43. The problem of identifying specimens of listed species in international trade is likely to be a significant one for many aquatic species. For example, many marine species are often widely traded in a highly processed form, such as fillets, making it difficult and in some cases impossible to distinguish visually between the products from listed and unlisted species.
44. The term “specimen” is defined in Article I of CITES. As applied to animal species, it means any animal, whether alive or dead, and in the case of animal species included in Appendices I and II, any readily recognizable part or derivative thereof. For animal species included in Appendix III, the term means any readily recognizable part or derivative thereof specified in the Appendix in relation to the species. The term “part or derivatives” is inclusive of all body parts and any processed products derived from an animal or part thereof.
45. The Parties have agreed to interpret the term “readily recognizable” as including any specimen which appears from an accompanying document, the packaging or a mark or label, or from any other circumstances, to be a part or derivative of a species included in the Appendices, unless such a part or derivative is specifically exempted from the provisions of the Convention (Resolution Conf. 9.6 (Rev.)). The agreed interpretation of the term clarifies that identification of a part or derivative is not limited to the ability to physically identify products in trade to the species level. For example, a cosmetic product containing sturgeon caviar may not be identifiable by Customs or other officials as including a CITES-listed species. However, since the label specifies that the contents contain caviar, it is therefore considered to be readily recognizable under CITES.
46. The effective implementation of a CITES listing is largely dependent on the ability of Customs and other officials to be able to identify specimens derived from the listed species. If such identification does not occur, illegally obtained products may be laundered under other names, or products may be fraudulently labelled. Also, there may be cases when the documents accompanying a shipment do not clearly indicate the contents of the shipment at the species level, or adequate documentation may be lacking. In such cases, the identification to species level may be difficult and require further information to verify the contents. For example, the fins from different shark species are often traded together and may not be visually distinguishable in a dried or other processed form. Conversely, legal export of specimens can be delayed or prohibited because they cannot be visually distinguished from species that are listed in the CITES Appendices.
47. There are a number of approaches used under CITES to mitigate the potential for problems with species identification that undermine the effectiveness of a listing. The implications of some of these approaches, in particular the look-alike provision, have given rise to concerns by some FAO Members. The most effective and practical approach, or mixture of approaches, would obviously vary depending on the biological characteristics of the aquatic species and the nature of the trade in specimens derived from it.
48. Article II, paragraph 2(b), states that Appendix II shall also include other species which must be subject to regulation in order to bring about effective control of Appendix-II species. Annex 2b of Resolution Conf. 9.24 (Rev. CoP12), the so-called “look-alike” provision, interprets the application of this paragraph whereby species should be included in Appendix II when the specimens of that species resemble specimens of a species included in Appendix II or in Appendix I. The criteria for listing are either: (a) that a non-expert, with reasonable effort, is unlikely to be able to distinguish between the species, or (b) that a species is of a taxon of which most of the species are included in Appendix II or Appendix I, and the remaining species must be included to bring trade under effective control. Once listed in Appendix II, all species are subject to the same provisions and requirements, regardless of why they were listed in the Appendix. There is no provision within CITES to list species in Appendix III for look-alike reasons.
49. Concern has been raised by some FAO Members that widespread application of the look-alike clause could lead to unnecessary negative impacts on the fishing industry, fishermen and fishing communities. Concern was also raised over the feasibility of identifying products of species included in the Appendices for look-alike reasons, and the level of monitoring and control required.
50. There are circumstances where the inclusion for look-alike reasons has been considered by the Parties to CITES to be necessary. For example, a proposal to include all species of the genus Hippocampus in Appendix II of CITES was adopted at CoP12. Of the 32 species listed in the proposal, 26 were included in Appendix II under the look-alike provision. This was in order to allow Customs or other officials to recognize seahorses in trade, without needing to identify the specimen to the species level. This was considered by CITES to be especially important for the effective implementation of the listing with respect to trade in dried seahorses.
51. However, there are circumstances when it may not be practical to list species under the look-alike provision. Some members of the consultation expressed concern that the current criteria for listing species under the look-alike provision may discourage consideration of other mechanisms to bring about effective control for Appendix-I or -II species. Such mechanisms could include documentation or labelling schemes similar to those used to identify specimens as “readily recognizable” (see Resolution Conf. 9.6 (Rev.)).
52. Identification manuals are a widely used tool within CITES to assist visual identification of CITES-listed species. For example, in relation to marine species, identification manuals have been produced to assist in the identification of hard corals, sturgeons and seahorses.
53. Such guides may prove extremely useful for some specimens, but for others genetic testing may be the only means by which to distinguish CITES-listed species. For certain species, like the sturgeon, DNA tests are already being used for the purposes of tracking trade at the species level. The main difficulties with such tests are the technical resources required and the costs. It is unlikely to be feasible to implement such rigorous testing regimes as a primary means of identifying specimens. However, there is potential to use testing as a secondary method to verify whether specimens identified by visual means are derived from a listed species.
54. Under Appendix III, the ability exists to include only certain parts and derivatives of a species in the listing. The ability to make certain products exempt from the provisions of CITES may be a useful provision for some aquatic species where there is a practical inability to identify a particular product.
55. The sharing of information and testing technologies assists CITES Parties to address the difficulties of identifying specimens in trade. One form of sharing information and technologies is through training workshops and other capacity-building initiatives (such as the interactive CD-ROM-based Customs training programme distributed by CITES).
56. As mentioned above, labelling products in trade allows them to be “readily recognizable” in a CITES context. Improved labelling can address concerns relating to the difficulty of identifying products in trade. For example, sturgeon caviar products are labelled as to the species content and country of origin.
57. There is a growing number of documentation and labelling laws and schemes seeking to control, identify or both control and identify the source of fisheries products in trade. There are also various catch and trade documentation schemes that have been introduced by Regional Fisheries Organizations (RFOs) that seek to either control or gather information about the source of fisheries products in trade. The ultimate goal of the fisheries sector is to have an international standard for traceability of fishery products. Standardized traceability systems, which provide product information, could be useful to overcome identification problems of processed products.
58. Some FAO Members have noted that the definition of “species” in CITES is very broad and may need clarification when applied to species exploited by fisheries. The term “species” is defined in Article I of CITES to “means any species, subspecies, or geographically separate population thereof”. This is not a biological definition, but rather the definition that is used in the Convention inter alia to allow a distinction to be made in the Appendices for listing purposes.
59. CITES provides for the listing of a species in more than one Appendix, commonly referred to as “split-listing”, whereby the provisions that apply would be different depending on where the trade takes place. The term also applies to cases where some sub-populations or subspecies may be listed and another may not. Split-listings are considered a valuable tool under CITES given that the conservation status of a species may vary considerably across its range. The concept of split-listing is a common one in a fisheries context, where procedures and regulations may vary according to the stock or geographic area concerned. From a regulatory viewpoint, secure methods of marking are required to identify specimens in trade and differentiate them from specimens that are not permitted. An example of split-listing of an aquatic species in CITES is the listing of minke whale Balaenoptera acutorostrata. The species is listed in Appendix I, except for the population of West Greenland, which is listed in Appendix II.
60. Although Resolution Conf. 9.24 (Rev. CoP12) advises that split-listings should generally be avoided because they create enforcement problems, it also provides guidance to the Parties with regard to when a split-listing is considered necessary.
61. In the case of highly migratory aquatic species, a concern is the possibility that the natural movement of species may lead to their being subject to different CITES provisions by crossing a boundary. Yellowfin tuna Thunnus albacares provides a useful hypothetical example. There are generally considered to be two distinct stocks in the Pacific - an eastern Pacific stock and a western and central Pacific stock. If the eastern stock was listed in one Appendix and the western and central Pacific stock in another Appendix this could create significant enforcement problems. Strong and effective monitoring, control and surveillance measures would be required to ensure that fish harvested from one stock were not transhipped and claimed as having been taken from the other stock. Fisheries management is not unfamiliar with this type of challenge with many juridictional boundaries existing, and different management measures applying to the resource on either side of the boundary, often creating an incentive for mis-reporting. This routinely occurs for species that straddle a coastal State’s waters and potentially unregulated high seas areas. Nevertheless, the complex stock structure of many commercially-exploited aquatic species could lead to additional identification and enforcement problems under a CITES listing, beyond those of normal fisheries management. Further, inflexible adherence to the guidance on split-listing described above (i.e., the invocation to avoid split-listings) could result in stocks that would not otherwise qualify for listing being placed in Appendix II.
