July 2017. Climate Law and Policy. 31487569374 a586be142c ofinal copy  

CITES CoP17: Elephants and the Ivory Trade.

This blog entry is based on a CITES CoP17 field note, written by Sebastien Korwin, Senior Legal and Policy Advisor at CLP, Keith Lindsay, Ambroselli Elephant Trust, and Rosalind Reeve, Franz Weber Foundation and David Shepherd Wildlife Trust. The peer-reviewed field note will be published in the forthcoming edition of IUCN’s Pachyderm Journal.

Background

The ivory trade has been a matter of fierce debate in CITES fora throughout its 42-year history.

The African elephant [Loxodonta africana] was first listed in Appendix III in 1976 by Ghana and subsequently up-listed to Appendix II at the first Conference of the Parties [CoP 1] in Bern, Switzerland in 1976. After almost a decade during which ivory poachers devastated African elephant populations by an estimated 42.3% to 73.1% and efforts to achieve a controlled, licensed legal trade failed, they were moved up to Appendix I in 1989, banning commercial international ivory trade.

Southern African States however, opposed the up-listing, arguing that their elephant populations did not qualify and campaigned to downlist them at subsequent conferences. Botswana, Namibia and Zimbabwe eventually succeeded in 1997 and South Africa in 2000, amidst resistance from other African elephant range States. They also obtained approval for "experimental" sales of ivory that took place in 1999 and 2008. A condition for allowing them was a system for Monitoring the Illegal Killing of Elephants [MIKE] that would assess the impact of this legal trade, and other factors, on poaching rates. Notably, the 2008 sale was part of a compromise package of agreements reached behind closed doors that included a moratorium on new proposals to trade until 2017.

Elephants and Ivory Trade at CoP17

In September-October 2016, the 17th CoP took place in South Africa against a backdrop of dramatic increases in elephant poaching and seizures of illegally traded ivory, which many considered were fuelled by the 2008 stockpile sale. Both pro- and anti- trade proposals were tabled at CoP17; on one side, the 29-member African Elephant Coalition [AEC] representing the overwhelming majority of range States argued for a complete ban on international ivory trade and closing all domestic markets, and on the other, Namibia, Zimbabwe and South Africa argued to open up ivory trade. The US also submitted proposals to close domestic ivory markets and control live elephant trade.

Proposals on African elephants to CoP17 included:

1. ‘Anti-trade’ proposals: recommending closure of domestic ivory markets [AEC and US], listing all African elephants in Appendix I and better managing and destroying ivory stockpiles [AEC], and restricting trade in live elephants [AEC and US];

2. ‘Pro trade’ proposals by Namibia, South Africa and Zimbabwe: to establish a mechanism to reopen ivory trade and to remove the annotations to the Appendix II listings of African elephants, enabling renewed international commercial trade; and

3. A ‘compliance’ proposal by the Secretariat to institutionalise guidelines for the National Ivory Action Plan [NIAP] process, initiated by CITES in 2013 in an attempt to address poaching and illegal trade.

Outcomes of CoP17

Decision-making mechanism for a process of trade in ivory

The first decision on the ivory trade at CoP17, arguably setting the tone for subsequent negotiations, was on the decision-making mechanism for a process of trade in ivory [DMM]. While the AEC proposed to end the mandate for discussions on the DMM initiated in 2007 and renewed in 2013, Namibia, South Africa and Zimbabwe proposed establishing an unrestricted DMM at the conference. 

The three southern African countries argued that developing a DMM had been part of the 2007 compromise, and a regulated ivory trade would incentivise conservation efforts by channeling proceeds to rural communities. They went further to argue that if no DMM was adopted they would consider the 2007 agreement as not implemented and the annotation containing the moratorium clause as pro non scripto [as if not written]. The AEC meanwhile argued that the status of elephants had changed considerably since 2007 as a result of the ivory trade and that the very discussion of a legalization process sent signals that it could soon reopen, undermining global efforts to reduce demand for ivory.

Although many Parties considered further discussions on the DMM inappropriate, there was no clear consensus in the room. In a series of tense votes, the DMM was defeated, even though South Africa requested a secret ballot for the vote on their proposal. The decision ended nearly a decade of contentious negotiations that kept the prospect of a future ivory trade alive. 

Closure of domestic ivory markets and ivory stockpile destruction and management

Probably the most significant decision for elephants at CoP17 was on the closure of domestic ivory markets. Proposals by the AEC and the US to close domestic markets raised fierce opposition from a small number of Parties, some arguing that it should not be discussed as it was an attack on States’ “permanent sovereignty over natural resources”. A motion by Namibia to close the debate was rejected and further discussion was deemed admissible.

An open working group was established on domestic ivory markets, as well as ivory stockpile management and destruction. The AEC and the US presented a unified proposal to the working group for revising Resolution Conf. 10.10 [Rev. CoP16], which became the basis for discussions on closing domestic ivory markets. Negotiations were intense. Proponents for closure [the AEC, China and the US] argued that maintaining domestic markets enables the laundering of poached ivory under the guise that it is antique, “pre-Convention” or otherwise legally acquired, and that closing legal markets would reduce such opportunities, and reduce demand. Opponents of closure included Namibia, South Africa and Zimbabwe, supported by Japan and Brazil, while the EU sat on the fence, insisting on a ‘qualified’ closure. 

In the end, a compromise recommendation was agreed that “all Parties and non-Parties in whose jurisdiction there is a legal domestic market for ivory that is contributing to poaching or illegal trade, take all necessary legislative, regulatory and enforcement measures to close their domestic markets for commercial trade in raw and worked ivory as a matter of urgency” [emphasis on the qualifying language added]. The qualification raised concerns, with China strongly opposing it. However, without it there likely would not have been a recommendation given the EU’s position. The decision was still considered a breakthrough, and could signal a turning point in CITES elephant policy. China has since announced that it will close its ivory market – the largest in the world – by the end of 2017.

In the same working group, the pro- and anti- ivory trade constituencies also clashed on the issue of stockpile destruction. Much of the argument focused on the use of the word ‘destruction’. Parties failed to agree, but nevertheless a decision was agreed directing the CITES Secretariat to develop practical guidance for the management of ivory stockpiles, including their 'disposal'. 

Restriction of trade in live elephant specimens

The proposal by AEC Parties to restrict live elephant exports to in situ conservation programmes or secure areas in the wild within their natural range sought to exclude the transfer of live elephants from the wild to places such as zoos. The rationale was that both the transport conditions and removal from their social groups disrupts wild populations and has detrimental impacts on the physical and mental well-being of the affected animals. It was also argued that the term ‘appropriate and acceptable destination’ should be amended to reflect these potential impacts. The proposal by the US required that for such trade to be ‘appropriate and acceptable’, the Scientific Authorities of the State of import and the State of export must be satisfied that it would promote in situ conservation; it also touched on the establishment of basic welfare guidelines and the disposal of any ivory from elephants dying in captivity.

Consultations between the AEC and the US and discussion on the floor led to some tightening of the provisions for ‘appropriate and acceptable destinations’, particularly for elephants and rhinos. Scientific Authorities must now be “satisfied that the trade [to ‘appropriate and acceptable destinations’] would promote in situ conservation”. Parties are also encouraged to stipulate that “rhinoceros horn or elephant ivory from those animals and from their progeny may not enter commercial trade and be sport hunted outside of their historic range”. The issue was referred to the CITES Animals Committee and Standing Committee for further discussion, with a report on recommendations due at CoP18, offering the opportunity for further measures and guidance to improve welfare conditions. 

Amendments to the Appendix listings

These diametrically opposed proposals were the most controversial on elephants at CoP17. The AEC and supporting countries argued for a unified listing of African elephants in Appendix I on the basis that the continental population faces a common and on-going threat from the international ivory trade. They considered that national listings meet political rather than biological criteria, since the majority of elephant populations live in the transboundary areas of at least two neighbouring countries, including those in different Appendices. The species as a whole therefore meets the biological criteria, having suffered a 61% decline between 1980 and 2013 according to the IUCN African Elephant Database and should not be subdivided to suit national politics. It was also argued that split-listing is difficult to enforce, sustains demand for ivory, provides an incentive to stockpile poached ivory and enables laundering.

The main argument in favour of lifting restrictions on trade by removing annotations to the Appendix II listings was that elephants found within Botswana, Namibia, South Africa and Zimbabwe’s national borders do not meet the biological criteria for Appendix I listing and should be eligible for regulated trade under CITES. It was also argued that CITES had exceeded its powers in agreeing to the moratorium, resurrecting an argument used unsuccessfully in 2007.

In a series of votes, all the proposals were rejected, with the EU opposing each one. The proposals to remove the annotations [amended by Japan] were considered together in a secret ballot requested by Zimbabwe. Parties overwhelmingly rejected it, with 27 in favour, 100 against, and 9 abstaining. The AEC proposal, considered in an open ballot, gained more support with 62 in favour, 71 against and 12 abstentions. In one of the most significant developments at the CoP, Botswana, which has the largest elephant population in Africa, announced its support for an Appendix I listing. The Minister cited the seriousness of the crisis and evidence that poaching networks are moving south, stating that no elephant populations should be considered secure and that Botswana would not ignore its responsibility to other African nations. Although the AEC proposal was not adopted, the high level of support it achieved despite the EU’s opposition was encouraging for its proponents.

A key dynamic influencing the debate was concern that a vote in favour of the up-listing, could lead Namibia, South Africa, Zimbabwe and Japan to invoke Article XXIII of the Convention and enter a reservation, which some argued could allow them to trade under Appendix II. Indeed, Namibia announced publicly that it would do so. Many observers considered this threat the real reason why the Appendix I proposal was rejected by the EU, US and some other Parties.

Conclusions

CoP17 marked a key point in CITES history, both for elephants and in the CoP’s ability to address domestic trade. Considered together, the decisions represent a recognition that a legal ivory trade is the primary threat to elephant populations across the continent. Their impact, however, will depend on Parties’ will to implement them, and on follow up by CITES Committees later in 2017. While measures are still needed to close loopholes, the CoP17 decisions, including increased international cooperation in law enforcement to fight wildlife crime and a strengthened compliance process on ivory trade through NIAPs, mark a large step towards safeguarding elephant populations and the ecosystems of which they are part.