The Origin of Species

A prize purchase becomes a shipping nightmare because it uses ivory from a protected animal. How can you avoid being ambushed?

The call came via satellite phone from our client vacationing in Zimbabwe, and he was furious. His safari was nearly ruined, he said, when he learned that an antique scroll he had just bought at auction in New York could not be exported immediately to his home in Europe.
When we asked what the problem was, he said he didn’t know, but the auction house had told him it was a “CITES issue.” At that point, we suggested that he find a comfortable spot in the bush (away from large predators), and proceeded to enlighten him on this interesting piece of international law.
CITES (pronounced “sye-tees”) is short for the Convention on International Trade in Endangered Species of Wild Fauna and Flora, an agreement enacted in 1975 to protect wild animals and plants from the effects of international trade. The 164 countries that signed on to cites then passed their own laws implementing the principles of the Convention.
Each signatory agrees to use a licensing system to authorize the import, export and re-export (that is, the export of a species that was imported) of protected animals and plants. Species are listed according to the categories Appendix i, ii or iii, depending on whether international trade in the species is to be banned, regulated or monitored. The lists are not fixed—species can be added, subtracted or moved from one category to another.
“What does my scroll have to do with endangered species?” our client asked, not unreasonably. In the background, we could hear the roar of what sounded like a lion (or perhaps a huge hamster—animals are not our area of expertise), followed by a shot. We decided to speed the conversation along.
We pulled out the auction catalogue for the item in question and quickly realized that the problem was not the scroll—it was the scroll’s intricately carved ivory ends. An asterisk next to the entry for the object referenced a lengthy provision on CITES at the back of the catalogue. We found ourselves wishing—and not for the first time—that a client had read our columns in Art + Auction more carefully (in this case, the recent one on buying works at auction).
In fine print, under “Terms of Sale,” was a passage stating that certain auction lots may be subject to laws governing the export of items from the U.S. into foreign countries, and that the bidder is responsible for securing any relevant import-export licenses. It also said that the delay or denial of any import license is not grounds for rescinding the sale or stopping payment to the auction house.
Our client was not happy to hear this. But since CITES rules vary according to whether the ivory was taken from hippos, walruses, elephants or other animals, we asked what kind of ivory the scroll ends were made of.
“Probably African elephant ivory,” he replied. This was not good news.
Under CITES, the export of ivory from African elephants can be particularly difficult. The African elephant was initially listed under Appendix ii (regulated trade), but when the species declined by 50 percent in the 1980s, trade in ivory was altogether banned. (Nevertheless, the CITES conference in Santiago, Chile, last November gave South Africa, Botswana and Namibia permission to auction tons of ivory, or “white gold,” next year to raise money for elephant conservation programs and other projects. Japan, the leading importer of ivory, is expected to buy much of the stock.)
We explained to our client that as an Appendix i species threatened with extinction, African elephants (and their ivory) may be traded only in exceptional circumstances. An export permit is granted only if it is determined that exporting the artifact will not harm the survival of the species, that the artifact was legally obtained and that the importing state has granted an import permit. Similarly, an import permit is issued if the exporting state has determined that the purposes of import are not harmful to the species.
U.S. law enforcement officials are especially vigilant when it comes to the trade in African ivory. The forensics laboratory of the U.S. Fish and Wildlife Service has even developed a technique that can identify contraband African elephant ivory that smugglers have dyed with tea in order to pass it off as “mammoth ivory” (usually mined in Russia). Since the woolly mammoth became extinct eons ago, trade in mammoth ivory is not prohibited under CITES.
Not wanting to beat around the bush, we delivered the first piece of information favorable to our client: The scroll ends could be exported from the U.S. if his purchase fell within one of several exemptions. CITES exempts personal effects not intended for commercial trade (a pair of lizard skin boots, for example); animals that were bred in captivity; and specimens taken from the wild before they were listed in a CITES appendix. The last seemed most relevant to our client’s case, since according to the auction catalogue, the scroll was thought to be more than 200 years old.
Even if the ivory were exempt, the collector (or the auction house, on his behalf) would still have to complete the necessary paperwork and secure the proper permits—or risk a regulatory nightmare. We cautioned him that the paperwork must be done perfectly. There have been cases where objects were seized simply because the documentation gave an incorrect scientific name for the species, a foreign CITES permit was not properly translated into English or the date of the specimen was not specific enough.
In our experience, it takes at least a month for most auction houses to file formal papers with U.S. Fish and Wildlife to secure a CITES certificate permitting export. A freight forwarder would present the forms to U.S. Customs inspectors at the airport, usually two days before the shipment’s departure, in case the inspectors want to see the object. If the auction house is reputable, the authorities rarely inspect the object unless they have had problems with a particular shipper.
The auction house typically passes on the cost of doing this work and the permit fee to the client. There are no guarantees, however, that problems won’t crop up. Moreover, the shipper on the receiving side, rather than the auction house, is generally responsible for securing the all-important import permit. The auction house often waits to see a copy of the import permit before shipping out the piece.
Even if our client fulfilled all the CITES requirements, he would still have to comply with laws such as the Endangered Species Act (ESA). Adopted in the U.S. in 1973 to meet the country’s obligations under CITES, ESA categorizes species as either “endangered” (in peril of extinction) or “threatened” (endangered status is foreseeable). Violators of either ESA or CITES in the U.S. are subject to civil and criminal penalties outlined in ESA. The maximum criminal penalty is one year in jail, $20,000 in fines, or both, although the fines may be significantly more under a 1984 federal law that increased fines for all crimes.
Fortunately, U.S. Fish and Wildlife generally requires a single permit for species listed under both CITES and ESA. But CITES allows for commercial trade in certain species that is prohibited under ESA, and vice versa. In some cases, CITES might permit an item to be exported out of the U.S., while ESA prohibits it from being re-imported back into the country. And both might allow trade that is prohibited by other laws, ranging from the Wild Bird Conservation Act to the African Elephant Conservation Act. State laws may also regulate what collectors can and can’t do with an endangered species product.
By now, the cost of our client’s international call probably equalled the value of the scroll, but unfortunately we weren’t finished. There was also the matter of the importing country’s laws. Enforcement is often more vigorous on the import side, so even if our client were able to export his scroll from the U.S., bringing it into another country might be problematic. Australia is particularly strict about the import of wildlife, and European countries are known for not only implementing CITES but also enforcing ” CITES-plus”—domestic legislation that takes the convention to a new level.
Our client asked what happens to items confiscated by the U.S. government under CITES. We told him they sometimes end up in an airport window with a sign warning: “See What Fish and Wildlife Seized.” Alternatively, some wildlife officials reportedly reward specialists at local museums who assist in identifying illegal specimens by donating the pieces to their institutions.
At the end of the call, our client thanked us for our useful, “real world” advice. We replied that as experienced art lawyers, we pride ourselves on not practicing in an ivory tower.

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