Ivory Ban Dispute Requires Consensus-Building If Future TOC Task Forces Are To Be Formed

CHL has said that the Presidential Task Force on Wildlife Trafficking should serve as a model for a similar antiquities trafficking initiative. That is because large-scale transnational organized crimes (TOCs) like cultural heritage trafficking require highly coordinated and powerful interdiction. But a recent presidential pronouncement based on the task force's work has ignited a growing firestorm of controversy that could impact the formation of future TOC task forces. Public hearings and consensus-building are urged.

The White House issued the National Strategy for Combating Wildlife Trafficking in February, a publication derived from the work done by the Task Force. The strategy adopts a near universal ban on the commercial sale of elephant ivory objects, including old ivory once legitimately purchased and legally imported. It restricts all commercial exports except for antiques 100+ years old, certain noncommercial objects, and items permitted under the Endangered Species Act (ESA). The ban specifically prohibits commercial imports of African elephant ivory, including antiques. It halts the interstate and intrastate trade of ivory (except antiques) "unless the seller can demonstrate an item was lawfully imported prior to 1990 for African elephants and 1975 for Asian elephants, or under an exemption document." The ban is hoped to to combat what the U.S. Department of the Interior (DOI) says is a global illegal ivory trade that "has more than doubled since 2007." DOI reports, "It is estimated that poachers, working with criminal syndicates, systematically killed as many as 35,000 elephants in 2012."

But the blanket ban has prompted Forbescontributor Doug Bandow to remark, "The Obama administration is preparing to treat virtually every antique collector, dealer, and auctioneer in America—and anyone else who happens to own a piece of ivory—as a criminal." Others have expressed similar views.

Proponents of the ban entirely disagree, saying that America needs stringent rules because it has the second largest ivory marketplace in the world, a statistic tendered by a comprehensive United Nations Environment Program reportpublished last year titled Elephants in the Dust. President and CEO of the Humane Society of the U.S., Wayne Pacelle, explains the trade volume and makes a case for the ban in his A Humane Nation blog:

But the sad truth is that the U.S. is the second largest ivory marketplace after China, partly because it’s legal to trade in “antique” ivory more than 100 years old, ivory imported to the U.S. before Asian and African elephants received protection under the U.S. Endangered Species Act (1975 and 1990, respectively), or non-elephant ivory such as mammoth ivory. Traffickers claim that ivory from recently poached elephants is antique, and they dye it to make it look old and forge documents to substantiate their claim... The truth is that there is no way for enforcement officers or the public to distinguish old from new ivory, or which species worked ivory comes from. It all adds up to a robust legal and illegal trade of ivory in the U.S.

Besides the blanket ban, the White House's National Strategy offers universally appealing steps to strengthen law enforcement and to increase cooperation among individuals, organizations, and governments to suppress elephant poaching and ivory trafficking. It is only blanket ban on the trade of pre-existing elephant ivory objects that prompts the controversy and the need for public discussion.

Personal property issues likely to arise as a result of the moratorium on pre-existing elephant ivory goods include potential problems for individuals, businesses, and museums. A few illustrations:

• A Cold War Army veteran who served in the Horn of Africa and who lawfully brought home ivory vases to the U.S. after purchasing then from a local craftsman may find, upon his death, that the county probate court has denied the executor's ability to auction the items at an estate sale, thereby reducing the anticipated value of the former soldier's estate.

• A family who had their grand piano restored in 1992 with pre-ban ivory keys may be prohibited from selling their $20,000 instrument unless they either can produce decades-old paperwork that likely would have been in the hands of the piano restorer (who may be retired or out of business now that 22 years have passed) or can retrofit the keyboard with plastic keys at a cost (assuming that a piano restorer would want to conduct this business in the wake of the new ban).

• An American museum may be restricted from importing, accessioning, and conserving a properly provenance hand-crafted Byzantine ivory triptych, once used for private religious devotion in the 10th century.

• An American furniture seller of French art deco tables from the 1920’s through 1940’s who stores her inventory in Europe may suffer business losses and breach existing contracts because she cannot ship her stocks to the U.S.

• A divorcing couple and their family court judge may find themselves hamstrung as they attempt to tally marital assets that can no longer be considered “assets” because the couple's original wedding gifts of non-antique pre-ban jewelry, billiard balls, chess pieces, ivory-handled knives, and natsukes now have no resale value.

These and other issues are certain to surface, particularly because the proposed blanket ivory ban differs from what has been expected in past years under the Endangered Species Act (ESA) and the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES).

With regard to African elephant ivory, the existing rules in the U.S. have generally been that:

• It is illegal to own, sell, or export crafted ivory imported into the U.S. after 1989 and which was less than 100 years old when the crafted ivory came across the American border.

• It is illegal to own, sell, or export uncrafted ivory that was imported into the U.S. after 1989. The age of the ivory does not matter.

• It is legal to own, sell, or export crafted or uncrafted ivory that was imported into the U.S. before 1989.

The rules for Asian elephant ivory have been, broadly speaking, that ivory cannot be sold in interstate or international commerce, that permits are required for import or for export, and that sales within the U.S. are allowed unless restricted by CITES or by State law.

It is entirely fair to say that the announced rules changes suddenly sweeps up innocent owners of old ivory in a dragnet, particularly owners of old African ivory items.

Despite the consequences to innocent owners, a rationale for a total ban is given by the nonprofit Environmental Investigation Agency on its web site: Ivory "belong[s] on the animal and nowhere else … Attempting to undercut the black market with a ‘legal’ supply is a naïve and inappropriate strategy for a market that does not have a finite demand and which is ever more stimulated by new supplies."

But the coming weeks are expected to see an increase in opposition to the ban, even from those who traditionally support strong measures to counter TOC. Buoyed by arguments that collective punishment is being exacted on innocent citizens and that there has been no opportunity for a public hearing, ban opponents will rest their core points on the Fifth and Fourteenth Amendments' exhortations that that no person shall be "deprived of ... property without due process of law."

That the blanket ban cuts the chaff of ivory black marketeers by sacrificing the entire wheat field of individual property rights and commercial trade is an argument that will likely be heard. In fact, opponents are sure to spotlight the ban as an overly broad enforcement tactic, contending that the U.S. would never place a sweeping freeze on banking transactions to halt money laundering; would not propose to halt the sale of all medications in order to eliminate the counterfeit prescriptions market; and would not declare a moratorium on the sale of all movies to combat media piracy.

Public figures like Hillary Rodham Clinton and Chelsea Clinton will, nevertheless, continue to endorse the blanket ban. Writing for the Clinton Foundation blog, they explain,

The global ban agreed in 1989 was successful in stemming a previous killing spree. Over time, however, exceptions have eviscerated the international ban and illegal ivory is now routinely bought and sold under one or more loopholes, providing cover for illegal traffickers. These need to be closed and sanctions imposed on countries that continue to trade in ivory products.

Clamping down on poachers and smugglers is critical to preserving our planet's endangered elephants. But the National Strategy for Combating Wildlife Trafficking possesses shortcomings that urgently require public discussion. The current controversy should not be permitted to diminish the need for a national strategy to combat cultural heritage trafficking. The threats of war, looting, smuggling, and vandalism to heritage remain prevalent, requiring a firm and coordinated response. Ensuring that the wildlife strategy is subject to public debate, is properly formulated, and that it has broad public support will build enthusiasm for a future heritage trafficking strategy. If the current National Strategy continues to build controversy without consensus, however, other TOC task force proposals may never get off the ground.

[UPDATE May 23, 2014: Administration officials loosened the ivory ban a little, helping museums.  See here.]

Photo credits: Dimitri C. and Enrico Corno

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com