12 September 2016

The EU accession to CITES: Will the EU be a more powerful and independent negotiator at CoP 17 ?

The following post has been prepared by our first Guest Blogger, Amandine Van Den Berghe*

In July 2015, the European Union officially became a full member of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the main international instrument to protect endangered plants and animals from unsustainable trade.

The next CITES Conference of the Parties (CoP 17) is approaching fast. It will take place in Johannesburg, South Africa, from September 24 to October 5 2016. It will be the first time a REIO (Regional Economic Integration Organization) participates in these meetings, and many CITES Parties have questions with regard to the implications of the EU's role as a Party to the Convention. It remains to be seen whether the EU will be able to perform, beyond its Member States, as a more independent and powerful negotiator on the international stage.

The logical step of a long-standing commitment

The EU was not a party to CITES before that, because membership by REIOs was not allowed. The Gaborone Amendment - that would permit accession to CITES by REIO - was adopted 33 years ago, but only entered into force in November 2013, after ratification by two-thirds of the 80 States that were party to CITES in 1983. 

Meanwhile, the EU has been proactively engaged in the shaping and application of CITES at the European level since the 80s, by adopting unilateral and stringent legislation on trade in endangered species (1), and by playing a very active role in the Convention.

 The Union was given an observer status that allowed its attendance and participation in CITES meetings, yet without voting rights. This participation was justified by the fact that the Convention covers matters that fall under the competence of the EU (environmental protection and trade), and that decisions taken by the CoPs (in particular the amendments to CITES Appendices I and II) affect the EU legislation. 

The EU has thus always sought to be a prominent player in the fight against wildlife trafficking, and the EU accession was a logical and necessary step toward the completion of its commitment in this field. It is expected to strengthen its role as a global actor, but to what extent ? According to the ‘actorness theory’ developed by Jupille and Caporaso in 1998, four criteria need to be fulfilled by the EU in order to be recognized as a powerful negotiator in the international forum : authority, external recognition, autonomy and internal cohesiveness. Let’s have a look.

What changes to expect at CoP 17 ?

The authority to act on behalf of its Member States, is the first essential condition for actorness.  This refers to the extent of competences that a have been delegated to the EU. In the context of CITES, the EU is competent to act externally in environment and trade (Article 192 and 207 TFEU). The competence in environment is shared with the Member States, but because the EU has made use of its competence by regulating the trade in wildlife at the european level since the 80s, the Member States no longer have the right to undertake obligations which would affect Union’s rules. Moreover, the EU has an exclusive competence in international trade. Therefore, one can say that the EU governs important resources related to CITES matters. However, the Union’s accession does not bring any change with regard to the distribution of competences.

To be an international actor, the EU also needs external recognition, or legitimacy, de facto and de jure. The EU has long ago been recognized as a crucial actor during the negotiation processes of CITES, even in the absence of formal membership. The main reason is the explicit competences of the Union in environment and trade. The high degree of authority and governance of resources related to CITES matters has resulted in de facto recognition by third parties. This is illustrated by the CoPs recommendations being addressed directly to the Union, or third parties repeatedly calling the EU, not the Member States, to remedy CITES implementation problems related to the single market. Yet, the EU accession to CITES has improved its de jure legitimacy as it is the first REIO to be granted a formal membership since the Gaborone Amendment entered into force.

The autonomy is a central element to define the EU as powerful international actor. It relates to the ability to successfully pursue its own agenda. In other words, the discretion and room of maneuver the EU negotiator enjoys vis-à-vis the Member States. The extent to which the hands of the EU are tied deals especially with the issues of representation, negotiation and voting. The new status of full member puts the EU on equal footing with its Member States : the EU itself has now the right to speak and negotiate, make proposals and, in particular, to vote. It is important to clarify those implications.

How will the EU and its Member States share the right to negotiate ? Who will represent the EU during the negotiations ?

Just as before, negotiations will be conducted under the principle of sincere cooperation (Article 4(3) TEU). When a species is protected under EU legislation or is the subject of an EU position, Member States have to speak with a single voice, meaning that they have to abstain from expressing a diverging opinion. Regarding issues of national interest, Member States remain sovereign to speak and negotiate. 

What will change significantly at CoP 17, however, is that, instead of the rotating Council’s Presidency speaking « on behalf of the EU Member States acting in the interests of the EU », an EU negotiator will now be designated in the Council Decision laying down the EU common position (2). This EU negotiator will represent the EU interests and will therefore lead the negotiations, make statements, propose amendments and take the floor on all matters covered by - or likely to affect - the EU acquis (such as the Wildlife Trade Regulations). While the mandate of EU representatives at CITES meetings has never been clearly defined, the full membership enables the EU to be adequately represented, in line with established practices for external representation. In this way, the accession of the EU reinforces its visibility during the negotiations.

How will the EU share the right to vote with its Member States? (3)

Another major implication of the EUs new role in the CoPs meeting is that it has now the right to vote. Under Article XXI(5) CITES, either the EU votes with a number of votes equal to the number of Member States parties to the Convention, or the Member States vote individually. The EU will vote on all matters covered by - or likely to affect - the EU acquis, and individual Member States will continue to vote on other issues. But what does that mean in practice ? (4)
  • When a species is protected by EU legislation, the EU negotiator is competent to cast the vote and the Member States may not vote.

  • When a species is not regulated by EU law, but the EU has started to discuss a common strategy, Member States are prevented from acting unilaterally or voting at international level. If a Member State intends to do so, it must inform and consult the EU Institutions and try to reach a consensus for a common EU action. Until such discussions last within the EU, the Member State in question is prevented from voting independently within CITES meetings. When a Council Decision giving negotiation and voting instructions is adopted by a qualified majority, the EU negotiator has to vote in conformity with the latter. When the majority is not reached, it means that the EU is not able to have an opinion on the subject-matter. However, Member States only regain their right to act unilaterally and to vote when the reaching of a common position (including a decision to abstain) with regard to a species that is not protected under EU law, fails or is deliberately delayed. When an EU proposal is rejected by the CoPs, the right to vote does not fall back in the hands of the Member States. In such cases, it is assumed that the EU and its Member States will foresee a « fall back position » to cover this situation. The EU negotiator could also allow the Member State to vote freely when an EU proposal is rejected or when a proposal from another Party to the Convention which has been supported by the EU is rejected. However, such a free vote could lead to EU Member States expressing different opinions on the proposals, and thus contradicting the requirement of unity. It is therefore unlikely that this would happen, unless the EU decides to cease exercising its competence on the basis of Article 2(2) TFEU.

Because the main challenge for many CITES parties concerns how the voting rights will be handled by the EU and its Member States, the CITES Secretariat has set up in Doc 4.1 practical arrangements in order to clarify (as much as possible) the situation at CoP 17 :

  • Before the beginning of CoP17, the EU is invited to indicate in writing whether the EU or its Member States will exercise the right to vote on matters on the agenda  should a matter be submitted to a vote. This indication will be non-binding on EU and its Member States. 

  • The EU will only exercise its right to vote if all 28 EU Member States are represented at the meeting and that their delegations are duly accredited. The EU will be invited to take the floor before each vote to state whether it will exercise its right to vote, or whether its Member States will exercise their right to vote.

The EU will thus now have a seat at the negotiation table as a full party, and not as an observer anymore. It will be adequately represented during the meetings, beyond its Member States, by an « EU negotiator » which will have the ability to enter 28 votes into the record, instead of the 28 countries having to vote individually. The EU as a REIO will not vote « on behalf of its Member States », but in its own right as a Party to the Convention for matters falling within its competence (see wording of the Gaborone amendment).  In other words, the EU as a REIO exercises its own right as a Party for matters within its competence and does not vote on behalf of the Member States.

These significant changes will definitely make the EU a more institutionally independent actor at CoP 17. However, the autonomy of the EU negotiator is affected by the degree of involvement of the Member States in the negotiation process. Frequent internal coordination meetings and attendance by the Member States often reduce the EU marge of maneuver. It remains to be seen in practice at the next CoP whether the EU negotiator will have to consistently consult its Member States, or whether it will be able to react with a certain degree of autonomy and freedom to the dynamics of international negotiations, and pursue its own agenda, independently from its Member States.

Internal cohesiveness is the last condition for the EU to be a international actor. It does not mean homogeneity of preferences but rather refers to the ability of the Member States and the EU to formulate internally and express externally a consistent position with a single voice, regardless of whether this is the preferred position of all the Member States (5). The question, in other words, is whether the Member States can formulate a common position in spite of their divergences and then accept the final outcome of the negotiations without trying to carve out exceptions for themselves or undermining  the collective position by going behind the back of the EU negotiator (6). 

The pooling of the voices of the Member States as well as the ability of the EU to express these preferences in a unified way indeed constitute an enormous bargaining power, and make the EU an important player and an influential negotiator. However internal EU coordination does not always result in single voice. It may happen that some Member States disagree with the EU position and express a different opinion, as it has been the case for the Polar Bear and Bluefin Tuna listing proposals, revealing disunity among EU Member States. Indeed, Member States try to remain sovereign during the CoPs meetings, especially concerning trade issues that may affect their interests differently. The sensitivity of the topic will thus determine to what extent Member States will actually allow the EU negotiator to act as their representative and speak for them. It remains to be seen in the next CoPs whether the new role of the EU in CITES will give the EU more power to override or nullify Member State votes that go against overall EU preferences.

The EU’s ability to act as a powerful and independent actor in CITES meetings will increase transparency and accountability. Hence, the hope is that this would lead to « greener » votes, and that Member States individual trade interests will stop undermining wild species protection. But the full significance of the EUs membership for third parties will become clearer after the first test at CoP17.

(1)  The CITES Convention is implemented in the EU through Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein, and associated Commission Regulations (the Wildlife Trade Regulations).
(2)  The EU internal decision-making process and the way common positions are adopted are not affected by the EU accession (Article 218(9) TFEU remains the legal basis). An EU common position is agreed by the EU and the Member States by a qualified majority and takes the form of a Council Decision, which gives the negotiation and voting instructions. It preferably takes place in advance of the meetings, but also sur place.
(3)  It concerns especially the voting on amendments to Appendices I and II of CITES as these changes have binding legal effects on the Parties to the Convention. An amendment of the Appendices comes into effect when supported by two thirds of the Parties present and voting (Article XV CITES).
(4)  Krämer L., ‘EU Negotiating and Voting under the Amended CITES Convention’ (2015) 12 JEEP.
(5)  Ghering T., Oberthur S. and Muhleck M., ‘European Union Actorness in International Institutions : Why the EU is Recognized as an Actor in Some International Institutions, but Not in Other’ (2013) 51:5 JCMS.

(6)  Conceição-Heldt (da) E. and Meunier S., ‘Speaking with a single voice: internal cohesiveness and external effectiveness of the EU in global governance’ (2014) 21:7 JEPP.

My name is Amandine Van Den Berghe. Being wholeheartedly committed to nature conservation and especially the reduction of wildlife crime, I have worked towards this goal by completing two Bachelor's degrees in Law and Political Science from the University Saint-Louis of Brussels, and most recently, a Master’s degree in European Union Law from the University of Amsterdam. I speak French, English and Dutch. I am now seeking to build upon this knowledge through work experience in an international environment.

To contact Amandine, you can send her an e-mail to am.vdb@hotmail.com