THE FUTURE OF CITIES:
CREATING LISTING CRITERIA FOR KEYSTONE SPECIES
Annie M. Horner
I. INTRODUCTION
Despite treaties and other legislation, illegal trade in wildlife and wildlife parts continues
to thrive around the world.1 A recent estimate suggests that illegal wildlife trade is worth ten
billion dollars annually.2 While efforts have been made to halt this illegal trade, additional
attempts must be made to address this global concern.3 The Convention on International Trade
in Endangered Species of Wild Fauna and Flora (CITES) governs international trade in wildlife.4
Although CITES provides a framework for protection of many species, changes must be made to
adequately protect certain species.5
This comment considers the functionality of CITES in protecting endangered species of
plants and animals.6 More specifically, this comment will discuss the history and organization of
1
United States Announces Global Coalition, Including Nonstate Parties, Against Wildlife Trafficking, 100(2) THE
AMERICAN JOURNAL OF INTERNATIONAL LAW 466, 466 (2006).
2
Id. Only illegal trade in arms and drug smuggling surpasses the amount of illegal wildlife trade. The Coalition
Against Wildlife Trafficking: Partners in the Fight Against Illegal Wildlife Trade (September 19, 2006), available at
http://www.state.gov/r/pa/scp/2006/72926.htm.
3
Id. For example,
In July 2005, at the initiative of the United States, G-8 Leaders recognized the devastating effects
of illegal logging on wildlife and committed to help countries enforce laws to combat wildlife
trafficking. The Coalition on Wildlife Trafficking will focus its initial efforts on Asia, a major supplier of black market wildlife and wildlife parts to the world.
Id.
4
See generally infra Part II.
5
See generally infra Part IV.B.II.
6
See generally infra Parts II, III, and IV.
CITES in Part II.7 Part III will consider the weaknesses and other concerns with the Convention
and Parties to the Convention.8 Finally, Part IV suggests that a special focus be placed on the
protection of keystone species.9
II. BACKGROUND OF CITES
Concern for endangered species of flora and fauna has not always been prevalent around
the world.10 Nevertheless, in the 1960s, international discussion of conservation in wildlife trade
led to the beginnings of CITES.11 In 1963, members of the World Conservation Union drafted a
resolution that ultimately resulted in CITES.12 Parties to the Convention agreed on the text in
1973, and the treaty went into force in July of 1975.13 Currently, 173 countries are members of
CITES.14 The CITES preamble states:
The Contracting States, Recognizing that wild fauna and flora in their many
beautiful and varied forms are an irreplaceable part of the natural systems of the
earth which must be protected for this and the generations to come; Conscious of
the ever-growing value of wild fauna and flora from aesthetic, scientific, cultural,
recreational and economic points of view; Recognizing that peoples and States are
and should be the best protectors of their own wild fauna and flora; Recognizing,
in addition, that international co-operation is essential for the protection of certain
species of wild fauna and flora against over-exploitation through international
7
See infra Part II.
8
See infra Part III.
9
See infra Part IV.
Convention on International Trade in Endangered Species of Wild Fauna and Flora, “What is CITES?”
http://www.cites.org/eng/disc/what.shtml.
10
11
Id.
12
Id.
Id. Eighty countries met in Washington, D.C. on March 3, 1973 to agree on the Convention text. Id. “The
original of the Convention was deposited with the Depositary Government in the Chinese, English, French, Russian
and Spanish languages, each version being equally authentic.” Id.
13
14
Id. Membership in CITES is voluntary. Id. Oman joined CITES as the 173rd Party on March 19, 2008.
Convention on International Trade in Endangered Species of Wild Fauna and Flora, “New Party to CITES,”
http://www.cites.org/eng/news/party/oman.shtml.
2
trade; Convinced of the urgency of taking appropriate measures to this end; Have
agreed as follows [to the Articles.]15
Conflicting conservationist and preservationist tones exist in the preamble to the
Convention.16
A. CITES APPENDICES I, II AND III
Article I of the CITES text provides definitions for the Convention.17 Following
the definitions, Article II discusses the fundamental principles of the Convention.18 More
specifically, Article II sets out the organization of the three Appendices of CITES.19
Article III sets out the regulation of trade for species in Appendix I, Article IV sets out
regulations for Appendix II, and Article V sets out regulations for Appendix III.20 “A
specimen of a CITES-listed species may be imported into or exported (or re-exported)
from a State party to the Convention only if the appropriate documentation has been
obtained and presented for clearance at the port of entry or exit.”21
15
Convention on International Trade in Endangered Species of Wild Fauna and Flora, pmbl., Mar. 3, 1973, 27
U.S.T. 1087, 993 U.N.T.S. 234, available at http://www.cites.org/eng/disc/text.shtml#texttop [hereinafter “CITES”].
16
Saskia Young, Contemporary Issues of the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) and the Debate over Sustainable Use, 14 COLO. J. INT'L ENVTL. L. & POL'Y 167, 168
(2003). “The text of CITES does not embrace one singular philosophy, preservationist or conservationist, in its
approach to protecting endangered species from international wildlife trade. [FN11] In this manner, the CITES text
allows the Parties to argue which method is the most desirable to achieve the goal of wildlife protection.” Id. at 16869.
17
See CITES, supra note 15 at art. I.
18
Id.
19
Id.
20
Id.
Convention on International Trade in Endangered Species of Wild Fauna and Flora, “How CITES Works,”
http://www.cites.org/eng/disc/how.shtml.
21
3
Species protected under CITES receive Appendix I, Appendix II, or Appendix III
status.22 Appendix I provides the strictest protection for the species of flora and fauna
threatened with extinction; these species may only be traded in very rare situations.23
Species of flora and fauna in Appendix II may not be near extinction but need trade
regulation to ensure that trade does not threaten each species’ survival.24 Appendix III
species are protected when one or more countries requests that CITES assist in regulating
trade of a particular species.25
According to the Convention text, “Appendix I shall include all species threatened
with extinction which are or may be affected by trade.”26 Trade in species protected by
22
Id.
Appendix I includes species threatened with extinction. Trade in specimens of these species is
permitted only in exceptional circumstances. Appendix II includes species not necessarily
threatened with extinction, but in which trade must be controlled in order to avoid utilization
incompatible with their survival. This Appendix contains species that are protected in at least one
country, which has asked other CITES Parties for assistance in controlling the trade. Changes to
Appendix III follow a distinct procedure from changes to Appendices I and II, as each Party’s is
entitled to make unilateral amendments to it.
See CITES, supra note 15 at art. II; Convention on International Trade in Endangered Species of Wild
Fauna and Flora, “How CITES Works,” http://www.cites.org/eng/disc/how.shtml.
23
See CITES, supra note 15 at art. I. Species protected by Appendix I include the red panda (Ailurus fulgens), many
species of whales, Laelia lobata and other species of orchids, non-domesticated chinchillas and many other species.
Convention on International Trade in Endangered Species of Wild Fauna and Flora, Appendices I, II and III,
http://www.cites.org/eng/app/appendices.shtml.
Convention on International Trade in Endangered Species of Wild Fauna and Flora, “How CITES Works,”
http://www.cites.org/eng/disc/how.shtml. Appendix II includes species such as the queen conch (Strombus gigas),
the Chinese cobra (Naja atra), the great white shark (Carcharodon carcharias), and fire corals (Milleporidae spp.).
Convention on International Trade in Endangered Species of Wild Fauna and Flora, Appendices I, II and III,
http://www.cites.org/eng/app/appendices.shtml.
24
Convention on International Trade in Endangered Species of Wild Fauna and Flora, “How CITES Works,”
http://www.cites.org/eng/disc/how.shtml. Appendix III species include the Indian grey mongoose in India
(Herpestes edwardsi ), walrus in Canada (Odobenus rosmarus), the two-toed sloth in Costa Rica (Choloepus
hoffmanni), and poppies in Nepal (Meconopsis regia). Convention on International Trade in Endangered Species of
Wild Fauna and Flora, Appendices I, II and III, http://www.cites.org/eng/app/appendices.shtml.
25
26
See CITES, supra note 15 at art. II. Animals protected under Appendix I include specimens both living and dead,
“readily recognizable parts and derivatives of species.” Id. at Art. I. See also Randi E. Alarcon, The Convention on
International Trade in Endangered Species: The difficulty in Enforcing CITES and the United States Solution to
Hindering the Illegal Trade of Endangered Species, 14 N.Y. INT’L L. REV. 105, 109 (2001).
4
Appendix I requires a prior grant and an export permit, an import permit or a re-export
permit.27 CITES only permits trade in Appendix I species in exceptional circumstances
and for strictly non-commercial purposes.28 Listing of a species in Appendix I bans all
commercial trade of that protected species.29
Species listed in Appendix II typically do not require the same level of protection
as Appendix I species.30 Appendix II species, however, do need trade restrictions in
order to maintain population levels.31 Regulation of Appendix II species occurs under the
permit system.32 Trade is permissible with a valid permit and the approval of the
exporting country’s scientific authority.33 No import requirement is required for trade in
Appendix II species.34 If the Scientific Authority of the country determines that trade in
27
See CITES, supra note 15 at art. III. An export permit is only issued if both the Scientific and Management
Authority of the country satisfy certain requirements. Id. For example, the country must prove that the export of the
Appendix I species “will not be detrimental to the survival of that species,” and that the species “was not obtained in
contravention of the laws of that State for the protection of fauna and flora .” Id. Import in Appendix I species is
only allowed if trade will be not harmful to the species, “the proposed recipient of a living specimen is suitably
equipped to house and care for it[,]” and “specimen is not to be used for primarily commercial purposes.” Id.
28
Mario Del Baglivo, CITES at the Crossroad: New Ivory Sales and Sleeping Giants, 14 Fordham Envtl. L.J. 279,
288 (2003). Exceptions include household specimens, scientific specimens, species bred in captivity, and traveling
exhibitions. Note, The CITES Fort Lauderdale Criteria: The Uses and Limits of Science in International
Conservation Decision Making, 114 HARV. L.R. 1769, 1774 n.34 (2001) [hereinafter “Fort Lauderdale Criteria”].
29
Fort Lauderdale Criteria, supra note 28 at 1774.
Convention on International Trade in Endangered Species of Wild Fauna and Flora, “How CITES Works,”
http://www.cites.org/eng/disc/how.shtml.
30
31
Id.
32
See Del Baglivo, supra note 28 at 288.
33
Fort Lauderdale Criteria, supra note 28 at 1774
34
See CITES, supra note 15, art. IV; Note, Elisabeth M. McOmber, Problems in Enforcement of the Convention on
International Trade in Endangered Species, 27 BROOK. J. INT’L L. 673, 680-81 (2002).
5
the species in question must reduced, the Management Authority may limit the number of
export permits.35
Unlike species listed in Appendices I and II, Appendix III species are protected
mainly by the country of origin.36 Also unlike Appendices I and II, Appendix III has no
requirement that the export of the species must not be harmful to the survival of the
species.37 However, an exporting permit and a certificate of origin are both required for
trade in Appendix III species.38
Every two years, the Parties to the Convention meet to review all three Appendices and to
determine what amendments must be made.39 Any extraordinary meetings may be held at the
written request of greater than one-third of the Parties.40 Amendments made to Appendices I and
II must be ratified by a two-thirds of the Parties present and voting.41 The amendments go into
force ninety days after the conference unless a Party makes a reservation to the amendment. 42
35
See CITES, supra note 15, art. IV; McOmber, supra note 34, at 681.
36
See CITES, supra note 15, art. V; Del Baglivo, supra note 28 at 289.
37
See CITES, supra note 15, art. V; McOmber, supra note 34, at 681.
38
See CITES, supra note 15, art. V; Del Baglivo, supra note 28 at 289.
39
See CITES, supra note 15, art. IX; Del Baglivo, supra note 28 at 287.
40
See CITES, supra note 15, art. IX.
At meetings, whether regular or extraordinary, the Parties shall review the implementation of the
present Convention and may: (a) make such provision as may be necessary to enable the
Secretariat to carry out its duties, and adopt financial provisions; (b) consider and adopt
amendments to Appendices I and II in accordance with Article XV; (c) review the progress made
towards the restoration and conservation of the species included in Appendices I, II and III; (d)
receive and consider any reports presented by the Secretariat or by any Party; and (e) where
appropriate, make recommendations for improving the effectiveness of the present Convention.
Id.
41
See CITES, supra note 15, art. XV; Del Baglivo, supra note 28 at 287-88.
42
See CITES, supra note 15, art. XV.
6
Although the Parties enter CITES voluntarily, each Party remains legally bound to the
Convention under international law.43
III. CITES CONCERNS
While CITES may be considered “the most important legal document to promote
protection of wildlife to date. . . ,” the Convention has many weaknesses.44 Concerns include the
conflicting tones of the CITES document itself, lack of cohesion between Parties, enforcement
problems, and conflicting Party motivations.45 The conflicting conservationist and
preservationist tones of CITES cause many debates regarding the effectiveness of CITES.46
Conservationists argue that through sustainable use, Parties to CITES will be able to maintain the
economic benefit of species while still protecting threatened species.47 Alternatively,
preservationists contend that complete trade bans best protect threatened species, with the focus
on the inherent value of the species.48
A. CONSERVATION/SUSTAINABLE USE
One of the most persuasive arguments for sustainable use is that trade bans increase the
market for banned goods.49 When complete trade bans are placed on certain species, poachers
43
See Del Baglivo, supra note 28 at 287.
44
Comment, Dianne M. Kueck, Using International Political Agreements to Protect Endangered Species: A
Proposed Model, 2 U. Chi. L. Sch. Roundtable 345, 347 (1995)(internal citations removed).
45
See Alarcon, supra note 26 at 113-15; Young, supra note 16 at 171-86.
46
Young, supra note 16 at 182.
47
Id.
48
Id.
Call of the wild - Trade bans and conservation; Wildlife trade, THE ECONOMIST, March 8, 2008 [hereinafter “Call
of the Wild”]; see Fort Lauderdale Criteria, supra note 28 at 1777.
49
7
receive much higher prices for that species.50 Additionally, trade bans are often ineffective in
halting illegal trade.51 Multiple examples of unsuccessful trade bans question the effectiveness
of complete trade bans.52
Conservationists often cite the ban of trade in ivory to support the sustainable use
argument.53 CITES listed the African Elephant on Appendix II from 1977 to 1990.54 However,
many African countries simply ignored the regulations under Appendix II and rarely prosecuted
ivory traders for illegal trade.55 In 1990, Parties to CITES moved the African Elephant from
Appendix II to Appendix I, placing a complete trade ban on all ivory goods.56 While the
complete ban has greatly increased the elephant populations,57 trade in ivory goods continues.58
Conservationists argue that the benefits of complete trade bans do not outweigh the downfalls.59
50
Call of the Wild, supra note 49.
51
Del Baglivo, supra note 28 at 291
52
Id.
53
Call of the Wild, supra note 49.
A sharp increase in ivory seizures in recent years also points to a flourishing trade. Meanwhile,
rising wealth in Asia is raising the returns from poaching. Prices have leapt from $200 a kilo in
2004 to $850-900. New ivory is appearing: you can encase your mobile phone in it if you like.
Some scientists think poaching may be as prevalent as it was before the original ban. The ivory
ban is frequently held up as a prime exhibit for CITES, which many conservationists consider a
highly successful agreement. Elephant numbers, according to figures from the International Union
for the Conservation of Nature, have been rising by 4% a year in the well-protected populations of
southern and east Africa, but in central and west Africa no one knows what is going on.
Id.
54
Del Baglivo, supra note 28 at 292.
55
Id.
56
Id.
57
Id.
Call of the Wild, supra note 49. San Francisco’s Chinatown is an example of the continuing trade in ivory. Id.
”Up a steep hill, the cheap souvenirs give way to more exotic wares: antique figures carved in the Japanese netsuke
style, statues of monkeys and roosters, delicate earrings and necklaces. They are ivory. There are lots of them. And
they shouldn't be there.” Id.
58
8
Another conservationist argument contends that the economic returns associated with
sustainable use give the Parties an incentive to work with CITES.60 Many countries that are
Parties to CITES do not enjoy the same economic stability as the United States or other
developed nations.61 Allowing sustainable use of threatened species gives these nations “a way
of achieving economic return for expensive conservation efforts.”62 This economic return allows
developing nations the opportunity to create jobs related to conservation, while maintaining the
species populations.63
Sustainable use also provides a suitable compromise between species protection and the
needs of the humans in the area.64 For example, African nations often view elephants as
dangerous and destructive animals.65 Allowing the nations to gain economic benefit from the
trade of elephants gives the nations more reason to protect elephants at the same time.66
59
See Young, supra note 16 at 183-84. Complete trade bans have yet to be proven as the most effective means of
species protection. Call of the Wild, supra note 49.
The only certainty is that the official figures do not reflect the extent of poaching. A huge haul of
ivory in 2002, the result of the slaughter of between 3,000 and 6,500 beasts, probably came largely
from elephants in Zambia. Yet Zambia had reported the illegal killing of only 135 animals in the
previous ten years.
Call of the Wild, supra note 49.
60
Young, supra note 16 at 182.
61
Id.
62
Id. at 183.
63
Id. at 184.
64
Id.
65
Id.
This debate about effectiveness and outcomes has been paralleled by a debate about the
philosophical justification for the protection of particular species. Many inhabitants of Western
nations regard elephants as “intelligent, awe inspiring beasts” --organisms of great aesthetic and
intrinsic value. Many people in the African range states instead see elephants at best as a potential
source of hard currency from ivory sales, or at worst as “dangerous killers and destroyers of
property.”
Fort Lauderdale Criteria, supra note 28 at 1777 (internal citations omitted). A herd of elephants can be extremely
dangerous to villages, trampling crops and harming people. Id.
9
B. PRESERVATION/TRADE BANS
Preservationists, on the other hand, argue that sustainable use cannot be enforced at an
international level.67 Supporters of complete trade bans contend that sustainable use undermines
the intent of CITES.68 CITES adopted the precautionary principle to protect threatened
species.69 “The precautionary principle ensures that a substance or activity posing a threat to the
environment is prevented from adversely affecting the environment, even if there is no
conclusive scientific proof linking that particular substance or activity to environmental
damage.”70 This principle ensures that species receive the adequate level of protection under
CITES, even if scientific data does not prove that the species must be protected.71 Sustainable
use undermines the precautionary principle, a fundamental principle of CITES.72
In addition, preservationists contend that sustainable use may not be sustainable in fact.73
Gathering scientific data is both costly and difficult, especially for developing nations.74 If no
timely, reliable studies are available, a species may face over-exploitation from use that is not
truly sustainable.75 Countries often forgo expensive studies due to economic pressures.76 Also,
66
Id.
67
Id.; see also Call of the Wild, supra note 49.
68
Young, supra note 16 at 185.
69
Id.
70
David Favre, Debate within the CITES Community: What Direction for the Future? 33 NAT. RESOURCES J. 875,
894 (1993) (quoting J. Cameron & J. Abouchar, The Precautionary Principle: A Fundamental Principle of Law and
Policy for the Protection of the Global Environment, 14 B.C. INT'L & COMP. L. REV. 1, 2 (1991).
71
Young, supra note 16 at 185.
72
Id.
73
Id.
74
Id.
75
Id.
10
preservationists believe that the focus on the use of each species detracts from the inherent value
of a species.77 If countries simply focus on the uses of each species, animals with no important
use may be ignored.78
Past trade bans have been successful in protecting threatened species, particularly
severely threatened species.79 “Exports of wild birds from four of the five leading bird-exporting
countries decreased by more than two-thirds between the late 1980s and the late 1990s as a result
of CITES-related trade measures, including an American import ban. Tanzania went from
exporting 38,000 birds in 1989 to ten a decade later.”80 However, not all trade bans have
effectively stopped trade in threatened species.81 Successful trade bans typically are coupled
with an advertising campaign designed to destroy demand.82
C. ADDITIONAL CITES CONCERNS
In addition to the conflicting conservationist and preservationist tones of CITES, other
problems with the application and enforcement of CITES exist.83 Such problems include: the
lack of cohesion between the parties, enforcement concerns, conflicting party motivations, and
76
Id.
77
Id.
78
Id.
79
Call of the Wild, supra note 49.
80
Id.
81
Id.
82
Id.
83
Young, supra note 16 at 173.
11
textual loopholes.84 These concerns highlight the lack of uniformity between the Parties to
CITES.85
1. Lack of Cohesion between Parties
The lack of uniformity between the Parties to CITES often causes problems.86
Originally, CITES allowed the Parties to utilize different means to implement the treaty as a
solution to the differences between the Parties.87 The United States, for example, enacted the
Endangered Species ACT (ESA) in 1973 in response to CITES and other international treaties.88
African countries developed a task force in 1994 to apply CITES among the nations.89 Other
countries only make small changes to previous policies in order to comply with CITES.90 A
serious lack of cohesion between Parties to CITES occurs in enforcing the CITES provisions.91
2. Enforcement Concerns
With no centralized enforcement, each CITES Party controls enforcement of the treaty
within that country.92 The lack of uniform enforcement puts the success of CITES into the hands
of the Parties.93 “[The] tension between state sovereignty and the need for international
84
Id. at 173-82; Note, Ruth A. Braun, Lions, Tigers and Bears [Oh My]: How to Stop Endangered Species Crime,
11 Fordham Envtl. L.J. 545, 564-73 (2000).
85
See Young, supra note 16 at 173-82.
86
Braun, supra note 84 at 564-65.
87
Id.
88
Id. at 565.
89
Id. at 570.
90
Id. at 568-70. For example, Japan has taken many reservations on specific species. Id. at 568-69. The
reservations allow Japanese trade in species that would otherwise be illegal to trade. Id.
91
Young, supra note 16 at 174.
92
Id.
12
environmental initiatives is often a barrier to enforcement of international environmental laws.”94
Maintaining the sovereignty of each Party to CITES is crucial to its success, but some
consistency is needed also.95 Unfortunately, monitoring species between Parties causes
problems when the parties have differing motivations.96 Few countries are willing surrender to
the provisions of CITES if the provisions do not suit the country’s objectives.97
3. Conflicting Party Motivations
The many Parties to CITES all have different motivations behind protecting threatened
species of plants and animals.98 Some countries recognize animal rights to life and the aesthetic
value of animals, while other countries focus on animals as a resource for economic gain.99
Developing countries will be unlikely to sacrifice economic growth to protect threatened
species.100 Beyond the reality of enforcement, human rights to food and livelihood outweigh the
protection of threatened species.101 “The combination of severe poverty with the potential to
make vast profits by trading products made from endangered species has prompted many
93
Id.
94
Alarcon, supra note 26 at 115-16.
95
Id. at 116. Species of plants and animals do not remain within the borders of one country. Id. For this reason,
species need monitoring beyond political boundaries. Id.
96
Id.
97
Id.
98
Id.
Young, supra note 16 at 173. “The CITES community represents a diversity of views concerning wildlife with
the reflection of most of the world's ‘political, ethical, religious and cultural differences’ provided by the
governments and nongovernmental organizations (NGOs) in attendance at a Conference of the Parties.” Id. (internal
citations omitted).
99
100
Alarcon, supra note 26 at 117.
101
Id.
13
government officials to look the other way rather than enforcing the provisions of CITES.”102
The text of CITES does not little to stand in the way of Parties who fail to enforce CITES. 103
4. Textual Loopholes
The CITES document protects many species of flora and fauna, but the document also
contains serious loopholes to total protection.104 The most serious lacking in the text of CITES is
that no central enforcement agency exists.105 Although each Party’s sovereignty must be
considered, CITES mandates no uniformity between the 173 Parties to the treaty.106 The
voluntary nature of the convention does not sanction Parties for failure to comply with CITES.107
In addition, Article I to CITES allows any Party may take a reservation to a protected species. 108
A reservation essentially permits that country to continue trade in that species regardless of
CITES protection.109
IV. SUGGESTIONS FOR THE FUTURE
In the more than thirty years since the enactment of CITES, the Parties have periodically
considered the effectiveness of the convention.110 This periodic survey has improved the success
102
Id.
103
Id.
104
Id. at 114.
105
See id.
106
Id.
107
Id. at 115.
108
Young, supra note 16 at 178.
109
Id.
Convention on International Trade in Endangered Species of Wild Fauna and Flora, “Resolutions,”
http://www.cites.org/eng/res/14/14-02.shtml.
110
14
of the treaty by changing the manner in which species are listed.111 The original convention did
not provide specific listing criteria.112 The first Conference of Parties (CoP1) in Berne,
Switzerland set the listing criteria, the “Berne Criteria,” “to use a combination of biological and
trade factors as guidelines for determining in which appendix a species should be listed.”113
While the Berne Criteria did provide some guidance in listing, the criteria allowed too much
flexibility.114
A. PREVIOUS SOLUTIONS
Since CoP1 in Berne, the Parties to CITES have attempted to further clarify the listing
criteria.115 At CoP9, the Parties developed and implemented new listing and delisting criteria as
a response to criticism.116
At ninth conference (CoP9), in Fort Lauderdale, Florida, the Parties reevaluated the
listing criteria for CITES.117 The listing and delisting criteria was changed to a more scientific
method.118
111
Young, supra note 16 at 177.
112
Id.
113
John L. Garrison, The Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) and the Debate over Sustainable Use, 12 PACE ENVTL. L. REV. 301, 312-13 (1994) (internal citations
removed). Under the Berne Criteria, “[f]or a species to be listed in Appendix I, biological evidence had to suggest
that the species was ‘currently threatened with extinction.’ The Berne Criteria provided that the appropriate
biological indicators included population size and geographic range. The strength of the biological evidence
required depended on the available evidence concerning trade in the species.” Fort Lauderdale Criteria, supra note
28 at 1775 (internal citations removed). “For Appendix II listings, the same kind of biological evidence used for
Appendix I listings had to show that a species ‘might become’ threatened with extinction. However, there had to be
stronger evidence of trade than that required for Appendix I listings.” Fort Lauderdale Criteria, supra note 28 at
1775 (internal citations removed).
Young, supra note 16 at 177. “The flexibility inherent in these criteria was criticized for making the listing
process an inherently subjective one, relying on a Party's values, interests and policies to make a decision.” Id.
114
115
Id.
116
Id. at 188.
15
The [Fort Lauderdale Criteria] changed the Berne Criteria in four key respects.
First, the [Fort Lauderdale Criteria] included specific quantitative guidelines for
the placement of species in each appendix. Second, the [Fort Lauderdale Criteria]
were predominantly based on biology rather than on trade status. Third, the [Fort
Lauderdale Criteria] recommended that the parties “downlist” Appendix I species
that failed to meet the new quantitative criteria. Finally, the [Fort Lauderdale
Criteria] allowed “split-listing,” or the simultaneous listing of one population of a
species in Appendix I and another population of the same species in Appendix
II.119
The new method of listing also specified that a species should be listed in Appendix I of
CITES if trade may affect the species, and the species fits one of four biological
categories.120 Downlisting of a species from Appendix I to Appendix II occurs if the
species fits into one of the four categories “in the near future.”121
In addition to developing the new criteria for listing species in CITES, the Fort
Lauderdale Convention also reconsidered the definitions listed within CITES.122 The Fort
Lauderdale Convention added numerical guidelines to the definitions.123 These quantitative
guidelines made the Fort Lauderdale Criteria more scientific than the previous criteria.124 Since
117
Id.
118
Id.
119
Fort Lauderdale Criteria, supra note 28 at 1779 (internal citations removed).
Id. at 1779-80. The four biological categories include: “that the wild population is small; that the population has
a restricted area of distribution; that the population is declining; and that, but for inclusion in Appendix I, the species
will satisfy one or more of the previous criteria within five years.” Id.
120
121
Id. at 1780.
122
Id.
Id. For example, “[t]he guideline for ‘restricted area of distribution’ is ten thousand square kilometers; for
‘decline’ it is a decrease of fifty percent or more within five years or two generations; and for ‘small wild
population’ it is fewer than five thousand individuals.” Id.
123
124
Id. at 1781.
16
CoP9 in Fort Lauderdale, subsequent conventions have considered the effectiveness of the new
criteria.125
At CoP11 in Gigiri, Kenya, the Parties created the “Strategic Vision through 2005.”126 In
2004 at CoP13, the Parties extended the Strategic Vision to 2013.127 The first purpose of the
Strategic Vision is “to improve the working of the Convention, so that international trade in wild
fauna and flora is conducted at sustainable levels.”128 The second purpose is “to ensure that
CITES policy developments are mutually supportive of international environmental priorities
and take into account new international initiatives, consistent with the terms of the
Convention.”129 The Strategic Vision helped the Parties to determine the direction of the treaty
and sets specific goals.130
At the most recent conference, CoP13, in the Hague in the Netherlands, the Parties
determined the specifics for the current Strategic Vision.131 The Parties intend to focus on issues
such as considering the “cultural, social and economic factors” related to conversation of species,
“promoting transparency and wider involvement of civil society in the development of
conservation policies and practices,” and ascertaining that all Parties use approaches “based on
scientific evidence is taken to address any species of wild fauna and flora subject to
Convention on International Trade in Endangered Species of Wild Fauna and Flora, “Resolutions,”
http://www.cites.org/eng/res/14/14-02.shtml.
125
126
Id.
127
Id.
128
Id.
129
Id.
130
Id.
131
Id.
17
unsustainable international trade.”132 The focus of the vision statement is to expand the current
strengths of CITES while ensuring that all Parties follow the regulations set forth in the treaty.133
B. KEYSTONE SPECIES FOCUS
While the past modifications to CITES have increased its effectiveness, additional
changes must be made.134 The Fort Lauderdale Criteria provided much needed guidance in the
listing and delisting species.135 Further modifications must be made to the criteria to protect
species in the future.136
1. Importance of Keystone Species
A keystone species prevents other species from monopolizing an area, and, therefore,
maintains the diversity of all species in the area.137 The current Fort Lauderdale criteria do not
protect animals or plants based on the significance of that species in the ecosystem.138 Because
of the importance of keystone species in different ecosystems, the Parties to CITES must take
special notice of keystone species.139
132
Id.
133
Id.
134
See Young, supra note 16 at 188.
135
Young, supra note 16 at 188.
136
See id.
137
Robert T. Paine, Food Web Complexity and Species Diversity, 100(910) The American Naturalist 65, 73 (1966),
http://www.jstor.org/stable/2459379. “Ecologists have learned that certain ‘keystone’ species perform unique and
critical roles, and their loss results in a drastic change to the ecosystem. Other species appear to be redundant, in that
their roles are shared with others in the system, and the loss of any one appears to have no short-term impact.”
Karla, Alderman, The big picture, UNESCO Sources, (July/August 1994) Issue 60.
138
Young, supra note 16 at 188.
139
Paine, supra note 137 at 73.
18
The idea of “keystone species” traces to Charles Darwin’s comparisons of types of
grasses.140 Since Darwin, many other scientists have researched keystone species and the affects
of such species on surrounding species.141 Dr. Robert T. Paine, a well-known zoologist, coined
the term keystone species in the late 1960s.142 Studies of keystone species such as sea otters,
fish, and wolves have shown the importance of each species in its respective ecosystem.143
Typically, starfish are recognized as the prime example of a keystone species.144 Keystone
species have particular importance in the adjacent food web.145
As a food web member, a keystone species helps to ensure that an ecosystem will remain
diverse.146 Studies of marine ecosystems have demonstrated that removal of the top predator
causes the ecosystem to lose species diversity.147 Dr. Paine’s studies of keystone species focused
on “species of high trophic status whose activities exert a disproportionate influence on the
pattern of species diversity in a community.”148 In Paine’s research, the presence of the
carnivorous seastar (Pisaster ochraceus), maintained prey species diversity in an intertidal
140
Robert T. Paine, A Conversation on Refining the Concept of Keystone Species, 9 CONSERVATION BIOLOGY 962,
962 (Aug. 1995) [hereinafter “Paine II”].
141
Id.
142
R.D. Davic, Linking keystone species and functional groups: a new operational definition of the keystone species
concept, CONSERVATION ECOLOGY 7(1) (2003) http://www.consecol.org/vol7/iss1/resp11/.
143
Paine II, supra note 140 at 962. Even the prairie grass, Big Bluestem (Andropogon gerardii) is considered a
keystone species in its ecosystem. Marty Ross, Banking on the Future, HORTICULTURE,
144
Id. at 963. See infra note 140.
145
Paine, supra note 137 at 71.
Id. “The metaphor that [keystone species] are similar to the keystone of an arch is valid, because both species
and stone derive their functional importance to the system as a whole from bidirectional interactions with lower
energy levels.” Id.
146
Id. “When the top predator is artificially removed or naturally absent . . . , the systems converge toward
simplicity.” Id.
147
148
Davic, supra note 142.
19
habitat.149 The keystone species in the study prevented monopolization of important ecosystem
resources by a single species.150 This idea of a keystone species focuses on the food web
interactions from “top-down regulation.”151
The diversity of an ecosystem provides many important services to all species in the
ecosystem and to humans.152 Increased biodiversity of an ecosystem typically leads to increased
productivity of the ecosystem.153 Ecosystems with higher diversity also utilize ecosystem
resources better than ecosystems with low diversity.154
Ecosystems not only supply the food and habitat to resident species, but also produce
“food, fiber, and medicine.”155 In addition, ecosystems provide services that most people do not
realize.156 Wetlands and other ecosystems preserve water quality and prevent flooding.157 Other
149
Id.
150
Id. (internal citations removed).
Id. Paine’s concept of keystone species includes only predator species. Id. Other studies have considered the
idea of keystone species of “prey, competitors, mutualists, dispersers, pollinators, earth-movers, habitat modifiers,
engineers, hosts, processors, plant resources, dominant trees,” and many others. Id.
151
Alderman, supra note 128. “Ecosystems are geographically defined groups of organisms along with their
physical surroundings. In a simplified ecosystem, plants convert sunshine into food, predators eat the plant-eaters,
and microorganisms process dead matter into soil.” Id.
152
153
Owen L. Petchey, Species Diversity, Species Extinction, and Ecosystem Function, 155(5) THE AMERICAN
NATURALIST 696, 696 (2000).
154
Id.
155
Alderman, supra note 128.
156
Id.
157
Id.
Wetland ecosystems (swamps, marshes, etc.) absorb and recycle essential nutrients, treat sewage,
and cleanse wastes. In estuaries, molluscs remove nutrients from the water, helping to prevent
nutrient over-enrichment and its attendant problems, such as eutrophication arising from fertilizer
run-off. Trees and forest soils purify water as it flows through forest ecosystems. In preventing
soils from being washed away, forests also prevent the harmful siltation of rivers and reservoirs
that may arise from erosion and landslides.
20
services include climate stabilization, pest control, and income generation.158 Diverse
ecosystems also have inherent aesthetic value.159 Unfortunately, humans typically do not realize
the importance and value of these types of ecosystem services until the services are no longer
available.160
Biologists do not fully understand the link between biodiversity and ecosystem health.161
However, decades of studies have shown that the loss of a keystone species in an ecosystem
leads to dramatic changes in the ecosystem.162 Because keystone species plays a special role in
the ecosystem, the removed of such a species leads to serious ecosystem changes.163 Keystone
species are not “redundant” species, meaning that keystone species do not perform the same
services as another species in the ecosystem.164 Because no other species have the same role as
the keystone species in the ecosystem, the loss of a keystone species has long-term impacts on
the ecosystem.165
2. Protection of Keystone Species
Unfortunately, species protection often amounts to “emergency-room” conservation,
protecting only species nearing extinction.166 Due to the increased importance of keystone
The United Nations Development Programme, What is Biodiversity? available at
http://www.undp.org/biodiversity/biodiversitycd/bioImport.htm [herinafter “Biodiversity”].
158
Biodiversity, supra note 157.
159
Id.
160
Id. Unfortunately, restoring degraded ecosystems can be very difficult and costly. Id.
161
Id.
162
Id.
163
Id.
164
Id.
165
Id.
21
species, CITES and other environmental legislation must protect these species.167 Studies have
shown that keystone species play a pivotal role in ecosystem function.168 However, CITES does
not currently provide special protection for keystone species.169 The CITES listing criteria looks
to some biological factors such as the species population size but does not consider keystone
species.170
Other legislation has specially protected keystone species in the past.171 The Keystone
Species Conservation Act of 1999 aimed to provide keystone species legal protection.172 This
Act along with the Great Ape Conservation Act of 2000 went before the United States Congress
in June of 2000.173 While both acts were proposed with good intention, only the Great Ape
Conservation Act cleared Congress.174 The Keystone Species Conservation Act did not address
appropriately distinguish a keystone species from endangered or threatened species and was
tabled before enactment.175
166
L. Scott Mills et al., The Keystone-Species Concept in Ecology and Conservation, 43(4) BIOSCIENCE 219, 222
(1993).
167
Alderman, supra note 128.
168
See infra Part IV.B.1.
169
See infra Part IV.A.
170
Id.
171
Davic, supra note 142.
172
Id.
173
Testimony of Jamie Rappaport Clark, Director, U.S. Fish and Wildlife Service, Department of the Interior,
Before the House Committee on Resources, Subcommittee on Fisheries, Conservation, Wildlife and Oceans,
Regarding H.R. 4320, The Great Ape Conservation Act of 2000 and on H.R. 3407, The Keystone Species
Conservation Act of 1999 (June 20, 2000), available at
http://www.fws.gov/laws/Testimony/106th/2000/june20.htm.
174
Environmental News Network staff, A Good Week for Great Apes, CNN.com, October 26, 2000, available at
http://archives.cnn.com/2000/NATURE/10/26/great.apes.enn/.
175
Davic, supra note 142.
22
The Parties to CITES should learn from the mistakes of the Keystone Species
Conservation Act.176 CITES could amend the listing criteria for the Appendices to protect
keystone species.177 However, the listing criteria must clearly define “keystone species” to
provide adequate protection.178 If CITES takes a more proactive stance to monitor trade in
keystone species, other species will be protected as a result.179
VI. Conclusion
In the past few decades, CITES has proven at least partially successful in regulating trade
in species of wildlife. However, CITES must continue to evolve to provide species protection
into the future. Specific weaknesses, such as textual loopholes must be addressed. In addition,
the Parties to CITES must work together to bridge gaps in protection between each Party.
CITES needs to protect species before the population of a species reaches a critical level. To do
this, the criteria for protecting species must change. Research of keystone species has shown the
ecological importance of such species. Protection of keystone species by CITES would not only
protect the keystone species but would also protect other species in ecosystem of the keystone
species.
176
See id.
177
Id.
Id.; Mills, supra note 166 at 222. “Before keystone species become the centerpiece for biodiversity protection or
habitat restoration, we must be able to say what is and is not a keystone species.” Mills, supra note 166 at 222.
178
179
See generally Mills, supra note 166 at 222.
23