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English Cop18 Prop. 13 CONVENTION on INTERNATIONAL TRADE in ENDANGERED SPECIES of WILD

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English Cop18 Prop. 13 CONVENTION on INTERNATIONAL TRADE in ENDANGERED SPECIES of WILD Original language: English CoP18 Prop. 13 CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA ____________________ Eighteenth meeting of the Conference of the Parties Colombo (Sri Lanka), 23 May – 3 June 2019 CONSIDERATION OF PROPOSALS FOR AMENDMENT OF APPENDICES I AND II A. Proposal The proposal is to list the Woolly mammoth, Mammuthus primigenius, in Appendix II in accordance with Article II, paragraph 2 (b) of the Convention (the so-called "look-alike provision"). B. Proponent Israel*: C. Supporting statement 1. Taxonomy 1.1 Class: Mammalia 1.2 Order: Proboscidea 1.3 Family: Elephantidae 1.4 Genus, species or subspecies, including author and year: Mammuthus primigenius (Blumenbach, 1799) 1.5 Scientific synonyms: None 1.6 Common names: English: Woolly mammoth French: Mammouth laineux Spanish: Mamut lanudo 1.7 Code numbers: 2. Overview The proposal is to list the Woolly mammoth, Mammuthus primigenius, in Appendix II in accordance with Article II, paragraph 2 (b) of the Convention (the so-called "look-alike provision"), despite the fact that this species has been extinct for thousands of years. The purpose of this listing proposal is to prevent illegal trade in living elephants by preventing “laundering” or mislabeling of elephant ivory. The impact of elephant poaching and the illegal international trade * The geographical designations employed in this document do not imply the expression of any opinion whatsoever on the part of the CITES Secretariat (or the United Nations Environment Programme) concerning the legal status of any country, territory, or area, or concerning the delimitation of its frontiers or boundaries. The responsibility for the contents of the document rests exclusively with its author. CoP18 Prop. 13– p. 1 (trafficking) in their ivory on elephant populations is well known, and we will not elaborate further on the obvious need to fight against these activities. Since mammoth ivory trade is almost totally unregulated and undocumented, and because mammoth ivory is not easily distinguished from elephant ivory, there is a tangible risk of illegal international trade in elephant ivory being facilitated by deliberately mislabeling specimens of elephant ivory as mammoth ivory in order to avoid the requirements of this Convention (and relevant domestic legislation). This rationale is explained in Section 6.5 (below). Listing the Woolly mammoth in Appendix II is not intended to stop trade in mammoth ivory but rather to facilitate documentation of the international trade in mammoth ivory in order to better understand it and its implications for living elephant populations. The “look-alike provision” Paragraph 2 of Article II of the Convention on “Fundamental Principles” explains the reasons why a species should be listed in Appendix II, as follows: 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. Sub-paragraph (a) clearly explains that the goal of Appendix II is to prevent extinction of species that are or may be threatened due to trade, while sub-paragraph (b) provides for the listing of “look alike” species in Appendix II even if not they are not threatened. Sub-paragraph (b) adds the notion that “other species” shall be listed in Appendix II when it will assist with the “effective control” of trade in those species threatened with extinction. It is important to note that no biological criteria are attached to sub-paragraph (b) and as such, the requirement that a species be “threatened with extinction” does not apply here. The criteria for inclusion of species under sub-paragraph (b), are listed in Annex 2b to Resolution Conf. 9.24 (Rev CoP17), as follows: “Species may be included in Appendix II in accordance with Article II, paragraph 2 (b), if either one of the following criteria is met: A. The specimens of the species in the form in which they are traded resemble specimens of a species included in Appendix II under the provisions of Article II, paragraph 2 (a), or in Appendix I, so that enforcement officers who encounter specimens of CITES-listed species are unlikely to be able to distinguish between them; or B. There are compelling reasons other than those given in criterion A above to ensure that effective control of trade in currently listed species is achieved.” These criteria have led to the nick-naming of Article II, sub-paragraph (b) of the Convention as “the look- alike provision”, and they have been used in the past for listing quite a number of species. For example, the entire genus of thresher sharks (Alopias) was recently included in Appendix II even though only one species A. superciliosus met the biological criteria. Two other thresher shark species, A. vulpinus and A. pelagicus, which did not meet the biological criteria were included in Appendix II as “look-alikes” because their fins cannot be readily distinguished from other thresher shark fins in trade.1 Listing an Extinct Species As far as we are aware, our proposal is the first time that a proposal has been submitted to list an extinct species in the Appendices. We have consulted CITES legal experts who have determined that there is nothing in the Convention or Resolutions against listing an extinct species and we are confident that this listing is an important way to prevent extinction of other endangered species. 1 Proposal 43 from CoP 17: https://cites.org/sites/default/files/eng/cop/17/prop/060216/E-CoP17-Prop-43.pdf CoP18 Prop. 13– p. 2 At CoP17 (Johannesburg, 2016), Israel submitted a working document on trade in mammoth ivory2. In the Secretariat’s comments to that document, they wrote that regulating mammoth ivory trade “may appear to fall outside of the legal scope of the Convention”. However, the Secretariat’s comment did not consider whether an extinct species could be listed under Article II, paragraph (2)(b) of the Convention and as such does not provide an actual legal analysis. A full review of the Convention and of Resolution Conf. 9.24 (Rev CoP17) on “Criteria for Amendment of Appendices I and II” shows instead that the listing of Woolly mammoth in Appendix II fully conforms to the Convention. Resolution Conf. 9.24 (Rev CoP17) on “Criteria for Amendment of Appendices I and II” addresses the inclusion of extinct species in the Appendices in a few places, as follows: First, Annex 3 of Resolution Conf. 9.24 (Rev CoP17) states that “Extinct species should not normally be proposed for inclusion in the Appendices. Extinct species already included in the Appendices should be retained in the Appendices if they meet one of the precautionary criteria included in Annex 4.D.” This language creates merely an assumption that extinct species should not generally be listed in the Appendices; it does not create a rule that such species should never be listed. In fact, it shows that extinct species should be retained in the Appendices if there is a precautionary necessity. Furthermore, Annex 3 to Resolution Conf. 9.24 (Rev CoP17) also recognizes that in species listing proposals “Parties are encouraged to note any extinct species in the higher taxon and to clarify whether these are included or excluded from the proposed listing.” In addition, Annex 4 on “Precautionary measures”, Paragraph D calls for retention of extinct species in the CITES Appendices in any one of four circumstances: 1. they may be affected by trade in the event of their rediscovery; or 2. they resemble extant species included in the Appendices; or 3. their deletion would cause difficulties implementing the Convention; or 4. their removal would complicate the interpretation of the Appendices. This language is unequivocal that there are often good reasons to include extinct species in the Appendices. In other words, extinct species may be listed if there is purpose to do so. In summary, there is full support in the Convention and in Resolution Conf. 9.24 (Rev CoP17) for our proposal. Article II, sub-paragraph 2 in the Convention provides the basis for the inclusion of the extinct Woolly mammoth, under criteria 2 and 3 of Annex 4, paragraph D in Resolution Conf. 9.24 (Rev. CoP17) due to the resemblance of Woolly mammoth ivory to elephant ivory and the implementation problems Woolly mammoth ivory is causing in curbing elephant ivory trafficking. To ban or to promote mammoth ivory trade? There is a basic dichotomy of thought regarding the regulation of mammoth ivory trade in terms of its impact on living elephants. One view holds that mammoth ivory trade should be totally banned along with the trade in elephant ivory so as to prevent laundering of elephant ivory. Under this view, great emphasis should be put on demand reduction by teaching consumers not to use any ivory3. An alternative view holds that mammoth ivory trade should be promoted as an alternative to elephant ivory, since mammoths are extinct anyway. For example, economists Farah & Boyce (2015; in press) present a theory that the presence of the mammoth ivory substitute has helped to reduce the elephant poaching rate. As a rebuttal it should be noted that their theory is based on the erroneous claim that in terms of the “ivory, the two can easily be identified ….it is difficult to pass off illegal elephant ivory as its legal mammoth ivory substitute” (this is not accurate, as we explain in Section 3.4, below).
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