National Legislation Programme

“Range State” in relation to a particular migratory species means any State that exercises jurisdiction over any part of the range of that migratory species, or a State, flag vessels of which are engaged outside national jurisdictional limits in taking that migratory species (CMS Article I.1 h)). "Range" means “all the areas of land or water that a migratory species inhabits, stays in temporarily, crosses or overflies at any time on its normal migration route” (CMS Article I.1 f)). CMS Article III.5’s “take prohibition” applies throughout the range of a species, including in:

1. a State’s territory;
2. all jurisdictional waters of the State (i.e. territorial seas and exclusive economic zone); and
3. with respect to vessels that the State flags (and citizens on those vessels), areas beyond national jurisdiction where they operate (i.e. the high seas).

Appendix I of CMS lists migratory species that are endangered (CMS Article III.1). These are migratory species in danger of extinction throughout all or a significant portion of their ranges (CMS Article I.1 e)).

Any CMS Party may propose amendments to Appendix I at any ordinary or extraordinary meeting of the Conference of the Parties (CMS Article XI).

Consequently, national legislation should ensure that the taking of newly listed Appendix I animals is also prohibited.

A Party that flags vessels must ensure that it prohibits the “taking” of Appendix I marine species which range is outside the State’s jurisdictional waters if those vessels conduct activities in areas beyond the State’s jurisdiction.

Under CMS, “take” or “taking” means “taking, hunting, fishing, capturing, harassing, deliberate killing, or attempting to engage in any such conduct” (CMS Article I.1 i))

Neither CMS nor Resolutions of the Conference of the Parties have defined the meaning of “harassing”. Activities that could qualify as forms of harassment include disturbing, pursuing, injuring, feeding or otherwise intentionally disrupting an Appendix I species.

Article III.5 applies the take prohibition to “animals” but applying it to animals’ eggs and nests is consistent with the CMS definition of “take”. Destruction or removal of an egg constitutes capturing or deliberate killing of an animal; whereas destruction or removal of a nest could constitute a form of harassment.

The first three exceptions have identifiable purposes and should be specified in the law(s) that implement CMS. They may also require further elaboration. The fourth exception — when “extraordinary circumstances so require” — is not a “catchall” exception. Parties should ensure that its scope is not too broad while also not foreclosing situations that may require the need for an exception (e.g. self-defense).

The exceptions should be clearly drafted, geographically limited, and timebound. Also, Parties should include thresholds in their laws to ensure that the “taking” of Appendix I animals does not undermine the species’ conservation status.

The competent authority should not issue a permit to allow the taking of an animal unless it makes affirmative findings with regard to all of the requirements of Article III.5.

The permit shall contain such terms and conditions as the competent authority deems necessary or appropriate to ensure that the “taking” is consistent with Article III.5.

Any permit issued pursuant to an exception should be revocable if the permittee fails to comply with its terms and conditions or if evidence indicates that the “taking” will disadvantage the species.

Parties may also wish to prohibit the transfer of any permit to “take” an Appendix I animal that has been granted.

Laws to implement Article III.5 should include both civil and criminal penalties for violations of the “take prohibition”. It is recommended to punish any “attempt” to take an Appendix I animal.

In addition to establishing financial penalties that are sufficient to deter future violations, CMS Parties may allow enforcement officers to seize and forfeit any animal(s) taken or property used to facilitate or commit the crime.

Parties may also include provisions for:

• the reparation of or compensation for the damage;
• the suspension or withdrawal of licenses, permits and authorizations issued to the offender, with consequent limitation, restriction or suspension of the activities that caused the violation, or partial or total shutdown of the premises and establishments where these activities are carried out; and
• additional penalties