Banning Imports of Hunting Trophies and Protecting Endangered Wildlife.

• Author: Hernick, Stephen

Introduction

The infamous killing of Cecil the Lion in Zimbabwe in 2015 ignited an international firestorm and debate about the ethics of trophy hunting endangered species. (1) Proponents of the practice argue that it generates funds to support conservation and creates incentives to protect animals. (2) Critics of trophy hunting argue that these supposed benefits are rarely realized, and, regardless of any indirect benefits, hunting endangered animals for sport is morally indefensible and actively harms endangered species. (3) In the wake of Cecil's killing and the heightened attention and backlash that followed, politicians introduced--and in some cases enacted--legislation or regulations to restrict the imports of trophies from certain charismatic species abroad. More than forty airlines--including Delta, United, and American--banned the shipment of hunting trophies of Africa's "Big Five" or, in some cases, all hunting trophies. (4) Those who benefited financially from trophy hunting defended the practice and warned against efforts to restrict trophy hunting. (5)

The debate continues to rage. Former President Donald Trump of all people famously referred to trophy hunting as a "horror show," tweeting in 2017 that he doubted "this horror show in any way helps the conservation of Elephants or any other animal." (6) Since that tweet, the United States has processed zero permit applications to import a hunting trophy from an African elephant. (7) The federal government's apparent rationale for its inaction on these permit applications is that their "limited resources and staff, the higher conservation risk associated with elephant trophy imports compared to many of the other backlogged permit applications, the controversial nature of these actions, and ongoing litigation regarding elephant trophy imports creating uncertainty" had caused the agency "to prioritize the allocation of existing resources to other categories of work." (8) This amounts to a temporary de facto ban on the import of elephant trophies, something that pleases neither those wishing to import the hunting trophies of elephants nor those wishing for the United States to take a clear stance and ban such trophies.

Of course, nations cannot regulate the killing of animals outside of their borders, but they can and do regulate whether they will allow imports of animal parts from abroad. Since the killing of Cecil, a number of nations have enacted laws or regulations restricting the import of hunting trophies from endangered species. Australia was the first nation to ban the import of hunting trophies of lions several months before the killing of Cecil. (9) Within months, France announced that it would no longer allow the import of lion trophies. (10) The Netherlands has banned the import of parts taken from elephants, cheetahs, lions, hippopotami, white rhinoceroses, and polar bears. (11) The United Kingdom is currently considering banning the import of hunting trophies from endangered big game. (12) Nonetheless, critics contend that such import bans are ill-considered and will actually harm conservation. (13)

This article explores whether countries should consider banning the import of hunting trophies from endangered species. First, this article outlines the applicable laws regulating the trade in hunting trophies by examining the major international treaty that protects imperiled wildlife (the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)), and then by looking at the relevant laws and regulations in the United States, by far the largest importer of hunting trophies from abroad. Second, this article explores some of the detrimental effects of trophy hunting. Third, the article explores whether trophy hunting actually benefits endangered species. Finally, the article demonstrates why countries can enact trophy import bans and recommends that nations enact such bans.

The Laws Allowing the Import and Export of Hunting Trophies of

Imperiled Species

1. CITES

   The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is the main international treaty regulating the trade of imperiled animals. 182 nations have agreed to be bound by the terms of CITES and are therefore considered parties to CITES, (14) which demonstrates how widely accepted CITES is throughout the world. CITES regulates trade in imperiled animals by including vulnerable species on one of three appendices, which have varying levels of restrictions on trade. (15)

   Appendix I is the most restrictive of CITES's three appendices, subjecting trade in "all species threatened with extinction ... to particularly strict regulation." (16) Of particular note, CITES requires a scientific authority (17) of the exporting country of any Appendix I specimen to find that the "export will not be detrimental to the survival of the species." (18) CITES also requires that imports of any specimen of an Appendix I species only be allowed if a scientific authority of the importing state determines "that the import will be for purposes which are not detrimental to the survival of the species involved," known as a non-detriment finding (NDF). (19)

   Appendix II includes those species "not necessarily now threatened with extinction [but] may become so" and is less restrictive of trade than Appendix I. (20) While Appendix II still requires a scientific authority of the exporting country to make a non-detriment finding, it does not require any non-detriment finding from the importing country. (21) Appendix III includes species that any party regulates within its borders and is the least trade-restrictive of the Appendices. (22) Appendix III does not require a non-detriment finding from either the exporting or the importing country. (23)

   Non-detriment findings are critical to the CITES framework. At the Eighth CITES Conference, the parties adopted a resolution clarifying that scientific authorities should base non-detriment findings on a species ' population status, distribution, population trend, harvest, other biological and ecological factors, and trade information. (24) The parties further elaborated on the factors that should be considered in making non-detriment findings in a resolution at the Sixteenth Conference of the Parties in 2013. (25) Resolutions are recommendations resulting from deliberations of the parties at the triannual Conferences and are "generally intended to provide longstanding guidance," but are not binding on the parties. (26) This later resolution clarifies that an NDF is a "science-based assessment" that should look at "the sustainability of the overall harvest." (27) In other words, parties should not examine a single export and import in isolation, but should consider all trade in that species to determine whether additional trade is non-detrimental.

   The parties to CITES have consistently adopted the premise that well-managed hunting is beneficial to species conservation. While hunting is not specifically addressed in the text of CITES, the parties often adopt resolutions addressing trophy hunting. At CITES's Second Conference of the Parties in 1979, the parties adopted a resolution to promote the "uniform interpretation of the Convention with regard to hunting trophies." (28) With respect to the import of hunting trophies, this Resolution recommends that the scientific authorities of importing countries "accept" the nondetrimental finding of the exporting country "unless there are scientific or management data to indicate otherwise." (29) However, nothing in the CITES framework obligates a country to adopt the non-detriment finding of another nation.

   A resolution from the Seventeenth Conference of the Parties in South Africa in 2016 illustrates the parties' continued consensus regarding trophy hunting. (30) In this resolution, the parties recognize "that well-managed and sustainable trophy hunting is consistent with and contributed to species conservation, as it provides both livelihood opportunities for rural communities and incentives for habitat conservation, and generates benefits which can be invested for conservation purposes." (31) Notably, the resolution acknowledges "the challenges that some Parties face when making scientifically based non-detriment findings and establishing sustainable quotas for hunting trophies" and the "significant resources" that countries invest in making these findings. (32) The resolution recommends that exporting countries "ensure that trophy hunting is sustainably managed, does not undermine the conservation of target species and, as appropriate, provides benefits to local communities" through such measures as "a robust regulatory framework," "an effective enforcement mechanism with adequate deterrents in the form of penalties," "a monitoring system designed to effectively monitor population trends and status," and "an adaptive management system" that can be adjusted as required. (33) The resolution nudged countries to accept the import of hunting trophies by recommending that importing countries should "consider the contribution of hunting to species conservation and socio-economic benefits, and its role in providing incentives for people to conserve wildlife, when considering stricter domestic measures and making decisions relating to the import of hunting trophies." (34) However, the resolution did not go so far as to recommend or urge that countries refrain from enacting trophy import bans.

   For the parties, CITES sets the floor for their obligations towards imperiled species. But CITES expressly provides that parties are free to enact "stricter domestic measures" to protect vulnerable species. (35) Of course, many nations have done just that, including the United States.

2. An examination of the laws in the United States relating to the imports of trophies.

   The Endangered Species Act (the ESA) was signed into law in 1973 and "represented the most comprehensive...