Ivory – the Law

It has had a rollercoaster ride to get to this stage but later this year is likely to see some of the most stringent curbs on dealing in ivory on the planet come into force in the UK. There had been a judicial review of the legislation, The Ivory Act 2018, in November of 2019 which had delayed its implementation but the Environment Secretary, Michael Gove, has announced that the secondary legislation required to bring the Act into force should be made in early 2020.

So what is the current law?

Current restrictions concerning commercial activities in ivory are applied internationally through the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), an international conservation agreement which aims to ensure that trade in endangered species does not threaten their survival. The Convention entered into force in 1975 and the UK ratified it in 1976. CITES has restricted international commercial trade in new ivory, except in exceptional circumstances, from Asian elephants and African elephants since they were first listed on CITES in 1975 and 1976 respectively. This means that, CITES does not restrict commercial trade in older ivory, which was taken from Asian elephants before 1975 or from African elephants before 1976. The commercial trade in older ivory allowed under CITES may concern raw ivory – i.e. tusks or parts of tusk – or items made of or containing ivory. CITES regulates international trade in ivory, but does not regulate domestic markets within states or markets within regional trading groups, for example the European Union (EU). The Convention therefore permits Parties to adopt stricter measures to regulate wildlife trade. 

The CITES Convention is implemented in the UK and other EU Member States through the EU Wildlife Trade Regulations. These regulations place restrictions on intra-EU trade, and imports to and exports from EU Member States from/to third countries. They also apply to Member States automatically as they are directly applicable in domestic legislation, although each Member State must have their own domestic legislation which outlines enforcement provisions such as appropriate sanctions. The EU Wildlife Trade Regulations implement CITES in a stricter manner than is required by the Convention. The EU Commission has also issued non-binding guidance recommending that Member States suspend re-export of raw ivory of any age. An exemption exists under the regulations which allows commercial activities in ‘worked’ ivory items made prior to 1947 to take place without any certificate. Commercial activities in worked ivory items made after 1947 are allowed subject to a commercial use certificate being issued for that item. The 1947 date is used as this is 50 years prior to the EU Wildlife Trade Regulations coming into force. Worked items are defined as specimens that were significantly altered from their natural raw state for jewellery, adornment, art, utility or musical instruments and clearly fall within one of the aforementioned categories and require no further carving, crafting or manufacture to effect their purpose. They are commonly referred to as ‘antiques’. The EU Wildlife Trade Regulations, therefore, allow commercial activities in antique ivory to continue within the EU and, if the item is made prior to 1947, these activities are not subject to any registration or certification process. The EU Wildlife Trade Regulations make provision for Member States to introduce stricter measures on commercial trade in wildlife. The UK’s Ivory Act is made in line with this provision. 

The EU Wildlife Trade Regulations are directly applicable to the UK and the enforcement provisions concerning the EU Regulations are implemented in the UK by the UK Control of Trade in Endangered Species (Enforcement) Regulations 1997 (COTES). The UK has a policy which bans the commercial use of raw ivory regardless of age and this ban will continue to apply alongside the Ivory Bill. The UK is a Party to CITES in its own right and will continue to be bound by the obligations of the Convention on exiting the EU. The UK government proposes to ensure continued compliance with CITES on EU exit, through converting the EU Wildlife Trade Regulations into a UK-specific regime under the powers set out in the European Union (Withdrawal) Bill.  The term ‘re-export’ is used as the ivory would have already been imported to an EU Member State from its country of origin, i.e. a country with elephant populations. The UK ivory ban will introduce additional controls to those set out in the existing EU Wildlife Trade Regulations and CITES convention. 

The Ivory Act 2018

The Ivory Act will go much further to restrict commercial trade by prohibiting the commercial use of ‘worked’ or ‘antique’ ivory items regardless of their age, with the exception of items meeting one of the five categories of exemption. This will mean that the current date-based (1947) restrictions on antique ivory will become obsolete in the UK. In line with recommendations made in response to the consultation, “backstop dates” are applied to the exemptions included within the Ivory Bill. Dates were recommended to make sure modern ivory items are not permitted under the exemptions and that the UK ivory ban for those items is at least as strong as or stronger than existing regulations. The EU Wildlife Trade Regulations will continue to apply to the import and export of ivory to and from the UK, and alongside the exemptions to the ivory ban. As a result, if the owner of an item of pre-1947 worked ivory wishes to sell it, or engage in another form of commercial use with it, to a third country, they must: i) ensure the item satisfies the conditions of an exemption under the Ivory Act; and ii) ensure it meets existing requirements under the EU Wildlife Trade Regulations on the import and export of ivory, obtaining all necessary CITES permits before commercial trade takes place. The restrictions on displaying ivory for commercial purposes, as stipulated under the EU Wildlife Trade Regulations, will also continue to apply alongside the ban. Finally, as the Ivory Act addresses commercial activities concerning ivory, existing restrictions will continue to apply to non-commercial activities in ivory.

The Ivory Act ensures that all forms of ivory (elephant, hippopotamus, walrus, narwhal and mammoth) fall within the legislation.

What are the exemptions under the Ivory Act?

There are a few exemptions to the complete ban on trading in ivory, most notably:

  • Items with only a small amount of ivory. Such items must be comprised of less than 10% ivory by volume and have been made prior to 1947
  • Musical instruments. These must have an ivory content of less than 20% and have been made prior to 1975
  • Portrait miniatures. A specific exemption for portrait miniatures – which were often painted on thin slivers of ivory – made before 1918
  • Sales to and between accredited museums. This applies museums accredited by Arts Council England, the Welsh Government, The Scottish Government or the Northern Ireland Museums Council in the UK, or, for museums outside the UK, The International Council of Museums
  • The rarest and most important items of their type. Items of outstanding artistic, cultural or historic significance, and made prior to 1918. Such items will be subject to the advice of specialists at institutions such as the UK’s most prestigious museums.

What are the Penalties?

The Act provides for a range of criminal and civil sanctions including a maximum sentence of up to 5 years’ imprisonment, an unlimited fine or both.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.