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Registration with the CITES Secretariat is NOT Required for Trade

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There is no such requirement.  Export permits are issued regularly, even by South Africa, in full compliance with CITES, without registration.

Two legal frameworks govern what is required for trade in rhino horn to be legal - South African law, and the Convention on the International Trade in Endangered Species ("CITES") that this country's laws seek to implement.  Both have provisions allowing such trade.  Neither has any provisions requiring a qualified Captive Breeding Operation to register with the CITES Secretariat.

Under CITES:

Those who incorrectly believe that CITES requires registration with the Secretariat prior to a CBO being allowed to trade routinely cite CITES Resolution 12.10 as the source of this requirement.  Their argument misreads the CITES situation in two key ways.

  1. Resolutions do not create obligations. They communicate suggestions.  Thus, neither 12.10, nor any other Resolution, could possibly create a positive obligation to register.

  2. The CITES Convention creates two categories of Captive Breeding Operation - those for primarily commercial purposes, and those for primarily conservation purposes.  Resolution 12.10 proposed voluntary registration only for the former, not the latter.  CITES has never proposed registration of conservation breeding operations, and has made no provisions for accommodating such an unexpected request, if one such operation were ever to seek registration.

Resolutions Are Not Binding

 

Resolutions do not add rules into the Convention.  They are merely suggestions. Each party is free to implement those suggestions in their national legislation, or to ignore them completely.  As stated on the CITES website,

 

“[Some] provisions [of the Convention] leave room for interpretation as to exactly what is intended.... One of the tasks of the Conference of the Parties is to make recommendations to provide such guidance. These recommendations are recorded in one of two ways: either in Resolutions or in Decisions.”

 

Further clarity on the non-binding nature of Resolutions can be found in the European Union document, Wildlife Trade Regulations in the European Union, An Introduction to CITES and its Implementation in the European Union, which states, “Resolutions ... are not legally binding so Parties may choose not to implement them.”

 

We can find the same guidance in the EU’s comprehensive, Reference Guide, European Union Wildlife Trade Regulations – a joint product of the EU and a global wildlife NGO, Traffic.  There we read that, “the Convention text is further interpreted and elaborated upon by Resolutions that are passed by the CoP ....  These Resolutions and Decisions are non-binding and lead to significant differences in implementation between Parties.” 

This principle, and its relevance to our present topic, are further concretized on the European Union’s website dealing with Captive Breeding within the CITES framework, which states,

 

The European Union does not implement the recommendations of the Conference of the Parties to CITES set out in Resolution Conf. 12.10 (Rev. CoP15) with regard to restrictions on trade in specimens of Appendix I listed animal species produced by commercial captive breeding operations.  Registration of such operations with the CITES Secretariat is not a requirement for trade from or to the European Union.”

 

Obviously, such a position is only possible because Resolutions are not binding on Parties.  And the EU chose Resolution 12.10 as its example, which ought to make our point quite clearly. Obviously, registration with the Secretariat is not an obligation prior to the commencement of trade.

 

Indeed, even the CITES Secretariat has been scathing in its assessment of registration, saying,

 

“The Secretariat is of the long-standing opinion that the registration programme for animals is unnecessarily complicated.  As a result, many Parties have chosen not to apply Resolution Conf. 12.10 and there are probably thousands of operations breeding Appendix I species around the world that are not registered with the Secretariat.

 

"The system ... creates a lot of work ... with no obvious benefit....

Virtually the entire world has ignored registration, with all CITES parties exporting more than four times more species from unregistered facilities than from facilities registered with the CITES Secretariat.

CITES Recognizes Two Kinds of Captive Breeding Operations.  Registration is possible for the one, and irrelevant for the other.

The Convention was established to protect wild populations of animals from the potentially destructive effects of trade.  The key mechanism for that was the creation of incentives to encourage dedicated breeding facilities for animals for whom commercial demand existed.  The idea was that breeding animals for use would eliminate the need, and incentive, for plundering the wild.  And that has worked.

Animals that are bred in captive environments have satisfied the demand for everything from crocodile skins to ostrich meat.  And, in those countries where such breeding is done, the wild populations have rebounded with astonishing speed and vigour.

But the Convention also recognized an even more noble form of breeding - that which is done for primarily conservation purposes.

These two types of operations are recognized, and their rights to trade are enshrined, in Article VII, Paragraphs 4 and 5 of the Convention.

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Article VII, Para 4:
Captive Breeding for
Commercial Purposes

"Specimens of an animal species included in Appendix I bred in captivity for commercial purposes, or of a plant species included in Appendix I artificially propagated for commercial purposes, shall be deemed to be specimens of species included in Appendix II"

Article VII, Para 5:
Captive Breeding for
Conservation Purposes

"Where a Management Authority of the State of export is satisfied that any specimen of an animal species was bred in captivity or any specimen of a plant species was artificially propagated, or is a part of such an animal or plant or was derived therefrom, a certificate by that Management Authority to that effect shall be accepted in lieu of any of the permits or certificates required under the provisions of Article III, IV or V."

Now that we know that there are TWO KINDS OF CAPTIVE BREEDING OPERATIONS, let's take a closer look at what Resolution 12.10 says about each.

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It takes no more than a casual read of the Resolution that is cited by those demanding registration to see that the Resolution only creates the option of registering captive breeding operations of the commercial type.

Neither Resolution 12.10, nor any other CITES document, ever proposes registration of the "paragraph 5" operations that serve a conservation purpose.

12.10 even goes to the added trouble of pointing out that "paragraph 5" operations are entitled to trade, even for commercial purposes, without even receiving an import permit.

Why does CITES go so far to extend such liberal trading opportunities to "paragraph 5" captive breeding operations?  Because such facilities are the holy grail of conservation -- dedicated programs committed to increasing the populations of highly endangered animal species.

CITES makes a special effort to ensure that such operations can trade with the absolute minimum of bureaucratic intrusion.  South Africa is expected to do the same.

Do we need ANOTHER demonstration that CITES did NOT create a registration requirement for conservation-oriented breeding operations?

Because CITES believes it to be, "important that management systems used to produce specimens for international trade are clearly defined and understood,"  the Parties have adopted, by consensus, a set of "Source Codes" that are assigned to every specimen that is entered into trade.  The specific code assigned depends on how the specimen was produced.

 

The 2017 guide published by CITES to aid the Parties in correctly assigning such Source Codes contains the table shown here.  In it, we can clearly see that Paragraph 5 operations are assigned Code 'C', while Paragraph 4 operations are assigned Code 'D'.

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Even here, CITES is abundantly clear in its statements demonstrating that registration with the Secretariat applies ONLY to Paragraph 4 operations - those that exist for commercial purposes and that are assigned Source Code 'D'.

Operations established in accordance with the conservation orientation of CITES Article VII, paragraph 5 - those that are identified with Source Code 'C' - are not "included in the Secretariat's Register."

This point is made with even greater clarity several pages later in this CITES 

document - in a flowchart showing parties when to apply the Code 'C' that identifies 'Paragraph 5' operations that do not register with the Secretariat, and when to apply the Code 'D' designation that identifies 'Paragraph 4' operations that can be listed in that register.

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Follow the logic flow of this chart and one can quickly see that the path one follows before issuing Source Code 'D' includes the question (highlighted in blue), "Was the specimen bred at a CITES-registered breeding operation?"  But registration is not considered at all prior to issuing Source Code 'C' and granting an export permit on that basis.

It is ABUNDANTLY clear that CITES contains absolutely no requirement that captive breeding operations with a conservation focus must register with the Secretariat.

"All persons wishing to produce captive bred animals ... for commercial international trade purposes of any species listed in Appendix I must be registered with the [Provincial] Management Authority and, where required, with the Secretariat."

This language could not possibly be more clear.  Registration with the CITES Secretariat is required under South African law only, "where required."  And even that applies only to facilities operating for primarily commercial purposes, as described in CITES Article VII, paragraph 4.  There is absolutely no mention in South African law of any such registration applying to Code 'C' operations - those serving conservation purposes.​

The interesting question then is, "Where is it required that an operation must be registered with the CITES Secretariat?"  And the answer is: Never.

Registration with the Secretariat is NEVER required.  Not under South African law.  Not by CITES.  Not ever.

Under South African Law

South African law on this issue is captured in regulations entitled (unsurprisingly), the "CITES Regulations."  Those regulations explicitly recognize the point made above, that, "Recommendations included in Resolutions ... can serve as a source of interpretation."  In other words, CITES Resolutions, including the one that called for voluntary registration of Paragraph 5 captive breeding operations (those established for commercial purposes), are not compulsory.

But the far more important point is made in Section 11(2) of these CITES Regulations.  That paragraph states,

The Proof is in the Data

The claim that South Africa's captive breeding operations of rhino are subject to this imaginary requirement to register with the Secretariat prior to trading internationally in horn is so comprehensively wrong that one is forced to ask if such an error can be the result of mere confusion, or if something more sinister is afoot.

South Africa has exported 112 species of Appendix I animals from captive breeding operations. South Africa has registered captive breeding operations with the CITES Secretariat for only 2 species.  Thus, 110 species have been exported without any registration. Of the 38,000 individual specimens exported by South Africa under the captive breeding exemption, 28,000 of them were of species for which no registered facilities exist.  Perhaps most importantly, the list of species already exported by South Africa, from captive breeding operations, without any CITES registration, includes both black and white rhino.  Indeed, exports of rhino specimens have already been permitted on the basis that the specimens came from captive breeding operations, even though those operations had not bothered with the registration demand. 

The possibility that South Africa's continued mistake around the implementation of Article VII, Paragraph 5, Code 'C' captive breeding operations is due more to corruption than confusion is highlighted by the false claim by a key bureaucrat in DFFE that, "South Africa does not implement Code 'C'."

Why is this statement such a terrible indictment of the Department's integrity?  Because the CITES trade database shows that South Africa has, in fact, "implemented" Code 'C' to export 22 million specimens of CITES-listed species.  Almost 32,000 of these specimens were Appendix I specimens - the most highly endangered.

These exports include such highly endangered species as leopard.  And tigers.  And chimpanzees.  AND RHINO.

The documents shown here are actual export permits from South Africa.  The first is a permit to export three highly endangered species - cheetah, leopard, and chimpanzees - on the basis that they come from the Code 'C' operations that qualify to export because they are qualified captive breeding operations.  None were registered with the Secretariat.  The middle permit allowed the export of tigers on the basis of their Code 'C' origins.  And the last permit was issued to allow rhinos to be traded.  Internationally.  Because they were from a Code 'C' source.

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The claim that South Africa does not employ Code 'C' to permit trade in specimens from conservation-oriented captive breeding programs is not just a lie.  It is the sort of foolish lie that is easily proven false.

Our country deserves better.

There can be no question any longer that the law allows this country's rhino breeding operations to trade horn internationally - fulfilling the prayer of the scientists and conservationists who are responsible for having kept rhino alive in sufficient numbers that they still have a chance at survival - without registering anything with the CITES Secretariat.

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