An article published last Saturday in The Times has raised some interesting points about the restrictions on the ivory trade and the challenges to proper enforcement of current regulations. This is a topic that has been touched upon previously by several other sources, including The Guardian and The Telegraph.

Image c/o Wikimedia Commons CC-BY (Stuart Bassil)

At the core of the restrictions on the ivory trade is an international convention called CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora), which has been implemented into EU legislation through a series of regulations known as the EU Wildlife Trade Regulations[1]. On a domestic level, two pieces of UK legislation stand out, namely the UK Endangered Species (Import & Export) Act 1976 and the UK Control of Trade in Endangered Species (Enforcement) Regulations 1997. CITES entered into force in 1975 with an environmental concern at its heart and the wish to counter economic exploration of several species that were being driven to the brink of extinction. In the UK, the domestic legislation imposes criminal consequences for violations, such as imprisonment and/or fines, although enforcing it has been challenging.

When it comes to the art world, these instruments place several restrictions on the trade in artworks or collectibles containing ivory. As it stands, in order for the sale to be legal, the ivory piece in question must have been worked, namely altered in some way or other through human endeavour – carving being the most common example. It is also crucial that the piece was completed before 1947, here referring to both the sourcing of the ivory as well as the working of the material, as the trade in any pieces sourced or worked after 1947 is illegal.

As such, the matter of securely dating objects containing ivory is key to the enforcement of these legal instruments. The ultimate way of dating is, of course, through carbon testing, a scientific test that, given its high cost, is not standard practice. Nonetheless, this should not come as a shock, as generally in the art market scientific testing of pieces is seen as a last-resort approach, precisely because of the high costs involved.

This leads to a problem in enforcement, as often times pieces that postdate 1947 circulate in the market regardless of the legal prohibitions. Such an example happened in 2016, when the auction house Christie’s offered in one of its salerooms an elephant tusk, which turned out to be post-1947 ivory. This led to Christie’s eventually being fined by the authorities to the tune of £3,250. One could argue that, in this case, the low amount of the fine jeopardises the deterrent effect that criminal punishments ought to have, especially if one considers the financial position of an auction house of that size. Nonetheless, before tarring and feathering the entire professional class of the art world, one should also bear in mind that despite the occasional crooks, there are plenty of legitimate dealers and honest professionals who do not deserve to have their credibility put into question because of a handful with dubious intentions.

Luckily for all of us, perhaps all of this controversy will soon die down, given the Government’s proposal in October last year to ban all trade in ivory, with some few exceptions, which would end the dating issue of pre or post 1947. The consultation following this proposal ended in late December last year, the results of which are still to be divulged.

[1] These include the Council Regulation (EC) no 338/97, also known as the Basic Regulation, the Commission Regulation no 865/2006 and subsequent amendments, also known as the Implementing Regulation, and the Commission Regulation no 792/2012, also known as the Permit regulation.