This past Thursday, June 2, the United States Fish and Wildlife Service announced a near-total ban on the commercial trade of African elephant ivory. More than 1.3 million comments were filed during the public comment period for this proposal — the second highest number of comments received in the USFWS’s history. Wildlife organizations flooded social media with cheers and praise for this long-sought strengthening of our laws governing the trade of ivory. Everyone who helped make this a reality should participate in the celebration.
Now for a reality check: what does it really mean and what impact will it have on elephant poaching? This is not a ban on the importation of ivory — that has been the law for decades. Rather, this new rule will govern how ivory can be traded in commercial and non-commercial situations in the United States across state lines. The FAQ accompanying the news release states the following:
There will be no practical impact on the commercial import of African elephant ivory given the import prohibitions already in place under the African Elephant Conservation Act moratorium. Similarly, restrictions on intrastate commerce will remain unchanged under the final rule, since the ESA does not apply to sales within a state. However, CITES “use-after-import” provisions (in 50 CFR 23.55) continue to apply to sales within a state. In addition, certain states have enacted additional restrictions on the trade of ivory within a state. There is nothing in the ESA, this proposed rule, the AfECA, or our CITES regulations that prohibits the possession, donation or noncommercial interstate movement of listed species, including their parts or products, provided they were lawfully acquired. This will not change under the final rule.
So what is different? Like many laws, the devil is in the detail and the final ruling, which goes into effect on July 6, 2016, will go into great detail about what existing ivory items can be traded, under what circumstances, and types of proof required to demonstrate that this is “old” ivory. The interests that objected to the proposed ruling — museums, gun owners, musicians, etc. — were successful in having exemptions made for their pet ivory items; e.g., antiques, collectibles, musical instruments made with ivory, guns with ivory trim and big game trophies. They collectively argued that their type of ivory has not and is not driving the poaching crisis. Most ivory objects that are affected by the new rule are those which have been imported illegally and purchased under less than genuine conditions; for example, carved ivory trinkets that were smuggled into the U.S. and sold under the guise of being antiques.
The U.S. has been the world’s second largest market for illegal ivory for some time. Yet, the number of law enforcement agents dedicated to wildlife trafficking is miniscule. Without an increase in enforcement, will it be just as easy to ignore these new rules as it has been to ignore the old rules? It took three years, beginning July 2013, to create, vet and finalize these new rules. During that three years, 100,000 elephants died, mostly from poaching. . . poaching driven by demand for ivory trinkets in China and other parts of Asia as well as in the U.S. The old laws have not stopped demand; the new laws will not likely diminish demand. The old laws have not been enforced effectively and without more law enforcement resources, the new laws will be difficult to enforce. Reducing demand is what will save the elephant. With all due respect to law, you cannot legislate morality or regulate desire. Hard driving media campaigns, peer pressure and public education remain the greatest weapons in reducing demand and therefore poaching.
Don’t misunderstand — I too am celebrating the political victory and intent of the ruling. A U.S. delegation to China next week will be discussing China’s pledge to adopt laws that are similar to what the U.S. is willing to adopt. Meanwhile, the poaching disease is spreading, Kenya‘s burning its ivory while Zimbabwe and Namibia are lobbying to be able to trade their surplus ivory. So this week we can take time to celebrate but next week, it’s back to work as much remains to be done in order to ensure we have wild elephants forever!