December 2017

Ivory has been used as a natural material for creating art, artistic objects and a myriad useful items from tools to furnishings for thousands of years.

As a result of poaching the plight of the African elephant has reached critical status and a small number of countries have added their own restrictions on domestic and international trade in ivory to those arising from CITES. Wildlife campaigners have called for a total ban on the trade of antique ivory, arguing that it masks the illicit trade in modern poached ivory, although evidence of this is hard to find.

Whilst restrictions are already in force in some of the world’s major markets, such as the United States, the United Kingdom proposes to introduce its own new rules, which will allow for the sale of musical instruments that contain ivory, items of significant historic, artistic or cultural value, and what is called a ‘de minimis’ exception, where objects for which the proportion of ivory does not exceed a certain threshold can continue to be sold without a permit. Sales between museums will also be permitted. The UK government proposes to remove age as a criterion for allowing some sales of ivory, although this could be at odds with existing international commitments or EU rules.

Restrictions and bans vary across other major markets. For example, in June 2016, the US government passed new regulations into law banning all sales except for certain intra- and inter-state transaction, with one or two variations. Inter-state transactions allowed are those between states where the ivory in question is over 100 years old, or qualifies under the US ‘de minimis’ rules (under 50% by volume of the item and weighing less than 200 grammes, provided it forms a fixed or integral part of the item and has been legally imported to the US before 1990). However, New York State imposes no limit on inter-state transactions but they are subject to federal rule (http://www.dec.ny.gov/permits/99792.html). NY State also allows only a maximum of 20% ivory for intra-state transactions. California has a 5% limit for antiques and 20% for musical instruments (http://fitzgibbonlaw.com/understanding-ivory-law/).

Ivory imports qualifying under all the restrictions must also have been removed from the wild before February 26, 1976. However, it is up to those claiming an exemption to prove that the ivory in question is over 100 years old. New Jersey and Washington State have all banned any trade in ivory within their boundaries. 1

Ivory from Asian elephants and marine animals is governed by other US laws, while trade in ivory from extinct species, such as the mammoth, is not regulated because a ban would serve no purpose in saving animals.

Some argue that difficulties with dating ivory means that the rules should dispense with cut-off dates for legal sales, leading to all ivory sales being banned.

Others have noted that where it is difficult to distinguish between ivory from protected species and that of unprotected species, trade in items made of legal ivory will also be blighted.

The apparent mismatch between federal and state law in the US, the failure to explain in practice the measures France will introduce and the concern about the meaning of the Government’s proposals in the UK indicate that public interest is coming second to political expediency. It also seems to be the case that policy is developing at least partially as the result of propaganda and misinformation disseminated via social media rather than by informed debate based on facts. This does not help anyone and risks introducing regulation that is not fit for purpose, which will then have to be changed.

As can be seen from the US and UK measures alone, this is a very detailed and complex issue, and so CINOA argues that, above all, it is important for members to have clarity so that they can apply due diligence accordingly. To ignore this would be to unfairly expose law-abiding professionals to the risk of unwittingly committing criminal offences.

As representatives of the international art and antiques market, we should make it clear that we abhor the poaching of elephants and other wildlife, whether for ivory or other purposes.

However, CINOA believes that the ability to protect wildlife does not depend on a wholesale ban on the commercial trade in antique ivory. Let us not forget that the ivory trade is already heavily restricted, with a complete ban on trade in unworked ivory and tusks. A total ban would also risk encouraging the black market in antique ivory, which only aggravate the problem.

CINOA also believes that it would be a mistake to attempt to solve one problem by creating another. A wholesale ban on the antique ivory trade would constitute a modern form of iconoclasm, consigning a wider knowledge and appreciation of the way our ancestors lived to an oblivion that a limited number of museum exhibits would not mitigate. The policy would eventually render the promotion and display of ivory in any form as socially unacceptable, with even museums coming under pressure to remove exhibits to storage or to dispose of them.

There is no doubt that without a reasonable exchange in artistic and cultural objects that historically were made from or contain ivory and no harm to living wildlife, the ability of mankind to study and understand his own identity and history over the centuries will be severely restricted.  

A total trade ban without suitable compensation would also have serious implications for private property rights, which might well constitute a direct challenge to Protocol 1, Article 1 of the European Convention on Human Rights. 2

Whatever the outcome of political negotiations, CINOA believes it is important to remind everybody of exactly what a total ban would mean for the historic world of art and antiques. To this end CINOA has provided a link to a snapshot guide of the sort of treasures that could no longer be bought and sold, effectively killing off their collecting markets, from portrait miniatures (often painted on ivory) to netsuke, and from medieval carvings to 19th century European works of art.

In summary then, CINOA takes the following view:

• CINOA abhors the poaching of elephants and other wildlife, whether for ivory or other purposes.
• The rules on ivory should be consistent, clear and workable.
• The rules should not expose law-abiding professionals to the risk of unwittingly committing a criminal offence.
• A robust policy for protecting the African elephant in the wild does not depend on a wholesale ban on the trade in genuine antique ivory.
• Poorly considered and drafted legislation risks creating more problems than it solves, including increasing the risk of diverting resources away from the problem.
• The authorities should not replace a viable set of restrictions on trade in antique ivory with a policy of iconoclasm that fails to protect evidence of the historic importance of ivory in human development.
• A total trade ban without suitable compensation would also have serious implications for private property rights, which might well constitute a direct challenge to Protocol 1, Article 1 of the European Convention on Human Rights.
• CINOA should play an important role in reminding the public and lawmakers of the contribution ivory has made over the centuries to the manufacture of art and artefacts, and what the world stands to lose if this is no longer acknowledged.

1 https://www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answers.html

2 https://ukhumanrightsblog.com/incorporated-rights/articles-index/protocol-1-article-1/