In 2014, the Washington Post estimated that ivory was worth $1,000 a pound. (The Horn and Ivory Trade, The Washington Post (August 2014), available at https://www.washingtonpost.com/apps/g/page/national/the-horn-and-ivory-trade/1163/). Ivory has long been valued for its aesthetic qualities including color and texture. However, humans have considered ivory a desirable substance for millennia, not only for its beauty, but for its durability, malleability, and absence of splintering. (What is it About an Elephant’s Tusks that Make Them so Valuable?, The Atlantic, (September 2012), available at http://www.theatlantic.com/business/archive/2012/09/what-is-it-about-an-elephants-tusks-that-make-them-so-valuable/262021/).
Ivory comes from elephant tusks. Tusks are teeth—upper incisors that continue to grow throughout the elephant’s lifetime. In order to remove the tusks, poachers necessarily kill the elephant in the process. Because up to one-third of the tusk is contained inside the elephant’s cranial cavity, poachers generally mutilate the animal to remove as much ivory as possible. (An Elephant’s Tears, The African Wildlife Foundation (February 2010), available at http://www.awf.org/blog/elephants-tears). As a result of the high demand for ivory, elephants have been the targets of illegal hunting. The poaching industry has grown along with ivory demand, and elephant populations have dropped significantly as a result.
This paper will examine the global ivory trade and its effect of elephant populations. It begins with a historical discussion of ivory demand as well as the relationship between elephants and ivory. The paper then looks at poaching rates over time and the poaching industry generally. Next, the paper considers two competing approaches to elephant conservation and catalogues how they have informed CITES decisions regarding elephants beginning in 1975. In addition, it discusses relevant laws in ivory-producing nations and consuming nations. Finally, the paper examines U.S. laws regarding elephants and ivory, as well as legal challenges to those policies.
II. Elephants and Ivory
The relationship between elephants and ivory lies at the heart of the current conservation crisis. Today, certain populations are targeted due to economic demand for their tusks.
A. African vs. Asian Elephants
Though both African elephants and Asian elephants produce ivory, African ivory is preferred over Asian ivory due in part to the fact that African elephant tusks are larger. Asian ivory is also thought to be more brittle and prone to yellowing with time. (The Difference Between African and Asian Ivory, The Ivory Education Institute (June 2014), available at http://www.ivoryeducationinstitute.org/the-difference-between-african-and-asian-ivory/). Because of these discrepancies, Asian ivory is sometimes used for lower quality items and trinkets; however, the vast majority of high-quality carved pieces use ivory that originated in Africa. Even within Africa, tusks from certain areas are considered more valuable than others. (2014). In addition, while all African elephants grow tusks, only male Asian elephants produce true tusks (though some female Asian elephants grow short tusks, called “tushes”). (Ivory Tusks: A Blessing and a Curse, Ele Aid (no date), available at http://www.eleaid.com/elephant-information/elephant-tusks/). These biological differences, along with the ease of access, put African elephants at a higher risk of ivory poaching than their Asian counterparts. (Elephant Poaching, Ele Aid (no date), available at http://www.eleaid.com/elephant-conservation/elephant-poaching/).
B. Demand for Ivory
It is estimated that as much as 70% of ivory is imported to China. (Atlantic, 2012). The material is especially prized there and has become a status symbol for China’s emerging middle class. (2012). Most often, it is used to create statues, ornaments, and jewelry. (Why is Ivory so Popular in China, BBC (October 2015), available at http://www.bbc.co.uk/newsround/34571732). Ivory products are popular gifts in China and other Asian countries where they are thought to confer status on the receiver as well as the gift-giver. (Who Buys Ivory? You’d Be Surprised, National Geographic (August 2015), available at http://news.nationalgeographic.com/2015/08/150812-elephant-ivory-demand-wildlife-trafficking-china-world/). As a result, ivory gifts are often used in business transactions. Less frequently, elephant ivory is used in traditional Chinese medicine. (BBC, 2015). Often ivory is considered a symbol of luck. China is not the only consumer of ivory however. The United States, Thailand, Vietnam, Japan, and the Philippines also support large markets. (National Geographic, 2015).
C. Current Populations
It is estimated that there are currently 400,000- 470,000 African elephants. (Threats to African Elephants, World Wildlife Fund (no date), available at http://wwf.panda.org/what_we_do/endangered_species/elephants/african_elephants/). Earlier in the 20th Century, there were thought to be as many 3-10 million. This reflects a decline of somewhere between 84-96% in roughly 100 years time. African elephants face threats of poaching, fueled by demand for ivory. In addition, their habitat has become increasingly fragmented as human development in the region expands and more land is converted to agriculture. (African Elephants, World Wildlife Fund (no date), available at http://wwf.panda.org/what_we_do/endangered_species/elephants/african_elephants/).
III. Historical Trends
Though ivory poaching took place throughout the 20th Century, the scale and breadth of the activity changed markedly in the 1970’s and 80’s. (World Wildlife Fund, no date). Part of this uptick was due to the proliferation of assault rifles left over from Africa’s post-colonial bush wars. Earlier generations of ivory hunters had relied on spears or less efficient guns. (The Race to Stop Africa’s Elephant Poachers, Smithsonian (July 2014), available at http://www.smithsonianmag.com/science-nature/race-stop-africas-elephant-poachers-180951853/?no-ist). During this time period, an estimated 100,000 elephants were poached on a yearly basis and herds were thinned by nearly 80% in many regions. (World Wildlife Fund, no date).
An international ivory ban implemented in 1989 served to stem poaching levels temporarily. However, in 2008, China successfully lobbied the Convention on International Trade in Endangered Species, the United Nations body that governs wildlife trade, to authorize a one-time sale. As part of this agreement, 62 tons of ivory was sold to China from African stockpiles. (Smithsonian, 2014). Analysis shows that poaching levels began increasing steadily in the 2000’s, but jumped dramatically in 2009. (Status of African Elephant Populations and Levels of Illegal Killing and the Illegal Ivory Trade, CITES, (December 2013), available at https://cmsdata.iucn.org/downloads/african_elephant_summit_background_document_2013_en.pdf). Many experts blame this sale for the surge in poaching that followed, arguing that the transfer opened the door for an illegal ivory market, as distinguishing legal ivory from illegal ivory is next to impossible. (Smithsonian, 2014).
More than 100,000 elephants were illegally poached from 2010 through 2012. (100,000 Elephants Killed by Poachers in Just Three Years, Landmark Analysis Finds, National Geographic (August 2014), available at http://news.nationalgeographic.com/news/2014/08/140818-elephants-africa-poaching-cites-census/). Though the trend seems to have leveled off since its peak in 2011, it has done so at an unsustainable rate. In 2012, for example, the poaching rate was 7.4%, which exceeds the natural growth rate of elephant populations (generally less than 5%). (CITES, 2013). Any species for which such a trend holds will inevitably be subject to extinction.
In Central Africa, elephant populations have fallen by roughly 60% in the last ten years largely as a result of demand for tusks. (The Washington Post, 2014). Estimates suggest that trade in elephant ivory has doubled since 2007 and tripled since 1998. (Can There Ever be a Legal Ivory Trade?, Conservation Magazine, (January 2015), available at http://conservationmagazine.org/2015/01/can-there-ever-be-a-legal-ivory-trade/). Advocacy groups frequently report that, on average, an elephant is poached for ivory every 15 minutes. (Elephant Slaughter Escalates as Illegal Market Thrives, Animal Welfare Institute (December 2013), available at https://awionline.org/awi-quarterly/2013-winter/elephant-slaughter-escalates-illegal-ivory-market-thrives). There is concern that some buyers are acting as speculators, creating large stockpiles of ivory in anticipation of higher prices brought on by extinction. (Conservation Magazine, 2015).
IV. The Ivory Trade
Generally, tusks are harvested by bush poachers in Africa and then moved as raw material by middlemen to seaports. (Illegal Trade in Ivory and Rhino Horn, TRAFFIC (2014), available at https://www.usaid.gov/sites/default/files/documents/1865/W-TRAPS-Elephant-Rhino-report.pdf). From there, the tusks are shipped either to the Middle East, China, or South Asia for processing. (Tangled Routes of Global Elephant Ivory Trafficking, Environmental Investigation Agency (May 2016), available at https://eia-international.org/tangled-routes-global-elephant-ivory-trafficking). The finished carvings are then sold in China or elsewhere. (TRAFFIC, 2014).
Poaching has become ever more sophisticated in recent years. Poachers are often armed with military-grade weapons, and some raids are conducted by helicopter. (UN Secretary-General’s Report of Central Africa Links Illegal Ivory trade to the Lord’s Resistance Army, CITES, (May 2013), available at https://cites.org/eng/news/pr/2013/20130523_un_lra.php).
In addition to elephant fatalities, the ivory trade is responsible for many human deaths as well. These include primarily the poachers themselves and the wildlife rangers who are tasked with protecting elephants. (For Rangers on the Front Lines of Anti-Poaching Wars, Daily Trauma, National Geographic (June 2014), available at http://news.nationalgeographic.com/news/2014/06/140627-congo-virunga-wildlife-rangers-elephants-rhinos-poaching/). However, civilian deaths occur as well. Estimates suggest that roughly two wildlife rangers are killed in the line of duty per week by ivory poachers. (2014). Virunga National Park in the DRC has reportedly lost 150 rangers in the last 10 years alone. A U.N. report concluded that, “Wildlife rangers who are serving in the front-line are often, quite literally, being outgunned.” (CITES, 2013).
B. Connections with Organized Crime and Terrorism
INTERPOL reports that organized crime syndicates and terrorist groups are among the beneficiaries of the illegal ivory trade. (Animal Welfare Institute, 2013). U.S. officials have cited “credible reports” linking the Lord’s Resistance Army to poaching and trafficking in illegal ivory. (CITES, 2013). Other groups such as the Janjaweed and Al Shabaab are also thought to be profiting from contraband ivory trade. (Animal Welfare Institute, 2013; Break the Link Between Terrorism Funding and Poaching, The Washington Post, (January 2014), available at https://www.washingtonpost.com/opinions/break-the-link-between-terrorism-funding-and-poaching/2014/01/31/6c03780e-83b5-11e3-bbe5-6a2a3141e3a9_story.html). Reports suggest that profits from ivory sales have been funneled into the illegal arms trade. (A Nat Geo Journalist’s Remarkable and Ingenious Quest to Track Down Ivory Smugglers, The Washington Post (August, 2015), available at https://www.washingtonpost.com/news/morning-mix/wp/2015/08/17/a-nat-geo-journalists-remarkable-and-ingenious-quest-to-track-down-ivory-smugglers/). Often, military or paramilitary groups will poach elephants from neighboring countries. (CITES, 2013). In addition, corrupt government officials are also able to profit from trafficking. In 2013, U.N. Secretary-General Ban Ki-moon presented a report reiterating concern about ivory being used to fund organized crime and terrorism activities. The report found that the illegal trade in ivory was destabilizing the region politically and economically, while at the same time undermining national security. (CITES, 2013). Anti-poaching and anti-ivory measures have gained political traction in recent years due in part to this perceived nexus between poaching and other types of organized crime. (The Washington Post, 2014).
C. Contributing Causes
Poverty has historically been considered a driving force behind poaching in Africa. In many areas where elephants are present, few economic opportunities exist and poaching may prove extremely lucrative. (Nine Key Questions About Ivory, The Nature Conservancy (no date), available at http://www.nature.org/ourinitiatives/regions/africa/explore/nine-key-questions-about-ivory.xml). However, in recent years poaching has become more organized, international, and militarized. Still, poverty plays a contributing role in creating an environment where these sorts of criminal operations may thrive. Political corruption and a lack of police power also enable poachers throughout many parts of Africa.
Human elephant conflict may also inform perceptions about the poaching of elephants throughout the region. Elephants sometimes cause damage to human developments and agriculture. In addition, some, especially bull elephants, also pose safety threats to human inhabitants. Where a human is killed by an elephant, elephants are sometimes killed in retaliation. (World Wildlife Fund, no date). Each of these factors may contribute to how poaching is viewed within the communities where it takes places.
V. Conservation Approaches
Two competing theories offer different solutions to the conservation questions posed by elephant ivory. Experts and nations are divided as to how to best protect populations and provide for the future of the species. Some advocate a “pure protectionist” approach. This conservation strategy seeks to insulate elephants from risk by preventing hunting and outlawing the sale and trade of ivory altogether. (The Misguided Ivory Ban and the Reality of Living with Elephants, The Washington Post (June 1997), available at https://www.washingtonpost.com/archive/opinions/1997/06/08/the-misguided-ivory-ban-and-the-reality-of-living-with-elephants/67f64e8a-3a58-46df-a902-a323e03ec6d0/). Others advocate a “sustained use” approach whereby a healthy population of animals is maintained so that they may be hunted or cultivated for profit. (1997).
Sustained use advocates argue that unless elephants provide economic revenue governments and private citizens will have little incentive to protect them. (The Law Never Forgets: An Analysis of the Elephant Poaching Crisis, Failed Policies, and Potential Solutions, Wisconsin International Law Journal (1990), available at http://hosted.law.wisc.edu/wordpress/wilj/files/2015/03/Hutchens_final.pdf) Pure protectionists, however, suggest that commodifying endangered species is inherently problematic from a conservation standpoint. Under this theory, allowing the sale of any ivory—whether legally or illegally obtained—will create a market that undermines the survival of the species. Instead, pure protectionist support only non-consumptive uses such as eco-tourism. (1990). Many conservationists have argued that a sustainable controlled trade in ivory is impossible due to corruption in the region and the difficulties of distinguishing legal from illegal ivory. (Can Elephants Survive a Legal Ivory Trade? Debate is Shifting Against It, National Geographic (August 2014), available at http://news.nationalgeographic.com/news/2014/08/140829-elephants-trophy-hunting-poaching-ivory-ban-cities/). Both sustainable use and pure protectionist approaches have been applied at various times in recent decades. Some groups, such as the World Wildlife Fund, supported sustainable-use sales in the past, but have shifted their position based on the uptick in poaching that followed ivory sales. (2014). The question of which conservation approach to employ has been at the heart of much of the international debate surrounding elephants.
VI. International Laws
Conservationists have long recognized the importance of international cooperation to reduce elephant poaching. Elephants themselves often travel across national boundaries. As a result, conversation practices in one region may implicate elephant populations elsewhere on the continent. In addition, ivory trade is a global enterprise. Poaching and trafficking of ivory increasingly rely on international criminal networks. After been harvested, ivory travels throughout Africa and is shipped for processing and sale throughout the rest of the world. International laws and law enforcement are central to elephant conservation. The foremost international agreement governing elephant populations is CITES.
The Convention on International Trade in Endangered Species of Wild Flora and Fauna (“CITES”) was created by treaty to regulate trade of at-risk species. (Elephant Ivory Trade-Related Timeline with Relevance to the United States, Humane Society International (2013), available at http://www.hsi.org/assets/pdfs/Elephant_Related_Trade_Timeline.pdf). CITES offers three levels of regulation with Appendix I being the strongest and Appendix III being the most lax, though many species are not listed at all. In 1975, Asian elephants were listed under Appendix I, the most restrictive listing which bans all international trade in Asian elephant ivory. (2013).
In 1976, the African elephant was listed in Appendix III. (CITES & Elephants, U.S. Fish and Wildlife Service (November 2013), available at https://www.fws.gov/le/pdf/CITES-and-Elephant-Conservation.pdf). (Species can be unilaterally listed by nations without a committee vote under Appendix III, which requires only that an export permit be obtained from the Management Authority of the country of origin. (Understanding CITES, U.S. Fish and Wildlife Service (April 2014), available at https://www.fws.gov/international/pdf/factsheet-cites-appendix-iii-2014.pdf).) The following year, in 1977, African elephants were moved up to Appendix II. (Humane Society International, 2013). Under the Appendix II listing, a quota system was implemented under the supervision of the CITES secretariat in order to regulate the amount of ivory that could be exported by member countries. (Wisconsin International Law Journal, 1990).
However, this system proved problematic, in part, because of corruption within the government organizations tasked with enforcing these policies. In addition, because legal and illegal ivory are indistinguishable, the system allowed for an illegal market to coexist with the legal one. Beginning in 1988, the United States along with Kenya and West Germany implemented unilateral bans on the export and import of African ivory and pressured CITES to do the same. (Wisconsin International Law Journal, 1990). Following a population decline of nearly 50% in the 1980’s, Kenya proposed reclassifying African elephants under Appendix I at the 1989 CITES meeting. (African Elephants, U.S. Fish and Wildlife Service (no date), available at https://www.fws.gov/international/animals/african-elephants.html; Wisconsin International Law Journal, 1990). In order to do so, Kenya had to make a showing that African elephants satisfied the Berne Criteria, requiring that “the species [be] currently threatened with extinction.” Several source nations opposed the increased protections including South Africa, Botswana, and Zimbabwe. (Wisconsin International Law Journal, 1990).
Ultimately, the resolution passed, and African Elephants were moved to CITES Appendix I in 1990. Though some countries invoked reservations or rejected the trade ban, they later caved to international pressure and abided by CITES guidelines. During this time, poaching decreased as the ban made it more difficult to sell illegal ivory; however, it also left many African nations with stockpiles of ivory that they were unable to sell. (Wisconsin International Law Journal, 1990).
After the 1989 ban, the market price of ivory dropped significantly, and elephant populations began to recover in many parts of Africa. (Wisconsin International Law Journal, 1990). In part because of this progress, Zimbabwe, Namibia, and Botswana successfully lobbied CITES to move their elephant populations from Appendix I to Appendix II. Later, in 1997, specific elephant populations from these countries that seemed stable were moved back to Appendix II. (Fish and Wildlife, no date). (See 50 CFR §23 for U.S. regulations regarding the implementation of CITES.) The Appendix II listing came with a caveat that did not allow for regular commercial trade, but instead provided for authorized sales. (Humane Society International, 2013).
Zimbabwe, Namibia, and Botswana’s proposal for a one-time sale of 49 tons of ivory to Japan was also approved in 1999. A year later, South Africa lobbied to have their population transferred to a similar status under Appendix II. In 2008, CITES authorized another one-time sale of 102 tons of ivory to be exported to Japan and China, on the condition that no new proposals for sale be made for at least nine years. (Humane Society International, 2013). Many conservationists maintain that this sale reinvigorated the waning ivory market and ivory carving industry. The years that followed were marked by the highest rates of poaching in recent memory. An estimated 100,000 elephants were killed between 2011 and 2013. (African Nations Square Up for Battle over Future of Ivory Trade Ban, The Conservation (August 2016), available at http://theconversation.com/african-countries-square-up-for-battle-over-future-of-ivory-trade-ban-63538). In the fall of 2016, CITES will convene again in South Africa offering what promises to be a rematch of the fight to ban trade waged 27 years ago. (Southern African Countries are Trying—Again—to Legalize Elephant Ivory Sales, National Geographic (August 2016), available at http://news.nationalgeographic.com/2016/08/wildlife-Namibia-Zimbabwe-ivory-trade-elephants-cites/). Namibia and Zimbabwe will introduce proposals to revive the global ivory trade and downgrade the listing of African elephants, while Kenya will lead the effort to renew the trade ban and protections under Appendix I. Rowan Martin, the Zibabwean representative, has indicated that unless a legal framework for selling ivory is agreed upon, Zimbabwe will not abide by CITES restrictions.
B. Other International Agreements
In addition to CITES, other agreements have been forged in attempt to combat elephant poaching. Though most nations enthusiastically support the cause, these diplomatic agreements are, by and large, not backed by treaty and have little enforcement power.
IUCN Urgent Measures (2013)
In 2013, countries in range nations along with representatives from transit and consumer nations met in Botswana to agree upon emergency measures to stem the illegal ivory trade. The summit, hosted by the International Union for Conservation of Nature, included leaders from Gabon, Kenya, Niger, Zambia, Vietnam, Malaysia, China, Thailand, and the Philippines. Signatories agreed to classify wildlife trafficking as a “serious crime,” increase punitive sentences, and provide each other legal assistance in prosecuting wildlife criminals. (Urgent Measures, Elephant African Summit (December 2013), available at https://cmsdata.iucn.org/downloads/african_elephant_summit_final_urgent_measures_3_dec_2013.pdf). However, the IUCN does not have an enforcement mechanism and the terms of this agreement are thus nonbinding.
The London Declaration 2014
Prince William has been an outspoken advocate of elephant conservation and has taken diplomatic steps advocate measures that curb demand in consumer nations. In 2014, representatives from 46 nations came together in London to affirm new commitments to combat the global wildlife trafficking. Each pledged to renounce products made from animals threatened with extinction and work to eliminate domestic trade in these entities through strengthening enforcement. Still, the London Declaration has no binding enforcement mechanism, and some have voiced concern that these sorts of diplomatic measures may not have the tangible impact desired. (A Landmark International Agreement to Halt Wildlife Trafficking is Just the Beginning, Time (February 2014), available at http://science.time.com/2014/02/14/a-landmark-international-agreement-to-halt-wildlife-trafficking-is-just-the-beginning/).
VII. Demand-side Approaches and the European Union
Because of the political instability and lack of resources common to many source countries, a large amount of the conservation effort has focused on reducing demand for ivory in consumer nations. This movement has taken many forms including regulatory action, as well as public awareness and education campaigns. While some countries have taken broad strides in reducing demand for ivory, others have been less forthright.
The European Union has drawn increasing criticism for its refusal to follow the lead of other nations in attempts to shut down the legal ivory trade in light of risks that it may be used to conceal a black market for ivory. The European Union is the largest exporter of legal, Pre-CITES ivory. Because many European countries previously held colonies in Africa, there is a significant amount of legal ivory held within the EU, some of which is now being exported to Hong Kong and China (an estimated 92% of European ivory exports). (In Fighting Illegal Ivory, EU Lags Behind, National Geographic (June 2016), available at http://news.nationalgeographic.com/2016/06/ivory-trafficking-european-union-china-hong-kong-elephants-poaching/). Despite contentions by the EU’s Commission for the Environment, Maritime Affairs, and Fisheries that legal ivory exports are not contributing to the poaching crisis, a 2014 EU report as well as CITES data indicate that there have been cases of fraudulent EU documents in circulation and that the total amount of ivory imported to China, ostensibly from the EU exceeds the number of authentic EU permits that were granted. Many conservation groups argue that the EU documents are easily and often forged, allowing illegal ivory to enter Asian markets. In addition, because CITES affects only imports and exports rather than domestic trade, ivory may travel more freely between EU nations.
There is disagreement within the EU as to whether ivory export certificates should be issued. The Czech Republic, France, Germany, the Netherlands, Slovakia, Sweden and the United Kingdom have stopped issuing permits and called on Belgium and other EU nations to do the same. (National Geographic, 2016).
Currently, the EU has banned domestic trade in ivory items acquired after the CITES’ ban was implemented in 1990; however, pre-ban ivory may still be traded subject to the laws of individual member countries. (International Ivory Trade Ban-Here to Stay, European Commission (July 2016), available at https://ec.europa.eu/commission/2014-2019/vella/blog/international-ivory-trade-ban-here-stay_en). On July 1st 2016, the EU announced that it will oppose a total global ban on ivory sales at the CITES convention in September. The anti-trade community responded with outrage at the EU’s pronouncement. (EU’s New Stand on Ivory Trade Upsets East Africa Ahead of Key Decision, The Conservation (July, 2016), available at http://theconversation.com/eus-new-stand-on-ivory-trade-upsets-east-africa-ahead-of-key-decision-62236).
VIII. Source Country Laws
In addition to international agreements like CITES, Each African nation that is home to elephants has passed its own domestic laws governing poaching and the ivory trade. These laws assign fines, jail time, or other criminal penalties to poachers or traffickers. Many of these provisions are contained in a larger conservation agreement that includes regulations for many native species. However, the penalties for illegally killing elephants are generally among the steepest, along with rhinoceros. Though each source country has legislated against elephant poaching, they very broadly in terms of the punishments for this crime as well as to what extent the laws are enforced.
Botswana has advocated sustainable use of ivory. Unlike many neighboring countries, elephant populations in Botswana have been relatively stable. As a result, the government has advocated downlisting elephants and authorizing regulated ivory sales. The Wildlife Conservation and National Parks Act of 1992 is the primary piece of legislation governing elephant hunting and trafficking in Botswana. The law sets forth penalties for illegally hunting elephants that are much higher than other similarly situated species. Elephant poaching is punishable by a fine of 50,000 pula (about US $5,000) and a ten-year prison term. The same is true for illegally exporting, importing, transporting or trafficking in elephant parts. (The Wildlife Conservation and National Parks Act of 1972, available at http://www.elaws.gov.bw/wondersbtree.php?m=PRINCIPAL&v=VI&vp=&t=WILDLIFE%20CONSERVATION%20AND%20NATIONAL%20PARKS&st=&pt=38:01#940).
Kenya has historically suffered from high rates of illegal poaching and has been a strong advocate of ending the legal ivory trade. Kenya has banned elephant hunting and ivory trading since 1973, though it continued to lose large proportions of its elephants to poaching in the years that have followed. (Elephants are Declining Rapidly in Africa, The New York Times (September 1975), available at http://www.nytimes.com/1975/09/22/archives/elephants-are-declining-rapidly-in-africa-african-elephants.html?_r=0). The Wildlife Conservation and Management Act of 2013, which was preceded by a 1976 Act of the same name, is the principle piece of legislation that governs poaching and ivory trade within Kenya. (Empty Threat: Does the Law Combat Illegal Wildlife Trade?, DLA Piper (February 2014), available at http://www.dlapiperprobono.com/export/sites/pro-bono/downloads/pdfs/Empty-Threat---Does-the-law-combact-illegal-wildlife-trade---Summary-Report-2014.pdf). Previously, under Kenyan law, poaching or ivory trading carried a minimum sentence of 5 years in prison and $9,000 in fines. (Kenyan Ivory Poacher Sentenced to 20 Years in Prison, Forbes (July 2016), available at http://www.forbes.com/sites/mfonobongnsehe/2016/07/26/ivory-poacher-sentenced-to-20-years-in-prison/#4ae2d73bdb59). However, the updated Act mandates sentences of not less than $232,000 in fines or life imprisonment for trafficking in endangered or threatened animal trophies. Possession of wildlife trophies without a permit is punishable by a mandatory fine of $11,000 and or imprisonment of no less than 5 years. (DLA Piper, 2014). (For the full text of the law, see http://faolex.fao.org/docs/pdf/ken134375.pdf). Kenya has recently taken part in large-scale ivory burns, and been an outspoken proponent of a complete global ban on trade.
Elephants are classified as “Specially Protected Game” under Namibian law. They are governed by the Nature Conservation Ordinance of 1975 (and the 1996 Amendment to that Act), as well as Namibia’s Elephant Management Plan. The Nature Conservation Ordinance forbids illegal hunting of elephants as well as possession of elephant parts without the proper permit. Violations are punished with a fine of up to R 200,000 ($14,282) and/or up to twenty years imprisonment. (Nature Conservation Ordinance 4 of 1975, available at http://www.lac.org.na/laws/annoSWA/ENVIRONMENT%20(1975)%20-%20Nature%20Conservation%20Ordinance%204%20of%201975%20(annotated).pdf). Namibia has been an advocate of trophy hunting as a means of raising funds for conservation and has consistently opposed increased CITES protections for their elephant populations.
D. South Africa
South Africa has long advocated a sustainable use approach to elephant conservation and opposed destruction of ivory stockpiles. The South African government relies on income from trophy hunting and has lobbied CITES to down-list elephant populations. (Amendments to Appendix I and II of the Convention, CITES (1994), available at https://cites.org/sites/default/files/eng/cop/09/prop/E09-Prop-15_Loxodonta.PDF). Under South African law, Sections 42(1)(b) and 46(c) of the Nature and Environmental Conservation Ordinance 19 of 1974 prohibit possession and sale of ivory without proper documentation. (Available at http://www.capenature.co.za/wp-content/uploads/2013/10/Nature-Conservation-Ordinance-19-of-1974.pdf). The Ordinance proscribes punishments of a fine not exceeding one hundred thousand rand ($7,145) or imprisonment for a period not exceeding ten years with the possibility of a fine not more than three times the commercial value of the trafficked elephant parts.
Zambia has consistently advocated for a legal trade in elephant ivory and opposed global trade bans. Zambia continues to lobby CITES to downlist African elephant populations and allow for ivory sales. The Zambia Wildlife Act allows for unlawful elephant hunting to be punishable with a sentence of up to twenty years imprisonment for a first offense, with a five year mandatory minimum sentence. A second offense must be punished with a ten to twenty-five year sentence. In addition, if it is shown that the offense was committed for the purpose of ivory trafficking, the first offense must be punished with at least seven years in jail and not more than twenty. A repeat offense of this kind carries jail time of between fifteen to twenty-five years. Zambia does not allow for the option of a fine in lieu of actual imprisonment. (The Zambia Wildlife Act of 2015, available at http://www.parliament.gov.zm/sites/default/files/documents/acts/The%20%20Zambia%20Wildlife%20Act,%202015.pdf).
Zimbabwe has advocated sustainable use of elephant populations and supports controlled trade in ivory. The Parks and Wildlife Act of 1975 governs Zimbabwean wildlife and delegates authority to the Parks and Wildlife Management Authority to oversee the enforcement of these laws. In 2009, Zimbabwe amended the Act through the passing of Statutory Instrument 92, which increased the penalties for illegal hunting. Under the revised law, elephant poaching is punishable by up to a $20,000 fine. In addition, any person guilty of unlawfully possessing ivory may be also be sentenced to up to twenty years in prison. (Parks and Wildlife Act of 1975, available at http://faolex.fao.org/docs/pdf/zim8942.pdf). See Zimbabwe’s Elephant Management Plan at: http://conservationaction.co.za/resources/reports/zimbabwe-national-elephant-management-plan-2015-2020/).
IX. United States Federal Laws Governing Ivory Trade
The United States has taken significant action to end domestic trade of illegal ivory, and support conservation efforts internationally. President Obama has taken a series of steps to limit ivory trade in the America. Several states have also passed measures to limit trade. Though some ivory proponents have challenged these regulations, their suits have seen little success.
A. History of Ivory Restrictions in U.S.
The African elephant was listed as “Threated” under the Endangered Species Act in 1978. A decade later, the United States Elephant Conservation Act was signed by President Bush in 1988. (Fish and Wildlife Service, no date). The Act outlawed the importation of raw African elephant ivory into the United States absent certain conditions and qualifications. This ban remains in force today. The legislation also created the African Elephant Conservation Fund to provide financial assistance to source countries. (The Endangered Species Handbook, Animal Welfare Institute (2005), available at http://www.endangeredspecieshandbook.org/pdfslive/esh_chapter11.pdf). (For the text of the law, see 16 USCS § 4201-03).
International commercial trading of ivory has been outlawed in the United States since 1989, with the notable exception of “antique” ivory—defined as ivory obtained before the ban was implemented. (Antique Dealers Come Face-to-Face with Ivory Ban, National Geographic (July 2016), available at http://news.nationalgeographic.com/2016/07/elephant-ivory-ban-antiques/). Advocacy groups such as the Humane Society of the United States lamented that this exception proved a critical loophole in the law, allowing significant amounts of post-ban ivory to enter the country under the pretense of being older than it actually was. Reports indicated that ivory labeled as antique continued to enter the United States despite having been taken after the ban.
President Obama issued an executive order in 2013 that focused on combating wildlife trafficking in the United States and lending resources abroad to similar ends. (U.S. Bans Commercial Trade of African Elephant Ivory, The New York Times (June 2016), available at http://www.nytimes.com/2016/06/03/world/africa/elephant-ivory-ban.html?_r=0).
In 2014, the United States made it illegal to import ivory antiques for commercial purposes. However, it did not restrict sales of lawfully imported ivory within the country (http://news.nationalgeographic.com/2016/07/elephant-ivory-ban-antiques/).
Those restrictions were tightened in two years later. On July 6, 2016, the Obama Administration made final a rule described as a “near-total ban” on objects containing African elephant ivory. (What Can I do with my Ivory?, U.S. Fish and Wildlife Service (July 2016), available at https://www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answers.html). While the regulations do not restrict personal possession of ivory, they prohibit sale and trade African ivory with only a few exceptions. Preexisting manufactured items containing fewer than 200 grams of ivory are exempt from the law, as are artifacts over 100 years old when presented along with verification. (Antique Dealers Say New Federal Ivory Ban will Cost Owners Up to $12 Billion, The Washington Post (June 2016), available at https://www.washingtonpost.com/news/energy-environment/wp/2016/06/02/its-final-selling-just-about-any-item-containing-elephant-ivory-is-a-crime-in-the-u-s/). In addition, the rules restrict the number of sport hunted trophies that may be imported each year to two per hunter. (The New York Times, 2016).
Antique dealers have been vocal in opposition to the Administration’s ban. Many argue that the law leaves them with no means of compensation for ivory pieces they currently own, and limited means of getting rid of such items. (National Geographic, 2016). One estimate suggested that the ban will cost ivory owners up to $12 billion dollars in revenue. However, the U.S. Fish and Wildlife Service dismissed this figure as speculative, estimating instead that the economic impact of the ban will be well under $100 million. (The Washington Post, 2016).
Secretary of the Interior, Sally Jewell, has been a strong proponent of increased regulation over the U.S. market and worked to eliminate existing loopholes. The Obama Administration has reiterated the importance of eliminating demand within the U.S. in order to send a message to other consumer nations such as China. Regulatory steps such as the 2016 ban, along with public statements against the commodification of ivory, such as the Time Square ivory crush, have been employed to shut down lingering markets within the U.S. and put pressure on foreign governments to do the same. (The Washington Post, 2016).
B. Federal Laws
Though African Elephants are currently listed as “threatened” under the Endangered Species Act, there is movement underway to upgrade their listing status to “endangered.” The African Elephant Conservation Act was passed as an amendment to the Endangered Species Act in 1988. This legislation affords African Elephants special protections apart from those traditionally provided to threatened species. In addition, the Lacey Act prohibits interstate or foreign commerce in illegally obtained wildlife products including ivory. The Lacey Act carries a felony provision, unlike the ESA, and as a result, is frequently used by Fish and Wildlife Officers investigating ivory trafficking cases. (For more on these cases, see: Eye on Ivory: Investigations and Inspections, U.S. Fish and Wildlife Service (2013), available at https://www.fws.gov/le/pdf/Elephant-Ivory-Investigations.pdf).
In the wake of new restrictions on ivory sales in the U.S., pro-ivory groups have filed lawsuits in California and elsewhere. The California suit alleges that the California State law is preempted by federal law, and that it constitutes a violation of the dormant commerce clause, as well as a taking violation by effectively destroying the market for ivory. This case is currently pending in Los Angeles County. (Complaint for Injunction, Ivory Education Institute v. State of California, (2016) available at http://www.ivoryeducationinstitute.org/wp-content/uploads/COMPLAINT-against-State-of-California.pdf). Other groups have also vowed to challenge the new federal ban on similar grounds.
C. Court Challenges Under Federal Law
Much of the case law regarding ivory trafficking in the United States is case and fact specific. These cases primarily consist of individuals challenging whether the evidence was sufficient to support a conviction for trafficking in their specific case. However, additional legal claims have been brought related to the validity of the laws that prohibit trafficking themselves. These challenges touch on commerce clause issues, as well as preemption. This line of case law generally establishes that federal government has the authority to regulate ivory trade and offer protections to African elephants, though they are a non-native species.
In 1981, a federal court in California heard a case brought by a business that manufactured boots made of exotic animal skins, including African elephant hides. (H.J. Justin & Sons, Inc. v. Brown, 519 F. Supp. 1383 (1981), Judgment Affirmed in Part, Reversed in Part by 702 F.2d 758, 9th Cir.(Cal.), 1983.
The plaintiff, H.J. Justin & Sons, contended that California Penal Code §§635o and 653r, statutes that forbid the sale of products made from the bodies or parts of elephants, were preempted by CITES and the Endangered Species Act of 1973. In addition, the plaintiff argued that the California statutes constituted a Commerce Clause violation, impermissibly burdening interstate commerce. However, the Court found that Congress did not intend to limit that states’ ability to legislate or regulate the importation, exportation, interstate or foreign commerce in non-indigenous species, so long as these do not dip below the floor set forth by federal law. State laws which offer greater protections to certain species, such as the California statutes, are not preempted by CITES or the ESA. Similarly, the Court found that Congress did not find them to present an excessive burden on interstate commerce in deciding that they would remain unaffected by the ESA.
X. State Laws
Prior to the new federal regulations restricting ivory trade, New York, New Jersey, Hawaii, and California had all moved to implement similar bans in the months and years leading up to the decision from the White House. (The Washington Post, 2016). Hawaii and California were known to be trade hubs within the U.S., due in part to their proximity to Asia. New York and New Jersey also have also historically supported a large ivory market and are home to many high-end auction houses and antique retailers that opposed ivory regulations.
Each of these states enacted its law in the legislative sessions prior to the 2016 federal ban. Many more states had ivory trade bills pending at the time of the new federal regulation. A large number of these were rendered moot by the federal restrictions. Others extend beyond the purview of the federal regulations and may continue to be considered during up-coming legislative sessions.
California governor Jerry Brown signed a law tightening the state’s ivory ban in the fall of 2015 (see West's Ann. Cal. Fish & G. Code § 2022). The law, which went into effect July 1st, 2016, limits the sale of almost all ivory products with the exception of documented heirlooms that contain only small amounts of ivory. (New California Law Bans Selling Most Ivory Products, Capital Public Radio (July 2016), available at http://www.capradio.org/articles/2016/07/05/new-california-law-bans-selling-any-ivory-product/). In addition, the California law includes ivory from other animals that may be used as pretense to conceal elephant ivory. These species include: walrus, mammoths, hippopotami, warthogs, and whales. California is currently facing a lawsuit brought by collectors and dealers who argue that because the state is not home to wild elephants, it should not have the authority to take such broach steps to protect them from poaching. (The Washington Post, 2016).
In June of 2016, Hawaii passed a statewide ban on ivory transactions, allowing only a few exceptions for transfers to heirs, educational and scientific purposes, traditional cultural practices, and antiques containing only trace amounts of the material. (HI Gov. Makes it Official: Top 3 U.S. Ivory Markets Banned, NRDC (June 2016), available at https://www.nrdc.org/experts/elly-pepper/hi-gov-makes-it-official-top-3-us-ivory-markets-banned). Prior to the ban, Hawaii had a robust online ivory market, and there was concern that many of the products sold in Hawaii were being moved into Asian markets. Hawaii’s ban prohibits not only ivory from other species such as walruses, whales, and mammoths but other wildlife products made from the hides of seals, sharks, lions, hippopotami, jaguars, tigers, leopards, great apes, whales, walruses, monk seals and cheetahs (H R S § 183D-<Official classification pending>).
C. New York
The bill, signed by Governor Cuomo in 2014, expands the scope of trade bans to include mammoth ivory, elephant ivory, and rhinoceroses horn, exempting only artifacts more than 100 years old or those that contain only trace amounts of ivory. (Governor Cuomo Signs New Law to Combat Illegal Ivory Trade and Protect Endangered Species, New York State Pressroom (August 2014), available at https://www.governor.ny.gov/news/governor-cuomo-signs-new-law-combat-illegal-ivory-trade-and-protect-endangered-species). In addition, the New York ban strengthened civil and criminal sanctions for buyers and sellers of illegal ivory (McKinney's E. C. L. § 11-0535-a).
D. New Jersey
When Governor Chistie signed the legislation in 2014, New Jersey became the first state to ban trade of all ivory or rhino horn products. (Christie Signs Ban on Ivory Sales, Purchases, NewJersey.com (August 2014), available at http://www.northjersey.com/news/christie-signs-ban-on-ivory-sales-purchases-1.1062584). The ban prohibits sale of ivory items regardless of their age or size and allows only for transfer of existing items as inherited heirlooms. (NJSA 23:2A-13.3, 13.4).
Elephant conservation is increasingly a part of the American consciousness, and the global consciousness as well. At present, the majority of focus looks towards stemming demand in consumer nations. In the long run, supply side solutions may become more viable only if systemic structural issues of political instability and poverty are addressed.
The future of African elephant populations is tenuous and dependent largely on international demand for ivory. Little has changed in the last twenty years, in that pro-trade nations continue to resist attempts to end legal ivory sales. And black markets continue to thrive. The United States, however, seems to be moving in a singular direction toward increased protections and trade restrictions. It is an open question how effective these steps will be and whether other consumer nations will follow suit.
In America, large steps are being taken to close existing markets for illegal ivory. Though the success of these measures depends on their enforcement, the United States has acted boldly in signaling its willingness to devote resources to this issue and efforts to pressure other consumer nations to do the same. The U.S. has also broadened its approach to combatting ivory trade by employing public-private partnerships with companies willing to work to this same end. Commitments by companies such as eBay to police the sale of ivory through online markets, along with other retailers and related industries, such as airlines, have helped to encourage other companies to extricate themselves from the ivory trade.
Still, globally many challenges remain. The current schizophrenic approach to controlling the ivory market has multifold and obvious flaws. If conservation efforts are to succeed in the future, there must be a greater amount of coordination in terms of both supply and demand side efforts. Still, there are signs of movement in this direction. The progress has been halting at times but uni-directional. However, maintaining international pressure on the issue is essential in order to prevent backsliding.