Unauthorized trade in endangered species under international environmental law

Juan Pablo Hernández*
*Founder of The Treaty Examiner and Moot coach at Universidad Francisco Marroquín (Guatemala).
Contact

The Treaty Examiner, Issue 2 (May 2020), pp. 60-65.

Credit: Article picture obtained from Wallpaper Flare, available at https://www.wallpaperflare.com/pangolin-endangered-wildlife-namibia-human-body-part-close-up-wallpaper-gnptr.

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PUBLIC INTERNATIONAL LAW

Amid desperate research on the possible origin of the SARS-COV-2 virus that causes COVID-19, news has arisen of unidentified individuals selling pangolins on social media and instant messaging platforms such as Facebook and Whatsapp (1). Such commercial activities, involving the sale of live pangolins as well as their parts for human consumption, have attracted media attention and legal scrutiny during the last few weeks. Pangolins, which belong to the order Pholidota, are listed in Appendix I of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the so-called ‘blacklist’ of endangered species (2). Most topically, pangolins are known, among other species such as the horseshoe bat (3), to be natural reservoirs of coronaviruses (4). Unauthorized (and potentially illegal) sale of pangolins and similar consumption practices have triggered international concerns about how the SARS-COV-2 virus ‘jumped’ from its natural reservoir to humans and whether similar contagious viruses could make the same transition in the future. This article explores the status of Appendix I species under CITES and the potential liability of social media sites for unauthorized sale of those species on their platform.

Trade of Endangered Species under International Law

International law draws a distinction between the concepts of ‘species’ and ‘specimen’ – while species is an abstract term, referring to the scientific concept of ‘a population or series of populations of organisms capable of freely interbreeding with one another under natural conditions’ (5), specimen refers to a member of the species, either animal or plant, or a recognizable part or derivative thereof (6). States customarily retain territorial jurisdiction over specimens, but international law governs (and sometimes protects) the abstract species itself (7). A species declared ‘endangered’ for the purposes of international law is to be considered the common heritage of mankind and not subject to ordinary rules of trade, usage or appropriation (8).

In that sense, CITES defines a list of species that are excluded from trade and protected due to their endangered status: Appendix I. According to Article II of CITES, trade in Appendix I species is subject to special authorization which can only be granted ‘in exceptional circumstances’. This rule applies to ‘[a]ll trade in specimens of species included in Appendix I’ (9),which, under CITES, covers export, re-export, import and introduction from the sea (10). The CITES prohibition, then, applies to international trade, as opposed to transactions within State borders (which would presumably be governed by that State’s national law) (11). This is confirmed by the preamble of CITES, stating as one of its purposes to prevent ‘over-exploitation [of endangered species] through international trade’, and by Article XIV(1)(a), providing that Contracting States are free to apply more restrictive endangered species protection internally or even to prohibit commerce in such species altogether.

Special rules apply to specimens depending on their origin and purpose: for instance, Appendix I specimens are to be treated as belonging to Appendix II (subject to less strict regulation) when bred in captivity (for animal species) or artificially propagated (for plant species) for commercial purposes (12). Trade prohibitions do not apply if the specimen is a personal or household effect, except as provided in Article VII(3) (13). In any event, States of import shall be satisfied that specimens are not being imported or introduced from the sea ‘for primarily commercial purposes’ (14).

Pangolins, introduced to Appendix I in 2017 (15), are among a wide variety of species that are protected from unauthorized international trade. However, with the recent reports of social media pangolin trafficking, it appears that the provisions of CITES have not fully deterred practices that deplete pangolin populations worldwide.

Liability for Social Media Sites under International Law

Could Facebook or Whatsapp, as the ‘outlet’ for the potentially illegal trade in pangolins, be held liable for a breach of CITES? As a starting point, CITES is an international treaty and therefore only Contracting States are directly subject to liability in case of breach. Since Contracting States are under an obligation to prevent trade in Appendix I species as provided by Articles II and III of CITES, except as permitted in exceptional circumstances or as otherwise provided by CITES, uncontrolled trade across a Contracting State’s borders would trigger liability under the convention. In other words, an unauthorized act of ‘trade’ as understood in CITES would constitute a breach of the convention by the State, not by the private entity undertaking the act (16).

Similarly, it is possible that current transactions affecting pangolins or similarly endangered species would not even involve ‘trade’ as understood under Article I of CITES – i.e., export, re-export, import or introduction from the sea (17). Such a transaction would not trigger the provisions of CITES but would rather be subject to national law (18). Even if the transaction were to fall within the definition of ‘trade’, liability would still attach under national rather than international law (19). The subject of corporate liability under international law is a novel issue in current development. Scholars are presently tackling the issue of whether human rights violations or similar breaches of customary international law by corporations are to be taken as breaches of international law proper, or as breaches of national law to the extent that they incorporate international norms (20). For instance, recent Canadian case law has recognized that, since international law is part and parcel of Canadian law, corporations could, in principle, be held liable for breaches of customary international law (21).

International criminal law (ICL) has been a pioneer in this regard. Although in the inception of ICL corporate criminal liability would have been inconceivable (22), some modern international courts have declared themselves competent to impose criminal liability directly on corporations (23). Precedent by the International Criminal Tribunal for Rwanda demonstrates that corporate shareholders can be held criminally liable for crimes committed by those within their effective control (24). Although before the International Criminal Court the principle of individual criminal responsibility still reigns, the Rome Statute allows the individual members of corporate structures to be held liable for crimes committed within the corporation’s chain of command (25).

To be sure, the issue of (civil) corporate liability outside of ICL is still open. However, as this piece of lex ferenda becomes lex lata, scholars must look closely at how international law reacts to corporate acts that, if taken by a State, would breach international legal obligations.

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PIE DE IMPRENTA: Juan Pablo Hernández (editor-in-chief), Guatemala, 31 May 2020.

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Endnotes

1. Independent, Endangered Pangolins for Sale on Facebook amid Potential Link to Coronavirus, 8 May 2020, available at: https://www.independent.co.uk/environment/coronavirus-pangolins-outbreak-endangered-species-wildlife-trafficking-a9504776.html; TechCrunch, Facebook Users are Buying and Selling Pangolin Parts, Even Though It’s Illegal, 6 May 2020, available at: https://techcrunch.com/2020/05/06/facebook-exotic-animal-sales-pangolin-animal-trafficking/.

2. P Sand, International Protection of Endangered Species (MPEPIL, 2012), at paragraph 11.

3. See D Rihtarič, P Hostnik, A Steyer, J Grom, I Toplak, ‘Identification of SARS-like Coronaviruses in Horseshoe Bats (Rhinolophus hipposideros) in Slovenia’ (2010) Nature Public Health Emergency Collection, Volume 155, pp. 507-514.

4. T Lam, M Shum, H Zhu, Y Tong, X Ni, Y Liao, W Wei, W Cheung, W Li, L Li, G Leung, E Holmes, Y Hu, Y Guan, ‘Identifying SARS-CoV-2 Related Coronaviruses in Malayan Pangolins’ (2020) Nature (unedited article accepted for publication), available at: https://www.nature.com/articles/s41586-020-2169-0.

5. See E Wilson, The Diversity of Life (Belknap Press HUP, 2010).

6. See supra note 2, at paragraph 1.

7. See supra note 6.

8. See supra note 6.

9. Article III(1) of CITES (emphasis added).

10. Article I(c) of CITES.

11. See, for instance, the United States Endangered Species Act (ESA) – for more information, see the FAQ on permits involving endangered species issued by the United States Fish and Wildlife Service, available at: https://www.fws.gov/endangered/permits/faq.html.

12. Article VII(4) of CITES.

13. Article VII(3) of CITES.

14. Articles III(3)(c), III(5)(c) of CITES.

15. See CITES, Press Release: New CITES Trade Rules Come Into Effect as 2017 Starts, 2 January 2017, available at: https://www.cites.org/eng/new_CITES_trade_rules_come_into_effect_as_2017_starts_02012017.

16. See Article 2(1)(a) of the 1969 Vienna Convention on the Law of Treaties and Article 2(1)(a) of the 1986 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, providing that treaties bind States and international organizations.  

17. See supra note 10.

18. Article XIV(1)(a) of CITES.

19. Article VIII of CITES.

20. A Franklin, Corporate Liability under Customary International Law (2019) Völkerrechtsblog, available at: https://voelkerrechtsblog.org/corporate-liability-under-customary-international-law/.

21. The Supreme Court of Canada states that the view that corporations are not subject to customary international law ‘misconceives modern international law’. International law contains customary rules that prohibit certain conduct, regardless of whether the perpetrator is a State (presumably referring to human rights violations and international crimes). The Court reminds the parties that, while States are the main subjects of international law, the international legal order has ‘so fully expanded beyond its Grotian origins that there is no longer any tenable basis for restricting the application of customary international law to relations between States’. In the Court’s view, human rights are ‘discrete legal entitlements (…) to be respected by everyone’, not only by the State. The Court cites writing by Professor Koh making the compelling argument that, considering that international criminal law imposes criminal liability on corporations, it would be absurd to argue that it cannot impose civil liability as well. See Nevsun Resources Ltd v. Araya [2020] Canada, Supreme Court, at paragraphs 105-113.

22. The words of the International Military Tribunal sitting at Nuremberg are illustrative of the early adoption by ICL of the principle of individual criminal responsibility: ‘Crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced.’ See Judgment of 1 October 1946 [1946] International Military Tribunal at Nuremberg, p. 447.

23. In 2014, the Special Tribunal for Lebanon found that legal entities, such as corporations, could be tried for contempt charges under its criminal statute. In making that finding, the Tribunal reviewed the rules of interpretation under international law, human rights law and international criminal law and procedure. See Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings [2014] Appeals Panel, Special Tribunal for Lebanon, available at: https://www.stl-tsl.org/crs/assets/Uploads/20141002_F0012_PUBLIC_AP_Dec_on_InteLoc_Appl_Jurisdic_Cont_Proceed_EN_AR_FR_Joomla.pdf?, at paragraphs 33-64; See also Human Rights Committee, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, UN Doc A/HRC/4/35, 19 February 2007, at paragraph 22: ‘…corporate responsibility is being shaped through the interplay of two developments: one is the expansion and refinement of individual responsibility by the international ad hoc criminal tribunals and the ICC Statute; the other is the extension of responsibility for international crimes to corporations under domestic law. The complex interaction between the two is creating and expanding web of potential corporate liability for international crimes, imposed through national courts.’

24. In 2003, the International Criminal Tribunal for Rwanda convicted the director of Radio Télévision Libre des Mille Collines, Ferdinand Nahimana, for incitement of genocide. The acts in question involved radio broadcasts calling for the extermination of Rwandan Tutsis. The Tribunal found Nahimana liable due to his editorial control over the radio, even though Nahimana himself did not make any statements amounting to genocide incitement. See Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment and Sentence [2003] International Criminal Tribunal for Rwanda, Trial Chamber I, pp. 325-333; Compare with Articles 25(3)(a), (b) and 28 of the Rome Statute of the International Criminal Court.

25. See Articles 25(1) (clarifying that the International Criminal Court only has jurisdiction over natural persons and establishing the principle of individual criminal responsibility), 25(3)(a), (b) (as regards indirect perpetration, i.e., perpetration of a crime through another person, and ordering, soliciting and inducing of international crimes), and 28 (establishing command and superior responsibility for international crimes in military and civilian contexts) of the Rome Statute.