Some concerns about the EU position on the CITES Appendix I BlueFin Tuna proposal

The EU has determined a position that would include language, added as an annotation to the listing, that would give the Standing Committee the power to prevent the listing from coming into force if it were to be satisfied that ICCAT had fulfilled certain conditions at its November 2010 meeting.

It would then ask the depository government to prepare a proposal to remove the species from the Appendices at CoP 16. Such a proposition could do severe damage to CITES, and raises concerns as to its illegality under the Convention.

Under the treaty, it does not appear legally possible to give any body other than the Conference of the Parties the power to decide when a listing enters into force. It is very different from the sort of situation we have seen with respect to ivory sales, in which the Standing Committee has given the go-ahead for a trade to take place but has no power to determine when the annotation permitting this trade, even conditionally, enters into force. The date trade occurs (as with the elephant annotations) has nothing to do with the formal text of the Appendices, while setting a date for entry into force does. In this context, the Standing Committee is not a body that is even mentioned in the text of the Convention, but was created by Resolution, making it even less likely that it would be legal for it to be given power to determine the exact nature of an amendment to the Appendices.

 Apart from legal concerns, such an annotation would in effect shift debate on proposals out of the Meeting of the Conference of the Parties, and politicize the Standing Committee, which would in effect become even more of a mini-COP than it already is. Considering the issues at stake, the debate on this matter could well take over the meeting. Secondly, acceptance of such an annotation would set a very bad precedent for the operation of the Convention.

Similar annotations could indeed be used for any proposal to amend the Appendices. In fact it would be to the advantage of any Party to propose such an amendment for any proposal it did not support, in the hope that the last word on the matter would be made by the Standing Committee. Because meetings of the Standing Committee are attended by far fewer countries than the meeting of the Conference of the Parties, CITES decisions would become far less transparent.

Allowing an annotation of this type would destroy the benefit of any extension of the time before any proposal enters into force. The reason for extended waiting periods up to now has been to give Parties time to adjust their domestic legislation and policy to prepare for implementing the new listing. If there were no certainty as to when or even if the listing would enter into force, it is hard to imagine that any Party would take steps to alter its domestic legislation until it was certain that the listing was going to take effect. Therefore, a procedure of this sort would rob the Convention decisions of the degree of certainty, dependability and stability that are needed in order for Parties to take CITES actions seriously and implement them appropriately.

As to the second part of the proposed position, on preparation of a proposal to remove the species from the Appendices at CoP 16, this would contravene Annex 4 of Resolution Conf. 9.24, which clearly states that any species on Appendix I should not be removed from the Appendices until it has been transferred to Appendix II, with monitoring of any impact of trade on the species, for at least two intervals between meetings of the Conference of the Parties. Therefore, it would be inappropriate for the depository government to prepare a delisting proposal, rather than a proposal to transfer the species from Appendix I to Appendix II.

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