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Committee on Trade and Environment - Special session - Matrix on trade measures pursuant to selected multilateral environmental agreements - Note by the Secretariat - Revision
日期:2015/09/04
作者:WTO Secretariat
文件編號:TN/TE/S/5/Rev.5, WT/CTE/W/160/Rev.7
附件下載:WTCTEW160R7.doc
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MATRIX ON TRADE-RELATED MEASURES PURSUANT TO SELECTED
MULTILATERAL ENVIRONMENTAL AGREEMENTS

Note by the Secretariat[1]

Revision

1.  This Matrix provides background information on trade-related measures pursuant to selected Multilateral Environmental Agreements (MEAs). This revision, prepared in consultation with the MEA Secretariats, presents updated information (e.g. membership, decisions and other major development) on MEAs.[2]

2.  The WTO Secretariat will continue to update this Matrix in light of further developments. In this revision, the Minamata Convention on Mercury (Date of Signature, 10 October 2013) has been added to the list of MEAs examined in the Matrix. The Matrix now includes information on the following 17 MEAs, including Conventions and Protocols:

  • Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES);
  • Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR);
  • International Convention for the Conservation of Atlantic Tunas (ICCAT);
  • United Nations Fish Stocks Agreement (UNFSA);
  • International Tropical Timber Agreement (ITTA);
  • International Plant Protection Convention (IPPC);
  • Convention on Biological Diversity (CBD);
  • Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity;
  • Cartagena Protocol on Biosafety to the Convention on Biological Diversity;
  • Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety;
  • Montreal Protocol and the Vienna Convention on Substances that Deplete the Ozone Layer;
  • United Nations Framework Convention on Climate Change (UNFCCC);
  • Kyoto Protocol to the United Nations Framework Convention on Climate Change;
  • Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal;
  • Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade;
  • Stockholm Convention on Persistent Organic Pollutants;
  • Minamata Convention on Mercury.

3.  Information for each of these MEAs has been provided in 6 Sub-Sections and an Annex.

4.  Sub-section 1 provides the following information for each MEA:

a.      Web site;

b.     Objective of the MEA;

c.      Date of Signature/Adoption;

d.     Entry into force (Date/Provision);

e.     Number of Parties to the MEA;

f.       Number of WTO Members party to the MEA;

g.     Openness of Membership;

h.     Decision-Making Bodies; and

i.        Provisions relating to Amendments and Protocols.

5.  Sub-section 2 contains information on the trade-related measures of each MEA, including any requirements or restrictions on imported or exported products or trade in transit. Information under this section is divided, where applicable, into two further sub-sections:

a. Provisions of the MEA, and

b. Decisions of the Decision-Making Bodies.

 

6.  Sub-section 3 provides information on supportive measures, such as technology transfer, and financial or technical assistance under the provisions of the MEA.

7.  Sub-section 4 explains the mechanism set out in the MEA for the non-compliance of a party.

8.  Sub-section 5 lists the dispute settlement mechanisms in the MEA.

9.  Sub-section 6 sets out the provisions relating to non-parties of the MEA.

10.  The Annex to this document provides a comparative table of WTO and MEA membership.

                                                            

 


Table of Contents

 

§1   Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). 7

1.1   Brief Description of the MEA. 7

1.2   Trade-related Measures. 9

1.3   Supportive measures. 22

1.4   Non-compliance mechanism.. 24

1.5   Dispute Settlement Mechanism.. 28

1.6   Provisions for non-parties. 28

2   Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)  29

2.1   Brief Description of the MEA. 29

2.2   Trade-related Measures. 31

2.3   Supportive measures. 32

2.4   Non-compliance mechanism.. 32

2.5   Dispute Settlement Mechanism.. 35

2.6   Provisions for non-parties. 36

3   International Convention for the Conservation of Atlantic Tunas (ICCAT). 38

3.1   Brief Description of the MEA. 38

3.2   Trade-related Measures. 39

3.3   Supportive measures. 45

3.4   Non-compliance mechanism.. 45

3.5   Dispute Settlement Mechanism.. 45

3.6   Provisions for non-parties. 46

4   The United Nations Fish Stocks Agreement (UNFSA). 46

4.1   Brief Description of the MEA. 46

4.2   Trade-related Measures. 49

4.3   Supportive measures. 50

4.4   Non-compliance mechanism.. 51

4.5   Dispute Settlement Mechanism.. 52

4.6   Provisions for non-parties. 53

5   International Tropical Timber Agreement (ITTA). 54

5.1   Brief Description of the MEA. 54

5.2   Trade-related Measures. 56

5.3   Supportive measures. 57

5.4   Non-compliance mechanism.. 58

5.5   Dispute Settlement Mechanism.. 58

5.6   Provisions for non-parties. 58

6   International Plant Protection Convention (IPPC). 58

6.1   Brief Description of the MEA. 58

6.2   Trade-related Measures. 61

6.3   Supportive measures. 64

6.4   Non-compliance mechanism.. 64

6.5   Dispute Settlement Mechanism.. 64

6.6   Provisions for non-parties. 65

7   Convention on Biological Diversity (CBD). 65

7.1   Brief Description of the MEA. 65

7.2   Trade-related Measures. 67

7.3   Supportive measures. 87

7.4   Non-compliance mechanism.. 87

7.5   Dispute Settlement Mechanism.. 87

7.6   Provisions for non-parties. 88

8   Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity  88

8.1   Brief Description of the MEA. 88

8.2   Trade-related Measures. 89

8.3   Supportive measures. 91

8.4   Non-compliance mechanism.. 93

8.5   Dispute Settlement Mechanism.. 94

8.6   Provisions for non-parties. 94

9   Cartagena Protocol on Biosafety to the Convention on Biological Diversity  94

9.1   Brief Description of the MEA. 94

9.2   Trade-related Measures. 95

9.3   Supportive measures. 107

9.4   Non-compliance mechanism.. 109

9.5   Dispute Settlement Mechanism.. 110

9.6   Provisions for non-parties. 110

10   Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety. 111

10.1   Brief Description of the MEA. 111

10.2   Trade-related Measures. 111

10.3   Supportive measures. 113

10.4   Non-compliance mechanism.. 113

10.5   Dispute Settlement Mechanism.. 114

10.6   Provisions for non-parties. 114

11   Montreal Protocol and the Vienna Convention for the Protection of the Ozone Layer  114

11.1   Brief Description of the MEA. 114

11.2   Trade-Related measures. 118

11.3   Supportive Measures. 122

11.4   Non-Compliance Mechanism.. 123

11.5   Dispute Settlement Mechanism.. 123

11.6   Provisions for Non-Parties. 124

12   United Nations Framework Convention on Climate Change (UNFCCC). 124

12.1   Brief Description of the MEA. 124

12.2   Trade-related Measures. 126

12.3   Supportive measures. 127

12.4   Non-compliance mechanism.. 128

12.5   Dispute Settlement Mechanism.. 129

12.6   Provisions for non-parties. 129

13   Kyoto Protocol to the United Nations Framework Convention on Climate Change  129

13.1   Brief Description of the MEA. 129

13.2   Trade-related Measures. 131

13.3   Supportive measures. 132

13.4   Non-compliance mechanism.. 133

13.5   Dispute Settlement Mechanism.. 133

13.6   Provisions for non-parties. 133

14   Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. 134

14.1   Brief Description of the MEA. 134

14.2   Trade-related Measures. 138

14.3   Supportive measures. 144

14.4   Non-compliance mechanism.. 145

14.5   Dispute Settlement Mechanism.. 146

14.6   Provisions for non-parties. 146

15   Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. 147

15.1   Brief Description of the MEA. 147

15.2   Trade-related Measures. 148

15.3   Supportive measures. 153

15.4   Non-compliance mechanism.. 154

15.5   Dispute Settlement Mechanism.. 154

15.6   Provisions for non-parties. 155

16   Stockholm Convention on Persistent Organic Pollutants. 155

16.1   Brief Description of the MEA. 155

16.2   Trade-related Measures. 156

16.3   Supportive Measures. 158

16.4   Non-compliance mechanism.. 159

16.5   Dispute Settlement Mechanism.. 159

16.6   Provisions for non-parties. 160

17   Minamata Convention on Mercury. 160

17.1   Brief Description of the MEA. 160

17.2   Trade-related Measures. 162

17.3   Supportive measures. 163

17.4   Non-compliance mechanism.. 164

17.5   Dispute Settlement Mechanism.. 165

17.6   Provisions for non-parties. 165

Annex. 166

 

 

 


1  Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

1.1  Brief Description of the MEA

Web site

http://www.cites.org/

Objective

à CITES is an international treaty to regulate international trade in wildlife (animals, plants and their parts and derivatives) for conservation and sustainable use purposes. The Convention primarily covers species that are in the international markets which are not yet threatened with extinction but could become so without trade regulation (97% of the total). It also prohibits international commercial trade in wild specimens of the small number of species listed as already being threatened with extinction (3% of the total). It provides a framework for legal, sustainable and traceable wildlife trade based on the best scientific information available, and analyses regarding how different types of trade regulations can affect specific populations.

à CITES trade-related measures seek to ensure that trade is not detrimental to the survival of wildlife species and traded specimens are not obtained in contravention of national laws for the protection of fauna and flora. It also requires that any living specimen be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment (e.g. in accordance with the Live Animals Regulations and Perishable Cargo Regulations of the International Air Transport Association and the CITES Guidelines for the non-air transport of live wild animals and plants).

Date of Signature

Convention: 3 March 1973

Bonn Amendment to Article XI: 22 June 1979

Gaborone Amendment to Article XXI: 30 April 1983

Entry into force

Convention: 1 July 1975

Bonn Amendment to Article XI: 13 April 1987

Gaborone Amendment to Article XXI: 29 November 2013

Parties

Convention (1973): 181 Parties (as of 31 July 2015)

Bonn Amendment (1979): 147 Parties (as of 31 July 2015)

Gaborone Amendment (1983): 100 Parties (as of 31 July 2015)

WTO Members

Convention (1973):  155 Parties to CITES are also WTO Members.

Bonn Amendment (1979): 127 Parties to this Amendment are also WTO Members.

Gaborone Amendment (1983): 94 Parties to this Amendment are also WTO Members.

(see Annex)

Openness of Membership

Article XXI – Accession

"The present Convention shall be open indefinitely for accession. Instruments of accession shall be deposited with the Depositary Government".

 

à The Gaborone Amendment, which entered into force on 29 November 2013, opens the membership to regional economic integration organizations. Paragraphs 2 and 5 of Article XXI read: "This Convention shall be open for accession by regional economic integration organizations constituted by sovereign States which have competence in respect of the negotiation, conclusion and implementation of international agreements in matters transferred to them by their Member States and covered by this Convention ... In the fields of their competence, regional economic integration organizations shall exercise their right to vote with a number of votes equal to the number of their Member States which are Parties to the Convention. Such organizations shall not exercise their right to vote if their Member States exercise theirs, and vice versa."

Decision-Making Bodies

Article XI:3 – Conference of the Parties

"3.   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".

 

Resolution Conf. 11.1 (Rev. CoP16) – Establishment of Committees

"[The CoP to the Convention] … Resolves that:

(a) there shall be a permanent Standing Committee of the [CoP], which shall be the senior Committee, and shall report to the [CoP];

(b) there shall be an Animals Committee and a Plants Committee, which shall report to the [CoP] at its meetings and, if so requested, to the Standing Committee between meetings of the [CoP];

(c) the [CoP] may appoint additional committees as the need arises;

(d) the [CoP] or the Standing Committee may appoint working groups with specific terms of reference as required to address specific problems. These working groups shall have a defined life span which shall not exceed the period until the next meeting of the [CoP], at which time it may be renewed if necessary. They shall report to the [CoP] and, if so requested, to the Standing Committee; …"

Amendments and Protocols

Article II – Fundamental principles

à Paragraphs 1, 2 and 3 of this Article define Appendices I, II and III to the Convention, respectively (see Provisions of the Convention below).

Article XV – Amendments to Appendices I and II

"1.    The following provisions shall apply in relation to amendments to Appendices I and II at meetings of the [CoP]:

(a) Any Party may propose an amendment to Appendix I or II for consideration at the next meeting. The text of the proposed amendment shall be communicated to the Secretariat at least 150 days before the meeting. The Secretariat shall consult the other Parties and interested bodies on the amendment in accordance with the provisions of sub-paragraphs (b) and (c) of paragraph 2 of this Article and shall communicate the response to all Parties not later than 30 days before the meeting.

(b) Amendments shall be adopted by a two-thirds majority of Parties present and voting. For these purposes "Parties present and voting" means Parties present and casting an affirmative or negative vote. Parties abstaining from voting shall not be counted among the two-thirds required for adopting an amendment.

(c) Amendments adopted at a meeting shall enter into force 90 days after that meeting for all Parties except those which make a reservation in accordance with paragraph 3 of this Article.

2.     The following provisions shall apply in relation to amendments to Appendices I and II between meetings of the [CoP]:

(a) Any Party may propose an amendment to Appendix I or II for consideration between meetings by the postal procedures set forth in this paragraph. …

(f) If no objection to the proposed amendment is received by the Secretariat within 30 days of the date the replies and recommendations were communicated under the provisions of sub-paragraph (e) of this paragraph, the amendment shall enter into force 90 days later for all Parties except those which make a reservation in accordance with paragraph 3 of this Article.

(g) If an objection by any Party is received by the Secretariat, the proposed amendment shall be submitted to a postal vote in accordance with the provisions of sub-paragraphs (h), (i) and (j) of this paragraph ...

(j) Provided that votes are received from one-half of the Parties, the amendment shall be adopted by a two-thirds majority of Parties casting an affirmative or negative vote ...

(l) If the proposed amendment is adopted it shall enter into force 90 days after the date of the notification by the Secretariat of its acceptance for all Parties except those which make a reservation in accordance with paragraph 3 of this Article.

3.     During the period of 90 days provided for by sub-paragraph (c) of paragraph 1 or sub-paragraph (l) of paragraph 2 of this Article any Party may by notification in writing to the Depositary Government make a reservation with respect to the amendment. Until such reservation is withdrawn the Party shall be treated as a State not a Party to the present Convention with respect to trade in the species concerned."

Article XVI – Appendix III and Amendments thereto

"1.    Any Party may at any time submit to the Secretariat a list of species which it identifies as being subject to regulation within its jurisdiction for the purpose mentioned in paragraph 3 of Article II. Appendix III shall include the names of the Parties submitting the species for inclusion therein, the scientific names of the species so submitted, and any parts or derivatives of the animals or plants concerned that are specified in relation to the species for the purposes of sub-paragraph (b) of Article I.

2.     Each list submitted under the provisions of paragraph 1 of this Article shall be communicated to the Parties by the Secretariat as soon as possible after receiving it. The list shall take effect as part of Appendix III 90 days after the date of such communication. At any time after the communication of such list, any Party may by notification in writing to the Depositary Government enter a reservation with respect to any species or any parts or derivatives, and until such reservation is withdrawn, the State shall be treated as a State not a Party to the present Convention with respect to trade in the species or part or derivative concerned.

3.    A Party which has submitted a species for inclusion in Appendix III may withdraw it at any time by notification to the Secretariat which shall communicate the withdrawal to all Parties. The withdrawal shall take effect 30 days after the date of such communication ..."

Article XVII – Amendment of the Convention

"1.    An extraordinary meeting of the [CoP] shall be convened by the Secretariat on the written request of at least one-third of the Parties to consider and adopt amendments to the present Convention. Such amendments shall be adopted by a two-thirds majority of Parties present and voting. For these purposes "Parties present and voting" means Parties present and casting an affirmative or negative vote. Parties abstaining from voting shall not be counted among the two-thirds required for adopting an amendment.

2.     The text of any proposed amendment shall be communicated by the Secretariat to all Parties at least 90 days before the meeting.

3.     An amendment shall enter into force for the Parties which have accepted it 60 days after two-thirds of the Parties have deposited an instrument of acceptance of the amendment with the Depositary Government. Thereafter, the amendment shall enter into force for any other Party 60 days after that Party deposits its instrument of acceptance of the amendment".

à Resolution Conf. 4.27 on the Interpretation of Article XVII, paragraph 3, of the Convention provides that "the meaning of Article XVII, paragraph 3, of the Convention be interpreted in its narrow sense so as to mean that the acceptance of two-thirds of the Parties at the time of the adoption of an amendment is required for the coming into force of such amendment".

Amendments adopted

Bonn Amendment – 22 June 1979

à On 22 June 1979, the CoP to CITES adopted an amendment to Article XI, paragraph 3 a), consisting of inserting the words ", and adopt financial provisions" at the end of the provision.

à In accordance with Article XVII, paragraph 3, the Bonn amendment entered into force 60 days after 34 of the 50 States (two-thirds) that were parties to CITES on 22 June 1979 deposited their instruments of acceptance, i.e. on 13 April 1987. At that time it entered into force only for those States that had accepted the amendment (no matter on what date they became party to the Convention). However, the amended text of the Convention now applies automatically to any State that becomes a Party after the date of entry into force of the amendment.

Gaborone Amendment– 30 April 1983

à On 30 April 1983, the CoP to CITES adopted in Gaborone, Botswana, an amendment to Article XXI of the Convention to permit accession by regional economic integration organizations and especially to allow the EU to become a CITES party.

à In accordance with Article XVII, paragraph 3, the Gaborone amendment entered into force 60 days after 54 of the 80 States that were party to CITES on 30 April 1983 had deposited their instruments of acceptance, i.e. on 29 November 2013. At that time it entered into force only for those States that had accepted the amendment. The amended text of the Convention will apply automatically to any State that becomes a Party after the date of entry into force of the amendment. For States that became party to the Convention before that date and have not accepted the amendment, it will enter into force 60 days after they do accept it.

1.2  Trade-related Measures

CITES provides for trade measures at different decision-making levels:

a.      Trade measures that are legally binding (text of the Convention);

b.     Trade measures decided by the Conference of the Parties (CoP);

c.      Trade measures decided by the Standing Committee (SC) on behalf of the CoP;

d.     Trade measures recommended by the Animals Committee/Plants Committee;

e.     Trade measures recommended by the Secretariat to the CoP and SC; and

f.       Stricter domestic trade measures adopted by the Parties.

1.2.1  Provisions of the Convention

Article II

Fundamental Principles

à CITES places certain controls on international trade in specimens of selected species. These require the import, export, re-export and introduction from the sea of specimens of species covered by the Convention be authorized through a permit and certificate system. The species covered by CITES are listed in three Appendices, according to the degree of protection they need.

"1.    Appendix I shall include all species threatened with extinction which are or may be affected by trade. Trade in specimens of these species must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.

2.     Appendix II shall include:

(a) all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival; and

(b) other species which must be subject to regulation in order that trade in specimens of certain species referred to in sub-paragraph (a) of this paragraph may be brought under effective control.

3.     Appendix III shall include all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other Parties in the control of trade.

4.     The Parties shall not allow trade in specimens of species included in Appendices I, II and III except in accordance with the provisions of the present Convention".

Article III

Regulation of Trade in Specimens of Species Included in Appendix I

à Appendix I includes species that are threatened with extinction or endangered and that require the greatest protection among CITES-listed animals and plants (see Article II, paragraph 1 of the Convention). CITES generally prohibits international commercial trade in specimens of wild origin of these species. However, non-commercial trade may be allowed (e.g. for scientific research) and commercial trade may be allowed under exceptional circumstances, e.g. captive breeding, artificial propagation, etc. In these cases, non-commercial trade may be authorized by the granting of both an export permit (or re-export certificate) and an import permit (See Article III of the Convention). Specimens of Appendix-I listed species bred in captivity or artificially propagated for commercial purposes shall be deemed to be specimens of species included in Appendix II (see Article VII, paragraph 4) and the trade provisions contained in Article IV apply.

à Trade in Appendix I species of wild origin must meet three criteria:

1.     Trade must not be primarily commercial in nature. Resolution Conf. 5.10 (Rev. CoP15) defines "commercial" as an activity whose "purpose is to obtain economic benefit (whether in cash or in kind) and is directed toward resale, exchange, provision of a service or other form of economic use or benefit. The Resolution further defines "primarily commercial" by providing that "all uses whose non-commercial aspects do not clearly predominate shall be considered to be primarily commercial in nature with the result that the importation of specimens of Appendix-I species should not be permitted. The burden of proof for showing that the intended use of specimens of Appendix-I species is clearly non-commercial shall rest with the person or entity seeking to import such specimens."

2.     It must not be detrimental to the survival of the species. The non-detriment finding is a scientific assessment by the Scientific Authority of the State of export. Guidance on the making of non-detriment findings is contained in Resolution Conf. 16.7. In addition, document CoP11 Doc. 11.40 prepared for CITES CoP-11 (Gigiri, 2000) provides assistance to Scientific Authorities for making non-detriment findings. It makes reference to Information Document CoP11 Inf. 11.3 which contains a checklist for making non-detriment findings for Appendix II species. The checklist was published and distributed by IUCN at CoP-12 (see also capacity building material prepared by the CITES Secretariat, which is accessible through the CITES Virtual College at http://www.cites.org).

3.     There must be a legal acquisition finding, that is, the Management Authority of the State of export must be satisfied that the specimens were not obtained in contravention of the laws of that State for the protection of fauna and flora.

Article IV

Regulation of Trade in Specimens of Species Included in Appendix II

à Appendix II includes species that are not necessarily now threatened with extinction but that may become so unless trade is subject to strict regulation. It also includes so-called "look-alike species". International trade in specimens of Appendix-II species may be authorized by the granting of an export permit or re-export certificate; no import permit is required by the Convention (some countries adopt stricter domestic measures under Article XIV, for example, which require an import permit). Permits or certificates should only be granted if the relevant authorities are satisfied that certain conditions are met, and above all, that trade is legal (i.e. trade is in accordance with the provisions of CITES and the specimen is not obtained in contravention of the laws of the State of origin) and will not be detrimental to the survival of the species in the wild.

Article V

Regulation of Trade in Specimens of Species Included in Appendix III

à Appendix III comprises a list of species included at the request of a Party that already prevents or restricts exploitation of the species and that needs the cooperation of other countries in the control of trade (see Article II, paragraph 3, of the Convention). International trade in specimens of species listed in this Appendix is allowed only on presentation of the appropriate export permit (issued by the Party that listed the species in Appendix III) or certificate of origin (issued by the Party which did not list the species in Appendix III).

Article VI

Permits and Certificates

à Provides details for permits and certificates granted under the provisions of Articles III, IV, and V of the Convention.

àResolution Conf. 12.3 (Rev. CoP 16) further elaborates on the requirements of permits and certificates. Annex 2 to the Resolution contains a standard CITES form.

Article VII

Exemptions and Other Special Provisions Relating to Trade

à Lists the Exemptions and Other Special Provisions Relating to Trade (e.g. transit/transhipment, pre-Convention, personal or household effects, captive breeding or artificial propagation, scientific exchange and travelling exhibitions). This Article provides all the exceptions to the regulation of trade in wild fauna and flora species listed in the three CITES Appendices.

à Guidance on the application and implementation of Article VII, paragraphs 1, 2, 3, 6 and 7 has been specified in Resolutions Conf. 9.7 (Rev. CoP15), 13.6 (Rev. CoP16), 13.7 (Rev. CoP16), 11.15 (Rev. CoP12) and 12.3 (Rev. CoP16) adopted by the Conference of the Parties. Guidance related to paragraphs 4 and 5 is contained in Resolutions Conf. 10.16, 12.10 (Rev. CoP15) and 9.19 (Rev. CoP15).

Article VIII

Measures to Be Taken by the Parties

"1.    The Parties shall take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof. These shall include measures:

(a) to penalize trade in, or possession of, such specimens, or both; and

(b) to provide for the confiscation or return to the State of export of such specimens.

2.     In addition to the measures taken under paragraph 1 of this Article, a Party may, when it deems it necessary, provide for any method of internal reimbursement for expenses incurred as a result of the confiscation of a specimen traded in violation of the measures taken in the application of the provisions of the present Convention.

3.     As far as possible, the Parties shall ensure that specimens shall pass through any formalities required for trade with a minimum of delay. To facilitate such passage, a Party may designate ports of exit and ports of entry at which specimens must be presented for clearance. The Parties shall ensure further that all living specimens, during any period of transit, holding or shipment, are properly cared for so as to minimize the risk of injury, damage to health or cruel treatment.

4.     Where a living specimen is confiscated as a result of measures referred to in paragraph 1 of this Article:

(a) the specimen shall be entrusted to a Management Authority of the State of confiscation;

(b) the Management Authority shall, after consultation with the State of export, return the specimen to that State at the expense of that State, or to a rescue centre or such other place as the Management Authority deems appropriate and consistent with the purposes of the present Convention; and

(c) the Management Authority may obtain the advice of a Scientific Authority, or may, whenever it considers it desirable, consult the Secretariat in order to facilitate the decision under sub-paragraph (b) of this paragraph, including the choice of a rescue centre or other place.

5.     A rescue centre as referred to in paragraph 4 of this Article means an institution designated by a Management Authority to look after the welfare of living specimens, particularly those that have been confiscated.

6.     Each Party shall maintain records of trade in specimens of species included in Appendices I, II and III which shall cover:

(a) the names and addresses of exporters and importers; and

(b) the number and type of permits and certificates granted; the States with which such trade occurred; the numbers or quantities and types of specimens, names of species as included in Appendices I, II and III and, where applicable, the size and sex of the specimens in question.

7.     Each Party shall prepare periodic reports on its implementation of the present Convention and shall transmit to the Secretariat:

(a) an annual report containing a summary of the information specified in sub-paragraph (b) of paragraph 6 of this Article; and

(b) a biennial report on legislative, regulatory and administrative measures taken to enforce the provisions of the present Convention.

8.     The information referred to in paragraph 7 of this Article shall be available to the public where this is not inconsistent with the law of the Party concerned".

Article IX

Management and Scientific Authorities

"1.    Each Party shall designate for the purposes of the present Convention:

(a) one or more Management Authorities competent to grant permits or certificates on behalf of that Party; and

(b) one or more Scientific Authorities.

2.    A State depositing an instrument of ratification, acceptance, approval or accession shall at that time inform the Depositary Government of the name and address of the Management Authority authorized to communicate with other Parties and with the Secretariat …".

Article XIV

Effect on Domestic Legislation and International Conventions

"1.    The provisions of the present Convention shall in no way affect the right of Parties to adopt:

(a) stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II and III, or the complete prohibition thereof; or

(b) domestic measures restricting or prohibiting trade, taking, possession or transport of species not included in Appendix I, II or III.

2.     The provisions of the present Convention shall in no way affect the provisions of any domestic measures or the obligations of Parties deriving from any treaty, convention, or international agreement relating to other aspects of trade, taking, possession or transport of specimens which is in force or subsequently may enter into force for any Party including any measure pertaining to the Customs, public health, veterinary or plant quarantine fields.

3.     The provisions of the present Convention shall in no way affect the provisions of, or the obligations deriving from, any treaty, convention or international agreement concluded or which may be concluded between States creating a union or regional trade agreement establishing or maintaining a common external Customs control and removing Customs control between the parties thereto insofar as they relate to trade among the States members of that union or agreement.

4.     A State party to the present Convention, which is also a party to any other treaty, convention or international agreement which is in force at the time of the coming into force of the present Convention and under the provisions of which protection is afforded to marine species included in Appendix II, shall be relieved of the obligations imposed on it under the provisions of the present Convention with respect to trade in specimens of species included in Appendix II that are taken by ships registered in that State and in accordance with the provisions of such other treaty, convention or international agreement.

5.     Notwithstanding the provisions of Articles III, IV and V, any export of a specimen taken in accordance with paragraph 4 of this Article shall only require a certificate from a Management Authority of the State of introduction to the effect that the specimen was taken in accordance with the provisions of the other treaty, convention or international agreement in question.

6.     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 convened pursuant to Resolution 2750 C (XXV) of the General Assembly of the United Nations nor the present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction".

à Allows for Parties to take stricter domestic measures. Appendix II does not require an import permit, but major importing countries have instituted a system of import permits for trade in certain species issued on the basis of extra conditions and non-CITES related criteria such as tariffs, health, veterinary, phytosanitary and animal welfare provisions. In some instances, they also apply those conditions to species listed in Appendix III.

1.2.2  Resolutions and Decisions of the Conference of the Parties

Relevant Resolutions and Decisions of the CoP include:

Resolution Conf. 6.7

Interpretation of Article XIV, paragraph 1 of the Convention

"...   (a) each Party intending to take stricter domestic measures pursuant to Article XIV, paragraph 1, of the Convention regarding trade in specimens of non-indigenous species included in the Appendices make every reasonable effort to notify the range States of the species concerned at as early a stage as possible prior to the adoption of such measures, and consult with those range States that express a wish to confer on the matter; and

(b) each Party that has taken such stricter domestic measures for non-indigenous species prior to the adoption of this Resolution consult, if requested, on the appropriateness of such measures with range States of the species concerned".

à There is also Resolution Conf. 8.4 (Rev.CoP.15) on National laws for the implementation of the Convention.

Resolution Conf. 9.9

Confiscation of Speciments Exported or Re-exported in violation of the Convention

"...   (a) when specimens are exported or re-exported in violation of the Convention, importing Parties:

i) consider that the seizure and confiscation of such specimens are generally preferable to the definitive refusal of the import of the specimens; and

ii) notify as soon as possible the Management Authority of the State from which the specimens were consigned of the violation and of any enforcement actions taken concerning the specimens; and

(b) when the import of specimens that have been exported or re-exported in violation of the Convention is refused by the country to which the specimens are consigned, the exporting or re-exporting Party take the measures necessary to ensure that such specimens are not re-entered into illegal trade, including monitoring their return to the country and providing for their confiscation."

Resolution Conf. 9.21 (Rev. CoP 13)

Interpretation and Application of Quotas for Species included in Appendix I

"...   (a) a Party wishing the Conference of the Parties to establish a quota for a species included in Appendix I, or to amend an existing quota, should submit to the Secretariat its proposal, with supporting information including details of the scientific basis for the proposed quota, at least 150 days before a meeting of the Conference of the Parties; and

(b) whenever the Conference of the Parties has set an export quota for a particular species included in Appendix I, this action by the Parties satisfies the requirements of Article III regarding the findings by the appropriate Scientific Authorities that the export will not be detrimental to the survival of the species and that the purposes of the import will not be detrimental to the survival of the species, provided that:

i) the quota is not exceeded; and

ii) no new scientific or management data have emerged to indicate that the species population in the range State concerned can no longer sustain the agreed quota."

Resolution Conf. 10.14 (Rev. CoP16)

Quotas for Leopard Hunting Trophies and Skins for Personal Use

"...   (a) in reviewing applications for permits to import whole skins or nearly whole skins of leopard (including hunting trophies), in accordance with paragraph 3(a) of Article III, the Scientific Authority of the State of import approve permits if it is satisfied that the skins being considered are from one of the following States, which may not export more of the said skins taken from any one calendar year (1 January to 31 December) than the number shown under ‘Quota’ opposite the name of the State: ..."

à There is also Resolution Conf. 10.15 (Rev. CoP16) on the Establishing Quotas for Markhor Hunting Trophies.

Resolution Conf. 10.21 (Rev. CoP16)

Transport of live specimens

The [CoP] to CITES:

Recommends that:

(a) suitable measures be taken by the Parties to promote the full and effective use by Management Authorities of the IATA Live Animals Regulations (for animals), the IATA Perishable Cargo Regulations (for plants) and the CITES guidelines for the non-air transport of live wild animals and plants for the preparation and transport of live specimens and that they be brought to the attention of exporters, importers, transport companies, carriers, freight forwarders, inspection authorities and international organizations and conferences competent to regulate conditions of carriage by air, land and sea or inland waterways;

(b) Parties invite the above organizations and institutions to comment on and amplify the IATA Live Animals Regulations (for animals) and the IATA Perishable Cargo Regulations (for plants), so as to promote their effectiveness;

(c) the regular communication of the CITES Secretariat and the Standing Committee with IATA’s Live Animals and Perishables Board and with the board of directors of the Animals Transportation Association (AATA) be continued and that a relationship with the International Animal Health Organisation (OIE) and the International Plants Protection Convention (IPPC) be developed;

(d) for as long as the CITES Secretariat and the Standing Committee agree, the IATA Live Animals Regulations (for animals), the IATA Perishable Cargo Regulations (for plants) and the CITES guidelines for the non-air transport of live wild animals and plants in their most recent edition be deemed to meet CITES transport requirements;…

Resolution Conf. 12.3 (Rev. CoP16)

Permits and certificates

The [CoP] to CITES:

Establishes the following sections in the present Resolution:

I.       Regarding standardization of CITES permits and certificates

II.      Regarding export permits and re-export certificates

III.     Regarding import permits

IV.     Regarding pre-Convention certificates

V.       Regarding certificates of origin

VI.     Regarding travelling-exhibition certificates

VII.    Regarding phytosanitary certificates

VIII.   Regarding permits and certificates for species subject to quotas

IX.     Regarding permits and certificates for crocodilian specimens

X.       Regarding permits and certificates for coral specimens

XI.     Regarding permits and certificates for timber species included in Appendices II and III with the annotation ‘Logs, sawn wood and veneer sheets’

XII.    Regarding the use of simplified procedures to issue permits and certificates

XIII.   Regarding retrospective issue of permits and certificates

XIV.   Regarding acceptance and clearance of documents and security measures

XV.     Regarding documents for sample collections covered by ATA carnets

Annex 1    Information that should be included in CITES permits and certificates

Annex 2    Standard CITES form; instructions and explanations

Annex 3    Model travelling-exhibition certificate; instructions and explanations; continuation sheet

Annex 4    Types of biological samples and their use

Trade in Vicuña Cloth

Resolution Conf. 11.6 (Rev. CoP13) has been deleted and the relevant language about marking is now contained in annotations 1, 2, 3, 4, and 5 to the listing of vicuña in Appendix II.

Resolution Conf. 11.7

Conservation of and Trade in Musk Deer

"... Urges all Parties, particularly musk deer range and consuming countries and those through which musk deer specimens pass in transit, to take immediate action in order to reduce demonstrably the illegal trade in musk deriving from wild musk deer by:

(a) introducing innovative enforcement methods in range and consumer States and, as a matter of priority, strengthening enforcement efforts in key border regions;

(b) pursuing the development of a clear labelling system for products containing musk, and the development and dissemination of forensic methods to detect natural musk in medicinal and other products;

(c) encouraging all range States and consumer States that are not party to CITES to accede to it at the earliest possible date in order to improve international trade control of raw musk and products containing musk;

(d) working with musk consumers to develop alternatives for raw musk in order to reduce demand for natural musk, while encouraging the development of safe and effective techniques for collecting musk from live musk deer; and

(e) developing bilateral and regional agreements for improving musk deer conservation and management, strengthening legislation and strengthening enforcement efforts; …"

Trade in Appendix-II and –III Species

Resolution Conf. 11.18 has been deleted and the relevant language included in Resolution Conf. 11.3 (Rev. CoP16) on Compliance and enforcement.

Resolution Conf. 12.7 (Rev. CoP16)

Conservation of and Trade in Sturgeons and Paddlefish

"... Urges the range States of species in the Order Acipenseriformes to: …

(b) curtail the illegal fishing of and trade in sturgeon and paddlefish specimens by improving the provisions in and enforcement of existing laws regulating fisheries and export, in close collaboration with the CITES Secretariat, ICPO-Interpol and the World Customs Organization; …

Recommends with regard to regulating trade in sturgeon products, that:

(a) each importing, exporting and re-exporting Party should establish, where consistent with national law, a registration system for caviar processing plants, including aquaculture operations, and repackaging plants in its territory and provide to the Secretariat the list of these facilities and their official registration codes. The list should be updated when changes occur and communicated to the CITES Secretariat without delay. A copy of the list should be provided to the Secretariat by 30 November each year. The Secretariat should distribute this information via a Notification to the Parties and include it in its register on the CITES website;

(b) importing countries be particularly vigilant in controlling all aspects of the trade in specimens of sturgeon and paddlefish species, including the unloading of sturgeon specimens, transit, re-packaging, re-labelling and re-exports;

(c) Parties monitor the storage, processing and re-packaging of specimens of sturgeon and paddlefish species in Customs free zones and free ports, and for airline and cruise line catering;

(d) Parties ensure that all their relevant agencies cooperate in establishing the necessary administrative, management, scientific and control mechanisms needed to implement the provisions of the Convention with respect to sturgeon and paddlefish species;

(e) Parties consider the harmonization of their national legislation related to personal exemptions for caviar, to allow for the personal effects exemption under Article VII, paragraph 3, of the Convention and consider limiting this exemption to no more than 250 grams of caviar per person;

(f) all caviar from shared stocks subject to export quotas be exported before the end of the quota year (1 March – last day in February) in which it was harvested and processed. For this purpose, the export permits for such caviar should be valid until the last day of the quota year at the latest. Parties should not import caviar harvested or processed in the preceding quota year.

(g) no re-export of caviar take place more than 18 months after the date of issuance of the relevant original export permit. For that purpose, re-export certificates should not be valid beyond the 18-month period;

(h) Parties supply UNEP-WCMC copies of all export permits and re-export certificates issued to authorize trade in caviar, no longer than one month after they have been issued, for inclusion in the UNEP-WCMC caviar trade database;

(i) Parties consult the UNEP-WCMC caviar trade database prior to the issuance of re-export certificates;

(j) where available, Parties use the full eight-digit Customs code for caviar, instead of the less precise six-digit code which also includes roe from other fish species;

(k) Parties implement the universal labelling system for caviar outlined in Annexes 1 and 2 and importing Parties not accept shipments of caviar unless they comply with these provisions and

(l) caviar from different Acipenseriformes species not be mixed into a primary container, except in the case of pressed caviar".

Resolution Conf. 12.8 (Rev. CoP13)

Review of Significant Trade in Specimens of Appendix-II species

"... Directs the Animals and Plants Committees, in cooperation with the Secretariat and experts, and in consultation with range States, to review the biological, trade and other relevant information on Appendix-II species subject to significant levels of trade, to identify problems and solutions concerning the implementation of Article IV, paragraphs 2 (a), 3 and 6 (a) of the Convention in accordance with the following procedure:

When the Animals and Plants Committees are not satisfied that Article IV, paragraphs 2 a), 3 or 6 are being correctly implemented:

(m) the Animals Committee or Plants Committee shall, in consultation with the Secretariat, formulate recommendations for the remaining species. These recommendations shall be directed to the range States concerned;

(n) for species of urgent concern, these recommendations should propose specific actions to address problems related to the implementation of Article IV, paragraph 2 (a), 3 or 6 (a). Such recommendations should differentiate between short-term and long-term actions, and may include, for example:

i) the establishment of administrative procedures, cautious export quotas or temporary restrictions on exports of the species concerned; …

(o) for species of possible concern, these recommendations should specify the information required to enable the Animals or Plants Committee to determine whether the species should be categorized as either of urgent concern or of least concern. They should also specify interim measures where appropriate for the regulation of trade. Such recommendations should differentiate between short-term and long-term actions, and may include, for example:

i) the establishment of cautious export quotas for the species concerned as an interim measure; ...

(s) when the Secretariat, having consulted with the Chairman of the Animals or Plants Committee, is not satisfied that a range State has implemented the recommendations made by the Animals or Plants Committee in accordance with paragraphs n) or o), it should recommend to the Standing Committee appropriate action, which may include, as a last resort, a suspension of trade in the affected species with that State. On the basis of the report of the Secretariat, the Standing Committee shall decide on appropriate action and make recommendations to the State concerned, or to all Parties ...".

Resolution Conf. 13.2 (Rev. CoP 14)

Sustainable Use of Biodiversity:  Addis Ababa Principles and Guidelines

"... Urges the Parties to:

(a) make use of the Principles and Guidelines for the Sustainable Use of Biodiversity, also taking into account scientific, trade and enforcement considerations determined by national circumstances, as well as the recommendations of the Animals and Plants Committees, when adopting non-detriment-making processes and making CITES non-detriment findings;

... Annex: Sustainable use of biodiversity: Addis Ababa Principles and Guidelines:

Practical Principle 3: International, national policies, laws and regulations that distort markets which contribute to habitat degradation or otherwise generate perverse incentives that undermine conservation and sustainable use of biodiversity, should be identified and removed or mitigated. ..."

Resolution Conf. 13.4 (Rev.CoP16)

Conservation of and trade in great apes

"... Urges all Parties to:

(a) adopt and implement comprehensive legislation to protect great apes, which includes:

i) a prohibition of all international trade for primarily commercial purposes, including sale, display, purchase, offer to purchase and acquisition for commercial purposes of wild-caught specimens of great apes; and

ii) deterrent penalties aimed at eliminating illegal trade in great apes and parts and derivatives thereof;

Directs the Secretariat to:

(a) work closely with Parties, and as a member of the GRASP partnership, to develop and implement measures, including legislative and enforcement measures and regional and sub-regional initiatives, to halt or reduce and ultimately eliminate illegal trade in great apes;

(b) work closely with ICCWC partners to support the implementation of this Resolution

(c) assist range States in the implementation of national and regional conservation plans, where these include measures aimed at eliminating illegal trade; and

(d) report to the Standing Committee on the implementation of this Resolution at each of its regular meetings.

Urges the Secretariat, the Standing Committee and the Animals Committee to work closely with GRASP, and to explore and implement other measures through which the Convention can contribute to the conservation of great apes and to the promotion of public awareness of the threat posed to great ape populations by illegal trade; ..."

Resolution Conf. 13.5 (Rev. CoP14)

 Establishment of export quotas for black rhinoceros hunting trophies

"... The [CoP] to the Convention recommends that the parties:

Approves the establishment of an annual export quota of five hunting trophies of adult male black rhinoceros from South Africa and five from Namibia;

Recommends that:

(a) in reviewing applications for permits to import black rhinoceros hunting trophies, in accordance with Article III, paragraph 3 (a), of the Convention, and Resolution Conf. 9.21 (Rev. CoP13), paragraph b), the Scientific Authority of the State of import approve permits if it is satisfied that the trophies being considered are from a range State to which an export quota has been granted as part of a national black rhinoceros conservation and management plan or programme and will be traded in accordance with the provisions of the present Resolution;

(b) in reviewing applications for permits to import black rhinoceros hunting trophies, in accordance with Article III, paragraph 3 (c), of the Convention, the Management Authority of the State of import be satisfied that such trophies are not to be used for primarily commercial purposes if:

i) the trophies were acquired by the owners in the country of export and are being imported as personal items that will not be sold in the country of import; and

ii) each owner imports no more than one trophy in any calendar year (1 January to 31 December); and

(c) amendments to export quotas or the establishment of additional export quotas for this species be done in accordance with Resolution Conf. 9.21 (Rev. CoP13)".

Resolution Conf. 13. 10 (Rev. CoP14)

Trade in Alien Invasive Species

"... The [CoP] to the Convention recommends that the parties:

(a) consider the problems of invasive species when developing national legislation and regulations that deal with the trade in live animals or plants;

(b) consult with the Management Authority of a proposed country of import, when possible and when applicable, when considering exports of potentially invasive species, to determine whether there are domestic measures regulating such imports ..."; and

(c) consider the opportunities for synergy between CITES and the Convention on Biological Diversity (CBD) and explore appropriate cooperation and collaboration between the two Conventions on the issue of introductions of alien species that are potentially invasive."

Resolution Conf. 14.4

Cooperation between CITES and ITTO regarding trade in tropical timber

The [CoP] to CITES:

Welcomes the work of ITTO in promoting transparent markets, trade in tropical timber from sustainably managed tropical forests and, in that context, promoting forest law enforcement;

Encourages Parties to support and facilitate the work of ITTO and CITES to build increased capacity and improve implementation of CITES timber listings;

Urges Parties to support and contribute to work, guided by the CITES Plants Committee, to develop appropriate listing proposals based on the best available science to ensure the conservation of timber species and help ensure that trade does not threaten their survival;

Directs the CITES Secretariat to cooperate closely with the Secretariat of ITTO on matters related to tropical timber species threatened by international trade and sustainable management of tropical timber producing forests; and

Encourages all Parties, CITES, ITTO and other relevant intergovernmental organizations to promote improved forest law enforcement.

Resolution Conf. 14.6 (Rev. CoP16)  Introduction from the sea

The [CoP] to CITES:

Agrees that ‘the marine environment not under the jurisdiction of any State’ means those marine areas beyond the areas subject to the sovereignty or sovereign rights of a State consistent with international law, as reflected in the United Nations Convention on the Law of the Sea;

further agrees that,

(a) whenever any specimen of a species included in Appendix I or II is taken in the marine environment not under the jurisdiction of any State by a vessel registered in one State and is transported into that same State, the provisions of Article III, paragraph 5, or Article IV, paragraphs 6 and 7, respectively, should be applied; with that State being the State of introduction;

(b) whenever any specimen of a species included in Appendix I or II is taken in the marine environment not under the jurisdiction of any State by a vessel registered in one State and is transported into a different State, the provisions of Article III, paragraphs 2 and 3, or Article IV, paragraphs 2, 3 and 4, respectively, should be applied, with the State in which the vessel that took the specimen is registered being the State of export and the State into which the specimen is transported being the State of import; and …

Resolution Conf. 14.7 (Rev. CoP15)

Management of nationally established export quotas

 

The [CoP] to CITES:

Recommends that Parties follow the Guidelines for management of nationally established export quotas that are annexed to this Resolution.

Some of these Guidelines read as follows:

“2.    In the context of CITES, an annual export quota is a limit on the number or quantity of specimens of a particular species that may be exported from the country concerned within a 12-month period. An annual export quota is not a target and there is no need for a quota to be fully used. It is recognized that there are some cases in which it is likely that the export of specimens removed from the wild will occur after the year in which the removal took place, as happens with hunting trophies.

3.     An export quota system is a management tool, used to ensure that exports of specimens of a certain species are maintained at a level that has no detrimental effect on the population of the species. The setting of an export quota advised by a Scientific Authority effectively meets the requirement of CITES to make a non-detriment finding for species included in Appendix I or II and, for species in Appendix II, to ensure that the species is maintained throughout its range at a level consistent with its role in the ecosystems in which it occurs.

4.     A well-implemented export quota system can be an advantage for any Party to CITES that authorizes exports. It eliminates the need for a non-detriment finding for each individual shipment of CITES specimens, provides a basis for monitoring the trade and may facilitate the issuance of export permits. In the case of species whose populations span international borders, the establishment of export quotas can be coordinated at a regional level, which is of particular relevance in the case of migratory species.

5.     It must be recognized, however, that there are also other management tools that may be better suited to the biological, administrative or other management context. In some cases, the use of quotas could have an undesirable effect, particularly if they are not adjusted as necessary to take into account changing biological, legal or administrative needs. For example, where a quota has been set for a particular year but the species are impacted by climatic factors, such as a drought, there could still be pressure to fill the quota.

6.     The fundamental principle to follow is that decision-making regarding the level of sustainable exports must be scientifically based, and harvests managed in the most appropriate manner. This requires that implementation, including administrative, legislative and enforcement measures, take account of the regulatory and biological context.”

Resolution Conf. 15.2 (Rev. CoP15)

Wildlife Trade Policy Reviews

 

The [CoP] to the Convention:

"...    (a) Invites exporting and importing countries to carry out, on a voluntary basis, reviews of wildlife policy on the use of and trade in specimens of CITES-listed species, taking into account environmental, social and economic issues and relevant policy instruments, in order to facilitate a better understanding of the effects of wildlife trade policies on the international wildlife trade; …

(d) Requests Parties that undertake wildlife trade policy reviews on a voluntary basis to share relevant details of their reviews and lessons learned with other Parties;

(e) Instructs the Secretariat to facilitate the review of wildlife trade policies, through raising the necessary funds and providing necessary technical cooperation, compile information provided voluntarily by the Parties regarding their wildlife trade policy reviews and make this information available to other Parties ..."

Resolution Conf. 16.3 CITES

Strategic Vision: 2008-2020

 

The [CoP] to CITES:

“Adopts the CITES Strategic Vision: 2008-2020”

Contains the CITES vision statement:” Conserve biodiversity and contribute to its sustainable use by ensuring that no species of wild fauna or flora becomes or remains subject to unsustainable exploitation through international trade, thereby contributing to the significant reduction of the rate of biodiversity loss and making a significant contribution towards achieving the relevant Aichi Biodiversity Targets".

 

Establishes three goals with related objectives:

GOAL 1 -        ENSURE COMPLIANCE WITH AND IMPLEMENTATION AND ENFORCEMENT OF THE CONVENTION

GOAL 2 -        SECURE THE NECESSARY FINANCIAL RESOURCES AND MEANS FOR THE OPERATION AND IMPLEMENTATION OF THE CONVENTION

GOAL 3 -        CONTRIBUTE TO SIGNIFICANTLY REDUCING THE RATE OF BIODIVERSITY LOSS AND TO ACHIEVING RELEVANT GLOBALLY‑AGREED GOALS AND TARGETS BY ENSURING THAT CITES AND OTHER MULTILATERAL INSTRUMENTS AND PROCESSES ARE COHERENT AND MUTUALLY SUPPORTIVE

Objective 3.1  Cooperation between CITES and international financial mechanisms and other related institutions is enhanced in order to support CITES-related conservation and sustainable development projects, without diminishing funding for currently prioritized activities.

Objective 3.2  Awareness of the role and purpose of CITES is increased globally.

Objective 3.3  Cooperation with relevant international environmental, trade and development organizations is enhanced.

Objective 3.4  The contribution of CITES to the relevant Millennium Development Goals, the sustainable development goals set at WSSD, the Strategic Plan for Biodiversity 2011-2020 and the relevant Aichi Biodiversity Targets, and the relevant outcomes of the United Nations Conference on Sustainable Development is strengthened by ensuring that international trade in wild fauna and flora is conducted at sustainable levels.

Objective 3.5  Parties and the Secretariat cooperate with other relevant international organizations and agreements dealing with natural resources, as appropriate, in order to achieve a coherent and collaborative approach to species which can be endangered by unsustainable trade, including those which are commercially exploited.

Resolution Conf. 16.6 CITES and livelihoods

The [CoP] to the Convention:

“Recommends the following to be considered when Parties address livelihood issues:

Regarding empowerment of rural communities

Encourages Parties to work with key stakeholder groups to design, implement and monitor effective strategies with regard to the implementation of CITES listings,

Regarding enabling policies

Invites Parties to initiate or strengthen collaborative partnerships among local, regional, national and international development and conservation agencies to enhance:

(a) financial support for wildlife conservation and rural communities; and

(b) the complementarity of their work and CITES implementation.

Invites Parties to explore the use of registered marks of certification and origin consistent with CITES provisions; and

invites international financial institutions and cooperation agencies to assist Parties in the development of supportive policies and institutions at the regional, national and local levels to address impacts of the implementation of listings on rural communities

Regarding the potential shift from in situ to ex situ production

Recognizes that:

(a) ex situ production may lead to loss of revenues for rural communities;

(b) positive incentives to promote in situ production systems may encourage benefits for these communities; and

(c) cooperation between exporting and importing countries may include:

i) working with in situ and ex situ producers and trade associations; and

ii) conservation and development projects.

Resolution Conf. 16.7 Non-detriment findings

The [CoP] to the Convention:

Recommends that:

(a) Scientific Authorities take into account the following concepts and non-binding guiding principles in considering whether trade would be detrimental to the survival of a species:

i)        a non-detriment finding for an Appendix-I or -II species is the result of a science-based assessment that verifies whether a proposed export is detrimental to the survival of that species or not;[3]

ii)       Scientific Authorities should consider whether the species would be maintained throughout its range at a level consistent with its role in the ecosystems in which it occurs;

iii)      in making a non-detriment finding, Scientific Authorities should consider the volume of legal and illegal trade (known, inferred, projected, estimated) relative to the vulnerability of the species (intrinsic and extrinsic factors that increase the risk of extinction of the species);

iv)      the data requirements for a determination that trade is not detrimental to the survival of the species should be proportionate to the vulnerability of the species concerned;

v)       the making of an effective non-detriment finding relies upon a correct identification of the species concerned and verification that it is specimens of this species that are to be exported;

vi)      the methodology used to make a non-detriment finding should reflect the origin and type of specimen, such that the method used to make a non-detriment finding for a specimen known to be of non-wild origin may be less rigorous than that for a specimen of wild origin for example;

vii)     the methodology used should be flexible enough to allow for consideration of the specific and individual characteristics of different taxa;

viii) the implementation of adaptive management, including monitoring, is an important consideration in the making of a non-detriment finding;

ix)      the non-detriment finding is based on resource assessment methodologies which may include, but are not limited to, consideration of:

  A.     species biology and life-history characteristics;

  B.     species range (historical and current);

  C.     population structure, status and trends (in the harvested area, nationally and internationally);

  D.     threats;

  E.     historical and current species-specific levels and patterns of harvest and mortality (e.g. age, sex) from all sources combined;

  F.      management measures currently in place and proposed, including adaptive management strategies and consideration of levels  

of compliance;

  G.     population monitoring; and

  H.     conservation status; and

x)       the sources of information that may be considered when making a non-detriment finding include but are not limited to:

  A.     relevant scientific literature concerning species biology, life history, distribution and population trends;

  B.     details of any ecological risk assessments conducted;

  C.     scientific surveys conducted at harvest locations and at sites protected from harvest and other impacts; and

  D.     relevant knowledge and expertise of local and indigenous communities.

  E.     consultations with relevant local, regional and international experts; and

  F.      national and international trade information such as that available via the CITES trade database maintained by UNEP World Conservation Monitoring Centre (UNEP-WCMC), publications on trade, local knowledge on trade and investigations of sales at markets or through the Internet for example; and

(b) Scientific Authorities consider, as a reference for making non-detriment findings, the information included in the Annex to document AC26/PC20 Doc. 8.4 and any subsequent updates available on the CITES website[4].

Resolution Conf. 16.8 Frequent cross-border non-commercial movements of musical instruments

The [CoP] to the Convention:

Recommends that for non-commercial cross-border movement of musical instruments derived from CITES species, other than Appendix-I specimens acquired after the species was included in the Appendices:

(a) Parties issue a musical instrument certificate for a pre-Convention Appendix-I, -II or -III personally-owned musical instrument or for a personally-owned musical instrument containing specimens of Appendix-II or -III species acquired after the effective listing date (“personal effects”), to facilitate the frequent non-commercial cross-border movement of musical instruments for purposes including, but not limited to, personal use, performance, display or competition

Resolution Conf. 16.10 Implementation of the Convention for agarwood-producing taxa

The [CoP] to the Convention:

Regarding management and trade control

Encourages range States to establish a registration system for the artificial propagation of agarwood-producing trees;

Recommends exporting States to establish a registration system of exporters who export pure or mixed oil of agarwood. Samples of the labels used and lists of relevant exporters should be communicated to the Secretariat by exporting States, and then be provided to all Parties through a Notification.

1.2.3  Quota systems within CITES

Export quotas in the context of CITES are simply the maximum number of specimens that may be exported from the country concerned within a 12-month period [cf. Resolution Conf. 14.7 (Rev. CoP15)]. Export quotas are derived from four sources (see Notification to the Parties No. 2008/053 of 22 August 2008): (a) voluntary national export quotas, (b) export quotas recommended by the CoP, Standing Committee, the Animals Committee or the Plants Committee, (c) export quotas for raw elephant ivory in compliance with Resolution Conf. 10.10 (Rev. CoP16) and d) catch and export quotas for Acipenseriformes established in accordance with Resolution Conf. 12.7 (Rev. CoP16). Quotas, and to a lesser extent other forms of instruments on management of harvests and exports, have been used in CITES to regulate the quantity of specimens of CITES-listed species entering international trade. These quotas have been established through a range of different procedures. CITES export quotas should be, and in many instances are, the result of:

-         Effective national conservation management programmes designed to prevent unsustainable harvesting of wild populations; and

-         a determination by CITES Scientific Authorities in compliance with Article III, paragraph 2 a), [for Appendix-I species] and Article IV, paragraph 2 a), [for Appendix-II species] of the Convention, that the number of specimens that may be exported as part of a quota will not be detrimental to the survival of that species.

CITES quotas have served as a significant conservation measure to curtail unsustainable trade in Appendix-II species (and therefore the likely transfer of such species to Appendix I), but also to help countries regulate trade and maintain market access in situations where international trade provides positive incentives for conservation.

1.2.3.1  Voluntary national export quotas

Many Parties routinely establish annual export quotas on a voluntary basis for one or more Appendix-II and/or –III species as a means of regulating exports in those species (see the CITES website). The main purposes of such export quotas appear to be:

-     To establish a limit on yearly exports at levels that are sustainable, or within the annual production capacity of ranching or captive breeding operations;

-     to announce the intended level of exports to both producers at national level and importers for the purpose of facilitating trade;

-     to establish a basis for allocating amounts to be exported per year to individual exporters.

In June 2007, the CoP adopted Resolution Conf. 14.7 on the Guidelines for Management of Nationally Established Export Quotas, specifying a number of general principles regarding the establishment and management of such annual export quotas. This Resolution was later revised by the CoP in March 2010 [Resolution Conf. 14.7 (Rev.CoP15)].

1.2.3.2  Quotas established by the CoP or the Standing Committee

At previous meetings, the CoP to CITES has established quotas for hunting trophies and other specimens of several species, including Appendix-I species, either through the adoption of resolutions (e.g. Resolution Conf. 10.14 (Rev. CoP16) concerning leopard, Resolution Conf.10.15 (Rev. CoP14) concerning markhor, and Resolution Conf. 13.5 (Rev. CoP14) concerning black rhinoceros) or through the amendment of the Appendices to include annotations to the listing of species that refer to quotas for those species or some populations of those species (e.g. the annotation for Crocodylus niloticus that establishes a quota for the crocodile population of the United Republic of Tanzania or the annotation that establishes a zero quota for some specimens of Geochelone sulcata). Such quotas can only be amended if the CoP adopts by a two-thirds majority a proposal to amend a listing or a resolution (unless the CoP had decided that a quota will only apply for a specific period). Proposals to amend quotas specified in the Appendices need to be submitted in accordance with Resolution Conf. 9.24 (Rev. CoP16) and according to the provisions of Article XV.

Export quotas have in many instances been recommended through or as a result of the Review of Significant Trade pursuant to Resolution Conf. 12.8 (Rev. CoP13) or its predecessors. In such cases, the Animals and Plants Committees, through their review of trade in species selected because of concern over the sustainability of exports, made recommendations to Parties to conduct status assessments, apply management procedures or establish cautions export quotas. In cases of non-implementation, the Standing Committee shall decide on appropriate action and make recommendations to the State concerned or to all Parties. Such recommendations can include the establishment of quotas or the suspension of imports with regard to specimens of listed species (e.g. Notification to the Parties No.2014/039 of 12 August 2014).

 

1.2.3.3  Quotas submitted or established in accordance with Resolution Conf. 10.10 (Rev. CoP16) and Resolution Conf. 12.7 (Rev. CoP16)

Export quotas are also established with regard to trade in specific species, i.e. elephant specimens (Resolution Conf. 10.10 Rev. CoP14) and sturgeons and paddlefish (Resolution Conf. 12.7 Rev. CoP16). These quotas are established by the member States in accordance with the said Resolutions.

1.3  Supportive measures

CoP Decisions 16.33-16.38 – National laws for implementation of the Convention

Directed to Parties

16.33        By the 66th meeting of the Standing Committee (SC66), Parties whose legislation is in Category 2 or 3 under the National Legislation Project and which have been party to the Convention for more than five years as of March 2013 should submit to the Secretariat, in one of the working languages of the Convention, appropriate measures that have been adopted for effective implementation of the Convention.

16.34        For any Party affected by Decision 16.33 that has been party to the Convention for less than 20 years, should exceptional circumstances prevent them from adopting appropriate measures for effective implementation of the Convention, that Party should advise the Secretariat in writing of those exceptional circumstances by SC66.

16.35        Parties whose legislation is in Category 1 under the National Legislation Project are encouraged to provide technical or financial assistance to one or more Parties whose legislation is in Category 2 or 3 under the National Legislation Project.

Directed to the Standing Committee

16.36        The Standing Committee shall review at its 65th, 66th and 67th meetings the progress of Parties in adopting appropriate measures for effective implementation of the Convention.

16.37        At its 66th meeting, the Standing Committee shall recommend a suspension of commercial trade in specimens of CITES-listed species with those Parties affected by Decision 16.33 that have failed to adopt appropriate measures for the effective implementation of the Convention. This recommendation shall take effect 60 days after the conclusion of SC66. Should exceptional circumstances prevent any Party affected by Decision 16.33 that has been party to the Convention for less than 20 years from enacting legislation by SC66, the Standing Committee shall review the situation and determine appropriate measures for addressing it. Any Party affected by Decision 16.33 that has been party to the Convention for 20 years or more and has failed to adopt appropriate measures or agree an appropriate legislative timetable with the Secretariat by SC66 will be subject to recommendations to suspend trade. The Standing Committee will not make recommendations to suspend trade where a Party has submitted its final draft or an appropriate legislative timetable to the Secretariat by the SC66 deadline and it is pending action from the Secretariat.

Directed to the Secretariat

16.38        The Secretariat shall:

          (a) compile and analyse the information submitted by Parties on measures adopted before the 17th meeting of the Conference of the Parties (CoP17) to fulfil the requirements laid down in the text of the Convention and Resolution Conf. 8.4 (Rev. CoP15);

          (b) subject to external funding, provide legal advice and assistance to Parties on the development of appropriate measures for effective implementation of the Convention, including legislative guidance for and training of CITES authorities, legal drafters, policymakers, the judiciary, parliamentarians and other relevant government officials responsible for the formulation and adoption of CITES-related legislation;

          (c) cooperate, in the provision of legislative assistance, with the legal programmes of United Nations bodies and intergovernmental organizations, such as the Food and Agriculture Organization of the United Nations, UNEP, the World Bank and regional development banks, as well as regional organizations such as the Africa, Caribbean and Pacific Secretariat, the Amazon Cooperation Treaty Organization, the Association of South East Asian Nations, the League of Arab States, the Organization of American States and the Pacific Regional Environment Programme;

          (d) report at the 65th, 66th and 67th meetings of the Standing Committee on Parties’ progress in adopting appropriate measures for effective implementation of the Convention and, if necessary, recommend the adoption of appropriate compliance measures, including recommendations to suspend trade;

          (e) identify for the Standing Committee any countries that require attention as a priority under the National Legislation Project; and

          (f) report at CoP17 on progress made with regard to the implementation of Resolution Conf. 8.4 (Rev. CoP15) and Decisions 16.33-16.38.

Decisions 16.39 – 16.40 – Enforcement Matters

Directed to the Standing Committee

16.39        At its 65th meeting, the Standing Committee shall initiate a process to assess implementation and enforcement of the Convention as it relates to the trade in species listed in Appendix I. The Committee shall report its findings at the 17th meeting of the Conference of the Parties to CITES.

Directed to the Secretariat

16.40        Subject to available resources, the Secretariat shall:

          (a) in cooperation with partners in the International Consortium on Combating Wildlife Crime, establish Wildlife Incident Support Teams (WISTs) consisting of enforcement staff or relevant experts. WISTs shall be dispatched at the request of a country that has been affected by significant poaching of CITES specimens, or that has made a large-scale seizure of such specimens, to assist it, and guide and facilitate appropriate follow-up actions in the immediate aftermath of such an incident. The Secretariat shall report on progress in this regard at the 65th or 66th meeting of the Standing Committee, as appropriate; and

          b) seek invitations from Parties that have carried out significant seizures of CITES specimens, for the Secretariat, or relevant experts, to conduct assessments of the circumstances of such seizures and the follow-up actions that were taken, so that lessons may be learned and disseminated. The Secretariat shall report its findings in this regard at the 65th and 66th meetings of the Standing Committee, as appropriate.

Decisions 16.78 – 16.83 – Monitoring of illegal trade in ivory and other elephant specimens

Directed to the Standing Committee

16.82 The Standing Committee shall review the report and recommendations of the Secretariat concerning the implementation of Decisions 16.78 – 16.81 and Decision 16.83 at its 65th and 66th meetings and determine whether any further actions are necessary.

 

More information on National Ivory Action Plans (NIAPs) is available at https://cites.org/eng/niaps.

 

Decisions 14.28 (Rev. CoP15 – 14.29 (Rev. CoP16) – Cooperation between Parties and promotion of multilateral measures

Decisions 16.17 – 16.25 – CITES and livelihoods

Decisions 16.26 – 16.27 – National wildlife trade policy reviews

Decisions 16.54 – Electronic permitting

Decisions 15.57 – 16.62 – E-commerce of specimens of CITES-listed species

Decisions 16.56 – 16.57 – Use of Taxonomic Serial Numbers

Decision 16.55 – Decision-making mechanism for a process of trade in ivory

Decisions 16.63 – 16.66 – Implementation of the Convention relating to captive-bred and ranched specimens

Decision 16.52 – Introduction from the sea: capacity building and special requirements of developing States

Decisions 16.30 – 16.32 – Needs assessment for strengthening the implementation of CITES

Decision 12.91 (Rev. CoP16) – Capacity-building programme for science-based establishment and implementation of voluntary national export quotas for Appendix-II species

 

à CITES is funded by Party contributions to a Trust Fund administered by UNEP. At CITES CoP16 (Bangkok, 2013), CITES Parties considered document CoP16 Doc. 8.5 on access to other sources of funding and agreed on further work under Decisions 16.3 – 16.8. The Parties also considered document CoP16 Doc. 8.4 on access to Global Environment Facility (GEF) funding and agreed to further work under Decision 16.2. The Biodiversity Strategy Focal Area of GEF-6 includes a section on preventing the extinction of known threatened species, with specific reference to the issue of poaching and illegal trade of endangered species (e.g. African elephants and rhinoceroses). Following discussions between members of the Biodiversity Liaison Group and the GEF Secretariat, as well as discussions within and recommendations made by the CBD Working Group on Review of Implementation, CBD CoP12 in 2014 adopted Decision XII/30 inviting the governing bodies of the various biodiversity-related conventions to provide elements of advice, as appropriate, concerning the funding of national priorities, within their respective mandates, that may be referred to the GEF through the CoP to the CBD.

à There are two general types of CITES projects: (1) "Administrative projects" include, inter alia: those related to the funding of participants to CITES CoPs or other meetings;  technical assistance (e.g. support in the development of CITES-related legislation); training; and the provision of information (published and electronic); (2) "Species" projects are those that fund scientific research related to a particular animal or plant species (e.g. status survey, management and conservation of the African grey parrot in one or more countries).

à The CITES Secretariat provides technical assistance to developing countries through special programmes. These programmes aim to raise the capacity of the Parties to implement the Convention. CITES' training activities are coordinated by the Knowledge Management and Outreach Services (KMOS) team in the Secretariat. Capacity-building activities include: workshops, seminars, training packages, dissemination of information through the Internet, CITES Virtual College and InforMEA portal, technical assistance, etc.  The Scientific Services team (SST) provides assistance to the CITES Parties to enhance the scientific basis for decision-making in CITES. SST is responsible for workshops on non‑detriment findings and quota management, as well as the creation of identification manuals. Compliance and enforcement are also important focal activities of the CITES Secretariat. The Regulatory Services team monitors national reports, responds to permit queries, provides legal and policy advice for the development of national legislation, assists with the review of national wildlife trade policies, supports the adoption of measures to promote and achieve compliance, provides technical assistance to enforcement officers in relation to allegations of illegal trade, organizes enforcement seminars and works with KMOS to preparate relevant training packages. The Governing Bodies and Meeting Services team assists the Parties with Convention-related documentation and provides logistic support in the organization of CITES meetings. KMOS manages the CITES website, media relations,and resource mobilization and provides information/communications technology, e-permitting, on-line capacity building and communications support to Parties.

à Many Parties have asked the Secretariat for advice or assistance in the development of legislation to implement CITES. The Secretariat has responded in a variety of ways, including drafting legislative guidance material (e.g. draft model law, legislative checklist, instructions for legislative drafters, etc.) undertaking country missions or organizing regional workshops, and providing written advice and/or comments on draft legislation. Parties to CITES have precisely defined an approach, the National Legislation Project, for reviewing and evaluating domestic measures to implement the Convention. Three categories and four criteria are used to assess a Party’s national legislation. The project has been operating since 1992. Legislative assistance under the Convention could be further developed to address the interaction between environmental and trade legislation, as well as the necessary institutional co-operation between Ministries of Environment and Ministries of Trade.

à Certain external contributions received by the Secretariat are used on species-related surveys, a number of which have been aimed at gathering information on a specific population’s conservation status with a view to devising sustainable management programmes. Some of this financial support has also come from users of wildlife. Species covered in surveys with a sustainable use dimension include sharks/rays (with FAO), parrots, pythons, crocodilians, lizards, corals, trees (with ITTO), plants and orchids.

à Specific programmes include:

1.     There is a Legal Affairs and Trade Policy team in Regulatory Services which assists the Parties , inter alia, in the development of "trade and environment" policies and to prepare "trade and environment" analyses for presentation and discussion at meetings of the CoP and for consideration by fora such as the WTO.

2.     MIKE (Monitoring of the Illegal Killing of Elephants Programme). The objectives of this programme are to: measure levels and trends in the illegal hunting of elephants; determine changes in these trends over time; and determine the factors causing or associated with such changes, and to try and assess in particular to what extent observed trends are a result of any decisions taken by the CoP to CITES.

3.     ETIS (Elephant Trade Information System). This comprehensive information system tracks illegal trade in ivory and other elephant products.

4.     Species programmes on trade in Asian big cats, elephants, falcons, great apes, hawksbill turtles, saiga antelopes, snakes, sharks and stingrays, tortoises and freshwater turtles, Malagasy ebonies and rosewoods, agarwood-producing taxa and neotropical tree species.

5.     EC-funded projects to strengthen the CITES implementation capacity of developing countries to ensure sustainable wildlife management and non-detrimental trade.

1.4  Non-compliance mechanism

1.4.1  Provisions of the Convention

Article XIII – International Measures

"1.    When the Secretariat in the light of information received is satisfied that any species included in Appendix I or II is being affected adversely by trade in specimens of that species or that the provisions of the present Convention are not being effectively implemented, it shall communicate such information to the authorized Management Authority of the Party or Parties concerned.

2.     When any Party receives a communication as indicated in paragraph 1 of this Article, it shall, as soon as possible, inform the Secretariat of any relevant facts insofar as its laws permit and, where appropriate, propose remedial action. Where the Party considers that an inquiry is desirable, such inquiry may be carried out by one or more persons expressly authorized by the Party.

3.     The information provided by the Party or resulting from any inquiry as specified in paragraph 2 of this Article shall be reviewed by the next CoP which may make whatever recommendations it deems appropriate".

àThe CoP regularly reviews the implementation of the Convention, and makes "whatever recommendations it deems appropriate" in relation to allegations of unsustainable trade or ineffective implementation of the Convention (Article XIII). Evaluation of compliance within the Convention is based on the Secretariat’s reports to the COP and CITES subsidiary bodies (e.g. annual reports, the Review of Significant Trade, national legislation and alleged illegal trade and other implementation problems).

à The Standing Committee carries out such interim activities on behalf of the CoP as may be necessary and provides guidance and advice on matters brought to it by the Secretariat in the exercise of its function. The CoP often instructs or delegates its authority to the Standing Committee, e.g. pursuant to Resolution Conf. 8.4 (Rev. CoP15), to consider "appropriate measures", which may include restrictions on the trade in specimens of CITES-listed species. In various instances, e.g. pursuant to Resolution Conf. 12.8 (Rev. CoP13), the Secretariat recommends to the Standing Committee that it adopt certain compliance measures, which may include a recommended suspension of trade in the affected species with a particular Party. (See also the Guide to CITES compliance procedures contained in Resolution Conf. 14.3).

à As CITES uses trade measures for its implementation, one recommendation for improving the effectiveness of the Convention is a temporary suspension of trade recommended by either the CoP or the Standing Committee. In practical terms, this provides a period of time during which the relevant Party can move from non-compliance to compliance by, inter alia, submitting missing annual reports, enacting adequate legislation, combating and reducing illegal trade or responding to specific recommendations of the Standing Committee concerning the implementation of Article IV of the Convention in the context of the Review of Significant Trade. Having identified a problem of serious non‑compliance, it would be inappropriate for Parties not to respond. Recommendations for a suspension of trade may be regarded as a precautionary measure to prevent a continuing violation of the Convention that may also be detrimental to the survival of one or more CITES-listed species.

à Recommendations to suspend trade are generally used as a last resort and CITES puts primary emphasis on promoting and facilitating Parties' compliance through consultations and advice or assistance. Furthermore, such measures are generally used in cases involving significant levels of trade and where no domestic measures exist to enforce the Convention. Finally, such recommendations are withdrawn immediately upon a Party’s return to compliance.

1.4.2  Resolutions and Decisions of the Conference of the Parties

Resolution Conf. 8.4 (Rev. CoP15)

"Instructs the Standing Committee to determine which Parties have not adopted appropriate measures for effective implementation of the Convention and to consider appropriate compliance measures, which may include recommendations to suspend trade, in accordance with Resolution Conf. 14.3";

Resolution Conf. 11.3 (Rev. CoP16) – Compliance and enforcement

"... Regarding compliance, control and cooperation

Urges all Parties to strengthen, as soon as possible, the controls on trade in wildlife in the territories under their jurisdiction, and in particular controls on shipments from producing countries, including neighbouring countries, and to strictly verify the documents originating from such countries with the respective Management Authorities;

Recommends that:

(a) all Parties:

i) recognize the seriousness of illegal trade in wild fauna and flora and identify it as a matter of high priority for their national law enforcement agencies;

ii) if appropriate, consider formulating national and regional action plans, incorporating timetables, targets and provisions for funding, designed to enhance enforcement of CITES, achieve compliance with its provisions, and support wildlife-law enforcement agencies;

            iii) provide officials who have wildlife-law enforcement responsibilities with equivalent training, status and authority to those of their counterparts in Customs and the police;

iv) if appropriate, make use of the ICCWC Wildlife and forest crime analytic toolkit;

            v) ensure strict compliance and control in respect of all mechanisms and provisions of the Convention relating to the regulation of trade in animal and plant species listed in Appendix II, and of all provisions ensuring protection against illegal traffic for the species included in the Appendices;

            vi) in case of violation of the above-mentioned provisions, immediately take appropriate measures pursuant to Article VIII, paragraph 1, of the Convention in order to penalize such violation and to take appropriate remedial action; and

vii) inform each other of all circumstances and facts likely to be relevant to illegal traffic and also of control measures, with the aim of eradicating such traffic;

(b) Parties should advocate sanctions for infringements that are appropriate to their nature and gravity;

(c) Parties that are not yet signatories to, or have not yet ratified, the UN Convention against Transnational Organized Crime and the UN Convention against Corruption consider doing so;

(d) importing Parties in particular not accept under any circumstances or pretext, export or re-export documents issued by any authority, irrespective of its hierarchical level, other than the Management Authority officially designated as competent by the exporting or re-exporting Party and duly notified to the Secretariat;

(e) if an importing country has reason to believe that specimens of an Appendix-II or -III species are traded in contravention of the laws of any country involved in the transaction, it:

 i) immediately inform the country whose laws were thought to have been violated and, to the extent possible, provide that country with copies of all documentation relating to the transaction; and

ii) where possible, apply stricter domestic measures to that transaction as provided for in Article XIV of the Convention; and

(f) Parties remind their diplomatic missions, their delegates on mission in foreign countries and their troops serving under the flag of the United Nations that they are not exempted from the provisions of the Convention;

Regarding application of Article XIII, recommends that:

(a) when, in application of Article XIII of the Convention and Resolution Conf. 14.3 on CITES compliance procedures, the Secretariat requests information on a potential compliance matter, Parties reply within one month or, if this is impossible, acknowledge within the month and indicate a date, even an approximate one, by which they consider it will be possible to provide the information requested;

(b) when, within six months, the information requested has not been provided, Parties provide the Secretariat with justification of the reasons for which they have not been able to respond;

(c) if major compliance matters concerning particular Parties are brought to the attention of the Secretariat, the Secretariat work with the Parties concerned to try to solve the matter and offer advice or technical assistance as required;

(d) if it does not appear a solution can be readily achieved, the Secretariat bring the matter to the attention of the Standing Committee, which may pursue the matter in direct contact with the Party concerned with a view to helping to find a solution; and

(e) the Secretariat keep the Parties informed as fully as possible, through Notifications to the Parties, of such compliance matters and of actions taken to solve them, and include such matters in its reports for meetings of the Standing Committee and the Conference of the Parties;

Resolution Conf. 11.17 (Rev. CoP16) – National  reports

Recommends that, when compiling their annual reports in accordance with Article VIII, paragraph 7, of the Convention and this Resolution, Parties pay particular attention to the reporting of trade in specimens of species subject to annual export quotas. For these species, the report should indicate the level of the quota and the amount actually exported. In cases where trade is authorized in the reporting year in specimens obtained under a quota for the previous year, this should be reflected in the annual report;

Decides that:

(a) failure to submit an annual report by 31 October of the year following the year for which the report was due constitutes a major problem with the implementation of the Convention, which the Secretariat shall refer to the Standing Committee for a solution in accordance with Resolution Conf. 11.3 (Rev. CoP16); and

(b) the Secretariat may approve a valid request from a Party for a reasonable extension of time to the 31 October deadline for the submission of annual or biennial reports provided the Party submits to the Secretariat a written request, containing adequate justification, before that deadline;

Instructs the Standing Committee to determine, on the basis of reports presented by the Secretariat, which Parties have failed, for three consecutive years and without having provided adequate justification, to provide the annual reports required under Article VIII, paragraph 7 (a), of the Convention within the deadline (or any extended deadline) provided in the present Resolution;

Recommends that Parties not authorize trade in specimens of CITES-listed species with any Party that the Standing Committee has determined has failed, for three consecutive years and without having provided adequate justification, to provide the annual reports required under Article VIII, paragraph 7 (a), of the Convention within the deadline (or any extended deadline) provided in the present Resolution;

Resolution Conf. 12.8 (Rev. CoP13) – Review of significant trade in specimens of Appendix-II species

"... Measures to be taken regarding the implementation of recommendations

(q) the Secretariat shall, in consultation with the Chairman of the Animals or Plants Committee, determine whether the recommendations referred to above have been implemented and report to the Standing Committee accordingly;

(r) where the recommendations have been met, the Secretariat shall, following consultation with the Chairman of the Standing Committee, notify the Parties that the species was removed from the process;

(s) when the Secretariat, having consulted with the Chairman of the Animals or Plants Committee, is not satisfied that a range State has implemented the recommendations made by the Animals or Plants Committee in accordance with paragraphs n) or o), it should recommend to the Standing Committee appropriate action, which may include, as a last resort, a suspension of trade in the affected species with that State. On the basis of the report of the Secretariat, the Standing Committee shall decide on appropriate action and make recommendations to the State concerned, or to all Parties;

(t) the Secretariat shall notify the Parties of any recommendations or actions taken by the Standing Committee;

(u) a recommendation to suspend trade in the affected species with the State concerned should be withdrawn only when that State demonstrates to the satisfaction of the Standing Committee, through the Secretariat, compliance with Article IV, paragraph 2 (a), 3 or 6 (a); and

(v) the Standing Committee, in consultation with the Secretariat and the Chairman of the Animals or Plants Committee, shall review recommendations to suspend trade that have been in place for longer than two years and, if appropriate, take measures to address the situation; ...".

à For a list of outstanding Standing Committee recommendations made in accordance with this Resolution to suspend imports of CITES-listed species from certain countries, see Notification No. 2013/013 of 2 May 2013.

Resolution Conf. 14.3 – CITES compliance procedures

Annex - Guide to CITES compliance procedures

Objective and scope

1.     The objective of this Guide is to inform Parties and others of CITES procedures concerning promoting, facilitating and achieving compliance with obligations under the Convention and, in particular, assisting Parties in meeting their obligations regarding such compliance.

        Specifically, the Guide describes existing procedures in order to facilitate consistent and effective handling of compliance matters relating to obligations under the Convention, taking into account relevant Resolutions and Decisions, in both specific and general compliance matters …

29.    If a compliance matter has not been resolved, the Standing Committee decides to take one or more of the following measures:

(a) provide advice, information and appropriate facilitation of assistance and other capacity-building support to the Party concerned;

(b) request special reporting from the Party concerned;

(c) issue a written caution, requesting a response and offering assistance;

(d) recommend specific capacity-building actions to be undertaken by the Party concerned;

(e) provide in-country assistance, technical assessment and a verification mission, upon the invitation of the Party concerned;

(f) send a public notification of a compliance matter through the Secretariat to all Parties advising that compliance matters have been brought to the attention of a Party

and that, up to that time, there has been no satisfactory response or action;

(g) issue a warning to the Party concerned that it is in non-compliance, e.g. in relation to national reporting and/or the National Legislation Project; and

(h) request a compliance action plan to be submitted to the Standing Committee by the Party concerned identifying appropriate steps, a timetable for when those steps should be completed and means to assess satisfactory completion.

30.    In certain cases, the Standing Committee decides to recommend the suspension of commercial or all trade in specimens of one or more CITES-listed species, consistent with the Convention. Such a recommendation may be made in cases where a Party’s compliance matter is unresolved and persistent and the Party is showing no intention to achieve compliance or a State not a Party is not issuing the documentation referred to in Article X of the Convention. Such a recommendation is always specifically and explicitly based on the Convention and on any applicable Resolutions and Decisions of the Conference of the Parties[5].

31.    The list of measures above is not necessarily an exhaustive list of measures applied to date.

32.    When the Standing Committee decides upon one or more of the measures mentioned above, it takes into account:

(a) the capacity of the Party concerned, especially developing countries, and in particular the least developed and small island developing States and Parties with economies in transition;

(b) such factors as the cause, type, degree and frequency of the compliance matters;

(c) the appropriateness of the measures so that they are commensurate with the gravity of the compliance matter; and

(d) the possible impact on conservation and sustainable use with a view to avoiding negative results ….

34.    Existing recommendations to suspend trade are generally reviewed at each Standing Committee meeting. They are also monitored inter-sessionally by the Secretariat. A recommendation to suspend trade is withdrawn as soon as the compliance matter has been resolved or sufficient progress has been made. The Secretariat notifies Parties of any such withdrawal as soon as possible.

à For a list of countries currently subject to a recommendation to suspend trade, see the relevant reference list on the CITES website. 

1.5  Dispute Settlement Mechanism

Article XVIII – Resolution of Disputes

"1.   Any dispute which may arise between two or more Parties with respect to the interpretation or application of the provisions of the present Convention shall be subject to negotiation between the Parties involved in the dispute.

2.    If the dispute can not be resolved in accordance with paragraph 1 of this Article, the Parties may, by mutual consent, submit the dispute to arbitration, in particular that of the Permanent Court of Arbitration at The Hague, and the Parties submitting the dispute shall be bound by the arbitral decision."

1.6  Provisions for non-parties

Article X – Trade with States not Party to the Convention

"Where export or re-export is to, or import is from, a State not a Party to the present Convention, comparable documentation issued by the competent authorities in that State which substantially conforms with the requirements of the present Convention for permits and certificates may be accepted in lieu thereof by any Party".

Resolution Conf. 9.5 (Rev. CoP16) – Trade with States not party to the Convention

"... Recommends that:

(a) permits and certificates issued by States not party to the Convention not be accepted by Parties unless they contain:

i) the name, stamp and signature of a competent issuing authority;

ii) sufficient identification of the species concerned for the purposes of the Convention;

iii) certification of the origin of the specimen concerned including the export permit number from the country of origin, or justification for omitting such certification;

iv) in the case of export of specimens of a species included in Appendix I or II, certification to the effect that the competent scientific institution has advised that the export will not be detrimental to the survival of the species (in case of doubt a copy of such advice should be required) and that the specimens were not obtained in contravention of the laws of the State of export;

v) in the case of re-export, certification to the effect that the competent authority of the country of origin has issued an export document that substantially meets the requirements of Article VI of the Convention; and

vi) in the case of export or re-export of live specimens, certification to the effect that they will be transported in a manner that will minimize the risk of injury, damage to health or cruel treatment;

(b) Parties accept documentation from States not party to the Convention only if details of the competent authorities and scientific institutions of such States are included in the most recent updated list of the Secretariat or after consultation with the Secretariat;

(c) the recommendations above also apply to specimens in transit destined for or coming from States not party to the Convention, including specimens in transit between such States;

(d) particular attention be given to the inspection of specimens in transit exported or re-exported from, and/or destined for States not party to the Convention and to the inspection of documentation for such specimens;

(e) Parties authorize import from and export or re-export to States not party to the Convention of specimens of wild origin of Appendix-I species only in special cases where it benefits the conservation of the species or provides for the welfare of the specimens, and only after consultation with the Secretariat;

(f) if any Party deems that specimens of an Appendix‑II or ‑III species are being exported from a State not party to the Convention in a manner detrimental to the survival of that species, it:

i)  consult directly with the competent authorities of the State concerned; and

ii)  if necessary, make use of the options provided by Article X, to reject permits, or Article XIV, paragraph 1 (a), to take stricter measures as appropriate;

(g) Parties allow import from States not party to the Convention of captive-bred and artificially propagated specimens of Appendix-I species only after favourable advice from the Secretariat; and

(h) Parties communicate to the Secretariat any inconsistencies in trade involving States not party to the Convention.

Instructs the Secretariat to seek, every two years, information on, and to include in its Directory, details of the designated competent authorities, scientific institutions and enforcement authorities of non-party States that were communicated by these States, together with the date on which the details were received";

à The following non-parties have provided the information requested by Resolution Conf. 9.5 (Rev. CoP16) (i.e. proof that comparable documentation is being issued by competent authorities): Andorra, Cook Islands, Democratic People’s Republic of Korea, Haiti; Kiribati, Marshall Islands, Federated States of Micronesia, Tajikistan and Tonga.

à China is a Party to CITES. Hong Kong, China and Macao, China, however, have their own CITES Management Authorities.

à Key non-parties currently in the process of adhering to the Convention include: Tajikistan and Turkmenistan.

2  Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)

2.1  Brief Description of the MEA

The CCAMLR is part of the Antarctic Treaty System, a set of arrangements made for the purpose of coordinating relations among states with respect to Antarctica. The Antarctic Treaty came into force on 23 June 1961 and remains in force indefinitely. Fifty-two countries have acceded to the Antarctic Treaty. Consultative (voting) status is open to all countries who have demonstrated their commitment to the Antarctic by conducting significant research. Twenty‑eight nations have Consultative status under the Antarctic Treaty. The Antarctic Treaty parties meet every year. They have adopted over 200 recommendations and negotiated five separate international agreements. These, together with the original Treaty, provide the rules which govern activities in Antarctica. Collectively, they are known as the Antarctic Treaty System (ATS). The five international Agreements are:

-   Agreed Measures for the Conservation of Antarctic Fauna and Flora (1964);

-   Convention for the Conservation of Antarctic Seals (1972);

-   Convention on the Conservation of Antarctic Marine Living Resources (1980);

-   Protocol on Environmental Protection to the Antarctic Treaty (1991);

-   Agreement for the Conservation of Albatross and Petrels (2001).

 

The Preamble to CCAMLR recognises "the prime responsibility of the Antarctic Treaty Consultative Parties for the protection and preservation of the Antarctic environment and, in particular, their responsibilities under Article IX, paragraph 1(f) of the Antarctic Treaty in respect of the preservation and conservation of living resources in Antarctica".

website

http://www.ccamlr.org/

Objective

à The Convention is based on an ecosystem approach to the conservation of marine living resources in the waters surrounding Antarctica. It incorporates standards designed to ensure the conservation of not only individual populations and species, but also the maintenance of the Antarctic marine ecosystem as a whole. Conservation principles established by the Convention embody an ecosystem approach to living marine resource conservation and set CCAMLR's marine resources management regime apart from other international fisheries organisations.

 

à The Convention seeks to conserve marine living resources in the Convention Area, (south of 60°S latitude and in some parts, below the zone of the Antarctic Polar Convergence), and includes all species of finfish, molluscs, crustaceans and other marine organisms as well as marine birds. In addition the Conventions provides for the rational use of marine resources. Although the management of seals and whales is under the jurisdiction of the Convention for the Conservation of Antarctic Seals (CCAS) and the International Whaling Commission (IWC), CCAMLR manages fishing activities in a way that takes into account, the impacts fishing may have on these species which form an integral part of the Antarctic marine ecosystem.

Date of Signature

20 May 1980

Entry into force

7 April 1982

Parties

36 Parties 25 Members and 11 Acceding States (as of 31 July 2015).

WTO Members

35 Parties to CCAMLR are also WTO Members (see Annex).

Openness of Membership

Article XXIX

"1.   This Convention shall be open for accession by any State interested in research or harvesting activities in relation to the marine living resources to which this Convention applies.

2.    This Convention shall be open for accession by regional economic integration organisations constituted by sovereign States which include among their members one or more States Members of the Commission and to which the States members of the organisation have transferred, in whole or in part, competences with regard to the matters covered by this Convention. The accession of such regional economic integration organisations shall be the subject of consultations among Members of the Commission".

Decision-Making Bodies

à CCAMLR’s main decision-making body is the Commission. The Commission has two standing committees: The Standing Committee on Administration and Finance (SCAF) and the Standing Committee on Implementation and Compliance (SCIC). All decisions on matters of substance are taken by consensus. The institutional features of the Convention comprise, in addition to the Commission, a Scientific Committee for the Conservation of Antarctic Marine Living Resources (SC-CAMLR) and a permanent Secretariat, based in Hobart, Australia. The Scientific Committee has three permanent working groups, the Working Group on Ecosystem Monitoring and Management (WG-EMM), the Working Group on Fish Stock Assessment (WG-FSA) and the Working Group on Assessment Methods (WG-SAM). 

(1) Commission for the Conservation of Antarctic Marine Living Resources

Article VII

"1.   The Contracting Parties hereby establish and agree to maintain the Commission for the Conservation of Antarctic Marine Living Resources (hereinafter referred to as ‘the Commission’)".

Article IX

"1.    The function of the Commission shall be to give effect to the objective and principles set out in Article II of this Convention. To this end, it shall: …

(e) identify conservation needs and analyse the effectiveness of conservation measures;

(f) formulate, adopt and revise conservation measures on the basis of the best scientific evidence available, subject to the provisions of paragraph 5 of this Article;

(g) implement the system of observation and inspection established under Article XXIV of this Convention;

(h) carry out such other activities as are necessary to fulfil the objective of this Convention.

2.     The conservation measures referred to in paragraph 1(f) above include the following:

(a) the designation of the quantity of any species which may be harvested in the area to which this Convention applies;

(b) the designation of regions and sub-regions based on the distribution of populations of Antarctic marine living resources;

(c) the designation of the quantity which may be harvested from the populations of regions and sub-regions;

(d) the designation of protected species;

(e) the designation of the size, age and, as appropriate, sex of species which may be harvested;

(f) the designation of open and closed seasons for harvesting;

(g) the designation of the opening and closing of areas, regions or sub-regions for purposes of scientific study or conservation, including special areas for protection and scientific study;

(h) regulation of the effort employed and methods of harvesting, including fishing gear, with a view, inter alia, to avoiding undue concentration of harvesting in any region or sub-region;

(i) the taking of such other conservation measures as the Commission considers necessary for the fulfilment of the objective of this Convention, including measures concerning the effects of harvesting and associated activities on components of the marine ecosystem other than the harvested populations.

3.     The Commission shall publish and maintain a record of all conservation measures in force.

4.     In exercising its functions under paragraph 1 above, the Commission shall take full account of the recommendations and advice of the Scientific Committee.

5.    The Commission shall take full account of any relevant measures or regulations established or recommended by the Consultative Meetings pursuant to Article IX of the Antarctic Treaty or by existing fisheries commissions responsible for species which may enter the area to which this Convention applies, in order that there shall be no inconsistency between the rights and obligations of a Contracting Party under such regulations or measures and conservation measures which may be adopted by the Commission.

6.    Conservation measures adopted by the Commission in accordance with this Convention shall be implemented by Members of the Commission in the following manner:

(a) the Commission shall notify conservation measures to all Members of the Commission;

(b) conservation measures shall become binding upon all Members of the Commission 180 days after such notification, except as provided in subparagraphs (c) and (d) below;

(c) if a Member of the Commission, within ninety days following the notification specified in sub-paragraph (a), notifies the Commission that it is unable to accept the conservation measure, in whole or in part, the measure shall not, to the extent stated, be binding upon that Member of the Commission;

(d) in the event that any Member of the Commission invokes the procedure set forth in sub-paragraph (c) above, the Commission shall meet at the request

of any Member of the Commission to review the conservation measure. At the time of such meeting and within thirty days following the meeting, any Member of the Commission shall have the right to declare that it is no longer able to accept the conservation measure, in which case the Member shall no longer be bound by such a measure".

Article XII

"1.    Decisions of the Commission on matters of substance shall be taken by consensus. The question of whether a matter is one of substance shall be treated as a matter of substance.

2.     Decisions on matters other than those referred to in paragraph 1 above shall be taken by a simple majority of the Members of the Commission present and voting".

(2) Scientific Committee for the Conservation of Antarctic Marine Living Resources

Article XIV

"1.   The Contracting Parties hereby establish the Scientific Committee for the Conservation of Antarctic Marine Living Resources (hereinafter referred to as ‘the Scientific Committee’) which shall be a consultative body to the Commission …".

Article XV

"1.   The Scientific Committee shall provide a forum for consultation and co-operation concerning the collection, study and exchange of information with respect to the marine living resources to which this Convention applies. It shall encourage and promote co-operation in the field of scientific research in order to extend knowledge of the marine living resources of the Antarctic marine ecosystem.

2.    The Scientific Committee shall conduct such activities as the Commission may direct in pursuance of the objective of this Convention …".

Amendments and Protocols

Article XXX

"1.    This Convention may be amended at any time.

2.     If one-third of the Members of the Commission request a meeting to discuss a proposed amendment the Depositary shall call such a meeting.

3.     An amendment shall enter into force when the Depositary has received instruments of ratification, acceptance or approval thereof from all the Members of the Commission.

4.     Such amendment shall thereafter enter into force as to any other Contracting Party when notice of ratification, acceptance or approval by it has been received by the Depositary. Any such Contracting Party from which no such notice has been received within a period of one year from the date of entry into force of the amendment in accordance with paragraph 3 above shall be deemed to have withdrawn from this Convention".

2.2  Trade-related Measures

The Convention does not contain trade measures, but trade-related measures have been adopted, for instance, in the following Conservation Measures that are binding for the Contracting Parties:

10-02 (2013)

Licensing and Inspection Obligations of Contracting Parties with regard to their Flag Vessels Operating in the Convention Area

"1.    Each Contracting Party shall prohibit fishing by its flag vessels in the Convention Area except pursuant to a licence that the Contracting Party has issued setting forth the specific areas, species and time periods for which such fishing is authorised and all other specific conditions to which the fishing is subject to give effect to CCAMLR conservation measures and requirements under the Convention …".

à Requires a Contracting Party to prohibit its flag vessels from fishing in the Convention Area unless licensed or permitted to do so. The licence should be carried on board and must include conditions of timely notification of port entry and exit and movement between sub-areas or divisions, reporting of catch data and operation of an automated satellite-linked vessel monitoring system (VMS). Any infringement of these conditions discovered upon port arrival, departure or upon inspection in the Convention Area on high seas (see sub-section below on Non-Compliance Mechanism) or, where appropriate, in an EEZ, are to be investigated and dealt with in accordance with national legislation.

10-05 (2014)

Catch Documentation Scheme for Dissostichus spp. Species toothfish

"… Each Contracting Party and non-Contracting Party cooperating with CCAMLR by participating in the CDS shall take steps to identify the origin of Dissostichus spp. landed in, imported into, or exported or re-exported from its territories and determine whether Dissostichus spp. harvested in the Convention Area that is landed in, imported into, or exported or re-exported from its territories was caught in a manner consistent with CCAMLR conservation measures …."

 

à This Conservation Measure was adopted in November 1999 and came into force on 7 May 2000. It has been periodically reviewed and refined since. This measure establishes CCAMLR’s Catch Documentation Scheme for Dissostichus spp. (CDS) which tracks all landing, export and re‑export of toothfish (Dissostichus spp.) landed and or/traded by CCAMLR Contracting Parties.

à Further trade-related measures are contained in Conservation Measures 10-06 (2008) and 10-07 (2009) (see sub-sections below on Non-Compliance Mechanisms and Provisions for Non-Parties).

2.3  Supportive measures

No provisions

2.4  Non-compliance mechanism

2.4.1  Promotion of Compliance

Article XXI

"1.   Each Contracting Party shall take appropriate measures within its competence to ensure compliance with the provisions of this Convention and with conservation measures adopted by the Commission to which the Party is bound in accordance with Article IX of this Convention.

2.     Each Contracting Party shall transmit to the Commission information on measures taken pursuant to paragraph 1 above, including the imposition of sanctions for any violation".

Conservation Measure 10-03 (2014) – Port Inspections of Vessels Carrying Toothfish

"... 1.        Contracting Parties shall undertake inspection of all fishing vessels carrying Dissostichus spp. which enter their ports. The inspection shall be for the purpose of determining that if the vessel carried out harvesting activities in the Convention Area, these activities were carried out in accordance with CCAMLR conservation measures, and that if it intends to land or tranship Dissostichus spp. the catch to be unloaded or transhipped is accompanied by a Dissostichus catch document (DCD) required by Conservation Measure 10-05, and that the catch agrees with the information recorded on the document.

2.     Contracting Parties shall inspect at least 50% of fishing vessels that enter their ports carrying species other than Dissostichus spp. that were harvested in the Convention Area and that have not been previously landed or transhipped at a port. The purpose of the inspection will be to determine whether harvesting activities in the Convention Area were carried out in accordance with CCAMLR conservation measures …"

Conservation Measure 10-06 (2008) – Scheme to Promote Compliance by Contracting Party Vessels with CCAMLR Conservation Measures

"... 1.        At each annual meeting, the Commission will identify those Contracting Parties whose vessels have engaged in fishing activities in the Convention Area in a manner which has diminished the effectiveness of CCAMLR conservation measures in force, and shall establish a list of such vessels (Contracting Party Illegal Unregulated, and Unreported Vessel List or "CPP-IUU Vessel List"), in accordance with the procedures and criteria set out hereafter. …

4.     For the purposes of this conservation measure, the Contracting Parties are considered as having carried out fishing activities that have diminished the effectiveness of the conservation measures adopted by the Commission if:

(i) the Parties do not ensure compliance by their vessels with the conservation measures adopted by the Commission and in force, in respect of the fisheries in which they participate that are placed under the competence of CCAMLR;

(ii) their vessels are repeatedly included in the CP-IUU Vessel List.

5.     In order for a Contracting Party’s vessel to be included in the CP-IUU Vessel List there must be evidence, gathered in accordance with paragraphs 2 and 3, that the vessel has:

(i) engaged in fishing activities in the CCAMLR Convention Area without a licence issued in accordance with Conservation Measure 10-02, or in violation of the conditions under which such licence would have been issued in relation to authorised areas, species and time periods; or

(ii) not recorded or not declared its catches made in the CCAMLR Convention Area in accordance with the reporting system applicable to the fisheries it engaged in, or made false declarations; or

(iii) fished during closed fishing periods or in closed areas in contravention of CCAMLR conservation measures; or

(iv) used prohibited gear in contravention of applicable CCAMLR conservation measures; or

(v) transhipped or participated in joint fishing operations with, supported or re-supplied other vessels identified by CCAMLR as carrying out IUU fishing activities (i.e. vessels on the CP-IUU Vessel List or the NCP-IUU Vessel List (Non-Contracting Party Illegal Unregulated, and Unreported Vessel List), established under Conservation Measure 10-07); or

(vi) failed to provide, when required under Conservation Measure 10-05, a valid catch document for Dissostichus spp.; or

(vii) engaged in fishing activities in a manner that undermines the attainment of the objectives of the Convention in waters adjacent to islands within the area to which the Convention applies over which the existence of State sovereignty is recognised by all Contracting Parties, in the terms of the statement made by the Chairman on 19 May 1980; or

(viii) engaged in fishing activities contrary to any other CCAMLR conservation measures in a manner that undermines the attainment of the objectives of the Convention according to Article XXII of the Convention.

7.     Contracting Parties whose vessels are included in the Draft CP-IUU Vessel List shall transmit their comments to the Executive Secretary before 1 September, including verifiable VMS data and other supporting information showing that the vessels listed have not engaged in the activities which led to their inclusion in the Draft CP-IUU Vessel List.…

12.    At each CCAMLR annual meeting, the Standing Committee on Implementation and Compliance (SCIC) shall, by consensus:

(a) adopt a Proposed CP-IUU Vessel List, following consideration of the Provisional CP-IUU Vessel List and information and evidence circulated under paragraph 10. The Proposed CP-IUU Vessel List shall be submitted to the Commission for approval;

(b) recommend to the Commission which, if any, vessels should be removed from the CP-IUU Vessel List adopted at the previous CCAMLR annual meeting, following consideration of that List and information and evidence circulated under paragraph 10 ...

14.    SCIC shall recommend that the Commission should remove a vessel from the CP- IUU Vessel List if the Contracting Party proves that:

(i) the vessel did not take part in the activities described in paragraph 1 which led to the inclusion of the vessel in the CP-IUU Vessel List; or

(ii) it has taken effective action in response to the activities in question, including prosecution and imposition of sanctions of adequate severity; or

(iii) the vessel has changed ownership, including beneficial ownership if known to be distinct from the registered ownership, and that the new owner can establish the previous owner no longer has any legal, financial, or real interests in the vessel, or exercises control over it and that the new owner has not participated in IUU fishing; or

(iv) it has taken measures considered sufficient to ensure the granting of the right to the vessel to fly its flag will not result in IUU fishing. …

22.    Without prejudice to their rights to take proper action consistent with international law, Contracting Parties should not take any trade measures or other sanctions which are inconsistent with their international obligations against vessels using as the basis for the action the fact that the vessel or vessels have been included in the draft lCP-IUU Vessel List drawn up by the Executive Secretariat, pursuant to paragraph 6.

23.    The Chair of the Commission shall request the Contracting Parties identified pursuant to paragraph 1 to take all necessary measures to avoid diminishing the effectiveness of the CCAMLR conservation measures resulting from their vessels’ activities, and to advise the Commission of actions taken in that regard.

24.    The Commission shall review, at subsequent CCAMLR annual meetings, as appropriate, action taken by those Contracting Parties to which requests have been made pursuant to paragraph 23, and identify those which have not rectified their fishing activities.

25.    The Commission shall decide appropriate measures to be taken in respect to Dissostichus spp. so as to address these issues with those identified Contracting Parties. In this respect, Contracting Parties may cooperate to adopt appropriate multilaterally agreed trade-related measures, consistent with their obligations as members of the [WTO], that may be necessary to prevent, deter and eliminate the IUU fishing activities identified by the Commission.  Multilateral trade-related measures may be used to support cooperative efforts to ensure that trade in Dissostichus spp. and its products does not in any way encourage IUU fishing or otherwise diminish the effectiveness of CCAMLR’s conservation measures which are consistent with the United Nations Convention on the Law of the Sea 1982".

Conservation Measure 10-10 (2014)

"1.    Draft CCAMLR Compliance Reports

(i) The Secretariat shall compile a Draft CCAMLR Compliance Report using the template in Annex 10-10/A for each Contracting Party for whom there is a relevant compliance issue. The Draft CCAMLR Compliance Report will cover the period 1 August–31 July of the following year. In compiling Draft CCAMLR Compliance Reports, the Secretariat shall take into account appropriate compliance data holdings, as well as data from other relevant sources.

(ii) The Secretariat shall circulate to each Contracting Party its respective Draft CCAMLR Compliance Report no later than 75 days before the annual Commission meeting.

(iii) In considering its Draft CCAMLR Compliance Report, each Contracting Party shall provide in the ‘Additional Information’ column in Annex 10-10/A, detailed information relevant to the compliance issues raised in its report, so that the Standing Committee on Implementation and Compliance (SCIC) may fully evaluate each compliance issue. This may include, but is not limited to, any relevant documentary or photographic evidence demonstrating implementation of relevant conservation measures and/or specific actions taken to address any non-compliance.

(iv) Each Contracting Party shall return its Draft CCAMLR Compliance Report incorporating any additional information to the Secretariat no later than 45daysbefore the annual Commission meeting. Where no response is received from a Contracting Party under paragraph 1(iii), the Secretariat shall note nil response in the relevant Draft CCAMLR Compliance Report.

2.     Summary CCAMLR Compliance Report

(i) The Secretariat shall prepare a Summary CCAMLR Compliance Report based on the Draft CCAMLR Compliance Reports. This report shall include, inter alia, a summary of Contracting Parties’ implementation of conservation measures. The Draft CCAMLR Compliance Reports shall be annexed to the Summary CCAMLR Compliance Report.

(ii) The Summary CCAMLR Compliance Report shall be made available on the secure CCAMLR website for consideration no later than 42 days before the annual Commission meeting. As soon as practicable after posting the Summary CCAMLR Compliance Report, the Secretariat shall notify Contracting Parties of its availability.

3.     Provisional CCAMLR Compliance Report

(i) At its annual meeting, SCIC shall consider the Summary CCAMLR Compliance Report, taking into account any additional information received, including in accordance with paragraph 1(iii).

(ii) In considering the Summary CCAMLR Compliance Report, SCIC may request any Contracting Parties who have relevant information to provide further additional details, so that SCIC may fully evaluate each compliance issue. This information may include, but is not limited to, any relevant documentary or photographic evidence.

(iii) On the basis of the information considered in paragraph 3(i), SCIC shall adopt an annual Provisional CCAMLR Compliance Report by consensus, in which it shall record its findings of non-compliance. The Provisional CCAMLR Compliance Report shall include an assessment of compliance status, in accordance with Annex 10-10/B, ‘Compliance Status Categories’. The Provisional CCAMLR Compliance Report shall also include recommendations to the Commission regarding:

(a) any remedial action taken, or proposed to be taken, by the Contracting Party;

(b) where appropriate, proposals to amend existing conservation measures;

(c) priority obligations to be monitored and reviewed; and

(d) other responsive action which may be considered by the Commission, as appropriate.

4.     CCAMLR Compliance Report

(i) At its annual meeting, the Commission shall consider the Provisional CCAMLR Compliance Report.

(ii) The annual CCAMLR Compliance Report will outline the Commission’s response to the recommendations of SCIC in the Provisional CCAMLR Compliance Report.

5.     Review of Conservation Measure 10-10

(i) At its annual meeting, SCIC will consider the effectiveness of this conservation measure in evaluating and addressing non-compliance, and will report to the Commission on its findings and recommendations for improving this conservation measure."

Resolution 19/XXI – Flags of Non-Compliance

"The Commission...urges all Contracting Parties and non-Contracting Parties cooperating with CCAMLR to:

1.     Without prejudice to the primacy of the responsibility of the Flag State, to take measures or otherwise cooperate to ensure, to the greatest extent possible, that the nationals subject to their jurisdiction do not support or engage in IUU fishing, including engagement on board FONC (Flags of Non-Compliance) vessels in the CCAMLR Convention Area if this is consistent with their national law.

2.     Ensure the full cooperation of their relevant national agencies and industries in implementing the measures adopted by CCAMLR.

3.     Develop ways to ensure that the export or transfer of fishing vessels from their State to a FONC State is prohibited.

4.     Prohibit the landings and transhipments of fish and fish products from FONC vessels."

2.4.2  System of Inspection

Article XXIV

"1.   In order to promote the objective and ensure observance of the provisions of this Convention, the Contracting Parties agree that a system of observation and inspection shall be established.

2.    The system of observation and inspection shall be elaborated by the Commission on the basis of the following principles:

(a) Contracting Parties shall co-operate with each other to ensure the effective implementation of the system of observation and inspection, taking account of the existing international practice. This system shall include, inter alia, procedures for boarding and inspection by observers and inspectors designated by the Members of the Commission and procedures for flag state prosecution and sanctions on the basis of evidence resulting from such boarding and inspections. A report of such prosecutions and sanctions imposed shall be included in the information referred to in Article XXI of this Convention;

(b) in order to verify compliance with measures adopted under this Convention, observation and inspection shall be carried out on board vessels engaged in scientific research or harvesting of marine living resources in the area to which this Convention applies, through observers and inspectors designated by the Members of the Commission and operating under terms and conditions to be established by the Commission;

(c) designated observers and inspectors shall remain subject to the jurisdiction of the Contracting Party of which they are nationals. They shall report to the Member of the Commission by which they have been designated which in turn shall report to the Commission"

à The CCAMLR System of Inspection has been in operation since 1989. Inspections of fishing and fisheries research vessels of CCAMLR Flag States are being carried out regularly by CCAMLR Inspectors designated by Members.

à In December 2000, the Commission established the Standing Committee on Observation and Inspection (SCOI) to consider and prepare advice to the Commission on all matters related to inspections undertaken and steps taken by Members to enforce compliance with Conservation Measures. In 2002, the Subcommittee was renamed the Standing Committee on Implementation and Compliance (SCIC).

à In 2004, the Commission agreed on a set of principles required to develop and implement a comparative methodology for assessing compliance with CCAMLR conservation measures. The work on the compliance evaluation procedure has been continued in 2005 and 2006.

2.5  Dispute Settlement Mechanism

Article XXV

"1.   If any dispute arises between two or more of the Contracting Parties concerning the interpretation or application of this Convention, those Contracting Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.

2.    Any dispute of this character not so resolved shall, with the consent in each case of all Parties to the dispute, be referred for settlement to the ICJ or to arbitration;  but failure to reach agreement on reference to the International Court or to arbitration shall not absolve Parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above.

3.    In cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as provided in the Annex to this Convention".

 

2.6  Provisions for non-parties

Article X

"1.    The Commission shall draw the attention of any State which is not a Party to this Convention to any activity undertaken by its nationals or vessels which, in the opinion of the Commission, affects the implementation of the objective of this Convention" ...

Conservation Measure 10-07 (2009) – Scheme to Promote Compliance by Non-Contracting Party Vessels with CCAMLR Conservation Measures

"...1. The Contracting Parties request non-Contracting Parties to cooperate fully with the Commission with a view to ensuring that the effectiveness of CCAMLR conservation measures is not undermined.

2.     At each annual meeting the Commission shall identify those non-Contracting Parties whose vessels are engaged in IUU fishing activities in the Convention Area that threaten to undermine the effectiveness of CCAMLR conservation measures, and shall establish a list of such vessels (NCP-IUU Vessel List), in accordance with the procedures and criteria set out hereafter ...

4.     A non-Contracting Party vessel which has been sighted engaging in fishing activities in the Convention Area or which has been denied port access, landing or transhipment in accordance with Conservation Measure 10-03 is presumed to be undermining the effectiveness of CCAMLR conservation measures. In the case of any transhipment activities involving a sighted non-Contracting Party vessel inside or outside the Convention Area, the presumption of undermining the effectiveness of CCAMLR conservation measures applies to any other non-Contracting Party vessel which has engaged in such activities with that vessel.

5.     When a non-Contracting Party vessel referred to in paragraph 4 enters a port of any Contracting Party, it shall be inspected by authorised Contracting Party officials in accordance with Conservation Measure 10-03 and shall not be allowed to land or tranship any fish species subject to CCAMLR conservation measures it might be holding on board unless the vessel establishes that the fish were caught in compliance with all relevant CCAMLR conservation measures and requirements under this Convention.

6.     A Contracting Party which sights a non-Contracting Party vessel engaging in fishing activities in the Convention Area or denies a non-Contracting Party port access, landing or transhipment under paragraph 5 shall attempt to inform the vessel that it is presumed to be undermining the effectiveness of CCAMLR conservation measures, and that this information will be distributed to the Executive Secretary, all Contracting Parties and the Flag State of the vessel.

7.     Information regarding such sightings or denial of port access, landings or transhipments, and the result of all inspections conducted in the ports of Contracting Parties, and any subsequent action shall be transmitted within one business day to the Commission in accordance with Article XXII of the Convention. The Executive Secretary shall transmit this information to all Contracting Parties, within one business day of receiving it, and to the Flag State of the vessel concerned as soon as possible and to appropriate regional fisheries organisations. At this time, the Executive Secretary shall, in consultation with the Chair of the Commission, request the Flag State concerned that, where appropriate, measures be taken in accordance with its applicable laws and regulations to ensure that the vessel desists from any activities that undermine the effectiveness of CCAMLR conservation measures, and that the Flag State report back to CCAMLR on the results of such enquiries and/or on the measures it has taken in respect of the vessel ...

9.     In order for a non-Contracting Party’s vessel to be included in the NCP-IUU Vessel List, there must be evidence, gathered in accordance with paragraphs 3 and 8, that the vessel has:

(i) been sighted engaging in fishing activities in the CCAMLR Convention Area; or

(ii) been denied port access, landing or transhipment in accordance with Conservation Measure 10-03; or

(iii) transhipped or participated in joint fishing operations with, supported or resupplied other vessels identified by CCAMLR as carrying out IUU fishing activities (i.e. vessels on the NCP-IUU Vessel List or the CP-IUU Vessel List established under Conservation Measure 10-06); or

(iv) failed to provide, when required under Conservation Measure 10-05, a valid catch document for Dissostichus spp.; or

(v) engaged in fishing activities in a manner that undermines the attainment of the objectives of the Convention ...; or

(vi) engaged in fishing activities contrary to any other CCAMLR conservation measures in a manner that undermines the attainment of the objectives of the Convention according to Article XXII of the Convention ...

18.    SCIC shall recommend that the Commission should remove a vessel from the NCP-IUU Vessel List if the non-Contracting Party proves that:

(i) the vessel did not take part in the activities described in paragraph 9 which led to the inclusion of the vessel in the NCP-IUU Vessel List; or

(ii) it has taken effective action in response to the activities in question, including prosecution and imposition of sanctions of adequate severity; or

(iii) the vessel has changed ownership including beneficial ownership if known to be distinct from the registered ownership and that the new owner can establish the previous owner no longer has any legal, financial, or real interests in the vessel, or exercises control over it and that the new owner has not participated in IUU fishing; or

(iv) it has taken measures considered sufficient to ensure the granting of the right to the vessel to fly its flag will not result in IUU fishing ...

21.    On approval of the NCP-IUU Vessel List, the Commission shall request non- Contracting Parties whose vessels appear thereon to take all necessary measures to address these activities, including if necessary, the withdrawal of the registration or of the fishing licences of these vessels, the nullification of the relevant catch documents and denial of further access to the CDS, and to inform the Commission of the measures taken in this respect.

22.    Contracting Parties shall take all necessary measures, to the extent possible in accordance with their applicable laws and regulations, in order that:

(i) the issuance of a licence to vessels on the NCP-IUU Vessel List to fish in waters under their fisheries jurisdiction is prohibited;

(ii) fishing vessels, support vessels, refuel vessels, mother-ships and cargo vessels flying their flag do not in any way assist vessels on the NCP-IUU Vessel List by participating in any transhipment or joint fishing operations, supporting or resupplying such vessels;

(iii) vessels on the NCP-IUU Vessel List should be denied access to ports unless for the purpose of enforcement action or for reasons of force majeure or for rendering assistance to vessels, or persons on those vessels, in danger or distress. Vessels allowed entry to port are to be inspected in accordance with relevant conservation measures;

(iv) where port access is granted to such vessels:

(a) documentation and other information, including DCDs where relevant are examined, with a view to verifying the area in which the catch was taken; and where the origin cannot be adequately verified, the catch is detained or any landing or transhipment of the catch is refused; and

(b) where possible

i. in the event catch is found to be taken in contravention of CCAMLR conservation measures, catch is confiscated;

ii. all support to such vessels, including non-emergency refuelling, resupplying and repairs is prohibited.

(v) the chartering of vessels on the NCP-IUU Vessel List is prohibited;

(vi) granting of their flag to vessels on the NCP-IUU Vessel List is refused;

(vii) imports, exports and re-exports of Dissostichus spp. from vessels on the NCP‑IUU Vessel List are prohibited;

(viii) ‘Export or Re-export Government Authority Validation’ is not certified when the shipment (of Dissostichus spp.) is declared to have been caught by any vessel on the NCP-IUU Vessel List;

(ix) importers, transporters and other sectors concerned are encouraged to refrain from dealing with and from transhipping of fish caught by vessels on the NCP-IUU Vessel List;

(x) any appropriate information which is suitably documented is collected and submitted to the Executive Secretary, to be forwarded to Contracting Parties and non‑Contracting Parties, entities or fishing entities cooperating with the Commission by participating in the CDS, with the aim of detecting, controlling
and preventing the importation or exportation of, and other trade-related activities relating to, catches from vessels on the NCP-IUU Vessel List intended to circumvent this conservation measure. …

30.    The Commission shall decide appropriate measures to be taken in respect to Dissostichus spp. so as to address these issues with those identified non‑Contracting Parties. In this respect, Contracting Parties may cooperate to adopt appropriate multilaterally agreed trade-related measures, consistent with their obligations as members of the World Trade Organization that may be necessary to prevent, deter and eliminate the IUU activities identified by the Commission. Multilateral trade-related measures may be used to support cooperative efforts to ensure that trade in Dissostichus spp. and its products does not in any way encourage IUU fishing or otherwise diminish the effectiveness of CCAMLR’s conservation measures which are consistent with the United Nations Convention on the Law of the Sea 1982."

 

Policy to Enhance Cooperation between CCAMLR and Non-Contracting Parties (as adopted in 1998 at CCAMLR-XVII and amended in 2006 at CCAMLR-XXV)

"I. The Executive Secretary is requested to develop a list of non-Contracting Parties implicated in IUU fishing and or trade either after the adoption of this policy or during the three years prior, which has undermined the effectiveness of CCAMLR conservation measures.

 II. The Chairman of the Commission shall write to the Minister for Foreign Affairs of each non-Contracting Party included in the abovementioned list explaining how IUU fishing undermines the effectiveness of CCAMLR conservation measures.  The letter, as appropriate, will:

(a) invite and encourage non-Contracting Parties to attend as observers at meetings of the Commission in order to improve their understanding of the work of the Commission and the effects of IUU fishing;

(b) encourage non-Contracting Parties to accede to the Convention;

(c) inform non-Contracting Parties of the development and implementation of the CCAMLR Catch Documentation Scheme for Dissostichus spp. and provide them with a copy of the conservation measure and the explanatory memorandum;

(d) encourage non-Contracting Parties to participate in the CCAMLR Catch Documentation Scheme and draw their attention to the consequences for them of not participating;

(e) request non-Contracting Parties to prevent their flag vessels from fishing in the Convention Area in a manner which undermines the effectiveness of measures adopted by CCAMLR to ensure conservation and sustainably managed fisheries;

(f) if their flag vessels are involved in IUU fishing, request non-Contracting Parties to provide information to the CCAMLR Secretariat on their vessels’ activities, including catch and effort data;

(g) seek the assistance of non-Contracting Parties in investigating the activities of their flag vessels suspected of being involved in IUU fishing, including inspecting such vessels when they next reach port;

(h) request non-Contracting Parties to report to the CCAMLR Secretariat on landings and transhipments in their ports in accordance with the format specified in Attachment A; and

(i)  request non-Contracting Parties to deny landing or transhipments in their ports for fish harvested in CCAMLR waters not taken in compliance with CCAMLR conservation measures and requirements under the Convention."

3  International Convention for the Conservation of Atlantic Tunas (ICCAT)

3.1  Brief Description of the MEA

Web site

http://www.iccat.int/

Objective

ICCAT is responsible for the conservation of tunas and tuna-like species in the Atlantic Ocean and adjacent seas. Its mandate also includes the study of fish species caught incidentally to tuna fishing as well as highly migratory, oceanic and pelagic sharks.

Date of Signature

Convention: 14 May 1966

Paris Protocol (on Articles XIV, XV and XVI): 10 July 1984

Madrid Protocol (to Article X:2): 5 June 1992

Entry into force

Convention: 21 March 1969

Paris Protocol (on Articles XIV, XV and XVI): 14 December 1997

Madrid Protocol (to Article X:2): 10 March 2005  

Parties

50 (as of 31 July 2015)

WTO Members

43 Contracting Parties to ICCAT are also WTO Members (see Annex).

Openness of Membership

Article XIV.1

"This Convention shall be open for signature by any Government which is a Member of the United Nations or of any Specialized Agency of the United Nations. Any such Government which does not sign this Convention may adhere to it at any time".

à In addition, the Paris Protocol states in Article XIV, paragraph 4: "This Convention shall be open for signature or adherence by any inter-governmental economic integration organization constituted by States that have transferred to it competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters." Paragraph 6 further provides that, "When an organization referred to in paragraph 4 becomes a Contracting Party to this Convention, the member states of that organization and those which adhere to it in the future shall cease to be parties to the Convention."

Decision-Making Bodies

à The Convention established the International Commission for the Conservation of Atlantic Tunas (hereafter the "Commission").

à The Commission can, on the basis of scientific evidence and other relevant information, recommend management measures and Resolutions aimed at carrying out its objective of maintaining the populations of tuna and tuna-like fishes at "levels which will permit maximum sustainable catch". The scientific advice is prepared by the organization´s scientific branch, the Standing Committee on Research and Statistics (SCRS).

à Normally, Recommendations and Resolutions are drafted by already-established auxiliary bodies (such as the four species-group Panels, the Compliance Committee or the Permanent Working Group on ICCAT Statistics and Conservation Measures), and are presented to the Commission as the ultimate decision-making body. While Recommendations are applicable to Contracting Parties and Cooperating non-Contracting Parties, Entities or Fishing Entities, Contracting Parties have a six-month grace period in which to present objections (Article VIII:3).

Article III:1

"1.   The Contracting Parties hereby agree to establish and maintain a Commission to be known as the International Commission for the Conservation of Atlantic Tunas, hereinafter referred to as "the Commission," which shall carry out the objectives set forth in this Convention".

Article VI

"To carry out the objectives of this Convention the Commission may establish Panels on the basis of species, group of species, or of geographic areas.  Each Panel in such case:

(a) shall be responsible for keeping under review the species, group of species, or geographic area under its purview, and for collecting scientific and other information relating thereto;

(b) may propose to the Commission, upon the basis of scientific investigations, recommendations for joint action by the Contracting Parties;

(c) may recommend to the Commission studies and investigations necessary for obtaining information relating to its species, group of species, or geographic area, as well as the co-ordination of programmes of investigation by the Contracting Parties."

Article VIII

"1.    (a) The Commission may, on the basis of scientific evidence, make recommendations designed to maintain the populations of tuna and tuna-like fishes that may be taken in the Convention area at levels which will permit the maximum sustainable catch. These recommendations shall be applicable to the Contracting Parties under the conditions laid down in paragraphs 2 and 3 of this Article …

2.     Each recommendation made under paragraph 1 of this Article shall become effective for all Contracting Parties six months after the date of the notification from the Commission transmitting the recommendation to the Contracting Parties, except as provided in paragraph 3 of this Article ...

4.     Any Contracting Party objecting to a recommendation may at any time withdraw that objection, and the recommendation shall become effective with respect to such Contracting Party immediately if the recommendation is already in effect, or at such time as it may become effective under the terms of this Article.

5.    The Commission shall notify each Contracting Party immediately upon receipt of each objection and of each withdrawal of an objection, and of the entry into force of any recommendation."

Amendments and Protocols

Article XIII:1

"1.    Any Contracting Party or the Commission may propose amendments to this Convention. The Director-General of the FAO shall transmit a certified copy of the text of any proposed amendment to all the Contracting Parties. Any amendment not involving new obligations shall take effect for all Contracting Parties on the thirtieth day after its acceptance by three-fourths of the Contracting Parties. Any amendment involving new obligations shall take effect for each Contracting Party accepting the amendment on the ninetieth day after its acceptance by three-fourths of the Contracting Parties and thereafter for each remaining Contracting Party upon acceptance by it. Any amendment considered by one or more Contracting Parties to involve new obligations shall be deemed to involve new obligations and shall take effect accordingly. A government which becomes a Contracting Party after an amendment to this Convention has been opened for acceptance pursuant to the provisions of this Article shall be bound by the Convention as amended when the said amendment comes into force".

3.2  Trade-related Measures

The ICCAT is not a regulatory body, however, regulatory Recommendations and Resolutions related to the conservation of tuna and tuna-like species in the Atlantic Ocean and adjacent seas, adopted by the Commission, are to be implemented domestically by Contracting Parties and Cooperating non‑Contracting Parties, Entities or Fishing Entities. Recommendations are the only binding instruments. They are subject to a six-month period during which Contracting Parties can file an objection (see Article VIII:3). The Recommendations then enter into force after the six-month objection period. Resolutions are a second instrument of the Commission, but are not subject to an objection period. The number of Resolutions and Recommendations that the Commission adopts each year has been increasing. They include the following:

3.2.1  Resolutions

Resolution 99-11

Further Actions Against IUUs

Resolution Calling for Further Actions Against Illegal, Unregulated, and Unreported Fishing Activities by Large-Scale Longline Vessels in the Convention Area and Other Areas (Transmitted to Contracting Parties on 16 December 1999)

"... 2.        The Contracting Parties, Cooperating Non-Contracting Parties, Entities or Fishing Entities shall take every possible action, consistent with the relevant laws,

i. to urge their importers, transporters and other concerned business people to refrain from engaging in transaction and transshipment of tunas and tuna-like species caught by vessels carrying out illegal, unregulated and unreported fishing activities in the Convention Area and other areas. ..."

Resolution 01-18

Scope of IUU Fishing

Resolution Further Defining the Scope of IUU Fishing (Transmitted to Contracting Parties on 22 March 2002)

"... Contracting Parties and Cooperating Non-Contracting Parties, Entities and Fishing Entities shall take every possible action, consistent with relevant laws, to instruct their importers, transporters, and other concerned business people to refrain from engaging in transaction and transshipment of tunas and tuna-like species caught by vessels carrying out illegal, unregulated, and unreported fishing activities, which include, inter alia, any fishing not in compliance with relevant ICCAT conservation and management measures, in the Convention Area or other areas."

Resolution 02-25

Measures to Prevent the Laundering of Catches by IUU Large-Scale Tuna Longline Fishing Vessels

Resolution concerning the Measures to Prevent the Laundering of Catches by IUU Large-Scale Tuna Longline Fishing Vessels (Entered into force 3 June 2003)

"... 1.        Contracting Parties, Cooperating Non-Contracting Parties, Entities or Fishing Entities (hereinafter referred to as the "CPCs") should ensure that their duly licensed large-scale tuna longline fishing vessels have a prior authorization of at sea or in port transshipment and obtain the validated Statistical Document, whenever possible, prior to the transshipment of their tuna and tuna-like species subject to the Statistical Document Programs.  They should also ensure that transshipments are consistent with the reported catch amount of each vessel in validating the Statistical Document and require the reporting of transshipment.

2.    CPCs that import tuna and tuna-like species caught by large-scale tuna longline fishing vessels and subject to the Statistical Document Programs should require transporters (which include container vessels, mother vessels, and the like) that intend to land such species in their ports, to ensure that Statistical Documents are issued, whenever possible before the transshipment. Importing CPCs should obligate the transporters to submit necessary documents, including a copy of the validated Statistical Document and other documents, as required under domestic regulation, such as the receipt of transshipment, to the importing CPCs’ authorities immediately after the transshipment".

Resolution 02-26

Cooperative Actions to Eliminate IUU Fishing Activities by Large-Scale Tuna Longline Vessels

(LSTLVs)

Resolution concerning Cooperative Actions to Eliminate IUU Fishing Activities by Large-Scale Tuna Longline Vessels (Entered into force 3 June 2003)

"... 1.        Japan and Chinese Taipei should further work together to eliminate the remaining IUU LSTLVs owned and/or operated by Chinese Taipei’s residents.

2.     Japan should work closely with the flag States of LSTLVs and if appropriate take joint action, so as to implement the Recommendation smoothly and satisfactorily and to achieve the objective of paragraph 1 above.

3.     The Commission urges Chinese Taipei to consider adopting appropriate domestic legislation to improve its ability to control its residents that invest in or otherwise support or engage in IUU fishing.

4.     Contracting Parties, Cooperating non-Contracting Parties, Entities or Fishing Entities should urge and may instruct their residents to refrain from engaging in and/or associating with activities that may support IUU tuna longline fishing vessels and with any other activities that undermine the effectiveness of ICCAT conservation and management measures".

3.2.2  Recommendations

Recommendation 96-14

Compliance in Bluefin & North Atlantic Swordfish Fisheries

Recommendation Regarding Compliance in the Bluefin Tuna and North Atlantic Swordfish Fisheries (Entered into force on 4 August 1997)

"... 3.        ... if any Contracting Party exceeds its catch limit during any two consecutive management periods, the Commission will recommend appropriate measures, which may include, but are not limited to, reduction in the catch limit equal to a minimum of 125% of the excess harvest, and, if necessary, trade restrictive measures. Any trade measures under this paragraph will be import restrictions on the subject species and consistent with each Party's international obligations. The trade measures will be of such duration and under such conditions as the Commission may determine."

à This recommendation was extended to South Atlantic swordfish fishery, effective on 24 September 1998 (Recommendation 97-8 – Compliance in the South Atlantic Swordfish Fishery)

Recommendation 01-21

Concerning the ICCAT Bigeye Tuna Statistical Document Program

Recommendation by ICCAT Concerning the ICCAT Bigeye Tuna Statistical Document Program (Entered into force: 21 September 2002)

"... 1.        By July 2002, or as soon as possible thereafter, Contracting Parties shall require that all bigeye tuna, when imported into the territory of a Contracting Party, be accompanied by an ICCAT Bigeye Tuna Statistical Document which meets the requirements described in Annex 1 or an ICCAT Bigeye Tuna Re-export Certificate which meets the requirements described in Annex 2. Bigeye tuna caught by purse seiners and pole and line (bait) vessels and destined principally for the canneries in the Convention area are not subject to this statistical document requirement. The Commission and the Contracting Parties importing bigeye tuna shall contact all the exporting countries to inform them of this program in advance of implementation of the program."

Recommendation 01-22

Establishing a Swordfish Statistical Document Program

Recommendation by ICCAT Establishing a Swordfish Statistical Document Program (Entered into force: 21 September 2002)

"... 1.        Contracting Parties shall require that all swordfish, when imported into the territory of a Contracting Party, be accompanied by an ICCAT Swordfish Statistical Document (Attachment 2) that meets the requirements described in Attachment 1 or an ICCAT Swordfish Re -export Certificate (Attachment 4) that meets the requirements described in Attachment 3. The Commission and the Contracting Parties importing swordfish shall contact all the exporting countries to inform them of this program, particularly differentiation of treatment between catches of swordfish in the Convention Area and those outside of it in advance of implementation of the program."

Recommendation 02-17

Plurinational State of Bolivia:  pursuant to the 1998 IUU Resolution

Recommendation Regarding the Plurinational State of Bolivia pursuant to the 1998 Resolution Concerning the Unreported and Unregulated Catches of Tuna by Large-Scale Longline Vessels in the Convention Area (Entered into force on 3 June 2003)

"1.   Contracting Parties and Cooperating non-Contracting Parties, Entities or Fishing Entities take appropriate measures, consistent with provisions of the 1998 Resolution, to the effect that the import of Atlantic bigeye tuna and its products in any form from the Plurinational State of Bolivia be prohibited, effective from the time this Recommendation enters into force".

à The 1998 Resolution referred to in this paragraph was replaced by the Resolution by ICCAT Concerning Trade Measures (Res. 03-15 above).

Recommendation 02-20

Trade Sanction against St. Vincent and the Grenadines

Recommendation concerning the Trade Sanction Against St. Vincent and the Grenadines (Entered into force on 3 June 2003)

"... 2.        Contracting Parties and Cooperating non-Contracting Parties, Entities or Fishing Entities shall assist St. Vincent and the Grenadines with its efforts to ensure that the owners and operators of its large-scale fishing vessels have no history of illegal, unreported and unregulated fishing activities, or the previous owners and operators have no legal, beneficial or financial interest in, or control over its large-scale fishing vessels."

Recommendation 03-16

Additional Measures Against Illegal, Unreported and Unregulated Fishing

Recommendation to Adopt Additional Measures Against Illegal, Unreported and Unregulated Fishing (Entered into force on 19 June 2004)

"... Consistent with their rights and obligations under international law, Contracting Parties and Cooperating non-Contracting Parties, Entities or Fishing Entities (hereafter referred to as CPCs) take the necessary measures to prohibit landings from fishing vessels, placing in cages for farming and/or the transshipment within their jurisdiction of tunas or tuna-like species caught by IUU fishing activities".

Recommendation 04-13

Lifting of Trade Sanctions against Equatorial Guinea

Recommendation Concerning the Lifting of Trade Sanctions against Equatorial Guinea (Entered into force on 13 June 2005)

"... 1.        Contracting Parties and Cooperating non-Contracting Parties, Entities or Fishing Entities shall lift he import prohibitions on Atlantic bigeye tuna and Atlantic bluefin tuna and their products that were imposed on Equatorial Guinea pursuant to the 1999 and 2000 Recommendations.

2.     Notwithstanding the provisions of Article VIII, paragraph 2, of the Convention, the Contracting Parties and Cooperating Non‑Contracting Parties, Entities or Fishing Entities shall implement this recommendation as soon as possible in accordance with their regulatory procedures.

3.     The ICCAT Secretariat continue providing Equatorial Guinea with the technical assistance necessary for the implementation of a statistical‑fishing data system so that this country can fully adapt to the ICCAT requirements concerning the submission of statistical data."

Recommendation 06-07 

on Bluefin Tuna Farming [Rec.04-06]

Recommendation to Amend the Recommendation on Bluefin Tuna Farming  [Rec. 04-06] (entered into force 13 June 2006)

"... 9.       

(g) Each CPCs shall take the necessary measures, under their applicable legislation, to prohibit the imports and sale of bluefin tuna from farms not registered in the ICCAT record of farming facilities authorised to operate as well as those that do not respect the sampling requirements foreseen in paragraph 2b and/or do not participate in the sampling programme referred to in paragraph 2 b) ... ."

Recommendation 06-13 Concerning Trade Measures

 

Recommendation by ICCAT Concerning Trade Measures (entered into force on 13 June 2007)

"... 6.     The Compliance Committee or the PWG should evaluate the response of the CPCs or NCPs, together with any new information, and propose to the Commission to decide upon one of the following actions: a) the revocation of the identification; b) the continuation of the identification status of the CPC or NCP; or c) the adoption of non-discriminatory trade restrictive measures.

Absence of response from the CPCs/NCPs concerned within the time limit shall not prevent action from the Commission.

In the case of CPCs, actions such as the reduction of existing quotas or catch limits should be implemented to the extent possible before consideration is given to the application of trade restrictive measures. Trade measures should be considered only where such actions either have proven unsuccessful or would not be effective.

7.     If the Commission decides upon the action described in paragraph 6 c), it should recommend to the Contracting Parties pursuant to Article VIII of the Convention to take non-discriminatory trade restrictive measures, consistent with their international obligations. The Commission shall notify the CPCs and NCPs concerned of the decision and the underlying reasons in accordance with the procedures specified in paragraph 5.

8.     CPCs shall notify the Commission of any measures that they have taken for the implementation of the non-discriminatory trade restrictive measures adopted in accordance with paragraph 7.

9.     In order for the Commission to recommend the lifting of trade restrictive measures, the Compliance Committee or the PWG shall review each year all trade restrictive measures adopted in accordance with paragraph 7. Should this review show that the situation has been rectified, the Compliance Committee or PWG shall recommend to the Commission the lifting of the non-discriminatory trade restrictive measures.

Such decisions should also take into consideration whether the CPCs and/or NCPs concerned have taken concrete measures capable of achieving lasting improvement of the situation.

10.    Where exceptional circumstances so warrant or where available information clearly shows that, despite the lifting of trade-restrictive measures, the CPC or NCP concerned continues to diminish the effectiveness of ICCAT conservation and management measures, the Commission may immediately decide on action including, as appropriate, the imposition of trade-restrictive measures in accordance with paragraph 7.

Before making such a decision, the Commission shall request the CPC or NCP concerned to discontinue its wrongful conduct and shall provide the CPC or NCP with a reasonable opportunity to respond.

11.    The Commission shall establish annually a list of CPCs and NCPs that have been subject to a trade-restrictive measure pursuant to paragraph 7 and, with respect to NCPs, are considered as non-Cooperating non-Contracting Parties to ICCAT."

Recommendation  11‑20

Amending the Recommendation 09-11 on an ICCAT Bluefin Tuna Catch Documentation Program

"2.        For the purpose of this Program:

          (a) 'Domestic trade' means:

   trade of bluefin tuna harvested in the ICCAT Convention area by a vessel or trap, which is landed in the territory of the CPC where the vessel is flagged or where the trap is established, and

   trade of farmed bluefin tuna products originating from bluefin tuna harvested in the ICCAT Convention area by a vessel which is flagged to the same CPC where the farm is established, which is supplied to any entity in this CPC, and

   trade between the Member States of the European Union of bluefin tuna harvested in the ICCAT Convention area by vessels flagged to one Member State or by a trap established in one Member State.

3.     Each consignment of bluefin tuna domestically traded, imported into or exported or re-exported from its territories shall be accompanied by a validated BCD, except in cases where paragraph 13(c) applies and, as applicable, an ICCAT transfer declaration or a validated Bluefin Tuna Re‑export Certificate (BFTRC). Any such landing, transfer, delivery, harvest, domestic trade, import, export or re-export of bluefin tuna without a completed and validated BCD or a BFTRC shall be prohibited.

10.  Domestic trade, export, import and re-export of fish parts other than the meat (i.e., heads, eyes, roes, guts and tails) shall be exempted from the requirements of this Recommendation.

24.    If a CPC involved in trade of bluefin tuna identifies a consignment with no BCD, it shall notify the findings to the exporting CPC and, where known, the flag CPC.

25.    Pending the examinations or verifications under paragraph 22 to confirm compliance of the bluefin tuna consignment with the requirements in the present Recommendation and any other relevant Recommendations, the CPCs shall not grant its release for domestic trade, import or export, nor, in the case of live bluefin tuna destined to farms, accept the transfer declaration.

26.    Where a CPC, as a result of examination or verifications under paragraph 22 above and in cooperation with the validating authorities concerned, determines that a BCD or BFTRC is invalid, the domestic trade, import, export or re-export of the bluefin tuna concerned shall be prohibited.

27.    The Commission shall request the non-Contracting Parties that are involved in domestic trade, import, export or re-export of bluefin tuna to cooperate with the implementation of the Program and to provide to the Commission data obtained from such implementation."

Recommendation 13-17

Supplementing the Recommendation for an Electronic Bluefin Tuna Catch Document (eBCD) System

Recommendation by ICCAT Supplementing the Recommendation for an Electronic Bluefin Tuna Catch Document (eBCD) System

"2.    All CPCs concerned shall, as soon as possible for full eBCD system implementation referenced in paragraph 1, submit to the Secretariat the data necessary to ensure the registration of their users in the eBCD system. Access to and use of the system cannot be ensured for those who fail to provide the necessary data as defined by the ICCAT Secretariat and endorsed by the eBCD Technical Working Group.

6.     The substantive provisions of Recommendation 11-20 will be applied mutatis mutandis to the electronic BCDs…."

 

à At the 2014 annual meeting, the ICCAT Commission agreed that the system should be fully implemented by March 2016.

Recommendation 10-08 on Hammerhead Sharks (Family Sphyrnidae) Caught in Association with Fisheries Managed by ICCAT

 

Recommendation by ICCAT on hammerhead sharks (family Sphyrnidae) caught in association with fisheries managed by ICCAT (entered into force: 14 June 2011)

"3.    Hammerhead sharks that are caught by developing coastal CPCs for local consumption are exempted from the measures established in paragraphs 1 and 2, provided these CPCs submit Task I and, if possible, Task II data according to the reporting procedures established by the SCRS. If it is not possible to provide catch data by species, they shall be provided at least by genus Sphryna. Developing coastal CPCs exempted from this prohibition pursuant to this paragraph should endeavor not to increase their catches of hammerhead sharks. Such CPCs shall take necessary measures to ensure that hammerhead sharks of the family Sphyrnidae (except of Sphyrna tiburo) will not enter international trade and shall notify the Commission of such measures"

Recommendation 11-01 On a Multi-Annual Conservation and Management Program for Bigeye and Yellowfin Tunas

 

Recommendation By ICCAT on a multi-annual conservation and management program for Bigeye and Yellowfin tunas (entered into force: 7 June 2012)

"15.  Notwithstanding paragraph 14, if any CPC exceeds its catch limit during any two consecutive management periods, the Commission will recommend appropriate measures, which may include, but are not limited to, reduction in the catch limit equal to a minimum of 125% of the excess harvest, and, if necessary, trade restrictive measures. Any trade measures under this paragraph will be import restrictions on the subject species and consistent with each CPC's international obligations. The trade measures will be of such duration and under such conditions as the Commission may determine."

Recommendation 11-08 on the Conservation of Silky Sharks Caught in Association with ICCAT Fisheries

 

Recommendation by ICCAT on the conservation of silky sharks caught in association with ICCAT fisheries (entered into force: 7 June 2012)

"4.    Silky sharks that are caught by developing coastal CPCs for local consumption are exempted from the measures established in paragraphs 1 and 2, provided these CPCs submit Task I and, if possible, Task II data according to the reporting procedures established by the SCRS. CPCs that have not reported species-specific shark data shall provide a plan by 1 July 2012, for improving their data collection for sharks on a species specific level for review by the SCRS and Commission. Developing coastal CPCs exempted from the prohibition pursuant to this paragraph shall not increase their catches of silky sharks. Such CPCs shall take necessary measures to ensure that silky sharks will not enter international trade and shall notify the Commission of such measures."

Recommendation 11-18 on the List of Vessels Presumed to have Carried Out Illegal, Unreported and Unregulated Fishing Activities in the ICCAT Convention Area

 

Recommendation by ICCAT further amending recommendation 09-10 establishing a list of vessels presumed to have carried out illegal, unreported and unregulated fishing activities in the ICCAT convention area (entered into force: 7 June 2012)

"9.    CPCs shall take all necessary measures, under their applicable legislation:

− So that the fishing vessels, support vessels, refueling vessels, the mother-ships and the cargo vessels flying their flag do not assist in any way, engage in fishing processing operations or participate in any transhipment or joint fishing operations with vessels included on the IUU Vessels List;

− So that IUU vessels are not authorized to land, tranship re-fuel, re-supply, or engage in other commercial transactions;

− To prohibit the entry into their ports of vessels included on the IUU list, except in case of force majeure, unless vessels are allowed entry into port for the exclusive purpose of inspection and effective enforcement action;

− To give priority to the inspection of vessels on the IUU list, if such vessels are otherwise found in their ports;

− To prohibit the chartering of a vessel included on the IUU vessels list;

− To refuse to grant their flag to vessels included in the IUU list, except if the vessel has changed owner and the new owner has provided sufficient evidence demonstrating the previous owner or operator has no further legal, beneficial or financial interest in, or control of, the vessel, or having taken into account all relevant facts, the flag CPC determines that granting the vessel its flag will not result in IUU fishing;

− To prohibit the imports, or landing and/or transhipment, of tuna and tuna-like species from vessels included in the IUU list;

− To encourage the importers, transporters and other sectors concerned, to refrain from transaction and transhipment of tuna and tuna-like species caught by vessels included in the IUU list;

− To collect and exchange with other CPCs any appropriate information with the aim of searching for, controlling and preventing false import/export certificates regarding tunas and tuna-like species from vessels included in the IUU list.

13.    Without prejudice to the rights of flag States and coastal States to take proper action consistent with international law, CPCs shall not take any unilateral trade measures or other sanctions against vessels provisionally included in the Draft IUU List, pursuant to paragraph 3, or which have been already removed from the list, pursuant to paragraph 6, on the grounds that such vessels are involved in IUU fishing activities."

Recommendation 11-19 Lifting Trade sanctions of Bolivia and Georgia

 

Recommendation by ICCAT concerning the lifting of trade restrictive measures against Bolivia and Georgia (entered into force: 7 June 2012)

"1.    Contracting Parties and Cooperating non-Contracting Parties, Entities or Fishing Entities (CPCs) shall lift the import prohibitions on Atlantic bigeye tuna and its products that were imposed on Bolivia and Georgia…"

Recommendation 14-05

concerning the Western Atlantic Bluefin Tuna Rebuilding Program

 

Recommendation by ICCAT amending the recommendation by ICCAT concerning the western Atlantic Bluefin Tuna rebuilding program

"…7.  (c) Notwithstanding paragraph 7(b), if a CPC has an overharvest of its total quota during any two consecutive management periods, the Commission will recommend appropriate measures, which may include, but are not limited to, reduction in the CPC’s total quota equal to a minimum of 125% of the overharvest amount and, if necessary, trade restrictive measures. Any trade measures under this paragraph will be import restrictions on the subject species and consistent with each CPC’s international obligations. The trade measures will be of such duration and under such conditions as the Commission may determine."

Recommendation 14-04 to Establish a Multi-Annual Recovery Plan for Bluefin Tuna in the Eastern Atlantic and Mediterranean

 

Recommendation by ICCAT amending the recommendation 13-07 by ICCAT to establish a multi-annual recovery plan for Bluefin tuna in the eastern Atlantic and Mediterranean (expected to enter into force August 2015)

"94.  Consistent with their rights and obligations under international law, exporting and importing CPCs shall take the necessary measures:

− to prohibit domestic trade, landing, imports, exports, placing in cages for farming, re-exports and transhipments of eastern Atlantic and Mediterranean bluefin tuna species that are not accompanied by accurate, complete, and validated documentation required by this Recommendation and the Recommendation by ICCAT Amending Recommendation 08/12 on an ICCAT Bluefin Tuna Catch Documentation Programme [Rec. 11-20] on a Bluefin Tuna Catch Documentation Programme."

− to prohibit domestic trade, imports, landings, placing in cages for farming, processing, exports, re-exports and the transhipment within their jurisdiction, of eastern and Mediterranean bluefin tuna species caught by fishing vessels whose flag State either does not have a quota, catch limit or allocation of fishing effort for that species, under the terms of ICCAT management and conservation measures, or when the flag State fishing possibilities are exhausted, or when the individual quotas of catching vessels referred to in paragraph 10 are exhausted;

− to prohibit domestic trade, imports, landings, processing, exports from farms that do not comply with Recommendation Rec. 06-07."

3.3  Supportive measures

à Contracting Parties have access to scientific research, statistical database and other information. They can also obtain technical assistance in establishing their statistical systems, and in receiving training from the Commission.

à Funding of many of the Commission’s activities is through the regular budget, provided by Contracting Party contributions. Special funding arrangements have been established, with funds from the public and private sectors.

à In 2011, the Commission established a Meeting Participation Fund to finance the attendence of delegates from developing countries at ICCAT meetings.

3.4  Non-compliance mechanism

Article IX

"1.   The Contracting Parties agree to take all action necessary to ensure the enforcement of this Convention.  Each Contracting Party shall transmit to the Commission, biennially or at such other times as may be required by the Commission, a statement of the action taken by it for these purposes.

2.    The Contracting Parties agree:

(a) to furnish, on the request of the Commission, any available statistical, biological and other scientific information the Commission may need for the purposes of this Convention;

(b) when their official agencies are unable to obtain and furnish the said information, to allow the Commission, through the Contracting Parties, to obtain it on a voluntary basis direct from companies and individual fishermen.

3.    The Contracting Parties undertake to collaborate with each other with a view to the adoption of suitable effective measures to ensure the application of the provisions of this Convention and in particular to set up a system of international enforcement to be applied to the Convention area except the territorial sea and other waters, if any, in which a state is entitled under international law to exercise jurisdiction over fisheries".

à The mandate and terms of reference for a Conservation and Management Measures Compliance Committee were adopted in Decision 95-15, and revised through Recommendation 11-24.

à Some non-compliance procedures have been enforced, such as reducing catch quotas by the amount of excess catch over the quota and or by 125 per cent of the excess.  Also, trade measures can be, and have been, applied to Contracting Parties (see Section II on Trade-Related Measures). From 2013 onwards, Contracting Parties may be forbidden to fish for species for which data have not been provided in previous years, under the Recommendation By ICCAT On Penalties Applicable In Case Of Non Fulfilment Of Reporting Obligations [Rec. 11-15]

3.5  Dispute Settlement Mechanism

à No provisions

3.6  Provisions for non-parties

à In 1997, the Commission adopted a Resolution urging non-contracting parties, entities or fishing entities known to be fishing in the Convention area for species under ICCAT competence to either become Contracting Parties to the Convention or to attain status as a "Cooperating Party, Entity, or Fishing Entity" (Resolution 97-17 - Becoming a Cooperating Party, Entity or Fishing Entity). Such status requires the firm commitment to provide the same data that Contracting Parties are required to submit and to respect the Commission’s management recommendations. Such status is granted for one-year periods and is subject to annual review. In 1999, Chinese Taipei and Mexico were granted Cooperating Status. In 2001, the Philippines was also granted Cooperating Status. Cooperating Status was granted to Guyana in 2003 and to the Netherlands Antilles in 2004. In 2002, Mexico became a member of ICCAT. In 2004, the Philippines became a member of ICCAT. This 1997 resolution was substituted by a Resolution 01-17 in 2002, and later by Recommendation 03-20 in 2003. Cooperating status is currently enjoyed by the following: Bolivia, Chinese Taipei, Guyana and Suriname.

Recommendation 03-20 on Criteria for Attaining the Status of Cooperating Non-Contracting Party, Entity or Fishing Entity (Entered into Force on 19 June  2004)

"... 1.        Each year, the Executive Secretary of ICCAT shall contact all non-Contracting Parties, Entities, or Fishing Entities known to be fishing in the Convention area for species under ICCAT competence to urge them to become a Contracting Party to ICCAT or to attain the status of a Cooperating non-Contracting Party, Entity or Fishing Entity. In doing so, the Executive Secretary shall provide a copy of all relevant Recommendations and Resolutions adopted by the Commission.

2.    Any non-Contracting Party, Entity, or Fishing Entity that seeks to be accorded the status of a Cooperating non-Contracting Party, Entity or Fishing Entity shall apply to the Executive Secretary. Requests must be received by the Executive Secretary no later than ninety (90) days in advance of an ICCAT annual meeting, to be considered at that meeting.

3.    Non-Contracting Parties, Entities or Fishing Entities requesting the status of Cooperating non-Contracting Party, Entity or Fishing Entity shall provide the following information in order to have this status considered by the Commission:

(a) where available, data on its historical fisheries in the Convention area, including nominal catches, number/type of vessels, name of fishing vessels, fishing effort and fishing areas;

(b) all the data that Contracting Parties have to submit to ICCAT based on the Recommendations adopted by ICCAT;

(c) details on current fishing presence in the Convention area, number of vessels and vessel characteristics and;

(d) information on any research programs it may have conducted in the Convention area and the information and the results of this research.

4.    An applicant for Cooperating non-Contracting Party, Entity or Fishing Entity Status shall also:

(a) confirm its commitment to respect the Commission’s conservation and management measures and;

(b) inform ICCAT of the measures it takes to ensure compliance by its vessels with ICCAT conservation and management measures .

5.    The Commission's Permanent Working Group for the Improvement of ICCAT Statistics and Conservation Measures (hereinafter PWG) shall be responsible for reviewing requests for Cooperating Status and for recommending to the Commission whether or not an applicant should receive Cooperating Status. In this review, the PWG shall also consider information regarding the applicant available from other Regional Fisheries Management Organizations (RFMOs) as well as data submission of the applicant to the Commission. Caution shall be used so as not to introduce into the Convention area the excessive fishing capacity of other regions or IUU fishing activities in granting Cooperating Status to the applicant.

6.    Cooperating non-Contracting Parties, Entities or Fishing Entity status shall be annually reviewed and renewed unless revoked by the Commission due to non-compliance with ICCAT conservation and management measures ...".

4  The United Nations Fish Stocks Agreement (UNFSA)

4.1  Brief Description of the MEA

The full name of the United Nations Fish Stocks Agreement (UNFSA) is the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea (UNCLOS) of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement). Article 4 of the UN Fish Stocks Agreement on the relationship between the Agreement and UNCLOS provides that "[n]othing in this Agreement shall prejudice the rights, jurisdiction and duties of States under the Convention. This Agreement shall be interpreted and applied in the context of and in a manner consistent with the Convention".

 

Web site

http://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm.

Objective

The UN Fish Stocks Agreement seeks to ensure the long-term conservation and sustainable use of straddling and highly migratory fish stocks through effective implementation of the relevant provisions of the Convention, in particular by requiring coastal States and States fishing on the high seas to cooperate for these purposes, either directly or through appropriate subregional or regional fisheries management organizations (RFMOs) or arrangements (RFMAs).

Date of Adoption

4 August 1995

Entry into force

11 December 2001

Parties

82 (as of 31 July 2015) 

WTO Members

70 Parties to UNFSA are also WTO Members (see Annex).

Openness of Membership

Article 37 – Signature

"This Agreement shall be open for signature by all States and the other entities referred to in article 1, paragraph 2(b) …".

Article 38 – Ratification

"This Agreement is subject to ratification by States and the other entities referred to in article 1, paragraph 2(b) …".

Article 39 – Accession

"This Agreement shall remain open for accession by States and the other entities referred to in article 1, paragraph 2(b) …".

Article 1:2(b) – Use of terms and scope

"2.   (b) This Agreement applies mutatis mutandis:

(i) to any entity referred to in article 305, paragraph 1 (c), (d) and (e), of the Convention and

(ii) subject to article 47, to any entity referred to as an "international organization" in Annex IX, article 1, of the Convention which becomes a Party to this Agreement, and to that extent "States Parties" refers to those entities".

3.    This Agreement applies mutatis mutandis to other fishing entities whose vessels fish on the high seas."

Article 305:1 of the United Nations Convention on the Law of the Sea – Signature

"1.   This Convention shall be open for signature by:

(a) all States;

(b) Namibia, represented by the United Nations Council for Namibia;

(c) all self-governing associated States which have chosen that status in an act of self-determination supervised and approved by the United Nations in accordance with General Assembly resolution 1514 (XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters;

(d) all self-governing associated States which, in accordance with their respective instruments of association, have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters;

(e) all territories which enjoy full internal self-government, recognized as such by the United Nations, but have not attained full independence in accordance with General Assembly resolution 1514 (XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters;

(f) international organizations, in accordance with Annex IX".

Governing Bodies

 

Informal Consultations of States Parties

à The General Assembly of the United Nations (UNGA) in its resolution 56/13 of 28 November 2001 requested the Secretary-General of the UN, once the Agreement entered into force, to consult with the States Parties, for the purposes and objectives of, inter alia, considering the regional, subregional and global implementation of the Agreement; making any appropriate recommendation to the UNGA on the scope and content of the annual report of the Secretary-General relating to the Agreement; and preparing for the review conference to be convened by the Secretary-General pursuant to Article 36 of the Agreement. The Informal Consultations of States Parties were  held at the UN Headquarters in New York annually between  2002 and 2010 as well as in 2014 and 2015. 

 

Review Conference

à The Agreement provides for the convening of a Review Conference four years after the date of the entry into force of the Agreement (Article 36).

 

Article 36

"1.   Four years after the date of entry into force of this Agreement, the Secretary-General of the United Nations shall convene a conference with a view to assessing the effectiveness of this Agreement in securing the conservation and management of straddling fish stocks and highly migratory fish stocks. The Secretary-General shall invite to the conference all States Parties and those States and entities which are entitled to become parties to this Agreement as well as those intergovernmental and non-governmental organizations entitled to participate as observers.

2.    The conference shall review and assess the adequacy of the provisions of this Agreement and, if necessary, propose means of strengthening the substance and methods of implementation of those provisions in order better to address any continuing problems in the conservation and management of straddling fish stocks and highly migratory fish stocks".

 

à Pursuant to Article 36, the General Assembly (resolution 59/25, para.16) requested the Secretary-General to convene a review conference on the Agreement in the first part of 2006.  The Conference was held in New York, from 22 to 26 May 2006. The Conference addressed ways to give full effect to the Agreement, both through a substantive review and assessment of the Agreement and by agreeing on recommendations for strengthening the implementation of its provisions. Recommendations were made regarding: 1) conservation and management of straddling fish stocks and highly migratory fish stocks; 2) mechanisms for international cooperation, including cooperation with non-members of regional fisheries management organizations or arrangements; 3) monitoring, control and surveillance and compliance and enforcement; and 4) developing States and non-parties. The Conference also recommended promoting further ratification and accession to the Agreement through a continuing dialogue to address concerns raised by some non-parties regarding some provisions of the Agreement. The Review Conference also agreed to continue the Informal Consultations of States  Parties and keep the Agreement under review through the resumption of the Review Conference at a date not later than 2011, to be agreed at a future round of Informal Consultations of States Parties to the Agreement.

The resumed Review Conference was held in New York from 24 to 28 May 2010, pursuant to General Assembly resolutions 63/112 and 64/72. The Conference conducted a review of the implementation of the recommendations adopted at the Review Conference in 2006 and adopted additional recommendations that built on the outcome in 2006 in order to strengthen the substance and methods of implementing the provisions of the Agreement. The resumed Review Conference decided to continue the Informal Consultations of States Parties to the Agreement and keep the Agreement under review through the resumption of the Review Conference at a date not earlier than 2015.

The UNGA, in its resolution 69/109 of 9 December 2014,  requested the Secretary-General to resume the Review Conference in the first part of 2016.

Amendments and Protocols

Article 45 – Amendment

"1.   A State Party may, by written communication addressed to the Secretary-General of the United Nations, propose amendments to this Agreement and request the convening of a conference to consider such proposed amendments. The Secretary-General shall circulate such communication to all States Parties. If, within six months from the date of the circulation of the communication, not less than one half of the States Parties reply favourably to the request, the Secretary-General shall convene the conference.

2.    The decision-making procedure applicable at the amendment conference convened pursuant to paragraph 1 shall be the same as that applicable at the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, unless otherwise decided by the conference. The conference should make every effort to reach agreement on any amendments by way of consensus and there should be no voting on them until all efforts at consensus have been exhausted.

3.    Once adopted, amendments to this Agreement shall be open for signature at United Nations Headquarters by States Parties for twelve months from the date of adoption, unless otherwise provided in the amendment itself.

4.    Articles 38, 39, 47 and 50 apply to all amendments to this Agreement.

5.    Amendments to this Agreement shall enter into force for the States Parties ratifying or acceding to them on the thirtieth day following the deposit of instruments of ratification or accession by two thirds of the States Parties. Thereafter, for each State Party ratifying or acceding to an amendment after the deposit of the required number of such instruments, the amendment shall enter into force on the thirtieth day following the deposit of its instrument of ratification or accession.

6.    An amendment may provide that a smaller or a larger number of ratifications or accessions shall be required for its entry into force than are required by this article.

7.    A State which becomes a Party to this Agreement after the entry into force of amendments in accordance with paragraph 5 shall, failing an expression of a different intention by that State:

(a) be considered as a Party to this Agreement as so amended;  and

(b) be considered as a Party to the unamended Agreement in relation to any State Party not bound by the amendment".

 

Article 48 – Annexes

"… 2. The Annexes may be revised from time to time by States Parties. Such revisions shall be based on scientific and technical considerations. Notwithstanding the provisions of article 45, if a revision to an Annex is adopted by consensus at a meeting of States Parties, it shall be incorporated in this Agreement and shall take effect from the date of its adoption or from such other date as may be specified in the revision. If a revision to an Annex is not adopted by consensus at such a meeting, the amendment procedures set out in article 45 shall apply".

4.2  Trade-related Measures

Article 17

Non-members of Organi­zations and Non-partici­pants in Arrangements

"... 4.        States which are members of [RFMOs] or participants in [RFMAs] shall exchange information with respect to the activities of fishing vessels flying the flags of States which are neither members of the organization nor participants in the arrangement and which are engaged in fishing operations for the relevant stocks. They shall take measures consistent with this Agreement and international law to deter activities of such vessels which undermine the effectiveness of subregional or regional conservation and management measures".

Article 20

International cooperation in enforcement

"…7. States Parties which are members of a subregional or regional fisheries management organization or participants in a subregional or regional fisheries management arrangement may take action in accordance with international law, including through recourse to subregional or regional procedures established for this purpose, to deter vessels which have engaged in activities which undermine the effectiveness of or otherwise violate the conservation and management measures established by that organization or arrangement from fishing on the high seas in the subregion or region until such time as appropriate action is taken by the flag State".

Article 23

Measures taken by a

Port State

"1.   A port State has the right and the duty to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures. When taking such measures a port State shall not discriminate in form or in fact against the vessels of any State.

2.    A port State may, inter alia, inspect documents, fishing gear and catch on board fishing vessels, when such vessels are voluntarily in its ports or at its offshore terminals.

3.    States may adopt regulations empowering the relevant national authorities to prohibit landings and transshipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of subregional, regional or global conservation and management measures on the high seas.

4.    Nothing in this article affects the exercise by States of their sovereignty over ports in their territory in accordance with international law".

Article 33

Non-parties to the Agreement

"... 2.        States Parties shall take measures consistent with this Agreement and international law to deter the activities of vessels flying the flag of non-parties which undermine the effective implementation of this Agreement".

 

4.3  Supportive measures

à Part VII on "Requirements of Developing States" (Articles 24-26) provides for assistance in favour of developing States in the implementation of the Agreement, in recognition of their special requirements in relation to conservation and management of straddling fish stocks and highly migratory fish stocks and development of fisheries for such stocks.  Such assistance also applies in respect to the conservation and management of straddling fish stocks and highly migratory fish stocks in areas under national jurisdiction of developing coastal States (Part I, Article 3.3).

Article 24 – Recognition of the special requirements of developing States

"1.   States shall give full recognition to the special requirements of developing States in relation to conservation and management of straddling fish stocks and highly migratory fish stocks and development of fisheries for such stocks. To this end, States shall, either directly or through the United Nations Development Programme, the Food and Agriculture Organization of the United Nations and other specialized agencies, the Global Environment Facility, the Commission on Sustainable Development and other appropriate international and regional organizations and bodies, provide assistance to developing States."

Article 25 – Forms of cooperation with developing States

"1.   States shall cooperate, either directly or through subregional, regional or global organizations:

(a) to enhance the ability of developing States, in particular the least-developed among them and small island developing States, to conserve and manage straddling fish stocks and highly migratory fish stocks and to develop their own fisheries for such stocks;

(b) to assist developing States, in particular the least-developed among them and small island developing States, to enable them to participate in high seas fisheries for such stocks, including facilitating access to such fisheries subject to articles 5 and 11; and

(c) to facilitate the participation of developing States in subregional and regional fisheries management organizations and arrangements

2.    Cooperation with developing States for the purposes set out in this article shall include the provision of financial assistance, assistance relating to human resources development, technical assistance, transfer of technology, including through joint venture arrangements, and advisory and consultative services.

3.    Such assistance shall, inter alia, be directed specifically towards:

(a) improved conservation and management of straddling fish stocks and highly migratory fish stocks through collection, reporting, verification, exchange and analysis of fisheries data and related information;

(b) stock assessment and scientific research; and

(c) monitoring, control, surveillance, compliance and enforcement, including training and capacity-building at the local level, development and funding of national and regional observer programmes and access to technology and equipment."

Article 26 – Special assistance in the implementation of this Agreement

"1.   States shall cooperate to establish special funds to assist developing States in the implementation of this Agreement, including assisting developing States to meet the costs involved in any proceedings for the settlement of disputes to which they may be parties.

2.    States and international organizations should assist developing States in establishing new subregional or regional fisheries management organizations or arrangements, or in strengthening existing organizations or arrangements, for the conservation and management of straddling fish stocks and highly migratory fish stocks".

 

à An Assistance Fund under Part VII was established by Resolution 58/14 at the 58th Session of the UNGA in 2003 to assist developing States Parties in the implementation of the Agreement. The FAO administers the Fund in collaboration with the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs of the United Nations, and invites States, intergovernmental organizations, international financial institutions, national institutions, NGOs as well as natural and juridical persons, to make voluntary financial contributions to the Fund.  Paragraph 14 of the Terms of Reference of the Fund provides that financial assistance from the Fund can be sought for the following purposes:

"(a) Facilitating the participation of representatives from developing States Parties, in particular the least-developed among them and Small Island developing States Parties to the Agreement, in the meetings and activities of relevant regional and subregional fisheries management organizations and arrangements. Such assistance may include such costs as travel costs and, if appropriate, daily subsistence allowances for delegations participating in relevant regional and subregional fisheries management organisations or arrangements, including technical experts.

(b) Assisting with travel costs, and if appropriate daily subsistence allowances, associated with the participation of developing States Parties, in particular the least-developed among them and small island developing States Parties to the Agreement, in relevant meetings concerning high seas fisheries of relevant global organizations, such as the United Nations Development Programme, the Food and Agriculture Organization and other specialised agencies, the Global Environment Facility, the Commission on Sustainable Development and other appropriate international and regional organizations and bodies. Applications for this purpose shall include details of how the meeting in question relates to implementation of the Agreement.

(c) Supporting ongoing and future negotiations to establish new regional or subregional fisheries management organizations and arrangements in areas where such bodies are not currently in place, to renegotiate founding agreements for such organizations and arrangements and to strengthen existing subregional and regional fisheries management organizations and arrangements in accordance with the Agreement. A condition for such support is that reference to implementing the Agreement is made in founding documents and/or work programmes of the regional or subregional fisheries management organizations or arrangements and in the national fisheries policies and/or management plans of States Parties.

(d) Building capacity for activities in key areas such as effective exercise of flag State responsibilities, monitoring, control and surveillance, data collection and scientific research relevant to straddling and highly migratory fish stocks on a national and/or regional level.

(e) Facilitating exchange of information and experience on the implementation of the Agreement.

(f) Assisting developing States Parties to the Agreement, in particular the least-developed among them and small island developing States, with human resources development, technical training, and technical assistance in relation to conservation and management of straddling and highly migratory fish stocks and development of fisheries for such stocks, consistent with the duty to ensure the proper conservation and management of such stocks.

(g) Assisting in meeting the costs involved in proceedings for the settlement of disputes between States Parties to the Agreement concerning the interpretation or application of the Agreement in accordance with Part VIII of the Agreement or proceedings concerning the interpretation or application of a subregional, regional or global fishery agreement relating to straddling fish stocks or highly migratory fish stocks to which they are parties, including any dispute concerning the conservation and management of such stocks and complementary to any assistance provided under the ITLOS Trust Fund established by General Assembly resolution 55/7 or the Trust Fund for the International Court of Justice established by General Assembly resolution A/47/444 or the financial assistance fund established by the Permanent Court of Arbitration."

4.4  Non-compliance mechanism

à Article 17 of Part IV on "Non-members and Non-participants" provides that a State which is not a member of a RFMO or a participant in an RFMA, and which does not otherwise agree to apply the conservation and management measures established by such organization or arrangement, is not discharged from the obligation to cooperate, in accordance with the Convention and the Agreement, in the conservation and management of the relevant straddling fish stocks and highly migratory fish stocks. It provides that such a State shall not authorize a vessel flying its flag to engage in fishing operations for the straddling fish stocks or highly migratory fish stocks which are subject to the conservation and management measures established by such an organization or arrangement.

à Article 18 of Part V on "Duties of the Flag State" requires the flag State to ensure that vessels flying its flag comply with subregional and regional conservation and management measures. It shall authorize vessels flying its flag to fish on the high seas only where it is able to exercise effectively its responsibilities in respect of such vessels under the Convention and the Agreement. To this end, a flag State is obligated to take measures vis-à-vis fishing vessels flying its flag that can ensure such control, including the establishment of a national record of fishing vessels authorized to fish on the high seas; prohibition of high seas fishing without the necessary authorization;  requirement of permits for high seas fishing; prohibition of unauthorized fishing in areas under the national jurisdiction of other States; requirements for marking of fishing vessels and fishing gear in accordance with FAO Standard Specifications for the Marking and Identification of Fishing Vessels; obligation of reporting relevant fisheries data; implementation of observer programmes and national inspection schemes; implementation of vessel monitoring systems; regulation of transshipment; and an obligation for the flag State to ensure compatibility of the national monitoring, control and surveillance system with existing subregional, regional or global systems.

 à Part VI on "Compliance and Enforcement" (Articles 19-23) contains several provisions on compliance and enforcement, which involve compliance and enforcement by the flag State, the port State, as well as a subregional and regional cooperative enforcement scheme that may involve non-flag State enforcement.

Article 19 – Compliance and enforcement by the flag State

"1.    A State shall ensure compliance by vessels flying its flag with subregional and regional conservation and management measures for straddling fish stocks and highly migratory fish stocks. To this end, that State shall:

(a) enforce such measures irrespective of where violations occur;

(b) investigate immediately and fully any alleged violation of subregional or regional conservation and management measures, which may include the physical inspection of the vessels concerned, and report promptly to the State alleging the violation and the relevant subregional or regional organization or arrangement on the progress and outcome of the investigation;

(c) require any vessel flying its flag to give information to the investigating authority regarding vessel position, catches, fishing gear, fishing operations and related activities in the area of an alleged violation;

(d) if satisfied that sufficient evidence is available in respect of an alleged violation, refer the case to its authorities with a view to instituting proceedings without delay in accordance with its laws and, where appropriate, detain the vessel concerned; and

(e) ensure that, where it has been established, in accordance with its laws, a vessel has been involved in the commission of a serious violation of such measures, the vessel does not engage in fishing operations on the high seas until such time as all outstanding sanctions imposed by the flag State in respect of the violation have been complied with.

2.    All investigations and judicial proceedings shall be carried out expeditiously. Sanctions applicable in respect of violations shall be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and shall deprive offenders of the benefits accruing from their illegal activities. Measures applicable in respect of masters and other officers of fishing vessels shall include provisions which may permit, inter alia, refusal, withdrawal or suspension of authorizations to serve as masters or officers on such vessels ...".

Article 20 –  International cooperation in enforcement

à Provides that States shall cooperate, either directly or through subregional or regional fisheries management organizations or arrangements, to ensure compliance with and enforcement of subregional and regional conservation and management measures for straddling fish stocks and highly migratory fish stocks.

Article 21 –  Subregional and regional cooperation in enforcement

à Provides a subregional and regional cooperative scheme in enforcement that may involve boarding and inspection by non-flag State inspectors within the framework of an RFMO or RFMA.

Article 22 – Basic procedures for boarding and inspection pursuant to Article 21

à Provides for the basic procedures to be followed by duly authorized inspectors from an inspecting State in case of boarding and inspection.

Article 23 – Measures taken by a port State

à Provides for enforcement measures, which may be taken by a port State, whenever fishing vessels are voluntarily in its ports or at its offshore terminals. Such measures may include inspection of documents, fishing gear and catch on board fishing vessels, and prohibition of landings and transhipments if national regulations exist to this effect.

4.5  Dispute Settlement Mechanism

à Part VIII on Peaceful Settlement of Disputes (Articles 27-32) contains provisions for the peaceful settlement of disputes arising out of the implementation of the Agreement.

Article 27 – Obligation to settle disputes by peaceful means

"States have the obligation to settle their disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice".

Article 28 – Prevention of disputes

"States shall cooperate in order to prevent disputes. To this end, States shall agree on efficient and expeditious decision-making procedures within subregional and regional fisheries management organizations and arrangements and shall strengthen existing decision-making procedures as necessary".

Article 29 – Disputes of a technical nature

"Where a dispute concerns a matter of a technical nature, the States concerned may refer the dispute to an ad hoc expert panel established by them. The panel shall confer with the States concerned and shall endeavour to resolve the dispute expeditiously without recourse to binding procedures for the settlement of disputes".

Article 30 – Procedures for the settlement of disputes

à Stipulates that the procedures for the settlement of disputes set out in Part XV of UNCLOS apply mutatis mutandis to any dispute between State Parties to the Agreement concerning the interpretation or application of the Agreement, whether or not they are also Parties to UNCLOS. The procedures also apply mutatis mutandis to any dispute between State Parties to the Agreement concerning the interpretation or application of a subregional, regional or global fisheries agreement relating to straddling fish stocks or highly migratory fish stocks to which they are parties, including any dispute concerning the conservation and management of such stocks, whether or not they are also Parties to the Convention.

Article 31 – Provisional measures

"1.   Pending the settlement of a dispute in accordance with this Part, the parties to the dispute shall make every effort to enter into provisional arrangements of a practical nature.

2.    Without prejudice to article 290 of the Convention, the court or tribunal to which the dispute has been submitted under this Part may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent damage to the stocks in question, as well as in the circumstances referred to in article 7, paragraph 5, and article 16, paragraph 2.

3.    A State Party to this Agreement which is not a Party to the Convention may declare that, notwithstanding article 290, paragraph 5, of the Convention, the International Tribunal for the Law of the Sea shall not be entitled to prescribe, modify or revoke provisional measures without the agreement of such State".

à The relevant provisions of UNCLOS

-         Part XV of UNCLOS requires that State Parties to the Convention settle any dispute between them concerning the interpretation or application of the Convention by all peaceful means referred to in the UN Charter.

-         Where no settlement has been reached by recourse to procedures entailing non-binding decisions under Part XV, Section 1, the dispute shall be submitted at the request of any party, to the compulsory procedures entailing binding decisions provided for in Section 2 of Part XV.

-         Article 287 lists the following courts or tribunals as means for the settlement of disputes under Section 2:

-         ITLOS (established in accordance with Annex VI of the Convention) including the Seabed Disputes Chamber;

-         the ICJ;

-         an arbitral tribunal constituted in accordance with Annex VII of the Convention;

-         a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. 

-         The jurisdiction of ITLOS comprises all disputes and all applications submitted to it in accordance with UNCLOS and all matters specifically provided for in any other agreement, which confers jurisdiction to the Tribunal.

-         Part XV, Section 3 on limitations and exceptions to the applicability of Section 2 stipulates in Article 297, paragraph 3 that disputes relating to the sovereign rights of the coastal State relating to the living resources in the EEZ, or the exercise of such rights in that zone, are excluded from the compulsory procedures entailing binding decisions provided for in Part XV, Section 2.

-         In relation to the above disputes subject to limitations and exceptions under Article 297, paragraph 3, where no settlement has been reached by recourse to Part XV, Section 1, such disputes shall be submitted to the compulsory conciliation procedure established under Annex V, Section 2 of UNCLOS at the request of any party to the dispute. Under such a procedure, only the submission to the proceedings is compulsory since the report of the commission of conciliation, including its conclusions or recommendations, remains non-binding upon the Parties to the dispute.

4.6  Provisions for non-parties

Article 33 – Non-parties to this Agreement

"1.   States Parties shall encourage non-parties to this Agreement to become parties thereto and to adopt laws and regulations consistent with its provisions.

2.    States Parties shall take measures consistent with this Agreement and international law to deter the activities of vessels flying the flag of non-parties which undermine the effective implementation of this Agreement".

Article 36 – Review conference

"1.   Four years after the date of entry into force of this Agreement, the Secretary-General of the United Nations shall convene a conference with a view to assessing the effectiveness of this Agreement in securing the conservation and management of straddling fish stocks and highly migratory fish stocks. The Secretary-General shall invite to the conference all States Parties and those States and entities which are entitled to become parties to this Agreement as well as those intergovernmental and non-governmental organizations entitled to participate as observers".

 


5  International Tropical Timber Agreement (ITTA)[6]

5.1  Brief Description of the MEA

Web site

http://www.itto.int/.

Objective

à ITTA, 2006 seeks to promote international trade in tropical timber, the sustainable management of tropical forests, and the development of tropical forest industries through international cooperation, policy work and project activities, as provided for in objectives (a) to (i) of Article 1.

Date of Signature

3 April 2006

Entry into force

7 December 2011

Article 44 – Duration, extension and termination

"1.   This Agreement shall remain in force for a period of 10 years after its entry into force unless the Council, by special vote in accordance with article 12, decides to extend, renegotiate or terminate it in accordance with the provisions of this article.

2.    The Council may, by special vote in accordance with article 12, decide to extend this Agreement for two periods, an initial period of five years and additional one of three years.

3.    If, before the expiry of the 10-year period referred to in paragraph 1 of this article, or before the expiry of an extension period referred to in paragraph 2 of this article, as the case may be, a new agreement to replace this Agreement has been negotiated but has not yet entered into force either definitively or provisionally, the Council may, by special vote in accordance with article 12, extend this Agreement until the provisional or definitive entry into force of the new Agreement.

4.    If the new agreement is negotiated and enters into force during any period of extension of this Agreement under paragraph 2 or paragraph 3 of this article, this Agreement, as extended, shall terminate upon the entry into force of the new agreement.

5.    The Council may at any time, by special vote in accordance with article 12, decide to terminate this Agreement with effect from such date as it may determine."

6.    Notwithstanding the termination of this Agreement, the Council shall continue in being for a period not exceeding 18 months to carry out the liquidation of the Organization, including the settlement of accounts, and, subject to relevant decisions to be taken by special vote in accordance with article 12, shall have during that period such powers and functions as may be necessary for these purposes.

7.      The Council shall notify the depositary of any decision taken under this article."

ITTA Members

71 Members of which 33 producing and 38 consuming, including the European Union (as of 31 July 2015).

WTO Members

70 Members to ITTA are also WTO Members (see Annex).

Openness of Membership

Article 36    Signature, Ratification, Acceptance and Approval

"1.    This Agreement shall be open for signature, at United Nations Headquarters from 3 April 2006 until one month after the date of its entry into force, by Governments invited to the United Nations Conference for the Negotiation of a Successor Agreement to the International Tropical Timber Agreement, 1994.

2.      Any Government referred to in paragraph 1 of this article may:

(a) At the time of signing this Agreement, declare that by such signature it expresses its consent to be bound by this Agreement (definitive signature); or

(b) After signing this Agreement, ratify, accept or approve it by the deposit of an instrument to that effect with the depositary.

3.      Upon signature and ratification, acceptance or approval, or accession, or provisional application, the European Community or any intergovernmental organization referred to in article 5, paragraph 1, shall deposit a declaration issued by the appropriate authority of such organization specifying the nature and extent of its competence over matters governed by this Agreement, and shall inform the depositary of any subsequent substantial change in such competence. Where such organization declares exclusive competence over all matters governed by this Agreement, the member States of such organization shall not take the actions under article 36, paragraph 2, article 37 and article 38, or shall take the action under article 41 or withdraw notification of provisional application under article 38."

Decision-Making Bodies

(1) The International Tropical Timber Council (ITTC)

Article 6 – Composition of the ITTC

"1.    The highest authority of the Organization shall be the ITTC, which shall consist of all the members of the Organization.

2.     Each member shall be represented in the Council by one representative and may designate alternates and advisers to attend sessions of the Council.

3.     An alternate representative shall be empowered to act and vote on behalf of the representative during the latter's absence or in special circumstances".

Article 7 – Powers and functions of the Council

"The Council shall exercise all such powers and perform or arrange for the performance of all such functions as are necessary to carry out the provisions of this Agreement. In particular, it shall:

(a) By special vote in accordance with article 12, adopt such rules and regulations as are necessary to carry out the provisions of this Agreement and as are consistent therewith, including its own rules of procedure and the financial rules and staff regulations of the Organization. Such financial rules and regulations shall, inter alia, govern the receipt and expenditure of funds under the accounts established in article 18. The Council may, in its rules of procedure, provide for a procedure whereby it may, without meeting, decide specific questions;

(b) Take such decisions as are necessary to ensure the effective and efficient functioning and operation of the Organization; and

(c) Keep such records as are required for the performance of its functions under this Agreement."

Article 29 – General obligations of members

"1.    Members shall, for the duration of this Agreement, use their best endeavours and cooperate to promote the attainment of its objectives and to avoid any action contrary thereto.

2.     Members undertake to accept and carry out the decisions of the Council under the provisions of this Agreement and shall refrain from implementing measures which would have the effect of limiting or running counter to them".

(2) Committees and Subsidiary Bodies

Article 26 Committees and Subsidiary Bodies

"1.    The following are hereby established as Committees of the Organization, which shall be open to all members:

(a) Committee on Forest Industry;

(b) Committee on Economics, Statistics and Markets;

(c) Committee on Reforestation and Forest Management; and

(d) Committee on Finance and Administration.

2.     The Council may, by special vote in accordance with article 12, establish or dissolve committees and subsidiary bodies as appropriate.

3.     The Council shall determine the functioning and scope of work of the committees and other subsidiary bodies. The Committees and other subsidiary bodies shall be responsible to and work under the authority of the Council."

Amendments

Article 40 – Amendments

"1.    The Council may, by special vote in accordance with article 12, recommend an amendment of this Agreement to members.

2.     The Council shall fix a date by which members shall notify the depositary of their acceptance of the amendment.

3.     An amendment shall enter into force 90 days after the depositary has received notifications of acceptance from members constituting at least two thirds of the producer members and accounting for at least 75 per cent of the votes of the producer members, and from members constituting at least two thirds of the consumer members and accounting for at least 75 per cent of the votes of the consumer members.

4.     After the depositary informs the Council that the requirements for entry into force of the amendment have been met, and notwithstanding the provisions of paragraph 2 of this article relating to the date fixed by the Council, a member may still notify the depositary of its acceptance of the amendment, provided that such notification is made before the entry into force of the amendment.

5.     Any member which has not notified its acceptance of an amendment by the date on which such amendment enters into force shall cease to be a party to this Agreement as from that date, unless such member has satisfied the Council that its acceptance could not be obtained in time owing to difficulties in completing its constitutional or institutional procedures, and the Council decides to extend for that member the period for acceptance of the amendment. Such member shall not be bound by the amendment before it has notified its acceptance thereof.

6.     If the requirements for the entry into force of the amendment have not been met by the date fixed by the Council in accordance with paragraph 2 of this article, the amendment shall be considered withdrawn".

5.2  Trade-related Measures

5.2.1  Provisions of the Agreement

There are no provisions for trade measures in the ITTA, 2006. However, following the entry into force of the ITTA, 2006, the mandate of the International Tropical Timber Organization (ITTO) on trade has been updated and refined. This is reflected in eight trade-related objectives of the agreement which are outlined in Article 1.

Article 1

Objectives

The objectives of the International Tropical Timber Agreement, 2006 (hereinafter referred to as "this Agreement") are to promote the expansion and diversification of international trade in tropical timber from sustainably managed and legally harvested forests and to promote the sustainable management of tropical timber producing forests by: …

(b)      Providing a forum for consultation to promote non-discriminatory timber trade practices; …

(d)      Enhancing the capacity of members to implement strategies for achieving exports of tropical timber and timber products from sustainably managed sources;

(e)      Promoting improved understanding of the structural conditions in international markets, including long-term trends in consumption and production, factors affecting market access, consumer preferences and prices, and conditions leading to prices which reflect the costs of sustainable forest management; …

(h)  Improving market intelligence and encouraging information sharing on the international timber market with a view to ensuring greater transparency and better information on markets and market trends, including the gathering, compilation and dissemination of trade related data, including data related to species being traded; …

(k)      Improving marketing and distribution of tropical timber and timber product exports from sustainably managed and legally harvested sources and which are legally traded, including promoting consumer awareness;

(l)       Strengthening the capacity of members for the collection, processing and dissemination of statistics on their trade in timber and information on the sustainable management of their tropical forests; …

(n)      Strengthening the capacity of members to improve forest law enforcement and governance, and address illegal logging and related trade in tropical timber;

(o)     Encouraging information sharing for a better understanding of voluntary mechanisms such as, inter alia, certification, to promote sustainable management of tropical forests, and assisting members with their efforts in this area.


 

Article 36

Non-discrimination

"Nothing in this Agreement authorizes the use of measures to restrict or ban international trade in, and in particular as they concern imports of and utilization of, timber and timber products".

5.2.2  Decisions and Recommendations

Examples of the decisions and recommendations adopted by the ITTO Council (ITTC) include the following:

Decision 3(X)

à In June 1991, the ITTC committed itself by Decision 3(X) to the "ITTO Year 2000 Objective", which was the goal of having all tropical timber entering international trade coming from sustainably managed sources by 2000.  Since then, the Council has approved policy studies and project financing for a number of activities to help member countries move toward this Objective. The ITTO Year 2000 Objective has been incorporated in the operative objectives of ITTA, 1994 (Article 1(d)). At its Twenty-ninth Session, the ITTC reaffirmed its commitment to moving as rapidly as possible towards achieving exports of tropical timber and timber products from sustainably managed sources pursuant to the ITTO Objective 2000 (Decision 2 (XXIX) adopted on 4 November 2000).

Decision 9(XXVI)

à In June 1999, the ITTC adopted a decision relating to market access for tropical timber and requested members to inform the Council on progress made with regard to measures undertaken to eliminate possible obstacles to market access for tropical timber as a possible means to facilitate sustainable forest management.

Decision 10 (XXXIV)

à In May 2003, the ITTC decided to undertake a study on the costs and benefits of certification in selected ITTO member countries, to develop procedures for phased approaches to certification and to convene an international workshop to promote phased approaches to certification.

Decision 12 (XXXIV)

à In May 2003, the ITTC also decided to undertake a study which would:

-         Identify product standards, quality or grading requirements, building codes, and technical regulations that may affect the trade of tropical timber and timber products;

-         assess the possible impacts of product standards, quality or grading requirements, building codes, and technical regulations, on trade in tropical timber, inter alia, with respect to panel products;

-         assess the capacity of tropical timber-producing countries to meet existing and evolving product standards and technical regulations for timber products in importing countries and, where gaps exist, identify and propose ways to address them and provide relevant assistance to tropical timber producing countries;

-         propose recommendations for consideration by member countries and Council; and

-         in the context of the Doha Development Agenda, report on tariffs, negotiations and the negotiating process as related to tropical timber products at the Thirty-Sixth Session of the Council.

Decision 2 (XXXVII)

à In December 2004, the ITTC adopted a decision on enhanced cooperation between ITTO and CITES for ramin and mahogany.

The ITTO Strategic  Action Plan 2013-2018

à In November 2012, the ITTC adopted the ITTO Strategic Action Plan 2013-2018, its fourth action plan (Decision 3 (XLVIII), 10 November 2012).

5.3  Supportive measures

à Article 20 provides for the establishment of the Special Account comprising of the Pre-Project Sub-Account and the Project Sub-Account. The sources of finance for the Special Account may come from the Common Fund for Commodities, regional and international financial institutions and voluntary contributions. The resources of the Special Account shall be used only for approved ITTO pre-projects and projects. Since it became operational in 1987, the ITTO has funded over 1000 projects, pre-projects and activities for a total cost of over US$ 400 million.

à Article 21 of the ITTA, 2006 provides for the establishment of the Bali Partnership Fund for the sustainable management of tropical timber-producing forests. The fund is exclusively reserved for producing members to achieve the objective of Art 1 (d) of the ITTA, 2006 and is additional to the Special Account.

5.4  Non-compliance mechanism

Article 19 – Administrative Account

"...7. If a member has not paid its full contribution to the administrative budget within four months after such contribution becomes due in accordance with paragraph 6 of this article, the Executive Director shall request that member to make payment as quickly as possible. If that member has still not paid its contribution within two months after such request, that member shall be requested to state the reasons for its inability to make payment. If at the expiry of seven months from the due date of contribution, that member has still not paid its contribution, its voting rights shall be suspended until such time as it has paid in full its contribution, unless the Council, by special vote, decides otherwise.  If, on the contrary, a member has paid its full contribution to the administrative budget within four months after such contribution becomes due in accordance with paragraph 6 of this article, the member's contribution shall receive a discount as may be established by the Council in the financial rules of the Organization".

Article 44 – Exclusion

"If the Council decides that any member is in breach of its obligations under this Agreement and decides further that such breach significantly impairs the operation of this Agreement, it may, by special vote, exclude that member from this Agreement. The Council shall immediately so notify the depositary. Six months after the date of the Council's decision, that member shall cease to be a party to this Agreement".

5.5  Dispute Settlement Mechanism

Article 31 – Complaints and disputes

"Any complaint that a member has failed to fulfil its obligations under this Agreement and any dispute concerning the interpretation or application of this Agreement shall be referred to the Council for decision. Decisions of the Council on these matters shall be final and binding".

5.6  Provisions for non-parties

Article 16- Admission of Observers

The Council may invite any member or observer State of the United Nations which is not party to this Agreement, or any organization referred to in Article 15 interested in the activities of the Organization, to attend as observers the sessions of the Council.

Non-member stakeholders have established two advisory groups to facilitate their participation in the Council and to provide input to the Council's decision-making process. These are the Trade Advisory Group and the Civil Society Advisory Group.

6  International Plant Protection Convention (IPPC)

6.1  Brief Description of the MEA

The first version of the IPPC was adopted in November 1951 and entered into force in April 1952 (IPPC 1951). It was revised in 1979 (IPPC 1979), and the revised text came into force in April 1991. The text of the Convention was further amended in 1997 (the New Revised Text of the IPPC), and the text as amended came into force with respect to all contracting parties, regardless of the date on which they became parties, on 2 October 2005.

The IPPC was formally recognized by the Liaison Group of Biodiversity-related Conventions (BLG) on 16 August 2014.

Web site

https://www.ippc.int/.

Objective

à The IPPC is an international treaty for plant protection. Its purpose is to "secure common and effective action to prevent the spread and introduction of pests of plants and plant products, and to promote appropriate measures for their control" (Article I).

à Although the IPPC has strong implications for international trade, its focus is international cooperation for plant protection. Many forms of cooperation fall within the scope of the Convention. Its application to plants is not limited to the protection of cultivated plants or direct damage from pests. The scope of the Convention extends to the protection of cultivated and natural flora, as well as plant products, and includes direct and indirect damage by pests.

à The Preamble recognizes that phytosanitary measures should be technically justified, transparent and should not be applied in such a way as to constitute either a means of arbitrary or unjustified discrimination or a disguised restriction, particularly on international trade; it also takes note of the Agreements concluded as a result of the Uruguay Round of Multilateral Trade Negotiations, including the SPS Agreement.

à The four IPPC Strategic objectives are:

(a) protect sustainable agriculture and enhance global food security through the prevention of pest spread;

(b) protect the environment, forests and biodiversity from plant pests;

(c) facilitate economic and trade development through the promotion of harmonized scientifically based phytosanitary measures; and

(d) develop phytosanitary capacity for members to accomplish a, b and c.

Date of Adoption

November 1997

Entry into force

2 October 2005

Parties

182 (as of 31 July 2015)

WTO Members

154 Contracting Parties to IPPC are also WTO Members (see Annex).

Openness of Membership

Article XVII – Ratification and adherence

"1.    This Convention shall be open for signature by all states until 1 May 1952 and shall be ratified at the earliest possible date.

2.     As soon as this Convention has come into force in accordance with Article XXII it shall be open for adherence by non-signatory states and member organizations of FAO. Adherence shall be effected by the deposit of an instrument of adherence with the Director-General of FAO, who shall notify all contracting parties.

3.     When a member organization of FAO becomes a contracting party to this Convention, the member organization shall, in accordance with the provisions of Article II paragraph 7 of the FAO Constitution, as appropriate, notify at the time of its adherence such modifications or clarifications to its declaration of competence submitted under Article II paragraph 5 of the FAO Constitution as may be necessary in light of its acceptance of this Convention. Any contracting party to this Convention may, at any time, request a member organization of FAO that is a contracting party to this Convention to provide information as to which, as between the member organization and its member states, is responsible for the implementation of any particular matter covered by this Convention. The member organization shall provide this information within a reasonable time".

Decision-Making Bodies

Article XI – Commission on Phytosanitary Measures

"1.    Contracting parties agree to establish the Commission on Phytosanitary Measures within the framework of the FAO.

2.     The functions of the Commission shall be to promote the full implementation of the objectives of the Convention and, in particular, to:

(a) review the state of plant protection in the world and the need for action to control the international spread of pests and their introduction into endangered areas;

(b) establish and keep under review the necessary institutional arrangements and procedures for the development and adoption of international standards, and to adopt international standards;

(c) establish rules and procedures for the resolution of disputes in accordance with Article XIII;

(d) establish such subsidiary bodies of the Commission as may be necessary for the proper implementation of its functions;

(e) adopt guidelines regarding the recognition of regional plant protection organizations;

(f) establish cooperation with other relevant international organizations on matters covered by this Convention;

(g) adopt such recommendations for the implementation of the Convention as necessary; and

(h) perform such other functions as may be necessary to the fulfilment of the objectives of this Convention.

3.     Membership in the Commission shall be open to all contracting parties.

4.     The contracting parties shall make every effort to reach agreement on all matters by consensus. If all efforts to reach consensus have been exhausted and no agreement is reached, the decision shall, as a last resort, be taken by a two-thirds majority of the contracting parties present and voting.

5.     A member organization of FAO that is a contracting party and the member states of that member organization that are contracting parties shall exercise their membership rights and fulfil their membership obligations in accordance, mutatis mutandis, with the Constitution and General Rules of FAO ...".

à An Interim Commission on Phytosanitary Measures (ICPM) was established with the adoption of the 1997 Amendments. With the entry into force of the 1997 Amendments in 2005, the Commission on Phytosanitary Measures (CPM) superseded the ICPM. The first meeting of the CPM was held in Rome on 3‑7 April 2006.

à To facilitate the work of the CPM there are five Subsidiary bodies under the CPM:

-        Bureau: seven elected members (one from each FAO region) who oversee the Standards Committee.

- Standards Committee (SC): 25 elected members representing the seven FAO regions whose primary function is to oversee the development of International Standards for Phytosanitary Measures (ISPMs).

-        Subsidiary Body for Dispute Settlement (SBDS): seven elected members (one from each FAO region) who oversee the IPPC dispute settlement system.

- Capacity Development Committee (CDC): seven nominated by the Bureau members (one from each FAO region) who oversee the IPPC capacity development programme.

- National Reporting Obligations Advisory Body (NROAG): seven nominated by the Bureau members (one from each FAO region) plus a CPM Bureau member the Chairpersons of the SC, CDC and SBDS who provide advice and guidance to the National Reporting Obligations (NRO) programme.

Amendments and Protocols

Article XVI – Supplementary agreements

"1.    The contracting parties may, for the purpose of meeting special problems of plant protection which need particular attention or action, enter into supplementary agreements. Such agreements may be applicable to specific regions, to specific pests, to specific plants and plant products, to specific methods of international transportation of plants and plant products, or otherwise supplement the provisions of this Convention.

2.     Any such supplementary agreements shall come into force for each contracting party concerned after acceptance in accordance with the provisions of the supplementary agreements concerned.

3.     Supplementary agreements shall promote the intent of this Convention and shall conform to the principles and provisions of this Convention, as well as to the principles of transparency, non-discrimination and the avoidance of disguised restrictions, particularly on international trade".

Article XXI – Amendment

"1.    Any proposal by a contracting party for the amendment of this Convention shall be communicated to the Director-General of FAO.

2.     Any proposed amendment of this Convention received by the Director-General of FAO from a contracting party shall be presented to a regular or special session of the Commission for approval and, if the amendment involves important technical changes or imposes additional obligations on the contracting parties, it shall be considered by an advisory committee of specialists convened by FAO prior to the Commission.

3.     Notice of any proposed amendment of this Convention, other than amendments to the Annex, shall be transmitted to the contracting parties by the Director-General of FAO not later than the time when the agenda of the session of the Commission at which the matter is to be considered is dispatched.

4.     Any such proposed amendment of this Convention shall require the approval of the Commission and shall come into force as from the thirtieth day after acceptance by two-thirds of the contracting parties. For the purpose of this Article, an instrument deposited by a member organization of FAO shall not be counted as additional to those deposited by member states of such an organization.

5.     Amendments involving new obligations for contracting parties, however, shall come into force in respect of each contracting party only on acceptance by it and as from the thirtieth day after such acceptance. The instruments of acceptance of amendments involving new obligations shall be deposited with the Director-General of FAO, who shall inform all contracting parties of the receipt of acceptance and the entry into force of amendments.

6.     Proposals for amendments to the model phytosanitary certificates set out in the Annex to this Convention shall be sent to the Secretary and shall be considered for approval by the Commission. Approved amendments to the model phytosanitary certificates set out in the Annex to this Convention shall become effective ninety days after their notification to the contracting parties by the Secretary.

7.     For a period of not more than twelve months from an amendment to the model phytosanitary certificates set out in the Annex to this Convention becoming effective, the previous version of the phytosanitary certificates shall also be legally valid for the purpose of this Convention."

à  As of 31 May 2015, there are no supplementary agreements under the IPPC and no amendments have been made to the New Revised Text of the IPPC (1997).

6.2  Trade-related Measures

Article IV

General provisions relating to the organizational arrangements for national plant protection

"[...]

2.         The responsibilities of an official national plant protection organization shall include the following:

(a) the issuance of certificates relating to the phytosanitary regulations of the importing contracting party for consignments of plants, plant products and other regulated articles;

[...]

(g) to ensure through appropriate procedures that the phytosanitary security of consignments after certification regarding composition, substitution and reinfestation is maintained prior to export; [...]"

Article V

Phytosanitary certification

"1.   Each contracting party shall make arrangements for phytosanitary certification, with the objective of ensuring that exported plants, plant products and other regulated articles and consignments thereof are in conformity with the certifying statement to be made pursuant to paragraph 2(b) of this Article.

2.    Each contracting party shall make arrangements for the issuance of phytosanitary certificates in conformity with the following provisions:

(a) Inspection and other related activities leading to issuance of phytosanitary certificates shall be carried out only by or under the authority of the official national plant protection organization. The issuance of phytosanitary certificates shall be carried out by public officers who are technically qualified and duly authorized by the official national plant protection organization to act on its behalf and under its control with such knowledge and information available to those officers that the authorities of importing contracting parties may accept the phytosanitary certificates with confidence as dependable documents.

(b) Phytosanitary certificates, or their electronic equivalent where accepted by the importing contracting party concerned, shall be as worded in the models set out in the Annex to this Convention. These certificates should be completed and issued taking into account relevant international standards.

(c) Uncertified alterations or erasures shall invalidate the certificates.

3.    Each contracting party undertakes not to require consignments of plants or plant products or other regulated articles imported into its territories to be accompanied by phytosanitary certificates inconsistent with the models set out in the Annex to this Convention. Any requirements for additional declarations shall be limited to those technically justified".

Article VII
Requirements in relation to imports

 

"1.   With the aim of preventing the introduction and/or spread of regulated pests into their territories, contracting parties shall have sovereign authority to regulate, in accordance with applicable international agreements, the entry of plants and plant products and other regulated articles and, to this end, may:

(a) prescribe and adopt phytosanitary measures concerning the importation of plants, plant products and other regulated articles, including, for example, inspection, prohibition on importation, and treatment; 

(b) refuse entry or detain, or require treatment, destruction or removal from the territory of the contracting party, of plants, plant products and other regulated articles or consignments thereof that do not comply with the phytosanitary measures prescribed or adopted under subparagraph (a);

(c) prohibit or restrict the movement of regulated pests into their territories;

(d) prohibit or restrict the movement of biological control agents and other organisms of phytosanitary concern claimed to be beneficial into their territories.

2.    In order to minimize interference with international trade, each contracting party, in exercising its authority under paragraph 1 of this Article, undertakes to act in conformity with the following:

(a) Contracting parties shall not, under their phytosanitary legislation, take any of the measures specified in paragraph 1 of this Article unless such measures are made necessary by phytosanitary considerations and are technically justified.

(b) Contracting parties shall, immediately upon their adoption, publish and transmit phytosanitary requirements, restrictions and prohibitions to any contracting party or parties that they believe may be directly affected by such measures.

(c) Contracting parties shall, on request, make available to any contracting party the rationale for phytosanitary requirements, restrictions and prohibitions.

(d) If a contracting party requires consignments of particular plants or plant products to be imported only through specified points of entry, such points shall be so selected as not to unnecessarily impede international trade. The contracting party shall publish a list of such points of entry and communicate it to the Secretary, any regional plant protection organization of which the contracting party is a member, all contracting parties which the contracting party believes to be directly affected, and other contracting parties upon request. Such restrictions on points of entry shall not be made unless the plants, plant products or other regulated articles concerned are required to be accompanied by phytosanitary certificates or to be submitted to inspection or treatment.

(e) Any inspection or other phytosanitary procedure required by the plant protection organization of a contracting party for a consignment of plants, plant products or other regulated articles offered for importation, shall take place as promptly as possible with due regard to their perishability.

(f) Importing contracting parties shall, as soon as possible, inform the exporting contracting party concerned or, where appropriate, the re-exporting contracting party concerned, of significant instances of non-compliance with phytosanitary certification. The exporting contracting party or, where appropriate, the re-exporting contracting party concerned, should investigate and, on request, report the result of its investigation to the importing contracting party concerned.

(g) Contracting parties shall institute only phytosanitary measures that are technically justified, consistent with the pest risk involved and represent the least restrictive measures available, and result in the minimum impediment to the international movement of people, commodities and conveyances.

(h) Contracting parties shall, as conditions change, and as new facts become available, ensure that phytosanitary measures are promptly modified or removed if found to be unnecessary.

(i) Contracting parties shall, to the best of their ability, establish and update lists of regulated pests, using scientific names, and make such lists available to the Secretary, to regional plant protection organizations of which they are members and, on request, to other contracting parties.

(j) Contracting parties shall, to the best of their ability, conduct surveillance for pests and develop and maintain adequate information on pest status in order to support categorization of pests, and for the development of appropriate phytosanitary measures. This information shall be made available to contracting parties, on request.

3.    A contracting party may apply measures specified in this Article to pests which may not be capable of establishment in its territories but, if they gained entry, cause economic damage. Measures taken against these pests must be technically justified.

4.    Contracting parties may apply measures specified in this Article to consignments in transit through their territories only where such measures are technically justified and necessary to prevent the introduction and/or spread of pests.

5.    Nothing in this Article shall prevent importing contracting parties from making special provision, subject to adequate safeguards, for the importation, for the purpose of scientific research, education, or other specific use, of plants and plant products and other regulated articles, and of plant pests.

6.    Nothing in this Article shall prevent any contracting party from taking appropriate emergency action on the detection of a pest posing a potential threat to its territories or the report of such a detection. Any such action shall be evaluated as soon as possible to ensure that its continuance is justified. The action taken shall be immediately reported to contracting parties concerned, the Secretary, and any regional plant protection organization of which the contracting party is a member".

à Phytosanitary measures, based on International Standards for Phytosanitary Measures (ISPMs), are established and implemented by contracting parties i.e. there are no global or regional phytosanitary measures that are obligatory.

Article VIII

International Cooperation

"1. The contracting parties shall cooperate with one another to the fullest practicable extent in achieving the aims of this Convention, and shall in particular:

(a) cooperate in the exchange of information on plant pests, particularly the reporting of the occurrence, outbreak or spread of pests that may be of immediate or potential danger, in accordance with such procedures as may be established by the Commission;

(b) participate, in so far as is practicable, in any special campaigns for combatting pests that may seriously threaten crop production and need international action to meet the emergencies; and

(c) cooperate, to the extent practicable, in providing technical and biological information necessary for pest risk analysis.

2. Each contracting party shall designate a contact point for the exchange of information connected with the implementation of this Convention."

Article X

Standards

"1.   The contracting parties agree to cooperate in the development of international standards in accordance with the procedures adopted by the Commission.

2.    International standards shall be adopted by the Commission.

3.    Regional standards should be consistent with the principles of this Convention; such standards may be deposited with the Commission for consideration as candidates for international standards for phytosanitary measures if more broadly applicable.

4.    Contracting parties should take into account, as appropriate, international standards when undertaking activities related to this Convention".

à In addition to the above, the IPPC is nominated as the Plant Health standards setting organization for the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).

Examples of International Standards for Phytosanitary Measures (ISPMs) adopted under IPPC relevant to trade:

ISPM # 01 (2006):  Phytosanitary principles for the protection of plants and the application of phytosanitary measures in international trade

ISPM # 02 (2007):  Framework for pest risk analysis

ISPM # 03 (2005):  Guidelines for the export, shipment, import and release of biological control agents and other beneficial organisms

ISPM # 04 (1995):  Requirements for the establishment of Pest Free Areas

ISPM # 05 (2015):  Glossary of phytosanitary terms, including one Appendix and two supplements associated with this standard

ISPM # 06 (1997):  Guidelines for surveillance

ISPM # 07 (2011):  Export certification system

ISPM # 08 (1998):  Determination of pest status in an area

ISPM # 09 (1998):  Guidelines for pest eradication programmes

ISPM # 10 (1999):  Requirements for the establishment of pest free places of production and pest free production sites

ISPM # 11 (2013):  Pest risk analysis for quarantine pests including analysis of environmental risks and living modified organisms

ISPM # 12 (2011):  Guidelines for phytosanitary certificates with Appendix 1 added in 2014

ISPM # 13 (2001):  Guidelines for the notification of non-compliance and emergency action

ISPM # 14 (2002):  The use of integrated measures in a systems approach for pest risk management

ISPM # 15 (2009):  Regulation of wood packaging material in international trade, with Annex 1 and 2 revised in 2013

ISPM # 16 (2002):  Regulated non-quarantine pests: concept and application

ISPM # 17 (2002):  Pest reporting

ISPM # 18 (2003):  Guidelines for the use of irradiation as a phytosanitary measure

ISPM # 19 (2003):  Guidelines on lists of regulated pests

ISPM # 20 (2004):  Guidelines for a phytosanitary import regulatory system

ISPM # 21 (2004):  Pest risk analysis for regulated non quarantine pests

ISPM # 22 (2005):  Requirements for the establishment of areas of low pest prevalence

ISPM # 23 (2005):  Guidelines for inspection

ISPM # 24 (2005):  Guidelines for the determination and recognition of equivalence of phytosanitary measures

ISPM # 25 (2006):  Consignments in transit

ISPM # 26 (2015):  Establishment of pest free areas for fruit flies (Tephritidae)

ISPM # 27 (2006):  Diagnostic protocols for regulated pests – there are 7 Appendices or diagnostic protocols associated with this ISPM

ISPM # 28 (2009):  Phytosanitary treatments for regulated pests – there are 19 Appendices or phytosanitary treatments associated with this ISPM

ISPM # 29 (2007):  Recognition of pest free areas and areas of low pest prevalence

ISPM # 30 (2008):  Establishment of areas of low pest prevalence for fruit flies (Tephritidae)

ISPM # 31 (2008):  Methodologies for sampling of consignments

ISPM # 32 (2009):  Categorization of commodities according to their pest risk

ISPM # 34 (2010):  Design and operation of post-entry quarantine stations for plants

ISPM # 35 (2012):  Systems approach for pest risk management of fruit flies (Tephritidae)

ISPM # 36 (2012):  Integrated measures for plants for planting

à The most current list of ISPMs and associated appendices or supplements can be found at:

https://www.ippc.int/en/core-activities/standards-setting/ispms/

6.3  Supportive measures

Article XX – Technical Assistance

"The contracting parties agree to promote the provision of technical assistance to contracting parties, especially those that are developing contracting parties, either bilaterally or through the appropriate international organizations, with the objective of facilitating the implementation of this Convention".

à The Commission on Phytosanitary Measures (CPM) has adopted an IPPC capacity building strategic plan that can be found at: https://www.ippc.int/en/publications/11/

à The Phytosanitary Capacity Evaluation (PCE) tool is a national self-evaluation tool developed for countries that allows countries to undertake a Gaps Analysis, develop a national IPPC strategic plan and then determine national capacity development priorities.

à In the past the IPPC maintained an Informal Working Group (IWG) on Technical Assistance as well as an Expert Working Group on Phytosanitary Capacity Development, which held meetings in 2010, 2011, and 2012.

à More recently the IPPC formed a Capacity Development Committee (CDC), comprised of technical representatives from all seven FAO regions who oversee the development of tools to strengthen global capacity for implementation of the IPPC. The first meeting of the CDC took place in December 2012 and meets at least twice per annum.

6.4  Non-compliance mechanism

Article VII:2(f) – Requirements in relation to imports

"2.   In order to minimize interference with international trade, each contracting party, in exercising its authority under paragraph 1 of this Article, undertakes to act in conformity with the following: …

(f) Importing contracting parties shall, as soon as possible, inform the exporting contracting party concerned or, where appropriate, the re-exporting contracting party concerned, of significant instances of non-compliance with phytosanitary certification.  The exporting contracting party or, where appropriate, the re-exporting contracting party concerned, should investigate and, on request, report the result of its investigation to the importing contracting party concerned".

à Guidance for non-compliance of phytosanitary certification only is elaborated in the ISPM # 13 (2001), Guidelines for the Notification of Non-Compliance and Emergency Actions, which only relates to the non-compliance in relation to phytosanitary for importation (ISPM #12: Phytosanitary Certificates).

à The CPM does not consider a compliance mechanism appropriate for the IPPC, but has established an Implementation Review and Support System (IRSS) that will undertake a gaps analysis of ISPM implementation and then develop strategies to improved implementation when challenges are identified (see https://www.ippc.int/en/irss/).

6.5  Dispute Settlement Mechanism

Article XIII  – Settlement of disputes

"1.   If there is any dispute regarding the interpretation or application of this Convention, or if a contracting party considers that any action by another contracting party is in conflict with the obligations of the latter under Articles V and VII of this Convention, especially regarding the basis of prohibiting or restricting the imports of plants, plant products or other regulated articles coming from its territories, the contracting parties concerned shall consult among themselves as soon as possible with a view to resolving the dispute.

2.    If the dispute cannot be resolved by the means referred to in paragraph 1, the contracting party or parties concerned may request the FAO Director-General to appoint a committee of experts to consider the question in dispute, in accordance with rules and procedures that may be established by the Commission.

3.    This Committee shall include representatives designated by each contracting party concerned. The Committee shall consider the question in dispute, taking into account all documents and other forms of evidence submitted by the contracting parties concerned.  The Committee shall prepare a report on the technical aspects of the dispute for the purpose of seeking its resolution. The preparation of the report and its approval shall be according to rules and procedures established by the Commission, and it shall be transmitted by the Director-General to the contracting parties concerned. The report may also be submitted, upon its request, to the competent body of the international organization responsible for resolving trade disputes.

4.    The contracting parties agree that the recommendations of such a committee, while not binding in character, will become the basis for renewed consideration by the contracting parties concerned of the matter out of which the disagreement arose.

5.    The contracting parties concerned shall share the expenses of the experts.

6.    The provisions of this Article shall be complementary to and not in derogation of the dispute settlement procedures provided for in other international agreements dealing with trade matters".

à The Interim Commission established the Subsidiary Body on Dispute Settlement (SBDS) in 2001. The first meeting was held in April 2003. The SBDS is composed of seven experts, one from each of the seven FAO geographic regions. The role of the SBDS is to assist the IPPC Secretariat in helping contracting parties select a suitable dispute settlement system. The SBDS developed a Dispute Settlement Manual to facilitate the implementation of the Convention's dispute settlement rules and procedures.

à CPM (2014) agreed that increased emphasis should be placed on dispute avoidance as this was the most utilized and successful component of the IPPC Dispute Avoidance and Settlement System. Additional information on the IPPC Dispute Avoidance and Settlement System is available on the IPPC website at: https://www.ippc.int/en/core-activities/dispute-settlement/

6.6  Provisions for non-parties

Article XVIII – Non-contracting parties

"The contracting parties shall encourage any state or member organization of FAO, not a party to this Convention, to accept this Convention, and shall encourage any non-contracting party to apply phytosanitary measures consistent with the provisions of this Convention and any international standards adopted hereunder".

7  Convention on Biological Diversity (CBD)

7.1  Brief Description of the MEA

Web site

http://www.cbd.int.

Objective

à The objectives of the CBD, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding (Article 1 of the Convention).

Date of Signature

5 June 1992

Entry into force

29 December 1993

Parties

196 (as of 31 July 2015).

WTO Members

157 Parties to CBD are also WTO Members (see Annex).

Openness of Membership

Article 33 – Signature

"This Convention shall be open for signature … by all States and any regional economic integration organization …".

Article 34 – Ratification, Acceptance or Approval

"1.    This Convention and any protocol shall be subject to ratification, acceptance or approval by States and by regional economic integration organizations …

2.     Any organization referred to in paragraph 1 above which becomes a Contracting Party to this Convention or any protocol without any of its member States being a Contracting Party shall be bound by all the obligations under the Convention or the protocol, as the case may be. In the case of such organizations, one or more of whose member States is a Contracting Party to this Convention or relevant protocol, the organization and its member States shall decide on their respective responsibilities for the performance of their obligations under the Convention or protocol, as the case may be. In such cases, the organization and the member States shall not be entitled to exercise right under the Convention or relevant protocol concurrently ...".

Article 35 – Accession

"1.   This Convention and any protocol shall be open for accession by States and by regional economic integration organization ...".

Decision-Making Bodies

Article 23 – Conference of the Parties

"... 4.        The CoP shall keep under review the implementation of this Convention, and, for this purpose, shall:

(a) Establish the form and the intervals for transmitting the information to be submitted in accordance with Article 26 and consider such information as well as reports submitted by any subsidiary body;

(b) Review scientific, technical and technological advice on biological diversity provided in accordance with Article 25;

(c) Consider and adopt, as required, protocols in accordance with Article 28;

(d) Consider and adopt, as required, in accordance with Articles 29 and 30, amendments to this Convention and its annexes;

(e) Consider amendments to any protocol, as well as to any annexes thereto, and, if so decided, recommend their adoption to the parties to the protocol concerned;

(f) Consider and adopt, as required, in accordance with Article 30, additional annexes to this Convention;

(g) Establish such subsidiary bodies, particularly to provide scientific and technical advice, as are deemed necessary for the implementation of this Convention;

(h) Contact, through the Secretariat, the executive bodies of conventions dealing with matters covered by this Convention with a view to establishing appropriate forms of cooperation with them; and

(i) Consider and undertake any additional action that may be required for the achievement of the purposes of this Convention in the light of experience gained in its operation".

à The COP has established a number of working groups to address specific issues, such as the Working Group on Article 8(j) and Related Provisions of the Convention and, by Decision XII/26, a Subsidiary Body on Implementation.

Article 25 –  Subsidiary Body on Scientific, Technical and Technological Advice

"1.    A subsidiary body for the provision of scientific, technical and technological advice is hereby established to provide the [CoP] and, as appropriate, its other subsidiary bodies with timely advice relating to the implementation of this Convention. This body shall be open to participation by all Parties and shall be multidisciplinary. It shall comprise government representatives competent in the relevant field of expertise. It shall report regularly to the [CoP] on all aspects of its work.

2.     Under the authority of and in accordance with guidelines laid down by the [CoP], and upon its request, this body shall:

(a) Provide scientific and technical assessments of the status of biological diversity;

(b) Prepare scientific and technical assessments of the effects of types of measures taken in accordance with the provisions of this Convention;

(c) Identify innovative, efficient and state-of-the-art technologies and know-how relating to the conservation and sustainable use of biological diversity and advise on the ways and means of promoting development and/or transferring such technologies;

(d) Provide advice on scientific programmes and international cooperation in research and development related to conservation and sustainable use of biological diversity; and

(e) Respond to scientific, technical, technological and methodological questions that the [CoP] and its subsidiary bodies may put to the body" ...

Amendments and Protocols

(1) Amendments

Article 29 – Amendment of the Convention or Protocols

"1.   Amendments to this Convention may be proposed by any Contracting Party. Amendments to any protocol may be proposed by any Party to that protocol.

2.    Amendments to this Convention shall be adopted at a meeting of the [CoP]. Amendments to any protocol shall be adopted at a [MoP] to the Protocol in question. The text of any proposed amendment to this Convention or to any protocol, except as may otherwise be provided in such protocol, shall be communicated to the Parties to the instrument in question by the secretariat at least six months before the meeting at which it is proposed for adoption. The secretariat shall also communicate proposed amendments to the signatories to this Convention for information.

3.    The Parties shall make every effort to reach agreement on any proposed amendment to this Convention or to any protocol by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a two-third majority vote of the Parties to the instrument in question present and voting at the meeting, and shall be submitted by the Depositary to all Parties for ratification, acceptance or approval.

4.    Ratification, acceptance or approval of amendments shall be notified to the Depositary in writing. Amendments adopted in accordance with paragraph 3 above shall enter into force among Parties having accepted them on the ninetieth day after the deposit of instruments of ratification, acceptance or approval by at least two-thirds of the Contracting Parties to this Convention or of the Parties to the protocol concerned, except as may otherwise be provided in such protocol. Thereafter the amendments shall enter into force for any other Party on the ninetieth day after that Party deposits its instrument of ratification, acceptance or approval of the amendments.

5.    For the purposes of this Article, "Parties present and voting" means Parties present and casting an affirmative or negative vote".

à See also Article 23:4(d) on the CoP in the Section on Decision-Making Bodies above.

 

(2) Protocols

Article 28 – Adoption of Protocols

"1.   The Contracting Parties shall cooperate in the formulation and adoption of protocols to this Convention.

2.    Protocols shall be adopted at a meeting of the [CoP].

3.    The text of any proposed protocol shall be communicated to the Contracting Parties by the Secretariat at least six months before such a meeting."

à The COP adopted the Cartagena Protocol on Biosafety on 29 January 2000. The Protocol entered into force on 11 September 2003.

Article 32 – Relationship between this Convention and Its Protocols

"1.   A State or a regional economic integration organization may not become a Party to a protocol unless it is, or becomes at the same time, a Contracting Party to this Convention.

2.    Decisions under any protocol shall be taken only by the Parties to the protocol concerned. Any Contracting Party that has not ratified, accepted or approved a protocol may participate as an observer in any MoP to that protocol".

à See Cartegena Protocol on Biosafety and Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization as well as the Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol On Biosafety.

7.2  Trade-related Measures

7.2.1  Provisions of the Convention

The text of the Convention does not explicitly refer to trade measures, nor does the Convention generally prescribe specific measures. The provisions of the Convention, with a few exceptions, set goals and establish general principles. The specific measures required to achieve these goals and operationalize these principles are largely the prerogative of the Parties. However, the Convention contains a number of provisions that are generally understood to require measures by Parties which may have consequences for trade. In addition, some of its provisions have inter-linkages with some international trade agreements.

Article 6
General Measures for Conservation and Sustainable Use

"Each Contracting Party shall, in accordance with its particular conditions and capabilities:

(a) Develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; and

(b) Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies".

Article 7(c)
Identification and Monitoring

"Each Contracting Party shall, as far as possible and as appropriate, in particular for the purposes of Articles 8 to 10: …

(c) Identify processes and categories of activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity, and monitor their effects through sampling and other techniques".

Article 8
In-situ Conservation

"Each Contracting Party shall, as far as possible and as appropriate: …

(h) Prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species; …

(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices; …

(l) Where a significant adverse effect on biological diversity has been determined pursuant to Article 7, regulate or manage the relevant processes and categories of activities;…".

Article 10

Sustainable Use of Components of Biological Diversity

"Each Contracting Party shall, as far as possible and as appropriate:

(b) Adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity;

(c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements; …".

Article 11

Incentive Measures

"Each Contracting Party shall, as far as possible and as appropriate, adopt economically and socially sound measures that act as incentives for the conservation and sustainable use of components of biological diversity".

Article 14

Impact Assessment and Minimizing Adverse Impacts

"1.   Each Contracting Party, as far as possible and as appropriate, shall:

(a) Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures;

(b) Introduce appropriate arrangements to ensure that the environmental consequences of its programmes and policies that are likely to have significant adverse impacts on biological diversity are duly taken into account;

(c) Promote, on the basis of reciprocity, notification, exchange of information and consultation on activities under their jurisdiction or control which are likely to significantly affect adversely the biological diversity of other States or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral arrangements, as appropriate;

(d) In the case of imminent or grave danger or damage, originating under its jurisdiction or control, to biological diversity within the area under jurisdiction of other States or in areas beyond the limits of national jurisdiction, notify immediately the potentially affected States of such danger or damage, as well as initiate action to prevent or minimize such danger or damage; and

(e) Promote national arrangements for emergency responses to activities or events, whether caused naturally or otherwise, which present a grave and imminent danger to biological diversity and encourage international cooperation to supplement such national efforts and, where appropriate and agreed by the States or regional economic integration organizations concerned, to establish joint contingency plans.

2.   The [CoP] shall examine, on the basis of studies to be carried out, the issue of liability and redress, including restoration and compensation, for damage to biological diversity, except where such liability is a purely internal matter".

Article 15

Access to Genetic Resources

"1.   Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.

2.   Each Contracting Party shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and not to impose restrictions that run counter to the objectives of this Convention.

3.     For the purpose of this Convention, the genetic resources being provided by a Contracting Party, as referred to in this Article and Articles 16 and 19, are only those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this Convention.

4.     Access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article.

5.     Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.

6.     Each Contracting Party shall endeavour to develop and carry out scientific research based on genetic resources provided by other Contracting Parties with the full participation of, and where possible in, such Contracting Parties.

7.     Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, and in accordance with Articles 16 and 19 and, where necessary, through the financial mechanism established by Articles 20 and 21 with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms".

Article 16

Access to and Transfer of Technology

"1.    Each Contracting Party, recognizing that technology includes biotechnology, and that both access to and transfer of technology among Contracting Parties are essential elements for the attainment of the objectives of this Convention, undertakes subject to the provisions of this Article to provide and/or facilitate access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment.

2.     Access to and transfer of technology referred to in paragraph 1 above to developing countries shall be provided and/or facilitated under fair and most favourable terms, including on concessional and preferential terms where mutually agreed, and, where necessary, in accordance with the financial mechanism established by Articles 20 and 21. In the case of technology subject to patents and other intellectual property rights, such access and transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights. The application of this paragraph shall be consistent with paragraphs 3, 4 and 5 below.

3.     Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that Contracting Parties, in particular those that are developing countries, which provide genetic resources are provided access to and transfer of technology which makes use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights, where necessary, through the provisions of Articles 20 and 21 and in accordance with international law and consistent with paragraphs 4 and 5 below.

4.     Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that the private sector facilitates access to, joint development and transfer of technology referred to in paragraph 1 above for the benefit of both governmental institutions and the private sector of developing countries and in this regard shall abide by the obligations included in paragraphs 1, 2 and 3 above.

5.     The Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives".

Article 19

Handling of Biotechnology and Distribution of its Benefits

"1.    Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, to provide for the effective participation in biotechnological research activities by those Contracting Parties, especially developing countries, which provide the genetic resources for such research, and where feasible in such Contracting Parties.

2.     Each Contracting Party shall take all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms.

3.     The Parties shall consider the need for and modalities of a protocol setting out appropriate procedures, including, in particular, advance informed agreement, in the field of the safe transfer, handling and use of any living modified organism resulting from biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity.

4.     Each Contracting Party shall, directly or by requiring any natural or legal person under its jurisdiction providing the organisms referred to in paragraph 3 above, provide any available information about the use and safety regulations required by that Contracting Party in handling such organisms, as well as any available information on the potential adverse impact of the specific organisms concerned to the Contracting Party into which those organisms are to be introduced".

Article 22

Relationship with Other International Conventions

"1.    The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.

2.     Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea".

7.2.2  Decisions of the Conference of the Parties[7]

A number of topics addressed by the Conference of the Parties relate to international trade and the work of the World Trade Organization.

7.2.2.1  Access to genetic resources and the fair and equitable sharing of the benefits arising out of their utilization

Decision V/26

Access to Genetic Resources

"B. The relationship between intellectual property rights and the relevant provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights and the [CBD]

The [COP] ...2. Invites the [WTO] to acknowledge relevant provisions of the Convention and to take into account the fact that the provisions of the [TRIPS] Agreement and the [CBD] are interrelated and to further explore this interrelationship;

3.   Requests the Executive Secretary to transmit the present decision to the secretariats of the [WTO] and the [WIPO], for use by appropriate bodies of these organizations, and to endeavour to undertake further cooperation and consultation with these organizations;

4.     Renews its request to the Executive Secretary of the Convention to apply for observer status on the [TRIPS Council], and requests him to report back to the [COP] on his efforts …".

Decision VI/24

Access and Benefit-sharing as Related to Genetic Resources

The Bonn Guidelines adopted by the Conference of the Parties at its sixth meeting are contained in annex to Decision VI/24, section A. The following sections of the guidelines may be of particular relevance:

"A. Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization

I. General Provisions

1.    These Guidelines may serve as inputs when developing and drafting legislative, administrative or policy measures on access and benefit-sharing with particular reference to provisions under Articles 8(j), 10 (c), 15, 16 and 19; and contracts and other arrangements under mutually agreed terms for access and benefit-sharing. …

7.    The present guidelines are voluntary and were prepared with a view to ensuring their:

(a) Voluntary nature: they are intended to guide both users and providers of genetic resources on a voluntary basis;

9.     All genetic resources and associated traditional knowledge, innovations and practices covered by the [CBD] and benefits arising from the commercial and other utilization of such resources should be covered by the guidelines, with the exclusion of human genetic resources. …

12.   The Guidelines are intended to assist Parties in developing an overall access and benefit-sharing strategy, which may be part of their national biodiversity strategy and action plan, and in identifying the steps involved in the process of obtaining access to genetic resources and sharing benefits.

II. Roles and Responsibilities in Access and Benefit-sharing pursuant to Article 15 of the [CBD]

13.   Each Party should designate one national focal point for access and benefit-sharing and make such information available through the clearing-house mechanism. The national focal point should inform applicants for access to genetic resources on procedures for acquiring prior informed consent and mutually agreed terms, including benefit-sharing, and on competent national authorities, relevant indigenous and local communities and relevant stakeholders, through the clearing-house mechanism. ...

16.   Recognizing that Parties and stakeholders may be both users and providers, the following balanced list of roles and responsibilities provides key elements to be acted upon: ...

(b) In the implementation of mutually agreed terms, users should:

(i) Seek informed consent prior to access to genetic resources, in conformity with Article 15, paragraph 5, of the Convention; ...

(d) Contracting Parties with users of genetic resources under their jurisdiction should take appropriate legal, administrative, or policy measures, as appropriate, to support compliance with prior informed consent of the Contracting Party providing such resources and mutually agreed terms on which access was granted. These countries could consider, inter alia, the following measures:

(i) Mechanisms to provide information to potential users on their obligations regarding access to genetic resources;

(ii) Measures to encourage the disclosure of the country of origin of the genetic resources and of the origin of traditional knowledge, innovations and practices of indigenous and local communities in applications for intellectual property rights;

(iii) Measures aimed at preventing the use of genetic resources obtained without the prior informed consent of the Contracting Party providing such resources;

(iv) Cooperation between Contracting Parties to address alleged infringements of access and benefit-sharing agreements;

(v) Voluntary certification schemes for institutions abiding by rules on access and benefit-sharing;

(vi) Measures discouraging unfair trade practices;

(vii) Other measures that encourage users to comply with provisions under subparagraph 16 (b) above. …

IV. Steps in the Access and Benefit-sharing process

24.  As provided for in Article 15 of the [CBD], which recognizes the sovereign rights of States over their natural resources, each Contracting Party to the Convention shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and fair and equitable sharing of benefits arising from such uses. In accordance with Article 15, paragraph 5, of the [CBD], access to genetic resources shall be subject to prior informed consent of the contracting Party providing such resources, unless otherwise determined by that Party.

25.   Against this background, the Guidelines are intended to assist Parties in the establishment of a system of prior informed consent, in accordance with Article 15, paragraph 5, of the Convention.

D. Mutually agreed terms

Basic requirements for mutually agreed terms

43.   The following elements should be considered as guiding parameters in contractual agreements. These elements could also be considered as basic requirements for mutually agreed terms:

(c)  Provision for the use of intellectual property rights include joint research, obligation to implement rights on inventions obtained and to provide licences by common consent;

(d) The possibility of joint ownership of intellectual property rights according to the degree of contribution."

 

Other sections of Decision VI/24 are also of relevance to the work of the WTO:

Under Decision VI/24, section C on the Role of intellectual property rights in the implementation of access and benefit-sharing arrangements

The [CoP]

1 .   Invites Parties and Governments to encourage the disclosure of the country of origin of genetic resources in applications for intellectual property rights, where the subject matter of the application concerns or makes use of genetic resources in its development, as a possible contribution to tracking compliance with prior informed consent and the mutually agreed terms on which access to those resources was granted;

2.     Also invites Parties and Governments to encourage the disclosure of the origin of relevant traditional knowledge, innovations and practices of indigenous an