funds for FAO.
21. COFI-FT is requested to:
1. Status quo. FAO and relevant Fisheries Management Organizations (FMOs) would still keep their right to be consulted as "intergovernmental bodies having a function in relation to (marine) species" according to Article XV.2(b) of CITES. Other organizations such as IUCN would still provide independent advice to the evaluation of the species to be included. If implemented as it currently stands, this option would not entail any formal agreement between FAO and CITES.
2. Advisory panel of specialists. A panel of fisheries specialists would provide scientific and technical advice to CoP on the evaluation of species to be listed. This panel would be composed of representatives of FAO, relevant FMOs on a national, regional (RFMOs) and international level, IUCN and other independent experts in population assessment, conservation biology and international trade in fishery products. This panel might either be convened as a round-table meeting or as an e-mail conference, but the former option would be preferable. If FAO were to have a formal role in such a panel, FAO and CITES could sign a Memorandum of Understanding (MoU).
3. Advisory panel of FMO(s). A panel composed by relevant FMO(s) would provide scientific and technical advice to CoP on the evaluation of species to be listed. If requested, an FAO representative could participate in the panel, which might be undertaken either as (preferably) a round-table meeting or as an e-mail conference. Also in this case, if FAO were to have a formal role in the panel, FAO and CITES could sign an MoU.
4. Advisory panel of FMO(s) under FAO co-ordination. As in option 3, a panel composed by relevant FMO(s) would provide scientific and technical advice to CoP on the evaluation of species to be listed. However, FAO could co-ordinate the panel, which might be undertaken as (preferably) a round table expert consultation or as an e-mail conference. Therefore, FAO and CITES would need to sign an MoU.
5. FAO providing advice to CITES. FAO would provide scientific and technical advice to CoP on the evaluation of species to be listed. Relevant FMOs and other independent scientists would be consulted by FAO. FAO would need to create a P-4 post; FAO and CITES would need to sign an MoU.
|
SCENARIO |
FAO |
RELEVANT FMOs (Nat. - Reg. - Int.) |
OTHER |
FAO/CITES RELATION |
|
1. status quo |
right to be consulted |
right to be consulted |
IUCN providing advice |
no formal agreement |
|
2. advisory panel of specialists |
participation in panel |
participation in panel |
IUCN and independent experts to participate in panel |
MoU |
|
3. advisory panel of FMO(s) |
participation in panel |
participation in panel |
none |
MoU |
|
4. advisory panel of FMO(s) under FAO co-ordination |
co-ordination of panel |
participation in panel |
none |
MoU |
|
5. FAO providing advice to CITES |
creation of a P-4 post |
consulted by FAO |
independent experts to be consulted by FAO |
MoU |
1 Held in Rome, Italy, from 28 to 30 June 2000.
2 See Report of the First Technical Consultation on the Suitability of CITES Criteria for Listing Commercially-exploited Aquatic Species -document FIRM/R629(Tri)- Annex E "Recommendations to the Twenty-fourth Session of the Committee on Fisheries"- I. Recommendations regarding criteria.
3 See Report of the First Technical Consultation on the Suitability of CITES Criteria for Listing Commercially-exploited Aquatic Species -document FIRM/R629(Tri)- Annex E "Recommendations to the Twenty-fourth Session of the Committee on Fisheries"- II. Recommendations regarding the process.
4 See Report of the First Technical Consultation on the Suitability of CITES Criteria for Listing Commercially-exploited Aquatic Species -document FIRM/R629(Tri)- Annex E "Recommendations to the Twenty-fourth Session of the Committee on Fisheries"- II. Recommendations regarding the process.
5 Held in Rome, Italy, from 26 February to 2 March 2001.
6 See paragraph 68 of the Report of the Twenty-fourth session of the Committee on Fisheries (document CL 120/7).
7 Held in Windhoek, Namibia, from 22 to 25 October 2001.
8 Paragraph 6 of An analysis of the CITES listing criteria as applied to commercially exploited aquatic species (doc. COFI:FT/VIII/2002/3).
10 CoP 12 will meet in Santiago, Chile, from 11 to 15 November 2002.
11 See paragraph 32 of the Report of the First Technical Consultation on the Suitability of CITES Criteria for Listing Commercially-exploited Aquatic Species -document FIRM/R629(Tri)- Annex E "Discussion on criteria for listing under appendix II B) under article II paragraph 2 B".
12 According to Resolution 9.6, "the term 'readily recognisable part or derivative', as used in the Convention, shall be interpreted to include any specimen which appears from an accompanying document, the packaging or a mark or label, or from any other circumstances, to be a part or derivative of an animal or plant of a species included in the Appendices, unless such part or derivative is specifically exempted from the provisions of the Convention."
13 See paragraph 32 of the Report of the First Technical Consultation on the Suitability of CITES Criteria for Listing Commercially-exploited Aquatic Species -document FIRM/R629(Tri)- Annex E "Discussion on criteria for listing under appendix II B) under article II paragraph 2 B".
14 Further information on the traceability of fisheries products may be found on the discussion paper Traceability of products from fisheries and aquaculture (COFI:FT/VIII/2002/7).
15 Articles I(1) and XIII(1) of the General Agreement on Tariffs and Trade (GATT).
16 The original formulation of Resolution 9.24 uses the wording "continental".
17 See paragraph 38 of the Report of the First Technical Consultation on the Suitability of CITES Criteria for Listing Commercially-exploited Aquatic Species -document FIRM/R629(Tri) and paragraph 20 of the Report of the Second Technical Consultation on the Suitability of CITES Criteria for Listing Commercially-exploited Aquatic Species (in press).
18 Allowed according to Article XIV.1(a) of CITES.
19 Resolution 10.2 "Permits and certificates" establishes standard CITES documentation with the exception of the "introduction from the sea" certificate.
20 Paragraph 65 of the Report of the Twenty-fourth session of the Committee on Fisheries (document CL 120/7).
21 Paragraph 66 of the Report of the Twenty-fourth session of the Committee on Fisheries (document CL 120/7).
22 See chapter 5 of paper A Background Analysis and Framework For Evaluating the Status of Commercially-Exploited Aquatic Species in a CITES Context (FI:SLC2/2001/2).
23 See Process for Scientific Evaluation, paragraphs 26 to 29 of the Report of the Second Technical Consultation on the Suitability of CITES Criteria for Listing Commercially-exploited Aquatic Species (in press).