UNITED


NATIONS


Ninth Intergovernmental Meeting on the Action Plan

for the Caribbean Environment Programme and Sixth

Meeting of the Contracting Parties to the Convention for

the Protection and Development of the Marine Environment

of the Wider Caribbean Region.

Kingston, Jamaica, 14-18 February 2000

LEGAL ASSESSMENT OF “COMPATIBILITY” ISSUES BETWEEN THE PROTOCOL CONCERNING SPECIALLY PROTECTED AREAS AND WILDLIFE (SPAW) TO THE CARTAGENA CONVENTION AND THE CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES (CITES)

Legal assessment of “compatibility” issues

between the Protocol concerning Specially Protected Areas

and Wildlife (SPAW) to the Cartagena Convention

and

the Convention on International Trade in Endangered Species

(CITES)

Terms of reference for an external legal advice

Background

The CITES Secretariat is currently preparing a Memorandum of Understanding with the Secretariat of the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena, 1983) and its Protocols, including the Protocol Concerning Specially Protected Areas and Wildlife (SPAW).

In order to elaborate this MoU it is necessary to clarify some points concerning the perceived differences between the two instruments.

The key articles of the SPAW protocol related to CITES are articles 10, 11 AND 25. The full text of the Protocol can be found at the following Web site:

General Questions

  1. Could Article 25 of the SPAW Protocol be interpreted as a clause foreseeing the express primacy of the global treaty CITES, or could it be considered as a declaration of compatibility (According to Article 30, paragraph 2, of the Vienna Convention)?
  1. Which treaty has the priority of application? Would it be necessary to take into account principles such as "lex posteriori, priori derogat" or "generalibus specialia derogant”?
  1. Article XIV of CITES allows a contracting Party to adopt stricter domestic measures. Since this Article refers to the rights of Parties, would a contracting Party to SPAW be expected to develop the stricter domestic legislation required to implement its Provisions?
  1. Is SPAW a self executing Protocol (an international agreement that does not require legislative action on the part of the States for it to perform its intended function)?
  1. Under SPAW Article 28, does the word "signature" refer also to ‘acceding’ or ‘ratified’?
  1. What is the legal implication of signing the Protocol after the end of the signature period (it ended on 17 January 1991 –refer Article 28 of SPAW), but before the Protocol itself is ratifies (i.e. when 9 Parties have joined)? Are the States that are in this situation bound legally to the conditions of the Protocol or do the conditions only become binding when the Protocol itself is ratified?

Specific Questions

Article 11 of SPAW

In Article 11, paragraph 4d, the issue of a Party entering reservations is addressed. The following questions arise:

  1. If a State ratifies or accedes to SPAW (or by other modalities such as approval, acceptance or declaration of succession) after the signatory period, but before the Protocol itself is ratified (i.e. when 9 Parties have joined), does that State still have 90 days after the ratification of the Protocol to lodge reservations to the listings of species on the SPAW Annexes (refer Article 11 paragraph 4.d.)?
  1. If the SPAW Annexes only come into force when the Protocol itself comes into force (refer Article 27, paragraph 1), is it correct to assume that existing signatory Parties have 90 days from the date the Protocol comes into force, to lodge reservations under Article 11 (paragraph 4 d.)?
  1. A State that recently signed the SPAW Protocol, holds a reservation on an Appendix I listed species in CITES. This State argues that they will not need to lodge reservations under SPAW Article 11 (paragraph 4 d.) for this taxon, because they have a general exemption for this species under Article 25 of SPAW. Is it the case then that signatory Parties to SPAW do not require to register a reservation for Annex I- or II- listed taxa that they wish to trade?

Article 25 of SPAW

  1. Small cetaceans are listed on Appendix II of CITES (trade is regulated), but on Annex II of SPAW (trade or possession is prohibited). Article 25 of SPAW has been interpreted by some recent signatory Parties to SPAW to mean that they have an automatic exemption to trade small cetaceans if they choose to, because it is their right under CITES. Is it the case that Article 25 of SPAW provides specific exemptions under the Protocol?
  1. Conversely, it has been argued that a signatory Party to SPAW is not required to implement its Annex I, II, or III provisions if such taxa are not listed in the CITES Appendices! Can Article 25 be interpreted in this way?

Re:Communication from CITES Secretariat, August 1999.

Legal issues to be resolved regarding SPAW/CITES compatibility

Dear Mr Vasquez,

Further to your request, addressed to Clare Shine, ELC consultant and member of IUCN CEL, please find attached an opinion on the legal issues raised by the CITES Secretariat regarding the compatibility between CITES and the SPAW Protocol/Annexes.

This opinion is given in my personal capacity and is not provided on behalf of the IUCN Environmental Law Centre (ELC). We would like to thank Clare Shine for giving her expert opinion. Should you require advice from the Law Centre, I would suggest that you contact the Director, Charles di Leva, directly.

Concerning use of terms, all references to “Convention” should be taken to mean the Cartagena Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (24 March 1983). References to “Protocol” denote the SPAW Protocol concerning Specially Protected Areas and Wildlife adopted under the Convention (18 January 1990). References to “Annex/ Annexes” denote the Annexes to the Protocol.

I have addressed your questions in the order raised in your communication.

Article 11 of SPAW:

In Section 4d. of this article the issue of a Party entering reservations is addressed. The following questions arise:

  1. If the SPAW Annexes only come into force when the Protocol itself comes into force (refer Article 27, paragraph 1), is it correct to assume that existing signatory Parties have 90 days from the date the Protocol comes into force, to lodge reservations under Article 11 (paragraph 4 d.)?

It is not correct to make this assumption. The reservations applicable to an annex must be lodged within 90 days of the vote of the Parties concerning the Annex 11 (4.d) Protocol. It is the annex decision to which a reservation may be made, not entry into force. The “vote of the Parties” referred to in Art. 11.4.d of the Protocol is the vote on the annexes, not tied to entry into force.

Art.28.2 of the Convention lays down the procedure for the entry into force of the Protocol and its Annexes (thirtieth day following the date of deposit of the ninth instrument of ratification). Only seven instruments of ratification have been deposited to date.

Art 27.2 of the Protocol establishes an additional precondition for entry into force. It provides that the Protocol shall not enter into force until the initial Annexes have been adopted in accordance with Art.26. Under this Transitional Clause, the initial version of the Annexes must be adopted by consensus at a Conference of Plenipotentiaries of the Contracting Parties to the Convention.

The initial Annexes were adopted by a Conference of Plenipotentiaries in 1991, in accordance with the rules laid down by Art.19 of the Convention (the only article in the Convention that deals with new annexes). Pursuant to Art.19.2-3, reservations to the adoption of new Annexes must be entered within 90 days from the date on which a new annex is adopted. As far as I am aware, no reservations were entered within this 90 day period in respect of species listed in the initial Annexes.

The Art.19.2-3 adoption/amendment procedure applies unless “otherwise provided in any protocol with respect to its Annexes”. This raises the question of whether the SPAW Protocol does provide otherwise. The relevant provisions are found in Art.11.4 of the Protocol (procedures to amend the Annexes). This specifies that Parties to the Protocol may nominate a species for inclusion in or deletion from an Annex and determines how the Meeting of the Parties to the Protocol shall vote on such proposals. Under Art.11.4.d, reservations to such listing or delisting must be entered within 90 days on a vote by the Meeting of the Parties to the Protocol.

It is clear from these provisions that Art.11.4 governs the amendment of Annexes after their entry into force (emphasis added). The Meeting of the Parties (the Protocol’s decision-making body) can [only] be convened and take actions with legal effect under Art.23 [once the Protocol is in force]. A vote by the Meeting of the Parties is necessary to trigger the right to enter reservations under Art.11.4.d.

In conclusion, existing signatory Parties do not have a 90-day period following the Protocol’s entry into force in which to lodge reservations under Art.11.4.d. States that were party to the Convention in 1991 had the opportunity to enter reservations to the initial Annexes within 90 days of their adoption, in accordance with Arts.19.2-3 of the Convention. The Protocol itself does not provide a legal basis for Parties to enter reservations to the initial version of theAnnexes, adopted by consensus of all Parties to the Convention.

  1. Cuba recently signed the SPAW Protocol, yet they hold a reservation on hawksbill turtles in CITES. They argue that they will not need to lodge reservations under SPAW Article 11 (paragraph 4 d.) for this taxon, because they have a general exemption for this species under Article 25 of SPAW. Is it the case then that signatory Parties to SPAW do not require to register a reservation for Annex I- or II- listed taxa that they wish to trade?

Article 25 sets out rules to resolve possible conflicts with other conventions dealing with the special protection of wildlife (i.e. to determine which instrument should prevail in the event of conflicting provisions). It does not create exemptions (general or specific) or waive procedural requirements laid down by the Protocol.

Parties to the Protocol must therefore take the necessary formal steps to enter reservations insofar as these are permitted under the Protocol (see Answer 1 above). Those who wish to trade Annex I- or -II listed taxa cannot claim to have an implied reservation for this purpose by virtue of Article 25.

Cuba has been a Party to the Convention since 1988 and to CITES since April 1990. It therefore had the opportunity to participate in the 1991 Conference of Plenipotentiaries that adopted the initial Annexes. Since Cuba did not exercise its right to enter a reservation to the listing of the hawksbill turtle in initial Annex II within 90 days of that vote, it may not now enter such a reservation under Art.11.4.d of the Protocol (for the reasons given in Answer 1 above).

Once the Protocol and Annexes come into force, Cuba could technically use the procedure laid down by Art.11.4.a to propose the deletion of the hawksbill turtle from Annex II. However, if the Meeting of the Parties voted against this proposal, there would be no amendment to the Annex and therefore no legal basis for Cuba to enter a reservation under Art.11.4.d.

Article 25 of SPAW

  1. Small cetaceans are listed on Appendix II of CITES (trade is allowed), but on Annex II of SPAW (trade or possession is not allowed). Article 25 of SPAW has been interpreted by some recent signatory Parties to SPAW to mean that they have an automatic exemption to trade small cetaceans if they choose to, because it is their right under CITES. Is it the case that Article 25 of SPAW provides specific exemptions under the Protocol?
  1. Conversely, it has been argued that a signatory Party to SPAW is not required to implement its Annex I, II, or III provisions if such taxa are not listed in the CITES Appendices! Can Article 25 be interpreted in this way?

These two questions concern the relationship of two international agreements, CITES and SPAW, which share (some of) the same Parties and have some similar substantive provisions. Art.30 of the 1969 Vienna Convention on the Law of Treaties sets out rules governing the situation where states are parties to treaties relating to the same subject matter. The general presumption is that a later treaty prevails over an earlier treaty concerning the same subject-matter (as between Parties to both instruments). However, where a treaty specifically provides that it is subject to, or not incompatible with, an earlier or later treaty, then the latter’s provisions will prevail (Art.30(2)).

In the SPAW context, the following observations may be made:

  • The Protocol provides at Art.25 that “nothing in this Protocol shall be interpreted in a way that may affect the rights and obligations of Parties under… CITES”. This is consistent with most modern international conservation agreements, which expressly or tacitly defer international wildlife trade issues to CITES as the primary law-making instrument in this field. The effect of this provision (for States that are party to both instruments) is that SPAW obligations may [not] be less stringent than CITES or undermine its provisions or objectives: they [may], however, if the Parties elect, be [more stringent] than those of CITES.
  • CITES Parties that have ratified the more recent SPAW Protocol have voluntarily accepted stricter legal obligations for small cetaceans than those currently laid down by CITES. To the best of my knowledge, none of the Parties to the Protocol entered a reservation to the listing of small cetaceans in initial Annex II in 1991, even though all of them were already Parties to CITES.
  • Art.11.1 of the Protocol requires Parties to ensure total protection and recovery to Annex II species of fauna by prohibiting their taking, possession, killing or commercial trade. This means that for States that are party to both instruments, SPAW clearly establishes a stricter regime than CITES (unless the Party concerned has entered a reservation to the listing of a given species). Moreover, the grounds for granting exemptions to such prohibitions are very narrowly drawn under Art.11.2, indicating the desire of the negotiators to establish a strong regional protection regime for such species.

Turning to Question 3, the provisions of a separate treaty cannot generate exemptions under this Protocol. Article 25 does not waive the need for Parties to the Protocol to enter reservations to the listing of a particular species (see also answer to Question 2 above). Parties to the Protocol should have entered a reservation to the listing of small cetaceans on Annex II within the 90-day time limit laid down by the Convention.

The answer to Question 4 is clearly no. The primary rule of treaty interpretation (Art.31 of the 1969 Vienna Convention) is that a treaty is to be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Art.11 of the Protocol evidences agreement by negotiators to establish a regionally-tailored framework to strengthen cooperation and control of activities affecting listed species. It would make a nonsense of the Protocol’s detailed provisions on endangered/threatened species to interpret Art.25 as waiving the need to implement such requirements. Moreover, there cannot be any grounds for conflict between SPAW and CITES where the latter’s Appendices do not even list the taxa in question.

General

  1. Article XIV of CITES allows a contracting Party to adopt stricter domestic measures. Since this Article refers to the rights of Parties, would a contracting Party to SPAW be expected to develop the stricter domestic legislation required to implement its Provisions?

It is important to emphasize again that CITES and SPAW establish separate legal regimes.

Parties to the SPAW Protocol are required to take the necessary measures to implement its provisions or to ensure that existing legislation is adequate for this purpose. For certain species, as discussed above, SPAW implementation measures must should necessarily be more stringent than those required under CITES, because the obligations under SPAW are stricter. Compliance with SPAW will therefore require the development of stricter domestic measures than those need to implement CITES.

In contrast, Article XIV of CITES confers purely discretionary ‘rights’ on CITES Parties to adopt stricter domestic measures concerning trade in Appendix-listed species, independently of obligations under any other treaty. They cannot be required to do so by the CITES institutions.

  1. Is SPAW a self executing Protocol?

The terms “self-executing” and “non-self-executing” relate to the actions a Party must take to implement its international obligations in domestic law.

“Self-executing” obligations are those which are directly applicable by a Party without the need for any additional national legal instrument. In other words, these are capable of enforcement by domestic courts or agencies without the need for legislation, executive decree or other implementing measure. However, such obligations often provide only a broad framework. Many matters of detail may still need to be settled at the national level, possibly through enabling legislation.

“Non-self-executing” obligations cannot be implemented until specific legislation has been adopted for that purpose. In some countries, it will always be necessary for constitutional reasons or legal practice to adopt regulations, laws or other measures to implement treaty commitments. More generally, implementing measures will always be necessary where treaty provisions are intended to create specific obligations for private persons. Such obligations cannot be enforced in the courts, and penalties cannot be imposed for non-compliance unless this is expressly provided for by domestic legislation.

Treaties generally contain a mixture of self-executing and non-self-executing provisions. This is true of the SPAW Protocol. Whilst several provisions are “self-executing” (e.g.Arts.16-19 on publicity, research, mutual assistance and reporting), others require Parties to take and enforce specific measures related to ecosystem and species conservation and management. A non-exhaustive list includes:

  • Art.5 (progressive enactment of protection measures for protected areas);
  • Art.6 (requirement to adopt and implement planning, management and enforcement measures, with detailed checklist of indicative measures);
  • Art.7.2.d (requirement not to authorize or undertake activities that would undermine the purposes for which a listed area was created);
  • Art 10.1 (requirement to accord protected status to identified endangered or threatened species, and to regulate and prohibit activities having adverse effects on such species or their habitats and ecosystems); and
  • Art.11.1 (requirement to prohibit specified activities affecting species listed in the Annexes to the Protocol).

It will be remembered in this context that UNEP convened a Workshop to Assist with the Formulation of National Legislation to Implement the SPAW Protocol in the Common Law Countries of the Wider Caribbean Region (Jamaica, 6-9 December 1993). A Legislative Guide to Implement the SPAW Protocol (UNEP(OCA)/CAR WG.13/3) has been produced to assist government officials and others involved in implementing the Protocol.