Perhaps the biggest criticism of CITES is that it functions as a negative, or inverted, model. Instead of taking a precautionary stance by assuming species generally to be Appendix I-listed and then downlisting particular species once scientific studies prove their eligibility for trade, it takes the opposite stance: unregulated trade in all species unless proven otherwise.
The agreed-upon CITES biological criteria for an up-listing for elephants was, and still is, ‘a percentage decline of 50% or more in the last 10 years or three generations, whichever is the longer.’ This upside-down approach immediately proved calamitous for elephants. In the decade during which CITES came into force, Africa’s elephant populations, which by 1977 were listed only in Appendix II, dramatically crashed.
- 1970s and 1980s: Africa’s elephant populations crash
Between 1978 and 1988 the number of African elephants declined by more than half from 1.3 million to around 600 000. It was estimated that over 90% of the ivory in international trade was from poached elephants. Kenya’s population suffered the worst, showing a decline of some 85% since 1973. In protest against the ivory trade, Kenya decided to burn its national stockpile of ivory in 1989, the first demonstration of its kind, and the world began to take notice. In response, the US Congress passed the African Elephant Conservation Act, which banned the import of African elephant ivory into the US for commercial purposes.
- 1989: All elephants on Appendix I
That same year, a proposal was presented at the 8th Conference of the Parties (CoP8) in Lausanne, Switzerland, to list African elephants in Appendix I.
The biological criteria for an up-listing were certainly applicable, but it was not without resistance. There was an outcry from some Parties, especially those from southern Africa and from some Asian countries. The subsequent vote only just reached the requisite two-thirds.
The decision, though, proved remarkably effective. It generated much global publicity. This was the one and only time CITES demonstrated its ability to protect Africa’s elephants. As soon as the ban came into force, most major ivory markets began to shrink and then close down, particularly in Europe and the USA, and African elephant populations slowly started to recover.
However, throughout the 1990s, the southern African countries led by Zimbabwe and South Africa continued to fight against the up-listing through legal challenges. They claimed elephants within their borders were well managed and not seriously challenged by poaching. For just under a decade, their demands were held at bay.
- 1997: The spectre of split-listing elephants
In 1997 – by cleverly using the biological criteria that had been agreed upon at the 1989 CITES meeting – Botswana, Namibia and Zimbabwe were able to show that their populations were far from the 50% decline necessary for Appendix I.
At the 10th Conference of the Parties in Harare that year, with Robert Mugabe famously opening the proceedings by declaring that it was time elephants in Zimbabwe paid for their survival, Parties voted to transfer the African elephant populations of Botswana, Namibia and Zimbabwe to Appendix II, albeit with an ‘annotation’ – the three countries were not permitted regular international ivory trade for commercial purposes. The annotation seemed to defeat the purpose of a down-listing except that …
- 1999: The one-off sale experiment
…the down-listing opened the door for the CITES Standing Committee to permit a onetime, experimental export of 49.4 tons of government-stockpiled ivory from the three southern African countries to Japan in 1999.
In 2000, CITES agreed to the establishment of two systems to inform Parties on the status of illegal killing and trade: Monitoring the Illegal Killing of Elephants (MIKE), and Elephant Trade Information System (ETIS). Essentially MIKE and ETIS were established to prove or disprove any causality between ivory stockpile sales and poaching levels. The primary aim of the experiment was to flood the runaway illegal market with legal ivory, but it merely exacerbated the problem.
Between 2004 and 2006, more than 40 tons of illegal ivory – almost the same quantity as the legal stockpile – were seized. It was only the tip of the iceberg. Between August 2005 and August 2006, it was reported that as many as 23 000 elephants may have been poached.
However, the CITES monitoring systems saw it differently. From 1999, following a 5-year analysis from MIKE-ETIS, a decline in the volume of illegal ivory was registered. CITES hailed the experiment a success.
- 2008: Another one-off sale
In 2002, buoyed by the perceived success, the Standing Committee, with support from a number of prominent non-governmental conservation approved a second export of 60 tons of government-stockpiled ivory from Botswana, Namibia and, this time, also from South Africa (the latter having been added to the split-list proponents earlier that year).
Trading partners had yet to be approved by CITES. The export did not take place until 2008 but when it did, it came in the wake of fierce opposition at the 14th Conference of the Parties at The Hague in 2007. Many African elephant range states were strongly opposed to the split-listing. In 2006, 19 African countries signed a declaration in Accra, Ghana, calling for a ban on international trade in ivory. At CoP14, Kenya and Mali, supported by Ghana, Chad, Democratic Republic of the Congo, Niger and Togo, submitted a proposal and a working document to CITES proposing a 20-year moratorium on ivory trade and urging range states not to submit down-listing proposals during this period. Both of these submissions were rejected. The CITES Standing Committee responded to their concerns in a spectacularly contrary style.
Not only did the committee add Zimbabwe to the list of approved sellers again, it almost doubled the amount of government-stockpiled ivory from 60 to 108 tons, and added China to Japan as an approved buyer. As a small concession, CITES agreed not to approve additional one-off sales – a term that had become something of a mockery – at least until 2017. In November 2008, 102 tons of ivory were bought, most of it by the Chinese government, which then sold it on to merchants for a profit. The legal ivory, which was poorly tracked by the authorities, provided a slippery conduit for illegal ivory selling below market value to flow into China via seaports in Malaysia, Singapore, Thailand and Vietnam.
While the first CITES-sanctioned one-off sale in 1999 proved controversial, at best, the second was an unmitigated disaster.
The influx of ivory into China reinvigorated the massive government-approved ivory-carving industry, which had been waning since the 1989 ivory trade ban. As the largest ivory market in the world, it was no coincidence that as soon as China entered the scene, poaching across Africa began again in earnest.
A study in 2016 found that the 2008 sale corresponded ‘with the abrupt increase in illegal ivory production, and a possible tenfold increase in its trend’. An estimated 71% increase in ivory smuggling out of Africa further corroborated the finding. The study suggested that partial legalization of banned goods did not reduce black market activity, as was hoped by CITES. Furthermore, the message to Chinese and Japanese consumers that ivory was off-limits was all but erased the instant the two legal sales were approved by CITES. Back in Africa, the Great Elephant Census of 2016, a pan-African survey of African savanna elephants, revealed elephant populations had crashed by a third of the total population – or 144 000 elephants – in the 7 years after the one-off sale. A separate analysis in 2016 by the IUCN African Elephant Specialist Group (AfESG), which included a survey of forest elephant populations, revealed a similar pattern. Even the Appendix II nations, with their so-called well-managed populations, felt the effects of poaching.
- Sales of wild live elephants
As the carnage of elephant populations across the continent became apparent, Zimbabwe, unable to benefit from any further one-off ivory sales, began selling off live elephants.
In 2012, the country announced plans to ship some 200 elephants. Most of them were to be juveniles that would be violently separated from their families in Hwange National Park and flown to Chinese zoos, circuses and ‘safari’ parks. Four known shipments, in 2012, 2015, 2016 and 2017 of some 100 elephants, have so far taken place.
Unaccustomed to the transportation and alien environment, many of these elephants have been traumatised, injured and some have even died.
According to an annotation on the Appendix II listing, CITES allows for ‘trade in live animals to appropriate and acceptable destinations’. The Convention currently defines ‘appropriate and acceptable destinations’ as: ‘The Scientific Authority of the State of import is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and the Scientific Authorities of the State of import and the State of export are satisfied that the trade would promote in situ conservation’. This annotation is constantly violated.
Helicopters are used to cause herds to stampede and juveniles, unable to keep up, are darted, roped and bundled into trucks. The violent means of snatching them in the wild often causes trauma, injury and death of baby elephants. It is clear that the elephants are neither suitably housed nor cared for, nor does the action benefit in situ conservation of those elephants left in the wild, especially the mothers and family units of the snatched calves.
In January 2016, CITES authorised the sale of 18 wild elephants from Swaziland to the United States. Elephants are listed Appendix I in Swaziland but an exemption allows the sale of live elephants as long as a non-detrimental finding from both exporters and importers has been secured; and if both the importing and exporting countries issue permits. The CITES biological criteria, as with Zimbabwe’s case, account only for statistical data.
While the sale of 18 or even 200 elephants does not detrimentally affect the overall numbers, the criteria fail to consider the traumatic effect on those individual animals removed from the wild, as well as the distress of the family herds that are left behind. Ultimately, given the nature of the current poaching crisis, the CITES approval of the sales of live wild African elephants is both callous and misconceived.
- September-October 2016: Best opportunity to save elephants at CoP17
By the time the 17th Conference of the Parties (CoP17) took place in Johannesburg at the end of 2016, it was obvious that neither the split-listing, the one-off sales experiments nor the sale of live elephants had worked in conserving elephants.
Support to reinstate a blanket Appendix I listing that had proved so effective in 1989 had been growing. Twenty-nine African countries, calling themselves the African Elephant Coalition, put their weight behind a five-point proposal that included a call for an up-listing of the four southern African countries and a cessation of the sales of wild liveelephants. Zimbabwe and Namibia, which had both submitted counter-proposals, were calling for unrestricted trade but South Africa, as conference hosts, remained largely reticent, despite a tacit approval for legal trade. Botswana’s government, however, had secretly begun to reconsider its former support for split-listing. The stage was perfectly set for a change of heart within the Convention.
Yet, once again, CITES failed to protect elephants. MIKE and ETIS, incredibly, were still denying any proven link between the 2008 sale and the poaching crisis, while the Secretariat gave a misguided recommendation to all Parties ahead of the vote not to adopt the proposal.
And then, a flawed annotation, which had been implanted in the CITES mechanism way back in 1983, suddenly surfaced, which all but scuppered any chance of all African elephants being placed back in Appendix I.
This strange recommendation against an Appendix I listing resulted from a curious clause buried deep in the appendices text. Largely due to threats from Namibia and Zimbabwe’s eagle-eyed delegations and their subsequent threats based on this clause, the Secretariat became worried that if the Appendix I proposal were adopted, then the current Appendix II listing and its ‘preventative’ annotations would be removed. The clause states that if a change in listing occurs, the Convention allows any Party to enter a reservation within 90 days. Bizarrely, CITES stipulates that any country that enters such a reservation would automatically not be treated as a Party to the Convention.
As a result, a Party entering a reservation against a vote to include all African elephant populations in Appendix I could commercially trade in ivory to any other Party that also entered such a reservation, and do so without violating the provisions of the Convention. So as soon as an uplisting to Appendix I was adopted, a country like Zimbabwe could take out a reservation. If China did the same within 90 days, the two countries could trade in ivory with each other to their heart’s content.
This reservation clause completely undermines the listing process, and therefore renders the entire CITES system futile. Also, by recommending that Parties not adopt an up-listing, many countries – say in South America – that have no elephants and couldn’t care less one way or another, would simply follow the Secretariat’s directive and vote accordingly.
- The Gaborone amendment
A second issue – equally ludicrous – rendered proceedings at CoP17 superfluous.
In 1983, in Gaborone, Botswana, Parties voted for an amendment to the text of the Convention that allowed regional economic blocs to accede to the treaty. It was a strange amendment, given that it didn’t mean anything for 33 years until the 2016 Johannesburg conference when the European Union participated for the first time as a full Party with all 28 member states (plus one extra vote as the EU) in one voting bloc. The EU all but upended the way voting traditionally occurs at CITES.
By wielding 29 guaranteed votes, the European Union held all the voting cards. The pattern at CoP17 was consistent: whichever way the EU decided to vote, on whatever species, the outcome always went the way the EU voted. With such power, the EU essentially overrode the CITES system.
EU policy – decided by unelected Commissioners– supported the outdated view that elephant populations of the four Appendix II countries were healthy, well managed and did not meet the biological criteria for an up-listing. Consequently, all EU countries voted to maintain the status quo.
But that was not the only reason they voted along these lines. The EU is the world’s largest exporter of ‘antique’ or pre-Convention ivory, acquired before CITES came into force in 1975. This is another of the CITES trade exemptions and is legal as long as a certificate ‘proving’ each item’s age is submitted. According to the CITES trade database, during the past decade, EU countries legally exported more than 20 000 carvings and 564 tusks. It has proved another foil for the laundering of illicit ivory. This was highlighted by numerous seizures of so-called pre-Convention ivory from recently slaughtered elephants in Belgium, the United Kingdom, Germany, Czech Republic and Spain.
Some individual countries like France and Luxembourg went against the grain in the leadup to CoP17, vociferously supporting the African Elephant Coalition and an Appendix I listing, but were forced to toe the line of the bloc’s dictate at the conference. Assenting voices unwittingly became dissenting ones. The EU effectively forced some of its member states to vote against their sovereign mandate.
As a direct result of the EU vote, despite a last-minute appeal from Botswana to support it, the proposal failed to gain the necessary two-thirds majority for an up-listing and the fate of elephants was once again left hanging in the balance.
Despite the remarkable success in the wake of banning trade in ivory in 1989, CITES has not only failed in its task of protecting African elephants, but has hastened their demise through a series of inherent flaws that have all but rendered the organisation’s conservation ability redundant.
The continued survival of elephants instead relies on the will and action of individual countries independently of CITES. Some countries have risen to the challenge. On 1st January 2018, China to shut down its domestic market, essentially closing the world’s largest market for poached ivory. The USA has effectively done the same thing, so has France and the United kingdom and more countries are set to follow.
Unless CITES can go beyond just recommending courses of action and become more effective with enforcement of its regulations (among a long list of other internal overhauls), the organisation may as well be tossed onto the scrapheap of other failed international organisations. In the final analysis, the Convention on International Trade in Endangered Species of Wild Fauna and Flora is in dire need of reform; and it must happen soon, before it does any further damage to Africa’s elephants.