How the elephant lost his tusks.

AuthorHeimert, Andrew J.
PositionInternational ban on ivory trade

"`When we are hungry, elephants are food. When we are full, elephants are beautiful.'"(1)

The elephant is surely one of the most widely liked animals. Despite this general popularity, the number of African elephants has declined significantly in recent years. This Note explores two alternative strategies that African nations have employed in their attempts to halt the decline of elephant populations. Each strategy is an effort to restrict access to the proverbial "commons." One method, used in Kenya, attempts to maintain elephant populations by ensuring absolute protection from poachers and by banning all trade in elephants. The other approach, used primarily in southern Africa - including Zimbabwe and South Africa - actively manages elephant populations, culling some animals in order to provide sufficient habitat and protection for the remaining ones. The southern African countries share proceeds earned from wildlife with local people, in effect creating a form of property rights in elephants. This Note argues that the current international ban on ivory trade harms the latter kind of program, which has been more effective at protecting elephants.

Poaching and habitat destruction as a result of human encroachment are the two primary threats to the elephant.(2) These twin forces have reduced African elephant(3) populations from an estimated 1,300,000 in 1979 to 609,000 in 1989.(4) This Note assumes that there is, and will continue to be, an economic value for elephants, both from tourism as well as from tusks, hides, and meat. A demand for elephant products creates an economic value for those products,(5) which in turn leads to trade in those products. A substantial amount of illegal animal trade currently exists(6) and is unlikely to dissipate. Therefore, it is unlikely that an international trade ban, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),(7) will stem the flow of such products to parts of the world where demand still exists.(8) The removal of hide and tusks necessitates killing the elephant,(9) but elephants would be killed even without the demand for elephant products. Because elephants are a danger and a nuisance to fan-farmers and families, they are often viewed as pests to be exterminated. These sentiments clearly conflict with the desire for live elephants for tourism, other utilitarian goals, or moral reasons.(10)

In recent years, much of the debate over the elephant has focused on the level of protection international law will extend to the species. The development of international law to protect the elephant, and the structure of CITES in particular, is examined in Part I of this Note. Part II describes the method that Zimbabwe and South Africa have used in attempts to preserve their elephant stocks and contrasts those schemes with the method used in Kenya. The Note then examines the results each country has achieved in recent years and suggests that the southern African active management programs have been more effective.

Numerous scholars have described multitudinous variations on commons problems. Part III applies the theoretical "commons" model to the elephant. This Part analogizes the elephant to marine and other natural resources and uses solutions to standard commons problems to explain the relative efficacy of Zimbabwe's active management policy for elephants. Part IV illustrates that a democratic government better fosters preservation of elephants through electoral incentives than does an undemocratic government. A democratic government is less likely to be corrupt than an undemocratic government, and so is less likely to allow poaching to continue. Despite similarities between South Africa's and Kenya's management programs, because South Africa's government has faced more electoral competition than Kenya's government, South Africa has avoided the adverse effects that corruption has had on Kenya's elephant population.

Part V addresses the results of other bans on trade in wildlife and draws parallels to the ban on trade in elephant products. In particular, the strict limitations on trade in leopard skins illustrate the possibility of a manageable system of limited trade in valuable animal parts. This Part concludes that limited trade in ivory could successfully be reopened, particularly in light of recent ivory identification processes.

  1. The Treatment of the Elephant in International Law

The declining population of numerous species of wildlife in recent decades has drawn much international attention. To address this problem, several nations, including the United States, created CITES.(11) CITES became effective on July 1, 1975, and has since been joined by at least 122 nations.(12) The agreement's general purpose is to save plants and animals that are becoming extinct from overexploitation as a result of international trade.(13)

  1. The Structure of CITES

    CITES divides species into tiers of protection based on the degree to which they are threatened with extinction.(14) A species may be listed in one of three appendices. Appendix I includes "all species threatened with extinction which are or may be affected by trade."(15) Appendix II comprises animals that require regulation in their trade to avoid becoming endangered.(16) When a nation deems a species' survival within its own borders to be in jeopardy, it may enlist international cooperation by placing the species on Appendix III.(17)

    The Convention requires different levels of protection by mandating trade restrictions for species in each of the appendices.(18) In order to trade species listed in Appendix I, both the importing and exporting nations must issue a permit for a specific transaction.(19) The permit signifies that both trading states have determined that the import or export is not "detrimental to the survival of the species involved."(20) The importing country must also determine that the specimen "is not to be used for primarily commercial purposes."(21) Even trade that does not affect the survival of the species is often prohibited. For example, trade of hides from endangered animals that have died of natural causes is unlawful.(22) The overall goal is to subject species listed on Appendix I to "particularly strict regulation"(23) and thereby effectively eliminate trade in those animal products.(24)

    Appendix III provides a lower level of protection than Appendix I, allowing regulated commercial trade in the species listed therein.(25) To import a species, only an export permit from the exporting country's scientific authority is required.(26) Trade in Appendix II species is monitored by parties to CITES in order to ensure that sufficient numbers of a species remain in their habitat, and to decide if an Appendix I listing might be more appropriate. Appendix II permits commercial trade in animals to continue. Species are listed in Appendix I or III through a vote of the signatory parties at one of the biannual conferences required by CITES.(28)

    The CITES treaty allows a country to take a reservation - or effectively to opt out of the listing of a particular species - either upon joining CITES(29) or when there is an amendment to the appendices concerning that species.(30) If a country takes a reservation, the country is exempted from the Convention for that species.(31) A reservation therefore allows a country to trade animal products freely with countries that either are not a party to CITES or have taken a reservation.(32) The initial intent of the reservation process was to protect domestic industries that relied upon the species.(33) The reservation process, however, created a loophole through which products of protected species can be "laundered." Some states with reservations receive the products and process them into final goods that are considered permissible for trade purposes.(34) Because the products must be a "readily recognizable part"(35) of the protected animal, trade in ivory, for example, is no longer prohibited once it has been carved.(36) In sum, use of the reservation process can limit the efficacy of an Appendix I ban.

  2. CITES and the Elephant

    The African elephant was placed on Appendix II in 1977.(37) Subsequent population surveys in the late 1970's and early 1980's revealed the continuing drop in elephant populations.(38) The sustained decline led to the development of the Ivory Export Quota System (IEQS) at the 1985 CITES convention.(39) IEQS required each ivory-exporting state to determine the number of elephant tusks that it could export each year(40) and to mark each tusk with its country of origin and a unique code number.(41) The system created a database that would assist customs agents in determining which countries could legally export ivory within their quota.(42) The primary goal was to ensure that a country accepting ivory for import actually ascertained that a valid export permit had been granted for that ivory.(43)

    The theory of the IEQS was better than its practice. Because each country was permitted unilaterally to determine its quota, a country was not bound by any scientific or international estimates of the sustainable number of elephant culls. The quotas of some countries had no basis in reality. For example, Somalia set its 1986 quota at 17,000 tusks, despite an estimated elephant population of only 6000. Raymond Bonner explains that Somalia was actually planning to export tusks illegally taken in Kenya.(44) It was soon determined that the quota system was not achieving its goal,(45) and the international community recognized that further action was necessary to save the elephant.

    In 1989, the CITES conference banned all trade in ivory by moving the African elephant from Appendix II to Appendix I. Earlier that year, the United States and several European countries unilaterally had imposed sweeping bans on ivory imports,(46) and the African Wildlife Foundation and World Wide Fund for Nature had expressed...

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