The relationship between humans and other species has been considered in terms of Maslow’s hierarchy of needs and indeed suggests that a fundamental relationship exists. However, the demise of species could lead to the demise of humans and so humans are dependent on other species for survival, health and well-being. It could further be argued that in terms of a utilitarian approach to the use of species, humans should strive for the best outcome for all. The best outcome for all would be to follow the principle of sustainable use of species which ensures benefits for current and future generations, while ensuring long term survival of the species. This would have positive outcomes for humans and species alike. It is also acknowledged that humans embrace various values in the context of species. In terms of this thesis the value and use of species in international trade is relevant and how such trade is regulated and managed to ensure sustainable use is the nub of this inquiry.
Sustainable use of species in international trade is critical if there is to be continued economic benefits of species trade for current and future generations. Therefore, elucidating and understanding the history, meaning and application of the concept of ‘sustainable use’ is critical to underpinning this research and discussions in the subsequent chapters of this thesis. Sustainable use undoubtedly will continue to be debated. Especially if one considers that sustainable use includes the extractive or consumptive use (removal of species/lethal use) as well as non-extractive or non-consumptive use (tourism-based), making for a broad and
vibrant discourse. The definition of sustainable use as articulated by the CBD is extremely helpful304 and accords well with the working definition of sustainable use proffered in this thesis. The principle of sustainable use emerged from various ‘soft’ law instruments and became an acceptable international norm. The principle was later adopted by international ‘hard’ law instruments that are legally binding on the Parties to various Conventions like the CBD and CITES.
Approaches to sustainable use and conservation in the context of the US and South Africa will be examined in the following two chapters respectively. Consideration will be given to how international law has shaped the development of national law for endangered or threatened species in the US and South Africa. In terms of trade in species, the implementation of CITES in the US and South Africa, as Parties to the Convention, will be examined more closely. In particular, possible provisions for strengthening the domestic legislation in South Africa for sustainable use and trade in species will be identified. The strength of international law is largely dependent on the Party’s ability to implement and enforce such law domestically as well as the willingness of Parties to collaborate when faced with international challenges like illegal wildlife trade. The implementation of laws for trade in species will be considered and case law that facilitates an understanding of the interpretation of relevant law. The following chapter will focus on identifying important lessons learnt from the US in regulating trade in species in terms of the management dimension, compliance and enforcement dimension and extraterritoriality as a subset of the compliance and enforcement dimension.
304 Article 2 CBD definition of sustainable use: ‘the use of components of biological diversity in a way and at a
rate that does not lead to the long term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of current and future generations.’
CHAPTER 3
Analysis of the laws relevant to trade in endangered species in the United States of America
3. Introduction
The United States of America (hereafter referred to as the ‘US’) is a federal republic consisting of 50 States. It has a population size of more than 320 million people. The country is culturally diverse and is also diverse in its climate, geography and wildlife.305 The US is one of 17 megadiverse countries in the world. 306 The national parks and nature reserves are important for recreation, enjoyment, education and historic purposes.
From 2008 to 2012, the US was amongst the top ten wildlife importing countries globally and the major importer of mammals, reptiles, amphibians, invertebrates and corals, while they were the second largest importer of fish, orchids and cacti.307 The US therefore has an important role to play in promoting sustainable use and trade in species of wild fauna and flora, since it is one of the largest importers of CITES species globally. The US is also one of the top ten wildlife trading nations with South Africa.308
As a top importer of wildlife,309 including parts and derivatives, the US has not been unscathed by the illegal killing and trafficking in wildlife, as such products are also imported into the US under the guise of legal products.310 The US recognises that wildlife trafficking
305 Wikipedia about ‘United States’ available at https://en.wikipedia.org/wiki/United_States, accessed on 12 July
2015.
306 Megadiverse countries are those countries that play host to more than two thirds of the Earth’s species.
Seventeen countries have been identified as megadiverse. To meet the conditions for megadiverse status a country must have at least 5 000 endemic plant species and marine ecosystems within its borders. Mittermeier RA, Gil PR and Mittermeier CG Megadiversity: Earth’s Biologically Wealthiest Nations (1997) Conservation International.
307 CITES trade database – global imports available at http://cites-dashboards.unep-
wcmc.org/global?id=Mammals, accessed on 12 July 2015.
308
The US is a top 10 importer of mammals, reptiles, orchids, cacti and plants from South Africa available at http://cites-dashboards.unep-wcmc.org/national?id=ZA, accessed on 12 July 2015.
309 It should be noted that the US uses the term ‘wildlife’ often and that the definition of wildlife is therefore
important at this juncture. According to the Endangered Species Act (ESA) of 1973 ‘fish or wildlife’ means any member of the animal kingdom, including without limitation any mammal, fish, bird (including any migratory, non-migratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.’ Endangered Species Act of 1973, 16 USC §1531–1543, as amended. Section 3(8).
310 As demonstrated through the latest ‘ivory crush’ of one ton of confiscated ivory in Times Square, New York
has soared into an international crisis which undermines conservation and sustainable use of wildlife, while also posing a threat to national security.311 Furthermore, wildlife also serves to provide economic, social and environmental benefits to countries and potential benefits are lost through illegal wildlife trade. The US has therefore committed substantial resources to combating wildlife crime and has developed a strategy for combating wildlife trafficking.312 The US is taking a leadership position on the matter, with the then President Obama making a firm commitment to combating wildlife trafficking through an Executive Order.313 Similarly, a Presidential Task Force has been set up to combat illegal, unreported and unregulated (IUU) fishing and seafood fraud.314 The real challenge with illegal trade is that it undermines all efforts of sustainable use and results in over-exploitation, with a loss of legitimate benefits to the species’ country of origin. In the context of this thesis, it is appropriate to reflect on the working definition proffered for sustainable use in chapter 2. Sustainable use was defined in chapter 2 as ‘use of species at a rate that maintains viable population levels for the benefit of
present and future generations’.
This chapter explores the relevant federal legislation of the US in managing and ensuring sustainable use of its species and specifically trade in endangered species. The scope of this thesis does not include legislation by the different states in the US and the focus is on federal legislation only. Since this forms part of a comparative study with South African law, it is critical to glean lessons learnt that could guide the strengthening of South African law and practice. In each section presented in this chapter an attempt is made to identify important lessons based on an analysis of the information and strengths identified through important case law and relevant literature. This analysis is augmented with interviews undertaken with various federal agency government officials in the US, particularly in respect of the Lacey Act315 and the Endangered Species Act (ESA).316 The latter was undertaken to amplify the
wildlife available at http://www.fws.gov/le/elephant-ivory-crush.html and http://time.com/3928505/elephant- ivory-times-square/, accessed on 12 July 2015.
311 US Fish and Wildlife Service has set up a web-page about wildlife trafficking available at
http://www.fws.gov/international/wildlife-trafficking/, accessed on 12 July 2015.
312
Strategy for wildlife trafficking available at
https://obamawhitehouse.archives.gov/sites/default/files/docs/nationalstrategywildlifetrafficking.pdf, accessed on 21 March 2017.
313 Federal Register 5 July 2013 Executive order 13648 – combating wildlife trafficking available at
https://www.whitehouse.gov/the-press-office/2013/07/01/executive-order-combating-wildlife-trafficking, accessed on 12 July 2015.
314 ‘Presidential Task Force on Combating IUU Fishing and Seafood Fraud – Action Plan for Implementing
Task Force Recommendations’ available at http://www.nmfs.noaa.gov/ia/iuu/taskforce.html, accessed on 13 July 2015.
315
Lacey Act of 1900, 18 USC §42-43 16 USC §3371-3378, as amended.
316
desktop research of this study and highlight key legislative initiatives in sustainable use and trade of endangered species.317 As part of the background to this chapter, an overview of the US international commitments to wildlife and its incorporation into domestic legislation will also be considered in brief.