In a world without an overarching authority to govern behavior, states agree to certain rules of engagement to interact with the international community as equals. As a result, international law has evolved from a variety of sources as a conglomeration of norms and agreements. The primary sources of International Law include explicit forms such as treaties and the more abstract customary law which is drawn from the behavioral norms of states. This paper will analyze the roles played by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the customary law which has arisen from the behavioral norm against the hunting of endangered species, within the context of the prohibition on the trade of elephant ivory.
The prohibition on the trade of elephant ivory is a complex issue. It was brought about as a result of the over-exploitation of Africa’s population of elephants. Once burgeoning herds had been hunted nearly to extinction for their tusks. Elephant ivory is an extremely valuable resource. On the Chinese black market, where it is prized for its uses in furniture and traditional medicine, ivory can fetch more than thirteen-hundred dollars per pound (Levin, 2013). In 1989, CITES voted to list most populations of the African Elephant as an Appendix 1 species, ending the vast majority of the legal international trade of ivory; however, the topic remains a concern for conservationist groups and environmentalists (Perlez, 1989).
One significant source of international law regarding this can be found in Treaties. These are explicit written agreements created between legitimate legal entities establishing primary and secondary rules. Primary rules are those which explicitly regulate behavior while secondary rules can be described as procedural guidelines. This paper will focus on the primary rules as they are the most impactful in terms of the prohibition on the trade of ivory.
CITES is a multilateral treaty that became active in 1975 after it was ratified by ten parties. It was negotiated to promote cooperation for the regulation of the international trade in endangered species and products made from them. Today it has been signed and ratified by 183 states. According to the first three paragraphs of Article 2 of the treaty, CITES functions by separating species of interest into three appendices which set out the degree to which the trade of that animal should be regulated (1973). Appendix 1 species receive the highest level of protection in the form of a comprehensive ban on international trade of the animals for commercial purposes.
Species listed in Appendix 2 are considered to be vulnerable by the international community and benefit from strict regulation on their respective trades. Appendix 3 is the least stringent and consists of species that have been put forward by governments in an attempt to gather international support for conservation efforts. Critically, CITES has no authority to enforce its decisions and is entirely dependent on member states to create and implement domestic laws to fulfill their treaty obligations (Sheikh & Corn, 2016). This essentially means that, as with most international law, states adhere to it only for as long as they wish to. There are very few consequences for non-compliance. The vast majority of African elephants are listed by CITES as an Appendix 1 species yet their survival continues to hang in the balance.
A second major source of international law is customary law, which is implicitly created by behavioral norms shared by the international community. To constitute international law, norms must fulfill two criteria. The first is a material element that can only be demonstrated by systematic practice over time. The second is a psychological element that must show the states’ belief that the practice of a norm is their legal obligation. These requirements are met by the norm against the hunting of endangered species.
This norm plays a significant role in the prohibition of the trade in elephant ivory. Many of the largest and most powerful states have developed significant behavioral norms and domestic laws to protect their respective natural resources above and beyond what is required by the CITES treaty. This behavior meets the requirements for becoming customary international law, which should theoretically bind all members of the international community. For example, the U.S. Endangered Species Act of 1973 goes far beyond the country’s obligations under CITES. Instead of classifying animals as endangered solely by the level of threat posed by trade as CITES does, the U.S. legislation provides additional methods of classification (Sheikh & Corn, 2016). This is illustrated by the U.S. National Fish and Wildlife Service, which classifies species as needing protection based on factors including “disease or predation, the inadequacy of existing regulatory mechanisms, [or] other natural or manmade factors affecting its survival.” Additionally, the Endangered Species Act prohibits the hunting, trapping, or collection of members of endangered species (2019). The U.S. is hardly alone in practicing this custom.
Article 11 of the Law of the People’s Republic of China on the Protection of Wildlife states that “The hunting, catching or killing of wildlife under special protection by the State shall be prohibited” barring exceptional circumstances (“Regulations for the…”, 1992). These two world powers often find themselves opposed to one another but they agree on this, which in itself is indicative of the strength of the norm.
There is an ironclad argument that this norm constitutes customary international law. At this point, it has been influencing domestic policy and behavior for decades. The U.S. Endangered Species Act has now been in place for half a century and China’s Wildlife Protection Law has been active for nearly thirty years. That’s significantly longer than the international community has deemed to be necessary for other norms. The Truman Proclamation for example, which established exclusive economic zones for countries, was adopted practically overnight (Wallace, 2020). Additionally, this custom has suffered no objections that were both continuous and substantive. Governments tend not to argue outright that endangered species should be killed, although admittedly this might be because the definition of the term endangered is subject to interpretation.
There seems to be a consensus that species on the edge of extinction should be preserved. The final, and perhaps most important test as to whether a norm constitutes customary law is whether or not states adhere to it based on a perceived legal obligation to do so. There is significant evidence that this is the case. According to the United Nations (U.N.) News, the head of the U.N.’s scientific organization stated that “We can no longer continue to destroy the diversity of life. This is our responsibility towards future generations” (2019). The fact that a representative of the United Nations is taking this position implies that states consider future generations to have as much right to the planet and its resources as those occupying it now. By this logic, preserving endangered species is viewed as a legal obligation to the future citizens of every nation.
In the case of the prohibition of the trade in elephant ivory, the effect of customary international law is more significant than the effect of treaty law. While some might argue that because CITES was adopted so widely and was reasonably effective at limiting international trade, the treaty must be more effective, it is key to remember that CITES itself has no enforcement capability. This means that states are essentially left to their own devices in terms of how to meet their obligations. Signatories can’t allow trade in restricted elephants or ivory to cross their borders, but beyond that, there is little to no obligation. Prohibiting the international trade of ivory is a good first step, but to expect it to be completely effective on its own is unrealistic. On the other hand, the customary law regarding the killing of endangered species has coerced states with populations of elephants to go above and beyond their responsibilities under CITES to tackle issues like poaching, which provide the ivory for the international trade in the first place. The treaty provides a rather unimpressive benchmark for states to attempt to limit international commerce in a species while customary law pushes states to preserve their national resources for the future of their country and the world.
The customary law which has arisen from the norm against the hunting of endangered species and the CITES treaty have managed to stem the global ivory trade. The extinction of these species is no longer inevitable. This combination of the sources of international law is preserving the world’s natural wonders for the future. State cooperation is a necessity in a world that seems to grow darker by the day. Modern problems require modern solutions and it is the sources of international law which will provide them.
References
- Convention on International Trade in Endangered Species of Wild Fauna and Flora. (1973, March 3). Retrieved January 24, 2020, from https://www.cites.org/eng/disc/text.php#II
- Levin, D. (2013, March 2). From Elephants’ Mouths, an Illicit Trail to China. Retrieved January 22, 2020, from https://www.nytimes.com/2013/03/02/world/asia/an-illicit-trail-of-african-ivory-to-china.html
- Listing and Critical Habitat: Overview. (2019, June 12). Retrieved January 23, 2020, from https://www.fws.gov/endangered/what-we-do/listing-overview.html
- Njanji, S. (2016, September 22). How CITES works, and 5 species to look out for. Retrieved January 22, 2020, from https://www.businessinsider.com/afp-how-cites-works-and-5-species-to-look-out-for-2016-9
- Perlez, J. (1989, October 17). Ivory Trade Is Banned To Save the Elephant. Retrieved January 22, 2020, from https://www.nytimes.com/1989/10/17/science/ivory-trade-is-banned-to-save-the-elephant.html
- Regulations for the Implementation of the People’s Republic of China on the Protection of Terrestrial Wildlife. (1992). Retrieved January 24, 2020, from https://www.animallaw.info/statute/china-wildlife-wildlife-law-regulations
- Sheikh, P. A., & Corn, M. L. (2016, September 21). The Convention on International Trade in Endangered … Retrieved January 22, 2020, from https://fas.org/sgp/crs/misc/RL32751.pdf
- Wallace, G. (2020). Pol S/LSJ 347 Int’l Law: Origins and Sources [Powerpoint Slides]. Retrieved January 26, 2020, from https://canvas.uw.edu/courses/1356346/files/61094707?module_item_id=10221167
- World is ‘on notice’ as major UN report shows one million species face extinction | UN News. (2019, May 6). Retrieved January 24, 2020, from https://news.un.org/en/story/2019/05/1037941
