LEGAL ISSUES - Christmas 2015

1. BEIJING - The announcement Friday that the United States and China will work together to enact “nearly complete bans” on the import and export of ivory represents the most significant step yet in efforts to shut down an industry that has fueled the illegal hunting of elephants, putting some species at risk.The agreement between U.S. President Barack Obama and China President Xi Jinping means that China, the world’s largest consumer of ivory, is bolstering its promise last May to crack down on its domestic ivory trade—a claim that left many skeptical.
It’s an industry that has been driven largely by China’s booming middle class, in which some people covet ivory as a status symbol. Wildlife conservation groups say that Asia, and China in particular, are the key cogs in an industry that they say has helped to encourage the slaughter of some 30,000 African elephants a year.This is the first time that the presidents of the United States and China have made a specific, shared commitment to protect wildlife, the Humane Society of the United States said in a statement.There is already a near-total ban in the United States on commercial ivory, and new restrictions put in place last year tightened things further. Commercial imports of African elephant ivory, even antiques, were banned, and the restrictions limited the number and types of hunting trophies that could be brought into the country. Individual states, most recently California, have enacted or proposed bills to further restrict ivory sales.
Thursday’s agreement, announced by the White House, is especially significant for China because the Chinese government itself controls—and for years essentially encouraged—the ivory trade in that country.In 1989, the Convention on the International Trade in Endangered Species of Wild Flora and Fauna (CITES), the international body that sets wildlife trade policy, banned the global ivory trade. And when an experiment allowed Japan to buy a 55 tons of ivory legally in 1999, the resulting rise in smuggling caused China to deem the Japan experiment a failure. But just a few years later, China began lobbying to be allowed to do the same—to buy a limited amount of ivory to sell, in a tightly controlled market, domestically. China lobbied hard, and in 2008, CITES granted its request.That year, China legally bought 73 tons of ivory from Africa. About that time, it also built the world’s largest ivory-carving factory and began opening shops to sell ivory. The Chinese government even added ivory carving to its official register of Intangible Cultural Heritage, in an attempt to further legitimize the industry. National Geographic went inside some of China’s carving factories in 2012 and revealed how China’s actions were promoting the legal and illegal ivory trade. Instead of keeping prices for ivory low, the government raised them, making ivory more profitable to poachers. Meanwhile, Beijing’s plan to assign legally carved ivory products photo IDs backfired—the photos are so small that an ID used to identify a legal piece of ivory can easily be attached to an illegal one to legitimize it. The photos are so small that it’s hard to tell whether the piece in the photo is the same one being sold. China’s internal ivory control systems have failed. While 79 percent of Chinese people surveyed by National Geographic Society and GlobeScan said they’d support a total ban on ivory, the survey also found that 36 percent of those surveyed in China wanted to buy ivory and could afford it, while another 20 percent wanted to buy it but couldn’t afford it. (In the United States, 13 percent said they wanted to buy ivory and could afford it, while 22 said they wanted it but couldn’t afford it. The survey also found that a higher percentage of Americans who could afford it had no interest in buying ivory—24 percent, compared with 12 percent in China.)
The illegal ivory trade has been linked to terrorist organizations and organized crime, and this high-level commitment is a sign that wildlife trafficking has been elevated “into the diplomatic discourse among the world’s most important global political leaders,” the Humane Society statement said.
According to the announcement, the United States and China will restrict the import of ivory as hunting trophies, as well as work to restrict the domestic ivory trade. They also said they will expand cooperation in training, information-sharing, public education and law enforcement.
The agreement “should have a profound effect” on elephant poaching, said Peter Knights, the executive director of WildAid, a nonprofit that fights wildlife trafficking. “The fight will carry on, but this is probably the largest single step that could have been taken.”
Knights added that the announcement puts pressure on ivory-loving Hong Kong, where the legal commercial trade often provides cover for those seeking to launder illegal ivory. This story was produced by National Geographic’s Special Investigations Unit, which focuses on wildlife crime and is made possible by a grant from the BAND Foundation. http://news.nationalgeographic.com/2015/09/150925-ivory-elephants-us-china-obama-xi-poaching/

2. SANTA FE The Ivory Ban: ATADA’s Position
Note: ATADA is the Antique Tribal Art Dealers Association was established in 1988 and incorporated in 2001 to set ethical and professional standards for the trade and to provide education for the public.
ATADA is dedicated to the highest standards of dealing and collecting antique tribal art and, as our members are composed of collectors, dealers, and museum staff, ATADA is well positioned, in terms of knowledge and experience, to address the issues surrounding the new Federal ban on Ivory.
In ATADA’s initial estimation, the ivory ban fails on many counts and it will NOT work for the intended purpose. The ivory ban does too little, too late, in order to have any significant impact on African and Asian elephants killed by poachers today. The ivory ban is a piece of “looks good” legislation that does not address the core issue. More importantly for ATADA, it adversely impacts
our law-abiding antique dealers, collectors, and museums, no to mentions others, like musicians, who possess legal antique objects made of, or containing, ivory.
ATADA asserts that judging someone who buys or sells a piece of antique ivory art as “guilty until proven innocent” is the wrong methodology to use and it certainly will not prevent the contemporary killing of elephants.  At present, the emphasis of the ivory ban is to divert media attention and resources from the real problem, thereby providing the false impression that it will stop illegal poaching and save the elephant. Unfortunately, it won’t and the reality exists that extinction of the elephant could occur within the next 10 years if we do nothing to stop this issue at the source. The ivory ban, as it exists in the law now, will not extend the lifetime of the elephant by a single day and, concurrently, it penalizes countless of Americans who have done nothing wrong.
At the core, ATADA agrees with the Cato Institute: Americans should work together to save elephants with policies that actually address the problem and which respect people’s basic constitutional rights and liberties. Reports from Africa indicate that one elephant is being killed every 15 minutes. Only direct and immediate action at the source can prevent the elephant from becoming extinct. What is needed is enforcement of existing anti-poaching laws in the country of origin and preservation of habitat. The United States needs to direct funds and efforts at the problem abroad.
ATADA supports approaching the antique ivory trade with clear reason and guidelines. To quote ATADA attorney/collector Roger Fry, “It is ATADA’s position that the illegal killing of elephants for their ivory needs to be stopped at the source. The current proposal imposing prohibitions on the purchasing and selling of old, legally collected ivory in the USA may give the appearance of doing something to stop the illegal killing of elephants but, realistically, it is doubtful that it will save a single animal. The concept of shifting the burden of proof to the seller is inconsistent with our time tested rule that the state has the burden of proof.”
According to the guidelines, in order for an object made of, or containing, ivory to qualify as antique, the current owner must show that the item meets all of the following criteria:
    It is 100 years or older;
    It is composed in whole or in part of an ESA-listed species;
    It has not been repaired or modified with any such species after December 27, 1973; and
    It is being or was imported through an endangered species “antique port.”
Of particular note for many Native American art collectors is that this ban will NOT affect ivory derived from other species such as walrus, warthog, hippopotamus, mammoth and mastodon. Of course, it is possible to identify elephant ivory from other types of ivory however, as we often emphasize, buyer beware and proceed with caution if you intend to sell or purchase a product made of, or containing, ivory.  When purchasing, be sure to always ask for documentation that shows the species of AND the age of the ivory item you are purchasing. This documentation could include CITES permits or certificates, certified appraisals, documents that detail date and place of manufacture, etc.
To clarify some points about this new Federal Ivory Ban, ATADA defers to the official resource about the regulation as put forth by the U.S. Fish & Wildlife Service.  There are basic vocabulary terms, necessary documentation, and understanding of the history of the bundle of the laws that surround this regulation that we recommend everyone with an interest (either commercial or personal) should familiarize themselves with before proceeding with sales/purchases/transfers of ivory antiques.  We strongly recommend consulting the U.S. Fish & Wildlife Service website found at http://www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answers.html#2
Here are some more helpful links that add to this conversation:
http://www.natlawreview.com/print/article/us-ivory-regulation-qa-craig-hoover-us-fish-wildlife-service
http://www.fws.gov/policy/do210A1.pdf
http://www.cato.org/blog/when-washington-prefers-punish-ivory-owners-save-elephants
http://www.stltoday.com/entertainment/arts-and-theatre/ivory-ban-hurts-musicians-collectors/article_9c690f1f-480d-5f5c-8659-dca5f6d7d71a.html
http://committeeforculturalpolicy.org/new-york-state-bans-ivory-sales
http://www.theguardian.com/commentisfree/2014/feb/13/save-elephants-farm-them-ivory-tusks
http://topics.nytimes.com/top/reference/timestopics/subjects/i/ivory/index.html
http://www.humanesociety.org/news/press_releases/2014/06/ny_leg_passes_ivory_rhino_horn_ban_062014.html