A ban on the commercial trade in elephant ivory “except in a very limited number of circumstances” announced by the USA this month promises far-reaching consequences for the antiques trade.
Trade associations on both sides of the Atlantic are pushing for a common-sense solution but the United States said on February 11 that it will no longer permit commercial imports of African ivory of any age, while domestic and export trade will be limited to antiques defined as objects more than 100 years old.
Wildlife advocates welcomed the new strategy (in the same week it was
reported the Duke of Cambridge wants all ivory works of art in the royal collection to be destroyed as part of a 'zero tolerance' policy towards illegal poaching). However, leading figures in the British and American antiques trade voiced their concern at a blanket law they doubt will do much to address the plight of the African elephant.
Federal action on ivory has been in the pipeline for some time.
American rules governing international and domestic trade in elephant ivory were notoriously complex and differed from state to state in both the letter of the law and the degree of enforcement. The New York State Assembly has recently raised the possibility of a state-wide ban on the trade akin to that already operating in California.
Under the new rules announced by the Obama administration as part of the National Strategy for Combating Wildlife Trafficking, all 'commercial imports' of African elephant ivory, including antiques, will be prohibited. "This ban is the best way to help ensure that US markets do not contribute to the further decline of African elephants in the wild," said a White House statement. Commercial and noncommercial imports of antiques made from Asian elephant ivory will be allowed "provided the importer can prove the identification of the species."
From the UK, CITES specialist Kim McDonald has sought clarification from the US Fish and Wildlife Service regarding the precise legal meaning of the term 'commercial imports'. They reported back with the following definition: "Commercial means related to the offering for sale or resale, purchase, trade, barter, or the actual or intended transfer in the pursuit of gain or profit, of any item of wildlife."
To determine if a transaction is commercial, the Service looks at the intent of the import rather than the nature of the foreign export.
What this will likely mean in practice, says Mr McDonald, is that - in common with the legislation in California - museums can add ivory works of art to their holdings and private individuals can collect. But US dealers, who previously bought ivory works of art from overseas with the intention of reselling them in America, can no longer do so.
Promising to raise a few eyebrows, the new law does permit American big game hunters to bring up to two dead African elephants with tusks into the US a year (previously there was no cap).
Commercial trade in ivory on American soil (both domestic trade and exports overseas) will now be primarily limited to "bona fide antiques". In an effort to address previous shortcomings, the US government will now revoke a previous Fish and Wildlife Service special rule that had relaxed Endangered Species Act restrictions on African elephant ivory trade and has sought to clarify what the word 'antique' means.
Endangered Species Act
Under the previous system, most ivory could be traded in the US if it was deemed to have been worked before 1976 - a definition at odds with the 1947 cut-off date adopted by EU CITES regulations.
Now, the White House said in a statement, "to qualify as an antique, an item must be more than 100 years old and meet other requirements under the Endangered Species Act. The onus will now fall on the importer, exporter, or seller to demonstrate that an item meets these criteria".
A 100-year-rule would create uncertainty around the trade in the many deluxe Art Deco pieces produced in the 1920s and '30s that have traditionally appealed to the US market and are an important part of the New York auction scene. Under the ban, it would be legal to own items made from ivory within the past 100 years and gift these to relatives - but it would not be legal to sell them or to send them for sale in other countries.
Inter-state trade in antiques will be permitted but again the biggest change will be that law enforcement will no longer have to prove that ivory it seized was illicitly acquired. A Task Force of Wildlife Trafficking have been asked to finalise a proposal that will mean owners will have the burden of proof to show an item was lawfully imported prior to 1990 for African elephants and 1975 for Asian elephants. They will need to produce export permits from the country of origin and an import permit - documentation owners and shippers may no longer possess.
Much of the responsibility for enforcing the new measures will be shouldered by the Fish and Wildlife Service, the Justice Department and the State Department. They say they will begin to implement some measures immediately, others in the coming months, but as yet no enforcement guidance has been provided to officers.
The White House said they "hope other countries will join us in taking ambitious action to combat wildlife trafficking" in the wake of the London Conference on the Illegal Wildlife Trade on February 13.