A Tool of Persuasion - international wildlife conservation

Endangered Species Bulletin, July, 1998 by Theodora Greanias

As a means of influencing international species conservation on a bilateral basis with other countries, the Administration has at its disposal a relatively obscure, but powerful, law: Section 8 of the Fisherman's Protective Act of 1967 (22 U.S.C. 1978, as amended), better known as the "Pelly Amendment."

This provision requires the Secretary of Commerce or the Secretary of the Interior, as appropriate, to issue a finding ("certify") to the President when nationals of a foreign country are engaging in trade or taking that diminishes the effectiveness of an international program for endangered or threatened species. The Convention on International Trade in Endangered Species (CITES) is such an international program. Once a country has been "certified," the Pelly Amendment authorizes the President to impose trade sanctions against that country. Within 60 days of certification, the President must report his decision to the U.S. Congress; if he has decided against imposing sanctions, he must explain why. The Department of the Interior has used the Pelly Amendment effectively several times in recent years to promote the conservation of CITES-listed species.

Twenty-two foreign countries or entities have been certified under the Pelly Amendment on a total of 34 occasions--31 by the Secretary of Commerce, once jointly by the Secretaries of Commerce and the Interior, and twice by the Secretary of the Interior alone. The Secretaries of Commerce and of Interior jointly certified Japan in 1991 for trade in hawksbill sea turtles (Eretmochelys imbricata), and China and Taiwan in 1993 for trade in rhinoceros horn and tiger (Panthera tigris) bone. The President has imposed trade sanctions pursuant to the Pelly Amendment on one occasion--in 1994, against Taiwan, for trade in rhinoceros (Rhinocerotidae) and tiger parts and products. Sanctions were lifted in 1995 after Taiwan had demonstrated sufficient improvement. The certification of China still stands.

Although the Secretary of the appropriate Department may self-initiate a Pelly Amendment review, most reviews by the Secretary of the Interior have been undertaken in response to external prompting, often by petitions submitted by conservation organizations. Once received by the Secretary, the petition is forwarded to the appropriate agency--the Fish and Wildlife Service (FWS) or, for most marine species, the National Marine Fisheries Service (NMFS)--for review of the allegations. Usually the allegation's focus on a country's failure to curb illegal trade in particular species. For example, the FWS currently is reviewing allegations submitted by the Sierra Club Legal Defense Fund that Republic of Korea nationals are illegally trading bear parts and products from species listed on Appendix I of CITES, thereby undermining this multilateral agreement. However, sometimes the petitioners take a broader approach. A petition from the Animal Alliance of Canada, et al., alleges that Canada is undermining both CITES and the Migratory Bird Convention by failing to enact and enforce legislation to implement those two multilateral agreements. This petition is currently under review.

Pelly Amendment review is a thorough, consultative process. The appropriate agency, FWS or NMFS, begins by publishing a Federal Register notice requesting public comment and by opening the interagency consultation process with the State Department and other agencies. Separate meetings with the foreign country's embassy and with the petitioners provide the opportunity to sharpen our analysis of the situation through posing questions to both sides. Each allegation is evaluated solely on its merits using the best available information, with advice from agency law enforcement specialists, Departmental solicitors, and the Justice Department. Later, if certification appears imminent, the Office of the U.S. Trade Representative will also become involved.

Once the FWS or NMFS has made its recommendation, the Secretary of the appropriate Department reviews the evidence and decides whether or not it is sufficient for certification. While the law compels the Secretary to certify when the facts support it, the Department of the Interior has historically favored working with foreign governments to address deficiencies in their enforcement regime before rushing to a Pelly certification.

The threat of possible U.S. trade sanctions, or international embarrassment from certification, can provide powerful leverage for change. More important than the imposition or non-imposition of sanctions, however, is the conservation benefit that the Pelly process provides. Once certification has taken place, the FWS uses cooperative problem solving to benefit the species, rather than stressing the adversarial aspect. In the case of Taiwan, the benefits of the Pelly process extended far beyond the original rhinoceros and tiger focus, resulting in cooperative law enforcement training between the FWS and the Taiwan Council of Agriculture, improved international wildlife trade controls by Taiwan, and greater involvement in endangered species conservation by Taiwan authorities. As another example, a Pelly certification led to Japan's lifting of its CITES reservation on the hawksbill sea turtle, an endangered species. Finally, the Pelly certification of China led to improvements in CITES implementation in China and increased the level of bilateral cooperation between the FWS and China's Ministry of Forestry, although much room for improvement remains.