At the last meeting of the CITES Conference of the Parties (COP), held in Harare in June 1997, some Parties claimed that maintaining the CITES-mandated international trade ban on their elephants and elephant products constituted a violation of GATT Art. XI (see box).  Zimbabwe, for instance, argued that American import restrictions on Zimbabwean ivory were no longer justifiable on con-servation grounds and that they damaged the country economically. After two secret votes, the COP decided to `downlist' Botswanan, Namibian and Zimbabwean elephant populations to Annex II. The decision contains specific clauses under which the three countries may resume ivory trade with only one trading partner, Japan.

Box: The Convention on International Trade in Endangered Species of Fauna and Flora (CITES) aims at protecting vulnerable species by controlling cross-border trade. International trade is essentially banned in species listed in Annex I. Trade in species listed in Annexes II and III is controlled through a system of permits and import/export certificates.

On the surface, CITES regulations appear contrary to the following basic principles of the General Agreement on Tariffs and Trade (GATT)

the most favoured nation clause (Article I) which requires Members to extend the same treatment to imports from all WTO Member countries;

the national treatment clause (Article III) which requires countries to treat domestic and imported `like products' in a similar way; and

the elimination of quantitative restrictions (Article XI) such as quotas or embargoes.

However, Article XX of GATT provides for exceptional situations under which a Member may adopt measures inconsistent with the GATT. These include measures to protect human, animal or plant life and health (Art. XX[b]) and those necessary to protect natural resources (Art. XX[g]).  A measure that adversely affects international trade is considered `necessary' only if no less trade-restrictive measure can achieve the same level of protection. End Box

In 1989, at the seventh COP of CITES, a large majority of voters decided to transfer the African elephant to Annex I, after measures such as quotas and permits failed to stop the massacre perpetrated by poachers in quest of tusks. Only 350,000 elephants were esti-mated left compared to 2.5 million 20 years earlier. The ban on international ivory trade helped curtail the massacre, but it had negative economic consequences on states such as Zimbabwe and Botswana which were from the beginning against listing the elephant in Annex I.

The ninth COP in 1994 adopted the `precautionary principle', which stipulates that in case of doubt about the status of a species or about the effect of trade on its conservation, Parties must act in the interest of preserving the species (Resolution 9.24).  This explains why the ban stayed complete until the tenth COP and why some think it should not have been revoked, even though the elephant populations are stable or growing in the three countries allowed to resume controlled trade. India is among those who believe that opening the ivory trade even in a very controlled way will start a new wave of massive elephant hunting in Africa and Asia.

For states against ivory trade, the 1997 COP ivory decision represents a step back to 1977-1989 when the elephant was, ineffectually for conservation purposes, listed in Annex II. For the states who favour restarting ivory trade, it represents a move forward towards sustainable use of wild fauna.

The principle of sustainable use was recognised at the eighth COP in Kyoto in 1992.  Although CITES was not established to promote trade and utilisation of wild species, it recognises that a certain level of trade can have a positive effect on conservation and development, particularly when it becomes a motivation for sustainable use. This accounts for the slogan `every species must pay its way'. It also allows for consideration of the needs of indigenous populations (Resolutions 8.3 and 8.20), which sometimes conflict with the needs of elephant conservation, particularly in areas surrounding national parks.

The criteria governing the transfer of Zimbabwe's, Nami-bia's and Botswana's elephant populations to Annex II cover the management of both elephant and ivory stocks. If those criteria are not respected, the populations will be re-transferred to Annex I.

Much will depend on the Parties' ability to fully implement the decision. The permission to trade concerns only stock-piled and registered ivory, but Japanese carvers - who already own important ivory stocks - tend to prefer the soft tusks of forest elephants over the harder ones from the Botswanan, Namibian and Zimbabwean plains. New tusks are also softer than those stock-piled for a long time, particularly in dry climates. Unless the export and import controls are scrupulously respected, the preference for softer ivory may lead to increased poaching and illegal trade.

Split listing 

The fact that certain populations of a species are listed in one CITES Annex while others are listed in another represents a problem in relationship to GATT Articles I, III and XIII.

According to these three articles, similar products need to be treated equally, independently of their country of origin. Article XIII authorises the application of quantitative import restrictions on a Member's products only if the restriction is also applied to `like products' of other Members. It thus seems GATT-inconsistent that only three countries can export tusks, when ivory from other countries is similar in its physical characteristics and end-use. The fact that only one country, Japan, may import ivory, raises concern regarding quantitative export restrictions and access to resources.

The split listing  mechanism allows active management of populations of a species for which trade would otherwise be forbidden. The system is consistent with Article XX of GATT since it is based on the scientific status of a species and not on production criteria. Ivory trade under CITES is not designed to protect domestic producers from foreign competition.

CITES and the WTO

While countries have sometimes claimed that a CITES ruling violates GATT/WTO provisions, up to now no CITES decision or measure taken by a Party to implement it has ever been brought to a GATT or WTO dispute settlement body. There are four reasons why a CITES-related WTO dispute is unlikely, at least in the short run

Most of the 132 WTO Members are also Parties to CITES, which has been ratified by 142 countries.

Even if a country were to leave CITES or to add a reservation when depositing its instrument of ratification (Art. XXIII), it would find a limited number of trading partners: when trading with non-Parties, CITES members must obtain documents and certificates similar to those required by the Convention (Art. X).

CITES has its own dispute settlement mechanism (Art. XVIII) and the WTO's Committee on Trade and Environment has recommended that Members who are also Parties to a multilateral environmental agreement (MEA), `should consider trying to resolve [disputes over trade-related measures] through the dispute settlement mechanism available under the MEA' (WTO:WT/CT/1, 1996).

Finally, according to the principle of `lex specialis', the more specific agreement (CITES) predominates over the more general one (WTO/GATT), even if the latter is more recent.

Conclusions 

CITES provisions and GATT rules are essentially complementary. In contrast to disputes such as tuna/dolphin, the COP decisions are neither unilateral nor arbitrary upon becoming a Party to CITES, a state signs an environmental agreement which authorises other Parties to impose trade restrictions based on scientifically proved criteria.

Because of its symbolic status, the elephant was the focus of interest at the tenth COP; the repercussions of its management on the management of other species are large. The reopening of ivory trade highlights one of the most controversial questions of CITES: the sustainable use of wild fauna and flora. The difficulty is to find the right balance between the principles of sustainable use and precaution, and that balance depends on the importance given by countries to conservation versus commercial objectives.

While up to now potential conflicts between CITES and GATT/WTO rules have been dealt with in informal discussions, a WTO dispute settlement request remains a possibility. Conflicts might arise, for instance, from Parties considering a CITES decision unreasonable or beyond the scope of the exceptions provided under Article XX.

The risk increases with the eventual growth of the scope of the CITES agreement. So far, CITES rulings have covered species of marginal interest to the world trading system the 1997 decision on ivory trade refers to nearly 60 tonnes of raw tusks in three countries. Generous estimates put the price of ivory at US$200 a kilo, and a trade worth some US$6 million a year has no significant impact on global commercial flows. Should CITES in the future include species of major commercial importance, it might become far more vulnerable to challenges at the WTO.