ELEPHANT POACHING: CITES FAILURE TO COMBAT THE
GROWTH IN CHINESE DEMAND FOR IVORY
Joseph Vandegrift*
I. INTRODUCTION .......................................................................... 103
II. ELEPHANT POACHING AND THE INTRODUCTION OF CITES ....... 103
a. The Decline of African Elephant Populations ................... 103
b. CITES Framework ............................................................. 105
c. CITES Classification of the African Elephant ............. 107
d. 1999 One-Off Sale to Japan ............................................... 109
III. A SHIFT IN CITES REGULATION POST 2000 ............................. 109
a. Additional One-Off Sale to Japan and China in 2008 ....... 110
b. Rejection of One-Off Sales in Tanzania and Zambia in
2010 .................................................................................... 111
c. The Current Status of the African Elephant ....................... 112
IV. THE CHINESE DOMESTIC MARKET FOR IVORY .......................... 113
a. Chinese Demand for Ivory Spike........................................ 114
b. Target for Illegal Import of Ivory....................................... 116
c. Chinese Market Enforcement Mechanisms ........................ 118
d. Chinese Government Misplaces 110 Metric Tons of
Ivory ................................................................................... 121
e. China’s Demand Problem Will Not be Fixed by CITES .... 122
V. OTHER DOMESTIC MARKETS FOR IVORY .................................. 123
a. United States ...................................................................... 123
b. Japan .................................................................................. 124
c. African States Including Ghana ......................................... 125
VI. POSSIBLE SOLUTIONS FOR CONTROLLING THE CHINESE
MARKET .................................................................................... 126
a. Increases in Chinese Market Regulation and
Enforcement ....................................................................... 127
b. Cultural Norms Modification ............................................. 131
c. Chinese Ban on Elephant Ivory Required .......................... 134
VII. CONCLUSION ............................................................................. 134
* B.S., 2009, Georgia Institute of Technology; J.D., 2012, University of Virginia School of
Law. Associate, Alston & Bird LLP. This article was written in the author’s private capacity and
does not represent the views of Alston & Bird LLP. The author would like to thank Margaret
Riley, Professor at University of Virginia School of law for the inspiration leading to this article,
and James Hatten for his excellent work on drafts of this article.
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I. INTRODUCTION
The recent spike in Chinese demand for ivory threatens to renew the
poaching of the African Elephant. Chinese buyers have traditionally
seen ivory as a symbol of wealth and power, but current Chinese
demand has grown rapidly over the past several years due the increased
buying power of its emerging middle class. This change in demand has
resulted in a dramatic increase in the price and sales of ivory since 2008.
While the Convention on International Trade in Endangered Species of
Wild Fauna and Flora (“CITES”) should control all international trade
in elephant ivory, the treaty may not be capable of preventing the
continued importation of illegal ivory into China. CITES has never
before dealt with such a sudden increase in demand for any endangered
animal product. Instead, CITES relies upon Chinese domestic market
enforcements to combat the spike in illegal trade. This paper argues that
neither CITES nor the Chinese regulators are capable of battling the
domestic ivory market because of China’s unique spike in demand, and
so China should ban the trade entirely.
II. ELEPHANT POACHING AND THE INTRODUCTION OF CITES
Elephants maintained a relatively stable population until the 1960s
and early 1970s, despite the growing confrontations with human
civilization and continual hunting.1 Mass population decline started in
the 1970s due to increased poaching and demand for ivory.2 In response
to the rapidly declining elephant populations, CITES sought to control
ivory trade by listing the elephant first as an Appendix II protected
species, then as an Appendix I protected species.3 CITES experimented
with its protection at the end of the twentieth century, successfully
implementing a sale of culled and stockpiled ivory without affecting the
stabilized elephant population.4
a. The Decline of African Elephant Populations
Ivory trade has occurred since ancient times, but elephant populations
maintained healthy numbers until the latter half of the twentieth
century.5 For example, the elephant population grew beyond control in
1 Charles W. Fowler & Tim Smith, Characterizing Stable Populations: An Application to the
African Elephant Population, 37(4) J. WILDLIFE MGMT. 513, 514-21, (Oct. 1973).
2 See infra Part II.a.
3 See infra Parts II.b & II.c.
4 See infra Part II.d.
5 I.J. Whyte, H.C. Biggs, A. Gaylard & L.E.O. Braack, A New Policy for the Management of
the Kruger National Park’s Elephant Population, 42(1) KOEDOE-AFRICAN PROTECTED AREA
CONSERVATION AND SCIENCE 111, 115-17 (1999).
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South Africa in the mid-1960s, and several park rangers recommended
that the park cull the herd to a more manageable level.6 However,
hunting in the 1970s threatened all African Elephant populations as
consumer demand quadrupled the price of raw ivory from 1970 to
1979.7 Exports of elephant ivory reached almost a thousand metric tons
per year by the mid-1980s.8
Various environmentalists have debated the actual cause of the
increased demand, price, and production of raw ivory. Some
hypothesized that as a natural rare material, it hedged well against the
inflation of the 1970s and 1980s, driving up its price significantly.9
Others reasoned that the increased production resulted from increased
human interaction with the elephants as a natural side effect of
expanding communities.10 Still others concluded that its production
increased as a result of migration of newly freed colonial populations.11
In all likelihood, it is some combination of all of these factors.
Even if ivory sold at a relatively low price, as it did at the start of the
1970s, poachers in the 1960s and 1970s could earn more selling a single
elephant’s tusks than they could earn for a year’s salary doing another
job.12 Upon discovering active poaching, game wardens would
“confiscate” a tusk or two for themselves and then send the poachers on
their way.13 The horrible poverty in Africa at the time further tempted
potential poachers.14 Once illegal poaching became commonplace, it
made little sense for other potential poachers to actively manage their
own killing in order to maintain a reasonable population.15 Illegal
poaching became a tragedy of the commons. Additionally, states
woefully under-funded enforcement in the newly settled areas.16
Poachers found an abundance of automatic rifles in war torn regions of
Africa, making enforcement more dangerous for game wardens.17
Id. at 111.
Ian S.C. Parker & Alistair D. Graham, Elephant Decline: Downward Trends in African
Elephant Distribution and Numbers (Part II), 35 INT’L J. ENVTL. STUD. 13 (1989).
8 Id. at 16.
9 Jonathan Anderson, Recent Events Affecting the International Ivory Trade, 2000 COLO. J.
INT’L ENVTL. L. & POL’Y 71, 72-73 (2000).
10 Patty F. Storey, Development vs. Conservation: The Future of the African Elephant, 18
WM. & MARY J. ENVTL. L. 375 (1994).
11 Parker & Graham, supra note 7, at 22.
12 Anderson, supra note 9, at 72-73.
13 Michael J. Glannon, Has International Law Failed the Elephant?, 84 AM. J. INT’L L. 1, 20
(1990).
14 Id.
15 Id.
16 Id.
17 Id.
6
7
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Elephant Poaching & CITES
105
Throughout the 1960s and 1970s, domestic enforcement mechanisms
simply did not control the poaching problem.
b. CITES Framework
While domestic enforcement issues plagued the African Elephant,
international trade also jeopardized the existence of other endangered
species.18 In 1973, several states joined together in Washington, D.C. to
create a convention to combat the imminent species loss.19 Eighty states
signed CITES, and the convention entered into force in 1975.20 The
general purpose of the convention is to protect plant and animal species
against over-exploitation due to international trade.21 Over one hundred
states, including the United States and China, have ratified the
convention.22
The convention operates by restricting or banning international trade
of its listed species.23 CITES lists cover species under three appendices,
depending upon each species’ level of endangerment.24 Appendix I
covers “all species threatened with extinction which are or may be
affected by trade.”25 Appendix II offers less protection and covers
species that while not currently threatened with extinction, may become
threatened without proper monitoring and restrictions.26 Individual
signatories can request Appendix III species protection, meaning that
the species itself is not in any jeopardy, but a given state identifies the
population as requiring protection.27 The Conference of the Parties
(“CoP”) for CITES meets every two years and assesses new protections
for species through an amendment process.28
Appendix I offers the most protection for any species. Each export of
any Appendix I species or product of that species requires an export
18 See, e.g., Robin W. Doughty & Norman Myers, Notes on the Amazon Wildlife Trade, 3
BIOLOGICAL CONSERVATION 293, 293 (1971) (identifying Ocelots and Jaguars as species heavily
traded in foreign countries and prone to extinction).
19 Convention on International Trade in Endangered Species of Wild Fauna and Flora
Preamble, opened for signature Mar. 3, 1973, 27 U.S.T. 1087, 983 U.N.T.S. 243 [hereinafter
CITES].
20 Treaties
In
Force,
U.S.
DEPT
OF
STATE,
338
(2011),
http://www.state.gov/documents/organization/169274.pdf.
21 CITES, supra note 19.
22 See CITES, supra note 19, at List of Contracting Parties (in chronological order), available
at http://www.cites.org/eng/disc/parties/chronolo.php.
23 CITES, supra note 19, at Articles III-V.
24 Id. at Article II.
25 Id. at Article II, Paragraph 1.
26 Id. at Article II, Paragraph 2.
27 Id. at Article II, Paragraph 3.
28 CITES, supra note 19, at Article XI.
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permit.29 The exporting state can only issue a permit if the particular
export meets four conditions. A state-led “Scientific Authority” must
certify that the particular export does not harm the survival of the
species.30 A separate state-led “Management Authority” must then
certify that the taking of the specimen was within the laws of the export
state, that the crating or packaging of the specimen “minimizes the risk
of injury, damage to health or cruel treatment,” and that the import state
has issued a valid import permit for the specimen.31
In addition, the importing state must issue a valid import permit for
each specific transaction of an Appendix I species.32 The import state
can only issue a permit if its scientific authority certifies that the
transaction will not be detrimental to the species and its management
authority certifies that the specimen will not be used for primarily
commercial purposes.33 The commercial prong of the import restrictions
is particularly strict, even restricting trade in animals that have died
naturally.34 CITES intends Appendix I classification to combat species
decline by severely restricting international trade and, therefore,
artificially removing international demand for a given animal product.35
Appendix II does not protect listed species to the level of Appendix
I.36 Appendix II still requires export states to issue an export permit for a
specific transaction, but it does not require any import permits.37 The
standards for granting an Appendix II export permit are similar to the
standards for granting an Appendix I export permit, except that the state
issuing the Appendix II export permit does not need to confirm any
action by the importing state.38 Practically, this means that CITES does
not place significant restrictions upon the international commercial trade
of Appendix II species.39 A single species can be listed in different
Appendices in different countries, but if a species is listed primarily in
Appendix I, international trade is severely restricted.40
Id. at Article III, Paragraph 2.
Id. at Article III, Paragraph 2(a).
31 Id. at Article III, Paragraphs 2(b)-(d).
32 Id. at Article III, Paragraph 3.
33 Id.
34 Andrew J. Heimert, How the Elephant Lost His Tusks, 104 YALE L.J. 1473, 1476 (Apr.
1995).
35 CITES, supra note 19, at Article II, Paragraph 1. See also Andrew M. Lemieux & Ronald
V. Clarke, The International Ban on Ivory Sales and Its Effects on Elephant Poaching in Africa,
49 BRIT. J. CRIMINOL. 451, 452 (2009) (comparing the restriction on the ivory market to a
“market disruption” tactic).
36 CITES, supra note 19, at Article IV, Paragraph 1.
37 Id. at Article IV, Paragraph 4.
38 Id. at Article III, IV.
39 Id. at Article IV.
40 Id.
29
30
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CITES does not provide explicit measures for penalizing states that
do not enforce the convention.41 Its enforcement provision merely
provides that states must penalize unlawful trade in covered species.42
Instead, CITES allows each participating state to individually determine
how that state will penalize violators.43 These domestic enforcement
mechanisms vary from state to state, but half of participating states have
not created any legislation allowing for domestic or international
sanctions where a violation of CITES occurs.44 In comparison, the
United States’ domestic implementation of the convention stands as one
of the clearest adoptions of effective enforcement mechanisms of
CITES.45 The United States has used certification under the Pelly
Amendment46 to levy sanctions on trading partners that the CITES
Standing Committee finds to be in violation of the convention.47 Given
the United States’ economic power, its ability to levy sanctions through
the Pelly Amendment against countries found to be violating CITES
represents a very large “stick” in enforcing CITES.48
c. CITES Classification of the African Elephant
CITES dealt with the African Elephant in its first CoP in 1976, when
Switzerland proposed that it be protected under Appendix II.49 Under
Appendix II, all large pieces of ivory (i.e., tusks) must be registered
with CITES, and each state must set its own quota for how many tusks
it felt would maintain its elephant population in a year.50 The rapidly
declining population of the African Elephant caused significant
41 See CITES, supra note 19, at Article VIII. CITES does provide that the parties should take
appropriate measures to penalize the trade in covered specimens in Paragraph 1, and such a
statement could be interpreted to target states as well as individual traders.
42 Id. at Article VIII, Paragraph 1.
43 Id.
44 See Mara E. Zimmerman, The Black Market for Wildlife: Combating Transnational
Organized Crime in the Illegal WildlifeTrade, 36 Vand. J. Transnat’l L. 1657, 1666 (2003)
(finding that in 2002, approximately half of the parties to CITES had not created any domestic
legislation to implement CITES).
45 See Steve Charnovitz, Environmental Trade Sanctions and the GATT: An Analysis of the
Pelly Amendment on Foreign Environmental Practices, 9 AM. U. J. INT’L L. & POL’Y 751 (1994).
46 22 U.S.C.A. § 1978.
47 See Charnovitz, supra note 45, at 767-772 (listing examples of certification under the Pelly
Amendment).
48 See generally id. Given the diplomacy involved with levying sanctions, the Pelly
Amendment is not necessarily used consistently. See also infra Part VI.c.
49 CITES, supra note 19, at First Meeting of Conference of the Parties: Proposals for
Amendment
of
Appendices
I
and
II
(Nov.
2-6,
1976),
available
at
http://www.cites.org/eng/cop/01/prop/index.shtml. Canada proposed that the African Elephant be
placed under Appendix I, although it did not garner enough support to pass the amendment.
50 Heimart, supra note 34, at 1478.
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discussion at every CoP from 1985 onward.51 From the classification of
the African Elephant under Appendix II until 1989, the worldwide
population of the African Elephant declined by half.52 The opening
speech by Prince Bernhard of the Netherlands at the seventh CoP in
1989 reflected the general consensus that although some states
effectively managed their elephant populations, “[a]ll of us who support
the CITES ivory control system must admit that it has failed to control
illegal ivory trade.”53
Despite protests by several African states, CITES reclassified the
African Elephant under Appendix I in 1989, effectively banning all
international trade in elephant ivory.54 The CITES decision did not
regulate domestic trade, however.55 Regulation of domestic trade has
been recognized as urgently needing strengthening in many states.56
Among elephant range states, for example, there is a significant contrast
between states such as Kenya which is “committed to ‘zero tolerance
when it comes to domestic trade in ivory” and states such as Nigeria
which has a “large, unfettered internal ivory trade operating with the
apparent absence of any effective law enforcement on the part of the
government.”57 Despite this weakness in domestic regulations and
enforcement, the price of ivory plummeted in the years following the
listing of the African Elephant under Appendix I, reducing poaching
incentives.58 The African Elephant population recovered in the early
1990s, indicating the success of the international trade ban.59 Kenya, for
example, had less than one hundred elephants illegally poached per year
in the years following the ban, compared to the thousands of elephants
killed each year in the 1980s.60
Lemieux & Clarke, supra note 35, at 453.
Heimart, supra note 34, at 1473.
53 Speech by HRH Prince Bernhard of the Netherlands, Founder President of WWF-World
Wide Fund for Nature (Oct. 9, 1989), available at http://www.cites.org/eng/cop/07/E07-Openingspeeches.pdf.
54 Lemieux & Clarke, supra note 35, at 453-54.
55 Id.
56 See CITES Conference of the Parties, Trade in Elephant Specimens, Resolution Conf. 10.10
(Rev. CoP15), available at http://www.cites.org/eng/res/all/10/E10-10R15.pdf; CITES,
Elephants—Control of Internal Ivory Trade, Decision 12.36, available at
http://www.cites.org/eng/dec/valid12/12-36_39.shtml.
57 See T. Milliken, R.W. Burn & L. Sangalakula, The Elephant Trade Information System
(ETIS) and the Illicit Trade in Ivory, TRAFFIC 16-22 (Oct. 14, 2009),
http://www.cites.org/common/cop/15/doc/E15-44-01A.pdf.
58 Anderson, supra note 9, at 75.
59 Id.
60 Id.
51
52
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d. 1999 One-Off Sale to Japan
The protests of several African states at the 1989 CoP led CITES to
consider placing certain countries’ African Elephant populations under
Appendix II in the future.61 With the stabilization of elephant
populations, Namibia, Botswana, and South Africa petitioned the tenth
CoP in 1997 for reclassification of their African Elephant populations to
Appendix II.62 The CoP allowed the reclassification, but only with
significant restrictions not typically placed on other Appendix II
species.63 In addition to the mostly non-commercial uses allowed by the
reclassification, the CoP allowed a one-off sale of approximately sixty
metric tons of stockpiled ivory to Japan.64 CITES qualified the one-off
sale as “experimental,” and funded the creation of a monitoring system
called Monitoring Illegal Killing of Elephants (“MIKE”).65
The data taken after the sale produced inconclusive results on the
effect of the one-off sale.66 Continent-wide, African Elephant
populations continued to grow and poaching levels remained constant.67
The price of ivory fluctuated significantly between 1999 and 2002 in
various areas, but without any discernable pattern either up or down due
to the one-off sale.68 Significant evidence also showed that African
demand for ivory dropped significantly during that time period.69 Most
importantly, the one-off sale did not affect the total volume, price, or
demand of Japan’s ivory trade.70
III. A SHIFT IN CITES REGULATION POST 2000
With ivory prices remaining relatively high between $65 and $145
per pound on the Japanese market,71 African states looked to sell
Lemieux & Clarke, supra note 35, at 454.
Id.
63 Anderson, supra note 9, at 76. Zimbabwe could unconditionally sell elephant hide
commercially, but could only export ivory and leather products for non-commercial products.
Namibia was allowed to export animals for non-commercial purposes. All three countries were
allowed to export elephant products as hunting trophies.
64 Katy Payne, Iain Douglas-Hamilton, Cynthia Moss & Joyce Poole, Why Trade is a Bad
Idea, MAIL & GUARDIAN ONLINE (Apr. 9, 1999) http://mg.co.za/article/1999-04-09-why-trade-isa-bad-idea.
65 Id.
66 See generally, Erwin H. Bulte, Richard Damania & G. Cornelis van Kooten, The Effects of
One-Off Sales on Elephant Mortality, 71(2) THE J. OF WILDLIFE MGMT. 613 (2007).
67 Id. at 617.
68 Daniel Stiles, The Ivory Trade and Elephant Conservation, 31(4) ENVTL. CONSERVATION
309, 316 (2004).
69 Id. (showing a market contraction through fewer workshops, more pieces available, and
larger carvings available in regulated African markets).
70 ESMOND MARTIN & DANIEL STILES, THE IVORY MARKETS OF EAST ASIA 41 (2003).
71 Stiles, supra note 68, at 311.
61
62
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additional ivory stockpiles in the 2000s. CITES and conservationists
initially supported the idea, but there has been growing concern over the
growth in illegal ivory markets and poaching.72
a. Additional One-Off Sale to Japan and China in 2008
While the 1999 one-off sale of ivory to Japan sent a morally
ambiguous message to producers and consumers of ivory,73 the sale did
not have a noticeable impact on poaching or the demand for ivory.74 As
a consequence, several African countries petitioned CITES in 2002 to
conduct another one-off sale.75 After several assessments and CoPs,
CITES approved the sale of stockpiled ivory from Botswana, Namibia,
South Africa, and Zimbabwe.76 The states claimed that proceeds from
the sale would go towards funding domestic conservation efforts.77
Despite initial reluctance, CITES found that Japan’s enforcement
mechanisms were similar to those found in 1999, and approved it as a
buyer.78 CITES also noted increased monitoring mechanisms, including
registration of all pieces, tags on every piece sold that identified the
registry number of that piece, and warnings about the prohibition of reexport from Japan.79 Additionally, the CITES Secretariat applauded the
Japanese NGO and government investigations, including internet and
market searches for unregistered items.80 The CITES investigation team
did note several potential loopholes in Japan, but completed the
investigation convinced that domestic registers would modify the
Japanese registration system to remove the loopholes.81
See infra Parts III. a-b.
See generally Bulte, et al., supra note 66 (Bulte summarizes moral arguments both for and
against the successful one-off sale to Japan: “One view is that trade generates economic surpluses
that create incentives for range states to set aside habitat and invest in elephant protection . . . .
The alternative view is that legal sales (one-off or otherwise) facilitate the marketing of illegal
ivory, thereby promoting demand and encouraging poaching . . . . [Another study] linked elephant
mortality to corruption, casting further doubt on the ability to design a trading system that
promotes conservation of elephants.” (internal citations omitted)).
74 See Part II.d supra.
75 Jo Adentunji, One-off Ivory Sale to China Condemned as ‘Poacher Smokescreen’, THE
GUARDIAN
(July
14
2008)
http://www.guardian.co.uk/environment/2008/jul/14/conservation.wildlife.
76 Id.
77 James Owen, Ivory Sale Gets Green Light from Wildlife Trade Watchdog, NATIONAL
GEOGRAPHIC
NEWS,
June
4
2007,
available
at
http://news.nationalgeographic.com/news/2007/06/070604-ivory-sale.html.
78 CITES Standing Committee, Control of Trade in African Elephant Ivory, 54th Meeting
Document 26.1 (Oct. 2-6, 2006).
79 Id. at 7-8.
80 Id. at 8-9.
81 Id. at 9-10. As an example, one loophole did not require registration on the sale of tusks
from private owners to resellers if the private owner had owned the tusk prior to 1995.
72
73
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Elephant Poaching & CITES
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China petitioned CITES to be an import partner in the same one-off
sale in 2007.82 CITES initially rejected China’s petition due to the high
amount of illegal ivory imported into the country.83 However, CITES
returned to China in late 2007 and found very few market or customs
violations.84 The significant enforcement efforts perceived in China
outweighed the risk of selling to the largest target state for illegal ivory,
and CITES determined that China should be a trading partner for the
upcoming one-off sale.85 The previously approved African states
completed the sale of 108 metric tons of raw ivory to China and Japan
in 2008.86
b. Rejection of One-Off Sales in Tanzania and Zambia in 2010
Tanzania and Zambia followed in their neighbors’ footsteps, and
petitioned CITES to reclassify their African Elephant populations and
allow a one-off sale of their stockpiled ivory.87 Both countries had
contributed heavily to the illegal ivory trade up until that point,88 but
CITES Panels of Experts conducted significant research and
investigation in both areas and recommended that CITES voting states
approve both reclassifications and sales, despite evidence of some
problems.89 In the end, the CITES voting states decided not to approve
the one-off sales, after all.90 Other African states voiced significant
concerns over the lack of time to assess the impact of the one-off sale in
2008,91 and additionally, the CITES states had a general awareness of
the poaching problem caused by the growing Asian demand for ivory
goods.92
82 CITES Standing Committee, Control of Trade in Elephant Ivory, 57th Meeting Document
33.2, 1-2 (July 14-18 2008).
83 Id. at 1.
84 Id. at 2.
85 Id.
86 Id. at 3.
87 Samuel Wasser, Katarzyna Nowak, et al., Elephants, Ivory, and Trade, 327 SCIENCE 1331,
1331 (Mar. 12, 2010), available at http://www.sciencemag.org/content/327/5971/1331.full.
88 Id.
89 CITES, supra note 19, at Report of the Panel of Experts on the African elephant on its
review of the proposals of the United Republic of Tanzania and Zambia to transfer their
populations of African elephant from Appendix I to Appendix II, CoP 15 Doc. 68 Annex 6, Feb.
28, 2010. Most problems found by the Panel of Experts dealt with appropriate record keeping and
the vast quantity of illegal exporting of ivory already occurring in both countries.
90 Michael Casey, Tanzania, Zambia Bid for One-off Ivory Sales Fail, BLOOMBERG
BUSINESSWEEK
(Mar.
22,
2010),
available
at
http://www.businessweek.com/ap/financialnews/D9EJPMS00.htm.
91 Id.
92 Id.
112
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c. The Current Status of the African Elephant
CITES has not had an official opportunity to assess the African
Elephant population since 2007, and thus it cannot make an evaluation
of the most recent one-off sale.93 However, the CITES Standing
Committee analyzed various regional reports at their sixty-first meeting
in August 2011.94 The Standing Committee found that poaching and
domestic strife had resulted in the significant decline of elephant
populations in Chad, Central African Republic, and the Democratic
Republic of Congo.95 Combining those losses with NGO investigative
reports, the Standing Committee determined that the Central African
region had experienced substantial declines in important elephant
populations.96 States in Eastern Africa had conducted several important
surveys, with Tanzania finding a single ecosystem had lost as many as
thirty thousand elephants since 2006.97 Tanzania’s losses could mostly
be attributed to over-counting in the previous survey, but the Standing
Committee could not rule out increased poaching as a cause.98 Reports
on southern Africa showed an increase in elephant populations in some
states, such as Mozambique and South Africa, but the reports also
revealed “high carcass ratios.”99 Those carcass ratios indicated
significant habitat encroachment and poaching in the region.100 The
Standing Committee determined that reports from West Africa suffered
from a lack of accurate information, and did not make an assessment on
that region.101
Human encroachment represents the greatest threat in areas where an
“over-abundance” of elephants existed, mostly in southern Africa.102 For
other regions, particularly central and eastern Africa, the Standing
Committee expressed concern over the significant rise in poaching.103
The Standing Committee singled out rising poaching pressure in Kenya
and Zimbabwe and several others in eastern Africa as troubling, given
that those regions were not suffering from the same domestic strife
93 CITES, supra note 19, at Standing Committee, Status of Elephant Populations, Levels of
Illegal Killing and the Trade in Ivory: A Report to the Standing Committee of CITES, SC61 Doc.
44.2 Annex 1 (Aug. 15-19 2011), available at http://www.cites.org/eng/com/SC/61/index.php.
94 Id. at 8-9.
95 Id. at 9.
96 Id.
97 Id.
98 Id.
99 Id.
100 Id.
101 Id.
102 Id. at 9-10.
103 Id. at 10.
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Elephant Poaching & CITES
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found in the central African states.104 The Standing Committee also
noted the lack of dependability of data found in MIKE, and expressed a
desire for improved data production by elephant range states.105
IV. THE CHINESE DOMESTIC MARKET FOR IVORY
China has always had a healthy domestic ivory market,106 but the
recent spike in Chinese demand for ivory threatens to increase poaching
and to jeopardize the recovery of African Elephant populations.107 With
its increased demand, China has become the primary target for illegally
exported ivory.108 While Chinese Customs has increased seizures of
illegally imported ivory in recent years, its ineffective domestic market
enforcement ensures that any ivory successfully imported into the
country will be bought at the newly extravagant prices.109 Additionally,
China’s growing market has led to the suspicious disappearance of
government-confiscated stockpiles, indicating that demand may
overcome any attempt for the Chinese government to regulate the
trade.110 Since TRAFFIC and NGO reports have made CITES aware of
China’s demand and enforcement issues,111 CITES could have rationally
considered singling out China as a state in need of improvement.
Instead, CITES approved China’s request to participate in the one-off
sale of 2008,112 indicating that it will turn a blind eye to China’s
domestic ivory issues.
104 Id. Many countries in Africa have experienced significant domestic strife over the last few
years, including Zimbabwe. However, Zimbabwe appears to have stabilized to some degree in
recent years, where the central African states still suffer significantly from civil war and other
problems. See generally Jennifer Giroux, David Lanz & Damiano Sguaitamatti, The Tormented
Triangle: The Regionalisation of Conflict in Sudan, Chad and the Central African Republic,
Crisis
States
Working
Papers
No.
2
(2009),
available
at
http://dspace.cigilibrary.org/jspui/handle/123456789/27069.
105 Id. at 21.
106 Alexandra Wexler, Chinese Demand Revives Ivory Trade, WALL STREET JOURNAL (Sept.
20,
2011),
available
at
http://online.wsj.com/article/SB10001424053111904106704576580020012406078.html#articleT
abs%3Darticle.
107 Id. See generally Part IV.a infra.
108 See generally EIA, China, Ivory Trade & the Future of Africa’s Elephants (2008),
available at http://www.eia-global.org/PDF/EIA-CITES-Briefing08.pdf.
109 See generally Part IV.c infra.
110 See generally Part IV.d infra.
111 See generally Part IV.e infra.
112 See generally Part III.a supra.
114
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a. Chinese Demand for Ivory Spike
Ivory has been a luxury item for the Chinese since the Han dynasty
and the creation of the Silk Road.113 Chinese demand for ivory remained
relatively stagnant throughout the twentieth century, as most citizens did
not have enough money to afford ivory products.114 However, China’s
economic explosion into the twenty-first century created a new
population with substantial buying power.115 The new Chinese middle
class has grown as large as the entire population of Japan.116 However, it
is not necessarily the size that causes demand problems. Instead, the
suddenness of the expansion of the Chinese middle class has created a
demand that cannot be satisfied with legal stocks.117 The Chinese middle
class is “suddenly wealthy,” and it wishes to show that wealth off
through acquisition of ivory, a traditional symbol of wealth and status.118
The price of ivory in China has risen dramatically since 2008. In
2008, at least one NGO listed individual sales of ivory with prices of
approximately $142-$148/kg.119 However, different news sources and
investigative NGOs list different prices in the years since 2008, and that
discrepancy could lead to some skepticism about the explosion of
demand as CITES addresses the problem in the future.120 Lucy Vigne
and Esmond Martin, two independent ivory market experts,
consolidated several anecdotal interviews with market buyers in a 2011
report.121 Vigne and Martin reported dealers buying raw ivory for
approximately $450-$700/kg in 2010.122 Alexandra Wexler of The Wall
Street Journal reports that Chinese merchants sold ivory for as high as
113 C. Michael Hogan, Silk Road, North China, THE MEGALITHIC PORTAL, (Nov. 19, 2007),
http://www.megalithic.co.uk/article.php?sid=18006.
114 See Wexler, supra note 106.
115 Alex
Shoumatoff,
Agony
and
Ivory,
VANITY
FAIR
(Aug.
2011),
http://www.vanityfair.com/culture/features/2011/08/elephants-201108.
116 Id.
117 See Wexler, supra note 106.
118 See id.
119 South Africa Auctions Last of ‘Legal’ Ivory to China, Japan, MONGABAY.COM (Nov. 7,
2008), http://news.mongabay.com/2008/1107-ivory.html.
120 See, e.g., Ian Shurr’s comment on Wexler, supra note 106, available at
http://online.wsj.com/article/SB10001424053111904106704576580020012406078.html?mod=W
SJ_article_comments#articleTabs%3Dcomments (last updated Sept. 20, 2011) (“$7,000 a kilo is
more than [nine] times the higher end of the more prevailing estimate of $350-750 per kilo. Yet
this little fact doesn’t prevent the author from hyping sensation.”) While this comment comes
from the community at large, it represents the objection that could occur in any CITES discussion
in the near future.
121 Lucy Vigne & Esmond Martin, Consumption of Elephant and Mammoth Ivory Increases in
79
(Jan.
2011),
Southern
China,
49
PACHYDERM
http://www.pachydermjournal.org/index.php/pachy/article/view/226
122 Id. at 79.
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Elephant Poaching & CITES
115
$7,000/kg in 2011.123 Wexler’s price likely misrepresents the actual
value of ivory in China; other outlets have reported the price to be
closer to $750-$1,500/kg in 2011.124 Anecdotal accounts of the price of
carved ivory mirror the trend in raw ivory, with prices increasing
anywhere between twenty and fifty percent between 2010 and 2011.125
Regardless of the varying reported prices, the price of ivory in China
has clearly risen over the last three years.
An increase in price for any given product does not necessarily
indicate that there has been an increase in demand in that product.
Instead, a high price could be caused by a restricted supply. Like China,
Japan’s market for ivory has maintained a high price in ivory since
2008.126 In Japan, NGO investigators speculated that an artificially
pinched supply might be the primary cause of the problem.127
Manufacturers complained anecdotally that a small number of buyers—
members of the Japanese Ivory Association—controlled the influx of
raw ivory from the one-off sales.128 The Japanese manufacturers further
hypothesized that the small number of buyers released the raw ivory in
small amounts over time, keeping the price artificially high.129
If an artificial decrease in supply, not an increase in demand, is
causing the increased price in Chinese ivory, there would be little threat
to African Elephants from the Chinese markets. An increase in price
caused by an artificially pinched supply would result in comparatively
fewer tusks sold than if the price increase is caused by an increase in
demand.130 It is unlikely that the Chinese government has artificially
pinched the entire ivory supply through a monopoly of the one-off sale
in 2008 in that way that the Japanese Ivory Association has in Japan.
While the Chinese government restricts each ivory working factory to
120 kg of raw ivory each year,131 Vigne and Martin reported a
See Wexler, supra note 106.
Compare Tom Kirkwood, China’s Consumerism ‘Latest Threat to Ivory,’ IOL SCITECH
(Aug. 29, 2011), http://www.iol.co.za/scitech/science/environment/china-s-consumerism-latestthreat-to-ivory-1.1127279 (reporting that Esmond Martin, a well-known ivory market expert,
found that Chinese raw ivory sold for approximately $750/kg) with Shoumatoff, supra note 115
(reporting that ivory sold for up to $700/lb which converts to $1540/kg).
125 See, e.g., Liu Lu, The Tusk at Hand, CHINA DAILY: EUROPE (July 1, 2011),
http://europe.chinadaily.com.cn/epaper/2011-07/01/content_12816685.htm
(identifying
the
general trend in prices, and listing items rising as high as fifty percent in value at auction).
126 Masayuki Sakamoto, ‘Elephant Poaching? None of Our Business’ Influence of Japanese
Ivory Market on Illegal Transboundary Ivory Trade, JAPAN TIGER AND ELEPHANT FUND (Mar.
2010).
127 Id.
128 Id.
129 Id.
130 Id.
131 Vigne & Martin, supra note 121, at 84.
123
124
116
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significant increase in the total number of ivory retailers and items for
sale in southern China between 2004 and 2011.132
b. Target for Illegal Import of Ivory
Given the substantial spike in demand for ivory, China has become
the single most important player in the illegal ivory trade.133 Chinese
officials interviewed in 2000 denied the problem despite significant
evidence that China was becoming a significant trafficker in illegal
ivory.134 The opinion of Chinese officials shifted, however, as Chinese
Customs seized significant amounts of ivory imports in 2000 and
2001.135 Shanghai Customs seized fifty-three ivory tusks and over three
thousand pieces of worked ivory in 2001, with seizures of fifteen
different shipments in August 2001 alone.136 The Chinese Department of
Policy issued a notification to many enforcement agencies with the
potential to detect ivory smuggling, advising those agencies to “pay
close attention” to the illicit trade of ivory.137 The reports from the early
2000s did not give details on the actors working in initial stages of the
smuggling, such as the actual poaching and shipping within Africa.138
Although the authors of the 2002 TRAFFIC report suspected that China
was the final destination for much of the poached ivory, it did not
conclusively establish the link between the poaching in Africa and the
Chinese ivory market.139
The increasing reports of ivory smuggled to China towards the end of
the 2000s strengthen the link between China’s demand for ivory and
incidents of poaching and smuggling within Africa. By 2009, China had
become the single largest target for illegally smuggled ivory.140
Additionally, seizures of ivory linked to China had increased nine times
in total weight from the period between 1989-1999 and 1999-2009.141
Id. at 85.
Milliken, supra note 57, at 18.
134 Caitlin O’Connell-Rodwell & Rob Parry-Jones, An Assessment of China’s Management of
Trade in Elephants and Elephant Products, TRAFFIC 15 (July 2002), available at
www.traffic.org/species-reports/traffic_species_mammals19.pdf.
135 Id.
136 Id.
137 Id.
138 Id.
139 See, e.g., id. at 22 (when discussing a prominent ivory carving factories supplies, “the
origin of the ivory they carved was cited as being from ‘all manner of sources’”).
140 Milliken, supra note 57, at 15.
141 Id.
132
133
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Elephant Poaching & CITES
117
Furthermore, many seizures in other Asian countries, such as Taiwan
and Vietnam, are destined for China.142
The growing investments from Chinese businesses and nationals in
Africa further complicate the situation.143 Chinese nationals and
companies have now been implicated in twenty-three of the thirty-seven
elephant range states.144 Kenya particularly struggles with the influx of
Chinese nationals; its poaching problem has increased substantially
from 2009 to 2011.145 Half of the poaching occurring in Kenya occurs
within twenty miles of the large Chinese road building projects.146
Kenyan natives receive orders from the Chinese road workers for raw
ivory;147 the Chinese workers then transport the raw ivory home, where
they can sell it for many times its original price.148 As a result of the
increased Chinese smuggling, ninety percent of the passengers arrested
in the Kenyan national airport, Jomo Kenyatta, are Chinese nationals.149
Despite the growing evidence of China’s ivory smuggling problem,
the CITES Secretariat stated in 2008 that, “Its Customs anti-smuggling
units have been particularly effective. Almost all large-scale seizures of
raw ivory have taken place at the border, where attempted imports have
been intercepted.”150 The Secretariat felt that the lack of seizures inside
mainland China indicated effective border control.151 The official
Chinese Government newspaper, China Daily, also stated that China
had followed international conventions explicitly, and that NGOs and
conservationists should not blame China for the poaching problems.152
142 See, e.g., Elephants Under Threat as Illegal Ivory Prices Soar in Vietnam, TRAFFIC (Feb.
16, 2009), http://www.traffic.org/home/2009/2/16/elephants-under-threat-as-illegal-ivory-pricesoars-in-viet.html.
143 Milliken, supra note 57, at 18. See generally Ali Zafar, The Growing Relationship Between
China and Sub-Saharan Africa: Macroeconomic, Trade, Investment, and Aid Links, THE WORLD
BANK
RESEARCH
OBSERVER,
(2007),
available
at
http://wbro.oxfordjournals.org/content/early/2006/12/31/wbro.lkm001 (discussing the general
relationship between Chinese businesses and Africa).
144 EIA, supra note 108, at 6.
145 See generally AFRICAN CONSERVATION FOUNDATION, Kenya: Poaching Alive and Well in
Country,
(Aug.
20,
2011)
available
at
http://www.africanconservation.org/201108202315/conservation-news-section/kenya-poachingalive-and-well-in-country.
146 Shoumatoff, supra note 115.
147 See, e.g., Tom Kirkwood, One-off Ivory Sale, Chinese Workers Kindle Demand, REUTERS
AFRICA,
(Aug.
31,
2009)
available
at
http://af.reuters.com/article/topNews/idAFJOE57U0AP20090831.
148 See id.
149 Id.
150 CITES Secretariat, Control of Trade in Elephant Ivory, 2, SC57 Doc. 33.2 at 2 (July 14-18
2008) available at http://www.cites.org/eng/prog/MIKE/reg_meet/africa1/EN-E57-33-2.pdf.
151 Id.
152 Chinese in Kenya Not Involved in Ivory Poaching, CHINA DAILY, available at
http://www.chinadaily.com.cn/china/2009-09/08/content_8664611_2.htm. See also, Ministry of
118
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c. Chinese Market Enforcement Mechanisms
In order to combat the growing illegal markets for ivory, China
passed extensive legislation regulating the domestic trade in May
2004.153 China regulates the companies that can buy raw ivory from the
government, the manufacturers that work raw ivory, and the markets
and shops that are allowed to sell worked ivory.154 Additionally,
privately owned tusks and bulk ivory may only be sold to manufacturers
and ivory workers if the private owner bought the ivory prior to the
1990 ban.155
Each shop legally selling worked ivory must display a framed
certificate showing its government license to trade ivory.156 All elephant
ivory items for sale must have an ID card issued from the government
manufacturers.157 If the ivory item weighs over fifty grams, the ID card
must be placed next to the item for sale.158 The fifty gram items are
typically smaller mass produced pieces, such as pendants, chopsticks,
stamps, and other jewelry.159 The ID card must contain details of the
item including a picture (unless the item weighs less than fifty grams), a
description, weight, serial number, and the name of the manufacturer.160
The ID cards are not easy to counterfeit because they contain a variety
of security mechanisms such as laser anti-counterfeit labels.161
The State Forestry Administration additionally requires that shops
dealing in ivory place pamphlets written in Chinese throughout the shop
explaining the use of the ID cards.162 The pamphlet also states that it is
illegal to re-export the Chinese-worked ivory out of the country.163
Finally, the pamphlet briefly explains CITES, and notes that CITES has
praised China’s regulations and enforcement records.164 In addition to
elephant ivory, these shops frequently sell ivory made from mammoth
Foreign Affairs of The People’s Republic of China, China’s Position on Ivory Trade (Feb. 25
2009) available at http://www.fmprc.gov.cn/eng/wjb/zwjg/zwbd/t539005.htm (questioning the
Kenyan NGO’s assessment of the African poaching problem).
153 Vigne & Martin, supra note 121, at 81.
154 Id.
155 Id. at 82.
156 Id. at 81.
157 Id.
158 Vigne & Martin, supra note 121, at 81.
159 Id.
160 Id.
161 Other counterfeit protection mechanisms on the ID card include: “hand-painted floral
patterns and shading lines, laser anti-counterfeit labels for security, ‘drip disappeared’ printing
technology, security lines, relief shading, double ‘s’ anti-lift incisions, [colorless] fluorescent
security ink and microfilm text.” Id.
162 Id.
163 Vigne & Martin, supra note 121, at 81.
164 Id.
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119
tusks.165 Russia legally exports extensive amounts of mammoth ivory,
since it is legal to trade internationally.166 Because of mammoth ivory’s
legal trade, China does not keep records of its import and export, and
does not require shops to restrict its sale in any way.167 There are subtle
differences between mammoth and elephant ivory, including coloration
and grain pattern.168 The State Forestry pamphlets identify those
differences.169 While conservationists and ivory experts can easily tell
the difference between the two types of ivory,170 the two types of ivory
may appear indistinguishable to the average buyer.171
China’s regulations of the domestic ivory trade leave many loopholes
for companies still attempting to produce and sell illegal ivory.172 While
the ID card required for each worked piece of ivory would be extremely
difficult to reproduce, it offers limited regulation on the ivory trade as a
whole.173 Chinese customers purchase the smaller items with growing
frequency.174 The shift in purchases from large items to smaller items
mirrors the growth of the domestic buying community; the Chinese
middle class, while “newly rich,” can only afford to pay so much for
luxury items. Additionally, factories can now mass-produce the smaller
items.175 The larger items, such as carved tusks and incense holders,
require an entire tusk and must be hand-made, resulting in larger pieces
being produced in smaller quantities and sold at significantly higher
prices.176 Because buyers cannot tell the difference in the mass-produced
smaller items, sellers keep those ID cards in a stack somewhere in the
shop, only giving them out when a customer explicitly requests one.177
Thus, each ID card can represent any number of small ivory pieces as
long as the seller only displays a total number of items equal to the
number of ID cards on hand.178 In a recent investigation, the
International Fund for Animal Welfare (“IFAW”) found that
Id.
Id.
167 Id.
168 Shoumatoff, supra note 115.
169 Vigne & Martin, supra note 121, at 81.
170 Shoumatoff, supra note 115.
171 Vigne & Martin, supra note 121, at 81.
172 See generally EIA, Made in China, 3-11 (2007), available at http://www.eiaglobal.org/PDF/Report—MadeInChina—Species—May07.pdf.
173 Id. at 10.
174 Vigne & Martin, supra note 121, at 85.
175 Id. at 81.
176 Id.
177 See EIA, supra note 172, at 10. See also Grace G. Gabriel, Ning Hua, Juan Wang, Making
a Killing: A 2011 Survey of Ivory Markets in China, INT’L FUND FOR ANIMAL WELFARE (2012),
available at http://www.ifaw.org/united-states/resource-centre/making-killing.
178 EIA supra note 172, at 10.
165
166
120
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[Vol. 31:102
approximately 45% of salespersons in ivory shops attempted to dissuade
potential buyers from obtaining the ID cards.179
Worked ivory shops do not rely on legislative loopholes alone to
maintain their ivory sales. Many shops simply do not obey the Chinese
State Forestry Administration’s regulations.180 In their 2011 report,
Vigne and Martin visited two provinces in southern China.181 While the
Chinese government authorized only twenty-five outlets to sell ivory,
Vigne and Martin found well over a hundred shops selling elephant
ivory,182 but sixty-three percent of those shops did not have any ivory
items with an official ID card.183 While investigating the shops with
official ID cards, Vigne and Martin found many of them would store
their ID cards in the back, potentially keeping them for other smaller
items.184 Lastly, many shops were mixing and selling both African
Elephant and mammoth ivory, claiming that they only sold mammoth
ivory pieces.185 Other reporters and NGOs have experienced similar
incidents of disregard for regulations throughout the course of their
investigations.186
While some problems may exist in the regulation of shops and
worked goods, those problems would have no effect on the African
Elephant populations if China could effectively control its ivory
stocks.187 Chinese businesses owned a significant amount of ivory prior
to the implementation of the CITES ban in 1990.188 With the ban in
place, Chinese officials confiscated some of the unworked ivory at
various factories throughout the country.189 In addition, the
Environmental Investigation Agency (“EIA”), a United States based
environmental NGO, reports that all of China’s pre-CITES stocks
G. Gabriel, supra note 177, at 11.
See generally, Vigne & Martin, supra note 121 (“There is a large illegal trade in retail
ivory items without ID cards in Guangzhou.”).
181 See Vigne & Martin, supra note 121.
182 Id. at 86.
183 Id.
184 Id.
185 Id.
186 See generally EIA supra note 172; Shoumatoff, supra note 115. While sad, Shoumatoff’s
account contains moments of humor. Shoumatoff relates the saleswoman’s reaction upon
advising an American couple not to buy an elephant ivory bangle in Hong Kong: “I scowl at the
American couple, and they hand the bangles back to the saleswoman, who scowls at me. The
couple leaves. I scowl back at the saleswoman.”
187 Resale of the same pieces of ivory may act to increase demand in a country, and that
demand may provide incentives for smugglers to get illegal ivory into the country. However, if
China did not have the legislative loophole discussed immediately infra, smuggling would
become significantly more difficult and the excess demand created by resale of ivory would have
little direct effect on poaching.
188 Vigne & Martin, supra note 121, at 84.
189 Id.
179
180
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Elephant Poaching & CITES
121
should have been exhausted by the mid-1990s.190 Yet China’s ivory
market continued to have newly carved pieces well into the 2000s,191
leading to the conclusion that raw ivory must be coming into the
country through illegal sources.
China leaves the largest loopholes in its “old ivory”192 supply
registration system, allowing Chinese smugglers and manufacturers to
launder new ivory into the Chinese system. 193 China’s registration
system allows any private owner of old ivory (pre-1990) to register that
ivory at any time.194 Thus, Chinese manufacturers will register smuggled
ivory as old ivory with the Chinese State Forestry Administration,
claiming essentially, “I forgot to register this ivory before the ban, but
want to register it now.”195 At that point, the newly smuggled ivory can
be legally carved and sold.196
d. Chinese Government Misplaces 110 Metric Tons of Ivory
While investigations rarely identify the Chinese government as an
active participant in the illegal smuggling and sale of ivory, its
reputation for corruption and its mismanagement of confiscated raw
ivory indicate that Chinese demand may be able to overcome
government attempts at an effectively regulated market. Transparency
International, a corruption assessing NGO, recently gave China a
Corruption Perceptions Index score (“CPI”) of 3.5 on a scale of 1 to 10,
with a score of 1 being “highly corrupt” and a score of 10 being “very
clean.”197
EIA further confirmed the perception of some significant corruption
when it released an internal document showing the Chinese
190 EIA, supra note 108, at 6. Even assuming that the EIA’s estimation is off, China’s ivory
reserves probably should have run out at some point prior to the legal sale one-off sale in 2008.
191 Esmond Martin, Are We Winning the Case for Ivory Substitutes?, 40 PACHYDERM 89, 8991 (2006) (indicating a booming Chinese ivory carving trade through the time of author’s visit in
2004).
192 Old ivory” refers to ivory bought and worked before 1990. It can be distinguished from
“new ivory,” those pieces bought and worked after the 1990 CITES ban, by condition and style.
See generally Vigne & Martin, supra note 121, “Introduction” section, 80-81.
193 EIA, supra note 108, at 4-11.
194 Id. at 4.
195 Id. at 6.
196 Id..
197 TRANSPARENCY INT’L, Corruption Perceptions Index 2010, 2 (Oct. 2010), available at
http://www.transparency.org/policy_research/surveys_indices/cpi/2010/results.
Transparency
International collects “different assessments and business opinion surveys carried out by
independent and reputable institutions” to assess the “the abuse of entrusted power for private
gain.” To compare, the United States has a CPI of 7.1, Australia has a CPI of 8.7, and
Afghanistan has a CPI of 1.4.
122
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government’s mishandling of its ivory stores.198 China did not have
accurate methods of tracking new additions to its stores up until 2002.199
As a result, China estimated that close to 110 metric tons of confiscated
raw ivory—equivalent to the tusks of 11,000 elephants—were sold from
government storage onto the market between 1992 and 2002.200 China
denied that it could not police its trade in ivory, but did not actively
deny the report.201 Chinese officials also deny that Chinese nationals and
companies participate in the smuggling of ivory from Africa.202 Instead,
China points to other parts of Asia as the true problem, “[Wan Ziming,
director of enforcement at the State Forestry Administration] added
about 30,000 kg of ivory was illegally traded to Vietnam, Thailand, and
the Philippines last year, while China seizes about 300 kg of illegal
ivory each year.”203 Ziming misperceives the problem, as a closer
investigation by TRAFFIC reveals that China is a primary target or
intermediary for 43,000 kg of seizures during the period from 19992009.204 Furthermore, even TRAFFIC’s numbers associating large
international seizures with China do not take into account the significant
increase in seizures in 2010 and 2011.205
e. China’s Demand Problem Will Not be Fixed by CITES
Chinese demand has quite obviously spiked, and since market
enforcement mechanisms in China have no ability to combat illegal
trade, it is very likely that illegal smuggling will continue. China not
only remains the most significant destination for illegally smuggled
African ivory, but reports of smuggling have actually risen dramatically
in the last few years. The growing presence of Chinese nationals and
Chinese organized crime in the African poaching and smuggling
incidents should not be ignored. While CITES acknowledges the
problems Chinese demand for ivory creates,206 CITES cannot provide a
solution to the problem, as CITES will not regulate domestic trade.
EIA supra note 108, at 4.
Id.
200 Id.
201 China Dismisses Critics of UN’s Decision on African Ivory Trade License, VOICE OF AM.
(July 17, 2008), available at http://www.voanews.com/english/news/a-13-2008-07-17-voa1866673827.html.
202 Id. See also Chinese in Kenya Not Involved in Ivory Poaching, supra note 152.
203 Chinese in Kenya Not Involved in Ivory Poaching, supra note 152.
204 Milliken, et. al., supra note 57, at 15-16.
205 Record Ivory Seizures Point to Surge in Elephant Poaching, THE GUARDIAN (12/29/2011),
available at http://www.guardian.co.uk/environment/2011/dec/29/record-ivory-seizures-elephantpoaching (“[Tom Milliken] said 2011 was the worst year for large seizures he had seen in the
more than two decades he had been running the database.”).
206 See generally id.
198
199
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Elephant Poaching & CITES
123
CITES’s only response is to pump additional ivory into the Chinese
market, in hopes of satisfying the growing demand.207 Therefore, China
must dramatically alter its domestic regulation of the ivory market.
V. OTHER DOMESTIC MARKETS FOR IVORY
a. United States
Due to a combination of effective enforcement and stagnant demand,
the United States’ regulated ivory trade does not pose a significant
threat to the African Elephant population. 208 The United States allows
legal imports of two types of ivory: “Antique” worked ivory—ivory
bearing a valid CITES certificate indicating that the worked piece is
over one hundred years old—and sport-hunted trophies from African
Elephants shot in the four range states with elephant populations listed
in Appendix II.209 The Antique ivory pieces may be domestically sold or
traded, but the sport-hunted trophies may not be used for any
commercial purpose.210
The United States does not have a significant problem with raw tusk
importation because carvers in the United States pay significantly less
for raw ivory than the manufacturers in Asian countries.211 However,
despite the lower price, internet outlets offer many domestic tusks for
sale.212 Private owners can legally sell any tusks imported into the
United States prior to the 1989 CITES ban, but investigators and ivory
carvers believe that at least some of the tusks for sale came from Africa
after 1989 as hunting trophies.213
In contrast with the minimal smuggling of raw ivory, the United
States does have a problem with illegal imports of worked ivory.214
207 CITES Standing Committee, supra note 82, at Paragraph 14 (“The Secretariat is of the
opinion that linking legal supplies of raw ivory from southern African countries with the legal
demand in countries in Asia should help reduce the motivation for the poaching of elephants and
illegal trade in ivory. It is very conscious, however, that illicit trade in ivory continues to occur
and acknowledges that some criminals and unscrupulous traders will undoubtedly seek to exploit
any opportunity to launder poached ivory. It is, therefore, vital that China and Japan continue to
rigorously enforce their trade controls and maintain their efforts to intercept any attempts to
import unlawfully ivory into their territories.”).
208 Daniel Stiles & Esmond Martin, The USA’s Ivory Markets—How Much a Threat to
Elephants?, 45 PACHYDERM 67, 69, 75 (2009).
209 Id. at 69.
210 Id.
211 Id. at 70. The U.S. had the most number of seizures of ivory by far in the most recent ETIS
reports, but its total weight seized was only eighth on the list. This indicates that smugglers are
not importing the heavier raw tusks.
212 Id.
213 Stiles & Martin, supra note 208, at 70.
214 Id. at 71.
124
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Consumers legally imported over 40,000 ivory items into the United
States between 1995 and 2007, and United States Customs seized over
8,000 pieces of worked ivory during the same time period.215 Significant
quantities of the illegally imported worked ivory came from carvers in
China.216 However, United States Customs cannot successfully detect all
illegal imports of ivory;217 after all, thousands of passengers come
through airports each day, and Customs cannot screen everyone.218
Millions of packages arrive in the country each day through standard
post, and Customs cannot realistically screen even a fraction of them.219
Additionally, state agencies do not have the resources to investigate
each ivory market for sales of new worked ivory.220 Even if states could
enforce physical market regulations, the growth of ivory sales online
would make state enforcement pointless because buyers and sellers
would simply shift to electronic marketplaces.221
Despite the United States’ significant market problems, investigators
do not believe the United States ivory trade poses any threat to the
African Elephant population.222 While this conclusion may seem
counterintuitive, antique fairs reselling the existing stocks of ivory
satisfy much of the stagnant or even declining domestic demand.223
Without the significant demand, American imports of ivory will stay
small by weight, and thus whatever regulation problems they have will
not cause any problems to the African Elephant populations.
b. Japan
The stagnant and perhaps declining demand for ivory in Japan does
not pose a significant threat to the African Elephant either. Japan has
been the target of two one-off sales of ivory in the past, and those oneoff sales have not caused a spike in demand due to increased
availability. The decline in demand for ivory can be attributed to
Japan’s economic recession over the last two decades, increased
westernization, and cheaper ivory replacements. Furthermore, ivory
smuggling is increasingly risky in Japan, as the Japanese government
enforces strict regulations of ivory imports and exports.
215
216
217
218
219
220
221
222
223
Id.
Id.
Id. at 73.
Stiles & Martin, supra note 208, at 73.
Id.
Id.
Id. at 72-73.
Id. at 75.
Stiles & Martin, supra note 208, at 75.
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Elephant Poaching & CITES
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Examining Japan’s decline in demand for ivory could provide some
models for China to follow. The biggest contributor to Japan’s decline
for ivory is Japan’s lack of economic growth, something China cannot
and would not hope to emulate.224 Japan has not seen economic growth
of greater than four percent since 1991, with a handful of years actually
experiencing negative growth.225 To compare, China has averaged
approximately ten percent growth since 1990, and will likely continue
to do so.226 While China has no interest in changing its role as an
economic juggernaut, it could seek to reproduce the cultural changes
that have occurred within Japan. Japan has become increasingly
westernized, resulting in an increase in demand for silver jewelry and
other items, and a decrease in demand for ivory.227 This is particularly
true for Japan’s younger generation, as they also feel guilty following
the western trend in increased concern for the elephant population.228
c. African States Including Ghana
Total market bans have been effective in states with high demand for
ivory goods, as seen by the market bans in Ghana.229 Ghana has been a
prominent ivory trader for at least the last five hundred years.230 Ivory
also plays a prominent role in Ghana’s culture, serving as a symbol of
royalty and wealth.231 Legal exports of ivory to Europe and Asia ceased
in the 1930s, although local markets remained open until Ghana’s
legislature enacted a total ban of ivory possession in 1983.232 Illegal
trade and poaching remained a substantial problem until the 2000s,
when increased poaching and market enforcement nearly eradicated the
market for ivory.
The largest contributor to decreased demand for ivory is the
significant increase in market ban enforcement by Ghana’s police
force.233 An informal investigation conducted by Esmond Martin of the
224 Lucy Vigne & Esmond Martin, Consumer Demand for Ivory in Japan Declines, 47
PACHYDERM 45 (2009).
225 WORLD
BANK, WORLD DEV. INDICATORS, GOOGLE PUB. DATA (2011),
http://goo.gl/GWCG9 (link shortened for convenience).
226 Id. at http://goo.gl/YIVei.
227 Vigne & Martin, supra note 224, at 51.
228 Id.
229 See generally Esmond Martin, Effective Law Enforcement in Ghana Reduces Elephant
Poaching and Illegal Ivory Trade, 48 PACHYDERM 24 (2010), available at http://goo.gl/xFHcS
(link shortened for convenience).
230 Id. at 25.
231 Id.
232 Id. at 25-26.
233 Id. at 31.
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markets in Ghana showed only a handful of pieces for sale. 234 Those
pieces were all hidden in the back of shops and only brought out when
Martin asked specifically for ivory pieces to purchase.235 Market owners
in Ghana are not willing to stock ivory anymore because the police in
Ghana have conducted a number of raids on markets to determine if
they carry illegal ivory.236 The price of illegally importing ivory is high
for shop owners in Ghana, as it requires a significant capital investment
to smuggle the ivory into the country and the risk of being caught is
very great.237 The punishment for possession of ivory includes
confiscation of the items and significant jail time.238
VI. POSSIBLE SOLUTIONS FOR CONTROLLING THE CHINESE MARKET
As discussed earlier, CITES leaves the regulation of domestic
markets for ivory in the hands of individual countries. Thus,
environmental advocates hoping to end the illegal poaching of African
elephants must hope that China can learn from the successful regulatory
models seen in the United States, Japan, and Ghana. Unfortunately,
these models may not provide China with adequate guidance to prevent
its continued illegal trade in ivory. The United States’ and Japan’s
demand is stagnant or possibly declining. In contrast, China’s demand is
rapidly increasing due to the rising income of the middle class. If China
hopes to combat its illegal trade and still keep a legal trade available, it
should follow Japan’s lead and set cultural norms that discourage sales
of ivory. China’s situation with increased demand of shark fin soup
poses a similar problem. However, changing cultural norms in China
may not be enough to keep the illegal trade in ivory under control, as
the spike in demand is so unusual. The cost of shark fin soup has
remained constant or declined in recent years, as consumer demand for
the dish has not grown as fast as the demand for ivory.239 China might
then consider banning the possession of ivory as Ghana has. Given
enough international pressure, China has shown its willingness to ban
the possession of similarly endangered animal products, like rhinoceros
horn.
Martin, supra note 229, at 28.
Id.
236 Id. at 30.
237 Id. at 29-30.
238 Id.
239 See Kristina Chew, Some Chinese Losing Their Taste for Shark Fin Soup, CARE2 CAUSES,
Nov. 13, 2011, http://www.care2.com/causes/some-chinese-losing-their-taste-for-shark-finsoup.html.
234
235
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Elephant Poaching & CITES
127
a. Increases in Chinese Market Regulation and Enforcement
Of the other domestic models discussed in this Note, the Chinese
government stands out in its ability to quickly and unilaterally impose
significant environment laws and market restrictions.240 However, the
rapid pace with which Chinese officials create legislation can result in
unworkable and unenforceable laws, especially in the environmental
regulatory field. 241 Additionally, local governments in China struggle to
implement and enforce new environmental or market regulations.242
Regulations are expensive for the local governments to enforce, and
each local government has a GDP growth target that they may favor
over regulation enforcement.243 Lastly, while the Chinese State Forestry
Administration has spent a significant amount of time and money
producing the pamphlets discussed earlier as well as signs to educate
consumers of ivory, the general public still does not know or care where
the ivory comes from.244 Because of these problems, local governments
in China may be unwilling to spend money and time on the additional
enforcement staff required to properly police the ivory markets
throughout the country.
While Chinese environmental enforcement may generally suffer from
deficiencies, China’s firm regulatory hand does have some benefits
when limiting the market for ivory. China has a contentious history of
internet censorship.245 In the past, China has censored searches related to
the Tiananmen Square tragedy, the Falun Gong spiritual movement, and
many other topics.246 China regulates the internet for a variety of
reasons, but it could also censor searches for ivory and shut down
websites illegally marketing ivory. While such action may be
considered relatively heavy-handed in other countries, it would be far
less contentious than the freedom-of-speech-like censorship the Chinese
See generally Wang Canfa, Chinese Environmental Law Enforcement: Current
Deficiencies and Suggested Reforms, 8 VT. J. ENVTL. L. 159 (2006-07).
241 See id. at 170.
242 See id.
243 See id. at 171.
244 See Grace Ge Gabriel, Promoting Animal Welfare in China, INT’L FUND FOR ANIMAL
WELFARE (Nov. 8, 2010), available at http://www.ifaw.org/us/node/2485. See generally Canfa,
supra note 232 (discussing how Chinese citizens do not take an active role in self-policing or
enforcement of environmental regulations).
245 See, e.g., Trina K. Kissel, License to Blog: Internet Regulation in the People’s Republic of
China, 17 IND. INT’L & COMP. L. REV. 229, 230 (2007) (discussing the Chinese State’s censorship
of the internet, finding that “[t]he political solidarity of China’s [one-party system] depends
heavily upon maintaining ideological unanimity, and this, in turn, necessitates close State control
of all information flows”).
246 Id. at 244.
240
128
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government typically undertakes.247 Banning internet searches and sales
for ivory would make it much more difficult to sell illegally imported
and carved pieces.248
Despite China’s potential to limit internet searches and sales of ivory,
it will still suffer from the same deficiencies in policing packages
entering and leaving the country that the United States suffers.249
Trillions of dollars of freight enter and leave China annually.250 While
the United States imports and exports more goods,251 Chinese Customs
suffers from significant enforcement deficiencies because of its limited
human resources, expanded missions, and growing task lists.252 Just as
in United States, Chinese Customs officials cannot be expected to
inspect all or even the majority of packages entering and leaving the
country.253 Instead, “[a]ny company, Chinese or foreign, may clear its
own goods” through Customs.254
Chinese Customs does have one distinct advantage over the United
States in its ability to enforce extremely harsh penalties against
violators. Once a United States District Court has found a violation of
the Endangered Species Act (“ESA”), it can fine an offender up to
$50,000 and/or jail the offender for no more than a year.255 Additionally,
247 See David Bamman, Brendan O’Connor & Noah Smith, Censorship and Deletion
Practices in Chinese Social Media, 17(3) FIRST MONDAY (2012), available at
http://goo.gl/dHIyi. The Bamman article finds that most words censored by the Chinese
government relate to what Americans would consider “First Amendment” political dissidence.
However, Bamman points out that there are a few instances of moral or market censorship,
specifically in the market for pornography, a banned subject in China.
248 Cf. Frank Langfitt, Looking for Elephant Ivory? Try China, NAT’L PUB. RADIO (Mar. 2,
2012), http://www.npr.org/2012/03/02/147756651/looking-for-elephant-ivory-try-china (finding
“hundreds of pages” of illegal ivory sales with a quick search on Baidu, China’s most popular
search engine).
249 See supra Part V.a.
250 See generally Weiguo Fang, Ying Wan & Ying Gao, Analysis of Mainland China’s
International Air Cargo Network: Status Quo and Challenges, 9 INT’L CONFERENCE ON ELEC.
BUS. 838, 839 (2009) (discussing the valuation of imports and exports in mainland China from
2000-2006, and finding China to have approximately $1.7 trillion in imports and exports in 2006).
251 Press Release, U.S. Census Bureau, U.S. Int’l Trade in Goods and Servs. – Annual
Revision for 2008 (Jun. 10, 2009), available at http://www.census.gov/foreign-trade/PressRelease/2008pr/final_revisions/ (finding that the total value of the imports and exports from the
United States in 2006 was approximately $3.7 trillion).
252 See International Executive Reports, Getting the Goods Through: The Shanghai Model
Port Project and Chinese Customs Procedures, 21 No. 2 E. ASIAN EXEC. REP. 17, (Mar./Apr.
1999) (finding the volume of trade in China to be “expand[ing] rapidly”) [hereinafter Getting the
Goods Through]. See also Zhaokang Jiang, Cost-Saving with Customs and Trade Compliance in
China, ASPATORE, 2009 WL 1007719 (2009) (discussing the changes to Chinese customs in
recent years).
253 See Getting the Goods Through, supra note 252.
254 Id.
255 16 U.S.C.A. §§ 1538(a),1538(d), 1540(b) (2002) (listing domestic violations of the
Endangered Species Act, import and export violations of the Endangered Species Act, and the
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Elephant Poaching & CITES
129
smugglers of illegal ivory in the United States can be forced to pay a
fine of up to $250,000 and be sentenced to up to ten years in prison for
exporting ivory or twenty years in prison for importing ivory under the
general smuggling acts.256 The United States District Courts rarely deal
with violations of the ESA related to elephant ivory, but in a recent case
ivory artist Charles Manghis was sentenced to thirty days in jail (over
the course of fifteen consecutive weekends) and fined $50,000 dollars
for participating in the black market for ivory.257 By comparison, China
can sentence small traders in ivory up to ten or twelve years in prison,
and can sentence larger traders in ivory (stocks valued at over 200,000
yuan or $32,000) to a life sentence.258 Despite the possible substantial
jail sentences, China does not have the enforcement manpower to bring
all of the violators before a court,259 and Chinese prosecutions for illegal
ivory trade have been rare despite the large number of illegal markets
operating within China.260
penalties for those violations, respectively). See also Special Rules—Mammals, 50 C.F.R. §
17.40(e) (2012) (listing the kinds of ivory that are legal to possess in the United States. Ivory
cannot be imported for any commercial reason into the United States).
256 18 U.S.C.A. §§ 545, 554, 3571.
257 Barbara Goldberg, Man Sentenced to Jail for Smuggling Whale Teeth, REUTERS, Aug. 1,
2011, available at http://goo.gl/rJBOc (Charles Manghis was sentenced for smuggling whale
teeth, but the punishment falls under the same statutes). See also Press Release, U.S. Dep’t of
Justice, Ivory Smuggler Pleads Guilty in New York (Dec. 6, 2011) available at
http://www.justice.gov/opa/pr/2011/December/11-enrd-1576.html (discussing the recent guilty
plea of Lin Feng Xu, who could be sentenced up to the maximum penalty listed in 16 U.S.C.A.
§1540(b) and 18 U.S.C.A. §554).
258 Man Faces 5 Years Jail for Bringing in Ivory, SHANGHAI DAILY, Mar. 8, 2012, available
at http://www.china.org.cn/environment/2012-03/08/content_24841960.htm. See also Chinese in
Kenya not involved in ivory poaching, CHINA DAILY, Sept. 8, 2009, available at
http://www.chinadaily.com.cn/china/2009-09/08/content_8664611_2.htm (China Daily is a staterun newspaper); CITES Management Authority of China, Control of Trade in Ivory in China,
SC62 Inf. 8, at 2 (July 23-27 2012) available at http://www.cites.org/eng/com/SC/62/Inf/E62i08.pdf.
259 See, e.g., Christina M. Russo, How China is Driving the Grim Rise in Illegal Ivory, YALE
ENVIRONMENT
360,
Jan.
23,
2012,
available
at
http://www.guardian.co.uk/environment/2012/jan/23/china-rise-illegal-ivory (Tom Milliken of
TRAFFIC stated that although China has increased the investigation and seizures of large
shipments of illegally poached ivory into the country, none of the criminals responsible could be
found because of the many layers of organized crime masking the actual offenders). See also
Vigne & Martin, supra note 121, at 87 (finding that law enforcement in southern China was
severely lacking in 2011).
260 See, e.g., Vigne & Martin, supra note 121, at 86-87. The cases from 2012 and 2009 are the
most recent examples of highly publicized prosecutions for ivory smuggling in China. The author
did not find records of other arrests and prosecutions within the last several years, although
arrests in China are not always publicized.
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China last attempted to regulate the domestic trade of endangered
animal products when CITES listed the rhinoceros under Appendix I.261
Rhinoceros horn plays an important part in traditional eastern medicine
as an ingredient used to reduce fever.262 With the rapidly decreasing
rhinoceros population, CITES added the rhinoceros to Appendix I in
1977.263 Throughout the 1970s and 1980s, China was one of the largest
importers of rhinoceros horn.264 Due to pressure from CITES and the
international community, China banned the use of rhinoceros horn in
traditional eastern medicines in 1981.265 However, investigations
revealed that many Chinese pharmacies still stocked medicines made
from rhinoceros after the ban.266 In 1987, CITES passed Resolution
Conference 6.10, requesting that all signatory countries destroy their
stocks of rhinoceros horn, and outlaw its domestic trade.267
Because of the traditional use of rhinoceros horn in medicine, China
requested a reservation from the resolution.268 Instead, it created a
registration system of the known horn stocks in 1988 to limit and
control domestic trade.269 The registration was very similar to the
current system used for government-owned elephant ivory stocks.270 Just
as the current ivory registration system suffers from devastating flaws
and loopholes, the rhinoceros horn registration system left loopholes for
private buyers, current medicinal shop stocks, and museums.271 Despite
China’s increased efforts to regulate the rhinoceros horn market, there
was no corresponding decline in poaching; poaching continued at
261 J.A. Mills, Rhinoceros Horn and Tiger Bone in China: An Investigation of Trade since the
1993
Ban,
TRAFFIC
(1997),
http://www.traffic.org/speciesreports/traffic_species_mammals64.pdf.
262 Wang Xinxia, The Implementation of CITES in China (1993), reprinted in IMPROVING
COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL LAW 207 (James Cameron, Jacob
Werksman & Peter Roderick eds, 1996).
263 Id. at 208.
264 NIGEL LEADER-WILLIAMS, TRAFFIC INT’L, THE WORLD TRADE IN RHINO HORN: A
REVIEW
22
(Sept.
1992),
available
at
http://www.traffic.org/speciesreports/traffic_species_mammals45.pdf.
265 Id. at 27.
266 Id.
267 Parties
to
CITES,
Resolution
Conf.
6.10
(1987),
available
at
http://www.cites.org/eng/res/all/06/E06-10.pdf (Resolution Conference 6.10 “URGES all Parties
to take steps to establish the following measures immediately: (a) a complete prohibition on all
sales and trade, internal and international, of rhinoceros parts and derivatives, especially horn,
whether whole or in any other form, including personal effects . . . (b) the destruction of all
government and parastatal stocks of rhinoceros horn. . . .”).
268 See Xinxia, supra note 262, at 208.
269 Tom Milliken, The Evolution of Legal Controls on Rhinoceros Products in Hong Kong—
An Asian Model Worth Considering, 25(4) ORYX 209, 213-14 (Oct. 1991).
270 See generally supra Part IV.c.
271 See LEADER-WILLIAMS, supra note 264, at 27.
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Elephant Poaching & CITES
131
alarming rates due to the significant demand.272 After significant internal
debate as well as substantial pressure from CITES and the United
States, China relented and banned domestic trade in rhinoceros horn in
1993.273 China generated widespread awareness about the ban, and by
the mid-1990s Chinese consumption of rhinoceros horn had dropped
substantially.274 The demand for rhinoceros horn and its byproducts had
caused the black rhinoceros population to shrink from 65,000 animals in
1970 to a low of 2,400 animals in Africa in 1995.275 After the ban, the
black rhinoceros population has recovered to some degree, as current
estimates list between 3,700 and 4,200 animals in the wild.276 China’s
attempts to regulate the markets for endangered species’ products had
been a disaster up to this point.
b. Cultural Norms Modification
While China has not had much success regulating products like ivory
and rhinoceros horn, environmental groups are currently trying to
combat the shark fin market by shifting societal norms. The middle
class’s demand for ivory parallels its demand for shark fin soup.277 The
taste of the soup is one of the least important factors.278 Instead, the
Chinese middle class views the soup as a status symbol, just as it views
ivory.279 Being seen eating the soup gives the buyer “face,” a Chinese
conception of social status.280 The high price of shark fin soup only
contributes to its attraction.281 A twelve person serving bowl of the soup
can cost as much as $140.282 The Chinese demand for shark fin soup has
jeopardized the entire shark population, and the International Union for
Id. at 31.
See Xinxia, supra note 262, at 208.
274 See Mills, supra note 261, at 43.
275 M.J. Walpole, et. al., Population Dynamics & Future Conservation of a Free-Ranging
Black Rhinoceros (Diceros Bicornis) Population In Kenya, 99(2) BIOLOGICAL CONSERVATION
237, 237 (2001).
276 See Sean Markey, West African Black Rhino Extinct, Group Says, NATIONAL GEOGRAPHIC
NEWS, July 12, 2006, available at http://news.nationalgeographic.com/news/2006/07/060712black-rhino.html; Ohio zoo: African Black Rhino Dies after Illness, THE GUARDIAN (Dec. 28,
2011), available at http://www.guardian.co.uk/world/feedarticle/10015907. The white rhinoceros
population has made a similar comeback, growing to approximately 14,000 animals.
277 See generally Sebastian Berger, The Chinese Love Affair with Shark’s Fin Soup, JAKARTA
GLOBE, June 6, 2011, available at http://www.thejakartaglobe.com/food/the-chinese-love-affairwith-sharks-fin-soup/445335 (detailing the middle class’s obsession with shark fin soup).
278 Id.
279 Id.
280 Id.
281 Id.
282 Id.
272
273
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the Conservation of Nature listed fourteen different heavily traded shark
species on their “red list” of endangered species.283
While many Chinese citizens have consumed shark fin soup in the
last year, its popularity and price may be declining, which may be due
to conservation efforts.284 The young people of China may have some
reservations and guilt over the dish, similar to the feelings of other parts
of the world.285 Additionally, public awareness campaigns by Chinese
stars such as Yao Ming may have had some impact in raising Chinese
awareness of the problem.286 However, despite the minor improvements
that have recently occurred, environmentalists predict that many of the
most targeted shark species will soon be extinct if the shark finning
process continues.287 In that case, a shift in Chinese cultural norms may
be too little, too late for the many endangered species of shark around
the world.
While activists have been conducting a public interest campaign to
raise the awareness of the hazard posed to sharks around the world by
shark fin soup for several years, wildlife groups have only recently
begun public interest campaigns informing the middle class of China
about the poaching risks to the African Elephant population. WildAid
started its campaign by producing a commercial in which Yao Ming
heroically blocks a speeding bullet just before it strikes an African
Elephant.288 WildAid has placed the English ad campaign in taxis
throughout Shanghai and Beijing.289 Ming and WildAid have recently
produced a blog and social media campaign tracking Ming’s trip to
Africa to raise Chinese awareness of the illegal ivory trade.290
283 Chew, supra note 239. For an explanation of the “red list” of endangered species, see
About
the
IUCN
Red
List,
IUCN.org,
available
at
http://www.iucn.org/about/work/programmes/species/red_list/about_the_red_list/.
284 See Chew, supra note 239.
285 Id.
286 Id.
287 Id.
288 Langfitt,
supra
note
248.
See
also,
Elephants,
WILDAID,
http://www.wildaid.org/elephants, (last visited Mar. 26, 2012); video available at
http://www.youtube.com/watch?v=XKj3nRYPRgQ.
289 Langfitt, supra note 248. WildAid likely made the decision to use English based on two
assumptions. First, it may have assumed that English-speaking tourists are buying some
substantial portion of the illegally imported ivory. See Sir Richard Branson, Souvenirs, WILDAID,
http://www.wildaid.org/virginunite (click on the video entitled “Souvenirs” on the right-hand
side). Second, WildAid may have assumed that the rising middle class will feel more Western if
the advertisement is in English. See, e.g., Liwei Gao, Bilinguals’ Creativity in the Use of English
in China’s Advertising, in ISB4: PROCEEDINGS OF THE 4TH INTERNATIONAL SYMPOSIUM ON
BILINGUALISM,
827,
827
(James
Cohen,
et.
al.,
eds.,
2005),
http://www.lingref.com/isb/4/065ISB4.pdf.
290 Sam Laird, A Cryptic Tweet Opens the Door to Yao Ming’s Africa, MASHABLE, (Aug. 27,
2012), http://mashable.com/2012/08/27/yao-africa/.
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Elephant Poaching & CITES
133
The IFAW has worked with CITES as well as local law enforcement
in China to curtail the flow of illegal ivory into China for several
years.291 As IFAW’s efforts to cut the supply of ivory into China have
been unsuccessful, IFAW recently allocated resources to a public
interest campaign correcting commonly held misconceptions about
ivory.292 In a survey conducted by IFAW, sixty percent of people in
China did not know that elephant ivory came from deceased
elephants.293 This misconception is reasonable for the Chinese; the
Chinese word for ivory is “xiang ya,” meaning literally “elephant
teeth.”294 This translation, while literally true, leads Chinese buyers to
believe that the ivory is similar to the baby teeth that all mammals
have.295 Thus, most of the Chinese buyers do not know that an elephant
must die to produce the ivory products found in markets.296 IFAW found
in the same survey that eighty percent of Chinese buyers would not
purchase ivory if they knew that elephants must die to provide the ivory
to the markets.297
The similarities between the demand for shark fin soup and ivory
might allow elephant conservation groups to learn from strategies that
have already been tested in the attempt to change the Chinese
perception about shark fin soup. However, the most important lesson
learned from the campaign against shark fin soup in China is that
making progress is difficult and can take many years.298 Neither the
endangered sharks killed to make shark fin soup nor the African
Elephants can wait decades for the public to lose its taste for shark fin
soup and ivory.299 The huge spike in demand for ivory also makes it
more difficult to predict how quickly the poaching rate in Africa will
291 Too Late—Military Intervention Fails To Halt Elephant Slaughter in Cameroon, INT’L
FUND FOR ANIMAL WELFARE, Mar. 12, 2012, http://www.ifaw.org/us/news/too-late—militaryintervention-fails-halt-elephant-slaughter-cameroon-graphic -image.
292 Id.
293 Ge Gabriel, supra note 244.
294 Id.
295 See id. Elephant ivory comes from elephant tusks. Those tusks are technically teeth, so the
Chinese translation is not incorrect. However, by calling them teeth, buyers may be led to believe
that elephant tusks are easily replaceable teeth, like those found in a human mouth as opposed to
the permanent tusks that elephants possess.
296 Id.
297 Id.
298 Compare Nicholas Bakalar, 38 Million Sharks Killed for Fins Annually, Experts Estimate,
NATIONAL
GEOGRAPHIC
NEWS,
Oct.
12,
2006,
http://news.nationalgeographic.com/news/2006/10/061012-shark-fin.html
(stating
that
approximately 38 millions sharks are killed annually), with Sonja Fordham, As Shark Slaughter
Continues, A Defender Targets Fin Trade, YALE ENVIRONMENT 360, Nov. 17, 2010,
http://e360.yale.edu/feature/as_shark_slaughter_continues_a_defender_targets_fin_trade/2340/
(stating that between 26 and 73 million sharks are killed annually as of 2010).
299 See Fordham, supra note 298.
134
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[Vol. 31:102
grow, whereas the number of sharks killed for their fins each year is
easier to predict. This uncertainty does not leave time for a prolonged
public awareness campaign in China. Changing public perception about
ivory, while important, will not end the threat to elephant populations.
Instead, China can best reduce the importation of illegally poached
African Elephant ivory by banning the domestic trade entirely.
c. Chinese Ban on Elephant Ivory Required
China’s attempt to control the market for elephant ivory through
shifting cultural norms and increased domestic enforcement will likely
fail. The demand for ivory in China is too high for those methods to
have the impact required to preserve the current population of elephants.
In that case, China may want to emulate Ghana and completely ban the
sale of ivory and ivory products. It would not be unprecedented for
them to do so; as discussed, China banned the trade of rhinoceros horn
in 1993 in response to international pressure and the devastation of the
world-wide rhinoceros population.300 Similarly, the new demand for
ivory from the growing Chinese middle class threatens the population of
African Elephants.301 China will not be able to regulate the market
meeting that demand, just as it was unsuccessful at regulating the
market for rhinoceros horn in the 1980s and early 1990s. Therefore,
China should ban the domestic trade of ivory before the African
Elephant population withers just as the rhinoceros population did.
VII. CONCLUSION
China’s extremely recent spike in demand for ivory has created new
poaching incentives that threaten the African Elephant after a decade of
relative safety. The huge jump in the prices and pieces sold of ivory
indicates that a spike in demand is having a dramatic effect on the
market in China. CITES seems unable to or uninterested in keeping
China’s market under control, so China must rely on its domestic
market enforcement mechanisms to control the market. However,
Chinese enforcement mechanisms are insufficient to control a legal
trade in ivory, and China must take other actions if it wishes to control
the trade. It cannot emulate countries like the United States or Japan,
because those countries never faced such a substantial increase in
demand. The country’s only options are to shift its social norms away
from the consumption of ivory or ban the trade entirely. China’s shift in
social norms has had some effect on the trade in shark fin, but it has not
300
301
See EIA, Made in China, supra note 172, at 12.
See supra Part III.c.
2013]
Elephant Poaching & CITES
135
been nearly as successful at preserving an endangered species as the
complete ban in rhinoceros horn was. China’s spike in demand presents
problems that no country has ever encountered before, and domestic
trade should be banned to stop the problem now.