is different to CITES, it furthermore includes an ecosystem dimension: focusing on
specific species, it also aims to conserve the habitats in which they dwell. The
ecosystem approach is therefore a fundamental principle that is embedded in the
convention. Moreover, the principle of intergenerational equity—the passing on of
the world to the next generation in either the same or a better state—is deeply
enshrined in the convention. The Preamble notes that “each generation of man holds
the resources of the earth for future generations and has an obligation to ensure that
this legacy is conserved and, where utilized, is used wisely.”
10 The present generation is therefore in control of the way resources are being used and is required, in a
legally-binding fashion, that the following generation is able to use these resources
equally.
We must remember that the CMS is a convention that was concluded at the end of
the 1970s, more than 10 years before the Rio Summit of 1992 where environmental
principles were codified in the Convention on Biological Diversity (CBD) and other
treaties and declarations. The CMS is therefore a progressive instrument that has
integrated means and ways of species conservation that previous regimes, such as
CITES, have not.
In order for the CMS to work it functions in a similar manner as CITES and
contains two Appendices on which certain species are listed. The species listed on
Appendix I are those species which are endangered and which are to be spared from
any takes. Four exceptions to this prohibition can be found: if the take is for scientific
purposes; if the take benefits the propagation and thus the conservation of the
species; if it is conducted by subsistence users; or if other extraordinary
circumstances require a take. Moreover, states are required to protect and restore
the habitats of these species, and prevent or remove any impediment to their
migration. We see here that the ecosystem approach takes precedent. Interestingly,
the CMS does not make exclusive reference to scientific evidence that proves the
endangered status of the species. Instead, it refers to “reliable evidence, including the
best scientific evidence available.”
11 While this is not explicitly referred to, ‘reliable
evidence’ could also refer to the traditional knowledge of indigenous and local
populations which is, at least in modern times, often considered as reliable as
scientific evidence.
Species listed on Appendix II are those migratory species which are not
endangered but whose conservation status is unfavourable. In order to ensure their
continuity, range states of these species are to enter into species-specific
‘Agreements’ and foster international cooperation for their protection. The fact
that the CMS encourages the conclusion of separate Agreements to reach the
convention’s objective identifies it as a framework convention. This means that it
provides for the wider framework of international cooperation but leaves it up to the
parties to decide on the nature of more specific agreements. Moreover, these
Agreements may also include non-parties to the CMS. In other words, even if, for
10 Own emphasis.
11 Own emphasis.
62
4 The Global Framework for the Environment and Marine Mammals
specific species, it also aims to conserve the habitats in which they dwell. The
ecosystem approach is therefore a fundamental principle that is embedded in the
convention. Moreover, the principle of intergenerational equity—the passing on of
the world to the next generation in either the same or a better state—is deeply
enshrined in the convention. The Preamble notes that “each generation of man holds
the resources of the earth for future generations and has an obligation to ensure that
this legacy is conserved and, where utilized, is used wisely.”
10 The present generation is therefore in control of the way resources are being used and is required, in a
legally-binding fashion, that the following generation is able to use these resources
equally.
We must remember that the CMS is a convention that was concluded at the end of
the 1970s, more than 10 years before the Rio Summit of 1992 where environmental
principles were codified in the Convention on Biological Diversity (CBD) and other
treaties and declarations. The CMS is therefore a progressive instrument that has
integrated means and ways of species conservation that previous regimes, such as
CITES, have not.
In order for the CMS to work it functions in a similar manner as CITES and
contains two Appendices on which certain species are listed. The species listed on
Appendix I are those species which are endangered and which are to be spared from
any takes. Four exceptions to this prohibition can be found: if the take is for scientific
purposes; if the take benefits the propagation and thus the conservation of the
species; if it is conducted by subsistence users; or if other extraordinary
circumstances require a take. Moreover, states are required to protect and restore
the habitats of these species, and prevent or remove any impediment to their
migration. We see here that the ecosystem approach takes precedent. Interestingly,
the CMS does not make exclusive reference to scientific evidence that proves the
endangered status of the species. Instead, it refers to “reliable evidence, including the
best scientific evidence available.”
11 While this is not explicitly referred to, ‘reliable
evidence’ could also refer to the traditional knowledge of indigenous and local
populations which is, at least in modern times, often considered as reliable as
scientific evidence.
Species listed on Appendix II are those migratory species which are not
endangered but whose conservation status is unfavourable. In order to ensure their
continuity, range states of these species are to enter into species-specific
‘Agreements’ and foster international cooperation for their protection. The fact
that the CMS encourages the conclusion of separate Agreements to reach the
convention’s objective identifies it as a framework convention. This means that it
provides for the wider framework of international cooperation but leaves it up to the
parties to decide on the nature of more specific agreements. Moreover, these
Agreements may also include non-parties to the CMS. In other words, even if, for
10 Own emphasis.
11 Own emphasis.
62
4 The Global Framework for the Environment and Marine Mammals