California’s law banning all ivory trade gets US NGO court challenge

Emmanuel Koro
POOR rural communities in African elephant range states may now have a more effective representative for their ivory trade interests in the United States of America.

For the past 43 years, these communities have struggled to get a Western citizen or organisation to tell Western people this truth through Western courts; banning ivory sales is disastrous for both Africa’s socio-economic well-being and for elephant conservation.

Fortunately, a California-based environmental non-governmental organisation (NGO),  the Ivory Education Institute (IEI), has pursued a landmark lawsuit against the USA’s State of California, challenging the constitutionality of a law banning all ivory trade in its jurisdiction.

Besides the State of California, the IEI’s case is being opposed by the Natural Resource Defence Council, the Centre for Biological Diversity, and the Humane Society of the United States, the International Fund for Animal Welfare, and the Wildlife Conservation Society. These are some of the world’s biggest, richest, and most intrusive animal rights groups that continue to demand an unjustified end to any use of wild animals for economic benefit.

The IEI Managing Director, Mr Godfrey Harris, is fiercely opposed to the State of California’s new law. He believes it prevents economically disadvantaged African elephant range states and their poor rural communities from benefiting from ivory sales in California — an important international market for antique and worked culturally important ivory pieces.

“The statute is actually the product of various Western animal rights organisations who have used their financial resources to influence how African nations should treat their wildlife resources,” said Mr Harris who is fast emerging as one of America’s most outspoken citizens in support of sustainable development in African elephant range states that include Botswana, Namibia, South Africa, Zambia and Zimbabwe.

“The legislature in California has no business in abetting this repellant racism and colonialism. It is attempting to do in the 21st century what Rhodes, Leopold, Bismarck, Livingston and other 19th century colonialists did when they insisted that white men had a burden to bring commerce, civilisation and Christianity to Africa.”

As time ticks towards the IEI’s October 2018 court hearing, environmentalists worldwide, including African elephant range states’ poor rural communities who pay for the costs of living side by side with elephants but without benefits from them and are severely affected by the State of California’s law; are now waiting with great interest to learn of the court case outcome.

“It is a pleasure to hear of a foreign NGO lobbying for the lifting of the ivory trade ban,” said Hwange District Coordinator for the Communal Areas Management Programme for Indigenous Resources, Mr Ben Ncube.

Meanwhile, the former CITES Secretary General and President of the Switzerland based IWMC World Conservation Trust, Mr Eugene Lapointe, said that he supports the IEI’s initiative to challenge the constitutionality of the State of California’s law that bans all forms of ivory.

“One of the most disappointing things ever is for a person to make crude decisions that affect the greater populace,” said a Natural Resources Officer of Hwange Rural District Council, Mr Nxolelani Ncube.

“The issue of free trade of ivory should solely be the responsibility of the member states endowed with such resources.”

Mr Ncube said that he did not see any justification of any ban in ivory trade as Zimbabwe’s elephant populations, the iconic Hwange National Park like those of Botswana’s Chobe National Park and South Africa’s Kruger National Park, have long surpassed the carrying capacities of their ecosystems and this is having a detrimental effect on the environment.

The IEI argues that if the State of California imposes a blanket ban on all ivory sales, it would ironically accomplish the exact opposite of what it wants to happen. By stopping ivory sales without dealing with demand, the State of California is actually creating ivory supply scarcity, which will fuel an increase in ivory prices. Higher prices stimulate an even greater incentive for poachers to increase their crimes in African elephant range states.

“While other states in the USA have largely copied and enacted the laws based on the California statute), this speaks more to the financial and lobbying powers of the organisations promoting these laws than to the benefits that the laws themselves provide,” said Mr Harris, a Los Angeles-based public policy specialist.

The Ivory Education Institute maintains that federal rules [written by the national government in Washington] applicable to elephant ivory sales are convoluted, contradictory and obscure, such that a California citizen simply cannot be certain whether any particular act in California involving an object containing ivory is exempt, authorised or permitted under the various federal statutes and treaties which may apply.

“Federal law offers various exemptions in trading in ivory,” said the IEI. “These differ from the California law. Moreover, federal law does not prohibit mastodon, mammoth, warthog or boar ivory, and treats walrus ivory with various exceptions. As a result, California’s law becomes a confusing, convoluted, mysterious mess. Worse, California law treats all types of ivory bearing animals as endangered, even mastodon and mammoth. It is neither reasonable nor rational for the California legislature to determine that these animals, extinct for tens of thousands of years, are endangered.”

“Even if [the] structural defects in the statue are disregarded, surely the basis of passing the statute in the first place is suspect,” said the IEI in its lawsuit. “Without the slightest evidentiary support it is said that 96 elephants per day are killed in Africa. IEI disputes this figure, particularly since authorities in the United Kingdom say that only about half of this number perishes a day.

“But neither figure distinguishes between deaths of elephants from natural causes (old age, illness, accidents, fighting), from authorised culling or from poaching. The number 96, in fact, was speculation at the time the statute was drafted and remains highly suspect today.”

The appellate (IEI) brief states, “The statute ignores the nuances under the CITES Treaty. CITES lists some of Africa’s elephants in Appendix I, the highest level of protection under the Treaty. However, elephants in nearly all Southern African elephant range states — Botswana, Namibia, South Africa, Swaziland, and Zimbabwe — fall under Appendix II protection that calls for special regulation of trade in endangered species to prevent the threat of extinction, but does not ban or prohibit trade in these animals.

The IEI argues that apart from the missed opportunity to use ivory trade revenue to support anti-elephant poaching activities, other elephant benefits include its high protein meat and as a tourist attraction to help generate visitor revenue.

The IEI argues that because California is a subdivision of the United States of America it has no distinct standing in international law or calling in international intercourse. Accordingly, it has no business imposing its particular interpretation of Western values on sovereign nations. The conservation of African elephants should be left to African elephant range states.

Since the establishment of CITES in 1975, African elephant range states have never filed lawsuits against Western animal rights groups or Western governments, challenging the scientifically unjustified continued ban in ivory trade and of course appealing against the ban’s negative socio-economic impacts on the African people and the severe threats to elephant conservation. Instead, they have continued without much success, to lobby for the lifting of the ban in the media and at different meetings worldwide. Therefore, the IEI’s lawsuit against the State of California’s law is a unique, interesting and trend-setting test case in the raging, seemingly endless and controversial debate on ivory trade.

*Emmanuel Koro is a Johannesburg-based international award-winning environmental journalist who has written extensively on environment and development issues in Africa.