Non-compliance response mechanisms

Recommendation 2.3 (1984)⁴⁵ outlines the framework for implementing the Ramsar Convention. It calls for the provision of special assistance to developing countries in the elaboration of their national wetlands policies, in conservation and management of listed wetlands and other aspects of wetland conservation including data collec-tion, education and training, monitoring, public awareness, and research. The frame-work also requires ensuring that conservation measures are included in development projects of bilateral or multilateral aid programmes that affect wetlands in developing countries. Resolution 8.8 (2002) also recognizes several response options and mech-anisms for the Parties concerned to consider when addressing and resolving identified negative changes or likely changes in the ecological character of the sites on the List.

These mechanisms include technical assistance and financial assistance.

With regard to technical assistance, the Parties concerned can seek the advice of the Scientific and Technical Review Panel (STRP)⁴⁶ on appropriate issues to take into account in addressing the matter. This can be done through requesting the Bureau to circulate their Article 3(2) reports to the STRP for comments; and/or through requesting a Ramsar Advisory Mission (RAM)⁴⁷ in order to bring international ex-pertise providing advice on appropriate actions.⁴⁸ The Ramsar Advisory Mission mechanism was formerly known as the Monitoring Procedure and the Management Guidance Procedure to provide technical assistance to the Parties.⁴⁹

Financial assistance can be realized by developing country Parties and Parties with economies in transition requesting resources to implement management action. This can be done through the emergency assistance category of the Ramsar Small Grants Fund⁵⁰ or by seeking resources from other relevant sources.⁵¹

45 ‘Action points for priority attention’, Resolution 2.3 (1984).

46 The Scientific and Technical Review Panel of the Ramsar Convention is a subsidiary body of the Conven-tion to provide scientific and technical guidance to the Conference of the Parties, the Standing Commit-tee, and the Ramsar Secretariat. It was established by Resolution 5.5 by COP-5 (1993).

47 Ramsar Advisory Mission is a technical assistance mechanism formally adopted by Recommendation 4.7 at COP4 in 1990. The main objective of this mechanism is to provide assistance to developed and devel-oping countries alike in solving the problems or threats that make inclusion in the Montreux Record necessary.

48 ‘Assessing and reporting the status and trends of wetlands, and the implementation of Article 3.2 of the Convention’, Resolution 8.8 (2002), paras 19b and 19d.

49 See Ramsar website at <http://www.ramsar.org/cda/en/ramsar-documents-rams/main/ramsar/1-31-112_

4000_0> (visited 2 November 2012).

50 The application for the Small Grants Fund will be reviewed and approved by the Standing Committee.

See Resolution 4.3 (1990), Resolution 5.8 (1993) and Resolution 6.6 (1996).

51 Resolution 8.8, para. 19c.

43 Marko Berglund and Wanhua Yang 3.2 Convention on International Trade in Endangered Species of Wild Flora

and Fauna (CITES) 3.2.1 Introduction

The Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) entered into force on 1 July 1975. It aims to ensure that interna-tional trade in wild animals and plants does not threaten their survival. The Conven-tion has established a permit system to control imports and exports of wild fauna and flora.

The species covered by CITES are listed in three Appendices depending on the degree of protection they are perceived by the COP to need. Appendix I includes species threatened with extinction, in which trade is permitted only in exceptional circum-stances. Appendix II lists species not necessarily threatened with extinction, but in which trade must be controlled in order to avoid utilization incompatible with their survival. Appendix III contains species that any Party has identified as being subject to national regulation for the purpose of preventing or restricting exploitation that require the cooperation with other Parties to control trade. CITES requires Parties to establish national Scientific Authorities to advise on the effects of trade on the status of the species, and Management Authorities to administer the licencing sys-tem.⁵²

3.2.2 Performance review information

CITES Parties are required to maintain records of trade in species listed in Appen-dices I, II and III.⁵³ They must also prepare periodic reports on their implementation of the Convention, including:

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

(b) a biennial report on legislative, regulatory and administrative measures taken to enforce the provisions of the Convention.⁵⁴

Guidelines on reporting were introduced in 1982 following Resolution 3.10, which was revised and updated in 2002.⁵⁵ Resolution 11.17⁵⁶ consolidates all reporting resolutions and decisions.

52 See CITES, ‘How CITES works’, available at <http://www.cites.org/eng/disc/how.php> (visited 13 June 2012).

53 Art. VIII.6.

54 Art. VIII.7.

55 See ‘Guidelines for the preparation of annual reports’, Doc 13.2, 45th Meeting of the Standing Commit-tee (2001).

56 ’National reports’, Resolution 11.17 (Rev. COP14) (2000).

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Compliance with Biodiversity-related Multilateral Environmental Agreements and Potential for Synergies

3.2.3 Non-compliance procedure

Pursuant to Article XIII, if the Secretariat is satisfied that any species in Appendices I or II is being adversely affected, or that the Convention is not being effectively implemented, it will communicate this issue to the relevant Party’s Management Authority. The Party must propose remedial action.⁵⁷

A formal non-compliance procedure was adopted at COP-11 (2000);⁵⁸ the Guide-lines on Compliance with the Convention were discussed, but not agreed, at the 50th meeting of the Standing Committee (2004);⁵⁹ and the ‘Guide to CITES Compliance Procedures’ was taken note of at COP-14 (2007).⁶⁰ According to the Guide, there are several ways to identify potential cases of non-compliance:

• annual and biennial reports, legislative texts as well as other special reports and responses to information requests, or review reports, etc. provide the primary, but not exclusive, means of monitoring compliance with the obligations under the Convention;

• any Party concerned over matters related to trade in CITES-listed species by another Party may bring the matter up directly with that Party and/or call upon the Secretariat for assistance; and

• Parties themselves are encouraged to give the Secretariat early warning of any potential non-compliance of their own.⁶¹

If a case of non-compliance is identified, the Party concerned needs to provide to the Secretariat as soon as possible any relevant facts and propose remedial action. The Secretariat is tasked to provide technical assistance related advice. If the Party fails to take sufficient remedial action within a reasonable time limit, the compliance matter is brought to the attention of the Standing Committee by the Secretariat, in direct contact with the Party concerned.⁶²

3.2.4 Non-compliance response mechanisms

The Guide to CITES Compliance, taken note of in Resolution 14.3 (2007),⁶³ pro-vides several alternative non-compliance response measures, if a case of non-compli-ance is not resolved through the above procedures. The Standing Committee (SC)⁶⁴ can decide to take one or more of the following measures:

57 Art. XIII.1.

58 ‘Compliance and enforcement’, Resolution 11.3 (Rev. COP15) (2000).

59 ‘Guidelines on compliance with the Convention’, Doc. 27, 50th Meeting of the Standing Committee (2004). The Guidelines were presented at the meeting of the Standing Committee but not agreed. The Committee decided to establish an open-ended working group to further discuss the non-compliance procedure (NPC) and responses mechanisms.

60 Resolution 14.3 (2007). Annex. The Guide was taken note of by the Parties, and is legally non-binding in nature.

61 Ibid. Annex A.

62 Ibid. Annex, B.

63 Resolution 14.2.

64 The Standing Committee provides policy guidance to the Secretariat concerning the implementation of

45 Marko Berglund and Wanhua Yang 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 mis-sion, 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 atten-tion of a Party and that, up to that time, there has been no satisfactory re-sponse 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.⁶⁵ In certain cases, the SC can decide to recommend the suspension of commercial or all trade in specimens of one or more CITES-listed species consistent with the Con-vention.⁶⁶ The Standing Committee, with the assistance of the Secretariat, monitors the actions taken by the Party concerned to implement measures taken.⁶⁷

Although Resolution 14.3 was only taken note of, the SC has exercised these powers.

In a recent case concerning Guinea, where significant problems with the implemen-tation of CITES were found, the Secretariat notified the Parties⁶⁸ that it could not confirm the validity of any permit or other document issued by the authorities in Guinea. The Secretariat further advised that no commercial breeding of specimens of CITES-listed species had ever occurred in Guinea, despite apparent ‘significant exports’ of specimens declared to have been bred in captivity. This illegal trade con-cern had been reported by the Secretariat to the 61^st SC Meeting, whereafter in September 2011 the SC sent a verification mission to Guinea. The SC sent a com-prehensive list of recommendations to the Guinean authorities; and further request-ed that Guinea report on the progress of the implementation of the recommenda-tions and indicate areas in which it required assistance.⁶⁹ The Guinean CITES

the Convention and oversees the management of the Secretariat’s budget. The composition of the Com-mittee includes the Party representatives from each of the six major geographical regions (Africa, Asia, Europe, North America, Central and South America and the Caribbean, and Oceania), with the number of representatives weighted according to the number of Parties within the region. See Resolution Conf.

11.1 (Rev. CoP15) Annex 1 (1997).

65 Ibid. Annex A, para 29.

66 Ibid. Annex A, para. 30.

67 Ibid. Annex A, para. 33.

68 Notification 2011/040, 26 September 2011.

69 These being guidance to enhance proposed amendments to legislation; assistance with training manage-ment and enforcemanage-ment authority staff; and assistance to implemanage-ment awareness campaigns.

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Compliance with Biodiversity-related Multilateral Environmental Agreements and Potential for Synergies

Management Authority replied, in May 2012, and provided some supporting infor-mation on the implementation of the recommendations along with a request for assistance. After reviewing the information provided by Guinea and a Secretariat analysis of feedback received from Guinea on the limited implementation of recom-mendations, the Committee, in compliance with Resolution 14.3, paragraph 29 g), instructed the Secretariat to issue a warning to Guinea to take urgent measures to implement the recommendations made during the 2011 mission to Guinea. The Committee also instructed the Secretariat to provide Guinea with a clear set of minimum actions that should be undertaken. It requested Guinea to implement these actions and to provide a report to the Secretariat on progress by 31 December 2012. Finally, it asked the Secretariat to evaluate that report and to make a recom-mendation at the 63rd meeting of the Standing Committee.⁷⁰

3.3 Convention on Biological Diversity (CBD)