Journal of International Wildlife Law & Policy

ISSN: 1388-0292 (Print) 1548-1476 (Online) Journal homepage: https://www.tandfonline.com/loi/uwlp20

Losing Our “CITES” on the “Traffic”: How Taxing

Ivory Trafficking Can Save the African Elephant
From Its Bloody Extinction

Sabrina Persaud

To cite this article: Sabrina Persaud (2017) Losing Our “CITES” on the “Traffic”: How Taxing
Ivory Trafficking Can Save the African Elephant From Its Bloody Extinction, Journal of International
Wildlife Law & Policy, 20:3-4, 295-320, DOI: 10.1080/13880292.2017.1403813

To link to this article: https://doi.org/10.1080/13880292.2017.1403813

Published online: 16 Jan 2018.

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JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY
, VOL. , NOS. –, –
https://doi.org/./..

Losing Our “CITES” on the “Traffic”: How Taxing Ivory

Trafficking Can Save the African Elephant From Its Bloody
Extinction
Sabrina Persaud∗

I have spent hours and hours watching elephants, and come to understand what emotional
creatures they are … it’s not just a species facing extinction, it’s massive individual suffering.
—Dr. Jane Goodall1

1. Introduction
Imagine spending your day roaming on the African terrain, feeding on vegetation,
and drinking water and bathing at the watering hole. Suddenly, you are the target
of a hunter seeking to strip you of your most valuable possessions. This is a daily
challenge faced by African elephants.2 Elephants experience very similar emotions
and familial bonds as human beings. In an interview, Dr. Jane Goodall observed,
“Elephants are among the most intelligent of mammals. They have a complex social
structure and form bonds that last for life. They need space, freedom to travel where
they wish, rivers and water holes in which to bathe.”3 African elephants spend the
majority of their days roaming on the terrain, feeding on vegetation, and drinking
water and bathing at the watering hole.4 However, with each passing day, perform-
ing these functions as an elephant is becoming riskier.
Money-hungry poachers5 kill about 100 African elephants per day for their meat
and ivory tusks.6 One source estimates that an elephant is killed every fifteen min-
utes for its tusks.7 Given that African elephants experience similar emotions as

CONTACT Sabrina Persaud SPersaud@eraclides.com.

∗ J.D. Florida A&M University College of Law.

The author would like to thank Professor Randall Abate for his guidance, advice, and supervision in writing this article.
 Why Care?, W ORLD E LEPHANT D AY (quoting Dr. Jane Goodall), http://worldelephantday.org/about/elephants (last vis-
ited  August ).
 See The Ivory Wars, SOS E LEPHANTS (discussing the poaching problem), http://www.soselephants.org/about_elep
hants.html (last visited  August ).
 Goodall Reverses Stance on Seattle Zoo Elephants, K ING  ( May ), http://www.king.com/story/news/local/pets-
and-animals////goodall-reverses-stance-on-seattle-zoo-elephants//.
 The Living Edens: The African Elephant, PBS, http://www.pbs.org/edens/etosha/elephant.htm (last visited  November
).
  Things You Need to Know About Elephant Poaching, T HE I NDEP . ( December ) (discussing the monetary moti-
vations), http://www.independent.co.uk/voices/iv-drip/-things-you-need-to-know-about-elephant-poaching-
.html.
 Why Care?, supra note .
 Russell McLendon, Elephants Are Worth  Times More Alive Than Dead, M OTHER N ATURE N ETWORK ( October ),
http://www.mnn.com/lifestyle/eco-tourism/blogs/elephants-are-worth--times-more-alive-than-dead.
©  Taylor & Francis Group, LLC
296 S. PERSAUD

human beings, poaching can have a tremendous mental and emotional impact on
elephants, as murder would have on the family of a murder victim.8 The population
of African elephants has plummeted and is at its lowest level since the beginning of
recorded history,9 dropping from millions to just over 400,000.10 Though habitat
loss has also played a small role in the population decline,11 the ivory tusks of the
African elephant have been coveted in different parts of the world,12 and the human
lust for ivory has become the leading cause for the decline in the African elephant
population.
For centuries, human beings have prized ivory.13 The use of ivory for artistic
Chinese carvings dates back to the Shang Dynasty.14 Ivory has also been used for
a number of small practical items such as buttons, chopsticks, spear tips, bow tips,
handles, and billiard balls,15 as well as herbal medicines throughout many parts of
Asia.16 For years, ivory was used as piano keys,17 but that has been largely discon-
tinued.18 Buddhists and Christians also have used ivory as part of their spiritual
ceremonies and religious offerings.19
Despite the general moratorium on the international trade in ivory under the
Convention for International Trade in Endangered Species of Wild Fauna and Flora
(CITES),20 the illegal ivory market is still flourishing.21 This is partly due to the
high demand for ivory in parts of Southeast Asia,22 particularly China. China’s ille-
gal ivory market comprises 40 to 70 percent of the global ivory black market, mak-
ing it the largest ivory consumer in the world.23 But recent reports have revealed

 Recent news reports show that animals react just as human beings would when one of their own is killed. Just one
month after Cecil the lion (a beloved lion among tourists in Zimbabwe) was killed in the Zimbabwe park that he
called home, a safari guide was mauled to death by a lion in that same park. Lion Kills Safari Guide at Park That Was
Cecil’s Home, CBS NEWS ( August ), http://www.cbsnews.com/news/lion-kills-safari-guide-zimbabwe-home-
cecil-the-lion/.
 National Geographic, Battle for the Elephants Series Intro: Inside the Ivory Trade, YOUTUBE ( February ),
https://www.youtube.com/watch?v=JJbOmWEjIo.
 African Elephants, WWF, http://wwf.panda.org/what_we_do/endangered_species/elephants/african_elephants/
(last visited  November ).
 African Elephant, WWF, http://www.worldwildlife.org/species/african-elephant (last visited  November ) [here-
inafter African Elephant WWF].
 See Elephant Tusks, ELE AID (discussing the demand for ivory in different parts of the world), http://www.eleaid.
com/elephant-information/elephant-tusks/ (last visited  August ).
 Rebecca J. Rosen, What Is It About an Elephant’s Tusks That Make Them So Valuable?, THE ATLANTIC ( September
), http://www.theatlantic.com/business/archive///what-is-it-about-an-elephants-tusks-that-make-them-
so-valuable//.
 Id.
 Id.
 Sam B. Edwards III, Legal Trade in African Elephant Ivory: Buy Ivory to Save the Elephant?,  ANIMAL L. ,  ().
 Id.
 See generally Claire Jackson, Bechstein Piano’s Use of New Ivory Is Inappropriate and Unnecessary, THE GUARDIAN ( June
), http://www.theguardian.com/environment/blog//jun//bechstein-piano-new-ivory-intolerable.
 Sharon Montazeri, Note, Protecting the Pachyderm: The Significance of Ivory Trade Regulation for African Elephant Con-
servation,  CARDOZO J. INT’L & COMP. L. ,  ().
 Convention on International Trade in Endangered Species of Wild Fauna and Flora,  March ,  U.N.T.S. 
[hereinafter CITES], available at http://www.cites.org/eng/disc/text.shtml.
 See generally Emma Reynolds, New Trend in Big Game Hunting: Fuelling the Lucrative Ivory Trade, DAILY TELEGRAPH (
September ), http://www.dailytelegraph.com.au/technology/science/new-trend-in-big-game-hunting-fuelling-
the-lucrative-ivory-trade/story-fnjwkl-.
 Damian Grammaticas, Uncovering China’s Illegal Ivory Trade, BBC NEWS ( February ), http://www.bbc.com/
news/world-asia-china-.
 Morgan V. Manley, Note, The (Inter)national Strategy: An Ivory Trade Ban in the United States and China,  FORDHAM
INT’L L.J. ,  ().
 JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY 297

that the money gained from the illegal ivory trade also has funded terrorist orga-
nizations, such as the Lord’s Resistance Army, Al Qaeda, al-Shabaab, and Boko
Haram.24 The growing demand for ivory proves that the CITES framework for
protecting and conserving African elephants is insufficient. At one point in time,
all African elephants were covered under Appendix I of CITES,25 which imposed a
complete ban on the trade of any elephant parts.26 However, after certain elephant
populations increased slightly, some African populations were moved to Appendix
II; meanwhile, noncommercial trade in ivory, such as hunting trophies, is still
permitted.27
Although there are an estimated 400,000 elephants remaining in Africa, they are
not able to reproduce fast enough to counter the effect that poaching and trafficking
has had on their numbers.28 As a result, the population continues to decline. Despite
the international trade moratorium, ivory is still being trafficked overseas.29 Studies
have shown that between 2011 and 2014, poachers killed 100,000 elephants for their
tusks.30 Central Africa has lost 64 percent of its elephant population within the last
decade.31 Illegal wildlife trafficking is a lucrative, billion-dollar business, earning
between 5 to 20 billion dollars annually.32 The black-market prices for ivory have
risen,33 with a pair of tusks commanding $21,00034 on the black market.35 Smug-
gling is encouraged by many factors, including two “one-off ” international sales
allowed under CITES in 1999 and 2008.36 Because domestic trading in ivory is not
regulated by CITES, this market encourages deception and spurs more poaching.37
Moreover, differentiating between pre-ban ivory38 and post-ban ivory39 makes
it difficult for countries to enforce the ban on the sale of ivory.40 Smugglers have
also used bribes to influence customs agents at the ports and gain control over port

 Amanda Jones, The Latest Threat to African Elephants and Rhinos? Terrorist Groups, L.A. TIMES ( August ),
http://www.latimes.com/travel/la-tr-d-africa-animals-elephants--story.html.
 For the discussion on the CITES appendices, see infra Part II.A.
 US FISH & WILDLIFE SERV., CITES & ELEPHANTS  (November ), http://www.fws.gov/le/pdf/CITES-and-Elephant-
Conservation.pdf.
 Id.
 Why Care?, supra note .
 See, e.g., Carol J. Williams, Thriving Black-market for Ivory Drives Slaughter of African Elephants, L.A. TIMES ( August
), http://www.latimes.com/world/africa/la-fg-africa-elephants-killed--story.html.
 Brad Scriber, , Elephants Killed by Poachers in Just Three Years, Landmark Analysis Finds, NAT’L GEOGRAPHIC (
August ), http://news.nationalgeographic.com/news///-elephants-africa-poaching-cites-census/.
 Id.
 Thomas G. Kelch, CITES, Globalization, and the Future of Animal Law, in WHAT CAN ANIMAL LAW LEARN FROM ENVIRON-
MENTAL L AW ?  (Randall S. Abate ed., ).
 Patterson Clark & Darryl Fears, The Horn and Ivory Trade, WASH. POST ( August ), https://
www.washingtonpost.com/apps/g/page/national/the-horn-and-ivory-trade//.
 All amounts are in US dollars unless stated otherwise.
 McLendon, supra note .
 Clark & Fears, supra note .
 Andrew M. Lemieux & Ronald V. Clarke, The International Ban on Ivory Sales and Its Effects on Elephant Poaching in Africa,
 BRITISH J. CRIMINOLOGY , – (), http://bjc.oxfordjournals.org/content///.full.pdf+html.
 It is lawful to trade in ivory acquired before the CITES listing. Adam Welz, Amid Elephant Slaughter, Ivory
Trade in U.S. Continues, YALE ENVT.  ( February ), http://e.yale.edu/feature/amid_elephant_slaughter_
ivory_trade_in_us_continues//.
 This refers to ivory acquired after the CITES listing. Id.
 The Tragic Price of Ivory, THE WEEK ( March ), http://theweek.com/articles//tragic-price-ivory.
298 S. PERSAUD

trade.41 Tons of ivory has gone unnoticed at the ports because of this bribery.42 As
long as this practice continues, it could take decades before ivory disappears from
the market, but the African elephant population could face extinction long before
that happens. Progress is slowly being made in the fight against elephant poaching
and ivory trafficking, with the high-profile arrests of a Chinese woman nicknamed
the “Queen of Ivory”43 and the Tanzanian kingpin of elephant poaching nicknamed
“The Devil.”44 Though these arrests were considered to be major game-changers in
the illegal ivory trade network, they are not enough to put an end to the criminal
activity.
Part 2 of this article provides background information on the African elephant
and describes its importance to the environment in sub-Saharan Africa. It describes
the history of the ivory trade and the impact that the trade has had on African
elephants. Part 3 examines the existing laws that seek to protect and conserve the
African elephant species. CITES governs the international trade of elephant parts,
including ivory tusks.45 National and local laws govern the domestic trade of
ivory,46 as well as the various protections or lack thereof that the African elephant
is afforded.
Part 4 proposes employing a taxing scheme and other financial measures that will
eventually tax ivory out of existence. Amending CITES to provide punishments and
rewards will play an important role in implementing the taxing scheme; however,
such amendments should be consistent with the General Agreement on Tariffs and
Trade (GATT).47 In addition to imposing high taxes on ivory, individual African
states should ban African sport trophy hunting. This ban, along with the general
ivory ban, will allow the African elephant population to recover. Finally, to unify
these bans, African states should prohibit the export of ivory, and states in the inter-
national community should prohibit the import of ivory. Ivory should be listed on
the prohibited items list for import to and export from individual states.

2. How the african elephant lost its tusks

Currently. the African elephant is listed as vulnerable on the International Union
for Conservation of Nature’s (IUCN) Red List.48 A vulnerable classification means

 Heidi Vogt, Elephants in Danger: How Kenya’s Port of Mombasa Became the World’s Hub for Ivory Smuggling, WALL ST. J.
( November ), http://www.wsj.com/articles/kenyan-port-is-hub-for-illicit-ivory-trade-.
 Id.
 Robyn Kriel & Briana Duggan, “Queen of Ivory” Arrested in Tanzania, CNN ( October ),
http://www.cnn.com////africa/tanzania-elephant-ivory-queen-arrest/. Arrested in , Yang Feng Glan
was a -year-old woman known to be one of the most notorious ivory traffickers within the last decade. Id. She
was charged with smuggling at least  elephant ivory tusks, worth approximately $. million. Id. Glan’s arrest is
considered to be a huge step in the right direction in the fight against elephant poaching and ivory trafficking. Id.
 Ed Payne, Tanzania Gets “The Devil” as It Cracks Down on Elephant Poaching, CNN ( October ),
http://www.cnn.com////africa/tanzania-elephant-poacher-devil/.
 US FISH & WILDLIFE SERV., supra note .
 Id.
 General Agreement on Tariffs and Trade,  October ,  Stat. A-,  U.N.T.S.  [hereinafter GATT].
 Loxodonta africana, RED LIST, http://www.iucnredlist.org/details// (last visited  November ). The Red List
is the world’s most comprehensive inventory on the global conservation status of plants and animals. Every [five]
years the IUCN evaluates the population status of each species and the threats to each one’s survival. Based on that
 JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY 299

“[a] species [is] considered to be facing a high risk of extinction in the wild.”49 How-
ever, the current population estimates indicate that the African elephant could face
extinction within the next few years,50 and ivory trafficking is playing a significant
role.

2.1. African elephant fast facts

Loxodonta africana,51 more popularly known as the African elephant, is native

to 37 countries in Africa.52 The African elephant is divided into two subspecies:
the savanna elephant and the forest elephant.53 The savanna elephant is scattered
throughout sub-Saharan Africa, whereas the forest elephant is found in the rain-
forests of West and Central Africa.54 The majority of the African elephants are
found in Botswana, Tanzania, and Zimbabwe.55 This species is a keystone species56
and plays an important role in the preservation of suitable habitats for many other
species.57 They are known as “the churners of the forest” and “landscape archi-
tects.”58 While feeding on old vegetation, other species can find food more easily.59
Moreover, elephants “creat[e] clearings and gaps in the canopy to enable tree regen-
eration, reduc[e] bush cover to enable smaller animals to graze and disseminat[e]
many plant species by passing seeds through their digestive systems as they walk
miles each day.”60 In the habitats where elephants have been killed or removed,
there have been reports of drought, soil erosion, and a surge in disease-bearing tsetse
flies.61
The African elephant is the largest terrestrial animal on Earth.62 These “gentle
giants”63 can weigh anywhere between 5,000 and 14,000 pounds and can reach

information, the IUCN assigns each species a category. These categories are: extinct, extinct in the wild, critically
endangered, endangered, vulnerable, threatened, near threatened, least concern, and domesticated.
 About Species, WWF GLOBAL, http://wwf.panda.org/about_our_earth/species/about_species/ (last visited  Novem-
ber ).
 ELEPHANTS IN THE DUST—THE AFRICAN ELEPHANT CRISIS: A RAPID RESPONSE ASSESSMENT  (Christian Nellemann eds.,
), https://cites.org/common/resources/pub/Elephants_in_the_dust.pdf [hereinafter ELEPHANTS IN THE DUST]; see
also Joseph Erbentraut, Artificial Elephant Tusks Are Being Used to Help Track the Illegal Ivory Trade, HUFF POST ( Septem-
ber ), http://www.huffingtonpost.com/entry/artificial-tusks-africa-ivory-trade_eecebaecfaa.
 Loxodonta africana is the scientific name for the African elephant. Loxodonta africana, supra note .
 Elephant, AFRICAN WILDLIFE FOUND., http://www.awf.org/wildlife-conservation/elephant (last visited  November
).
 Id.
 Fact Sheet Elephant, DEFENDERS OF WILDLIFE, http://www.defenders.org/elephant/basic-facts (last visited  Novem-
ber ).
 Ranee Khooshie Lal Panjabi, For Trinkets, Tonics, and Terrorism: International Wildlife Poaching in the Twenty-First Cen-
tury,  GA. J. INT’L & COMP. L ,  ().
 A keystone species is one that plays an essential role to “create and maintain the ecosystems in which they live and
make it possible for a myriad of plant and animal species to live in those environments as well.” Why Care?, supra
note .
 African Elephant, WWF, supra note .
 Panjabi, supra note , at .
 Id.
 Id.
 Aisling Maria Cronin, Why the U.S. and China’s Commitment to Curb the Ivory Trade Is So Important for Elephants,
ONE GREEN PLANET ( September ), http://www.onegreenplanet.org/news/why-u-s-and-china-commitment-to-
curb-the-ivory-trade-is-so-important-for-elephants/.
 African Elephant, NAT’L GEOGRAPHIC, http://animals.nationalgeographic.com/animals/mammals/african-elephant/
(last visited  November ) [hereinafter African Elephant NAT’L GEO].
 “Despite their great size, elephants are known to be gentle creatures. Studies have found that elephants
have been known to avoid eating type of acacia tree because it is home to ants which often frighten
300 S. PERSAUD

a height of up to 13 feet.64 Maintaining such a large stature is not easy. African

elephants spend most of their days roaming the plains in search of food to feed
their large appetites,65 and they consume 300 to 400 pounds of food per day.66
The most coveted feature of the African elephant is their long ivory tusks. Unlike
their Asian counterparts, male and female African elephants both have ivory tusks
that “they use to dig for food and water and strip bark from trees.”67 The tusks of
male elephants are larger and heavier than those of the females68 and can reach a
length of over ten feet and weigh more than two hundred pounds.69 Oftentimes,
male elephants use their tusks to battle each other,70 which may seem dangerous;
however, the real danger comes from humans.71

2.2 History of the ivory trade and illegal trafficking

The African elephant’s ivory tusks have long been the center of controversy, battles,
and strict regulation, and killing the elephant has been deemed the most practical
way to remove an elephant’s tusks.72 Darts and poison are common tools used by
poachers to hunt elephants.73 Sometimes poachers even fly in helicopters above the
terrain and use high-powered automatic rifles to shoot the elephant in the head.74
Once the elephant is on the ground, the poacher then saws off the tusk75 and leaves
the elephant to die from hemorrhagic death.76 These practices have been occurring
for centuries. However, wildlife management authorities are alerted of illegal ele-
phant hunting much faster when poachers use violent methods, which is why many
poachers are now turning to the use of poison.77 Cyanide, a fast-acting poison that
deprives the body of oxygen, is deemed to be “a poacher’s dream,” because it is a
cheap, highly effective silent killer.78 But the use of cyanide can contaminate an

the elephants.” Frontier Gap,  Traits That Prove Elephants Are Gentle Giants, THE DODO ( April ),
https://www.thedodo.com/community/FrontierGap/elephants-facts-.html.
 Alina Bradford, Facts About Elephants: African Elephants & Asian Elephants, LIVESCIENCE ( September ),
http://www.livescience.com/-elephants.html.
 African Elephant, NAT’L GEO, supra note .
 Fact Sheet Elephant, supra note . “Elephants eat roots, grasses, fruit, and bark, and they eat a lot of these things.”
African Elephant NAT’L GEO, supra note .
 African Elephant NAT’L GEO, supra note .
 Edwards, III, supra note , at .
 Montazeri, supra note , at ; The Living Edens: The African Elephant, supra note .
 African Elephant NAT’L GEO, supra note .
 African elephant, SANBI: SOUTH AFRICAN NAT’L BIODIVERSITY INST., http://www.sanbi.org/creature/african-elephant
(last visited  November ).
 Edwards, III, supra note , at .
 Franette Armstrong, The Truth About Tusks, THE DODO ( July ), https://www.thedodo.com/community/Elegirl/the-
truth-about-tusks-.html; see Per Liljas, The Ivory Trade Is Out of Control, and China Needs to Do More to Stop
It, TIME ( November ), http://world.time.com////the-ivory-trade-is-out-of-control-and-china-needs-to-
do-more-to-stop-it/.
 Montazeri, supra note , at .
 Id.
 Armstrong, supra note .
 Robyn Kriel & Briana Duggan,  More Elephants Killed by Cyanide in Zimbabwe, CNN ( October ),
http://www.cnn.com////africa/zimbabwe-elephant-poaching/.
 Id.
 JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY 301

entire habitat.79 Thus poaching elephants through the use of cyanide creates prob-
lems for other wildlife and people living within an area contaminated with cyanide.
In 1800, there were about 23 million elephants roaming in Africa.80 Throughout
much of the nineteenth and early twentieth century, hunting elephants was viewed
as a display of manliness for wealthy Westerners.81 But it was also during this time
that the market for ivory exploded.82 By 1913, the US was consuming 200 tons of
ivory per year.83 With the death toll on the rise and the demand for ivory growing
exponentially, the elephant population continued to decline.84
In response to this problem, Ghana added the African elephant to Appendix III
of CITES in 1976,85 and, in the following year, the species was uplisted to Appendix
II.86 In 1978, the US categorized the African elephant as a “threatened species”87
under the Endangered Species Act.88 However, the protections afforded to the
African elephant under Appendix II of CITES were not enough.89 Between 1978
and 1989, there were a record number of elephant killings.90 In the span of a sin-
gle decade, the elephant population was cut in half.91 The estimated population of
1.3 million in 1979 dropped to 609,000 in 1989.92 An estimated 200 elephants were
poached per day.93 The demand for ivory “hanko”94 in Japan played an important
role in increasing the number of elephant deaths during this time period.95 African
savannahs and forests began to resemble elephant graveyards, with carcasses and
bones lying everywhere.96

 Id.
 Video: The History of the Ivory Trade, NAT’L GEOGRAPHIC, http://education.nationalgeographic.com/media/history-
ivory-trade/ (last visited  November ).
 Id. This could arguably be the case today with regard to other exotic animals, but the public outcry after the killing of
Cecil the lion indicates that times have changed, and so have the attitudes toward hunting exotic animals. Hilary
Whiteman, #WalterPalmer: From Hunter to Hunted—Internet Seeks Revenge for Cecil the Lion, CNN ( July ),
http://www.cnn.com////world/cecil-lion-walter-palmer-social-reaction/.
 Scott Hitch, Note, Losing the Elephant Wars: CITES and the “Ivory Ban,”  GA. J. INT’L & COMP. L. , – ().
 Video: The History of the Ivory Trade, supra note .
 Hitch, supra note , at .
 Manley, supra note , at .
 African Elephants, US FISH & WILDLIFE SERV., http://www.fws.gov/international/animals/african-elephants.html (last
visited  November ). For the discussion on CITES and the Appendix system, see infra Part II.
 Under the US Endangered Species Act, a “threatened species”is “any species which is likely to become an endangered
species within the foreseeable future throughout all or a significant portion of its range.” Endangered Species Act, 
U.S.C. § () ().
 African Elephants, supra note . A discussion of the protections afforded to the African elephant under the Endan-
gered Species Act is beyond the scope of this article.
 Hitch, supra note , at .
 Id. at .
 Id.
 Id.
 Id.
 “Hanko” is a personal signature seal in Japan. The Japanese use hanko in place of a signature, though it has
the same effect as one. Akemi Nakamura, “Hanko” Fate Sealed by Test of Time, THE JAPAN TIMES ( August ),
http://www.japantimes.co.jp/news////reference/hanko-fate-sealed-by-test-of-time/#.VgsWDhNViko.
 Peter Canby, Is China Moving Fast Enough to Save the African Elephant?, THE NEW YORKER ( September ),
http://www.newyorker.com/business/currency/is-china-moving-fast-enough-to-save-the-african-elephant.
 Svati Kirsten Narula, Crash and Burn: A History of the Global Crackdown on Ivory, THE ATLANTIC ( January ),
http://www.theatlantic.com/international/archive///crush-and-burn-a-history-of-the-global-crackdown-on-
ivory//.
302 S. PERSAUD

Worried about the impact that poaching would have on the country’s tourism,
the president of Kenya took a stand against the ivory trade.97 In 1989, the Kenyan
president set fire to twelve tons of ivory tusks that were seized by the government
and set an example for the rest of the global community.98 In an interview with the
press, the Kenyan president stated, “I appeal to people all over the world to stop buy-
ing ivory.”99 The Secretariat of CITES took notice, and in 1990, the African elephant
was once again uplisted to Appendix I of CITES.100 This in turn established a com-
plete ban on all trade in elephant parts, including ivory.101 With the moratorium in
effect, the population of African elephants began to grow.102 Elephant populations
in Botswana, Zimbabwe, and Namibia nearly doubled.103 Ivory stockpiles in these
countries grew larger.104 But with these increases came the demand to restore trade
in ivory.105
After successful lobbying by Botswana, Zimbabwe, and Namibia, CITES down-
listed the African elephant back to Appendix II in 1997, which would temporarily lift
the ban.106 Shortly thereafter, in 1999, CITES gave in to the demand to restore some
trade in ivory and allowed Botswana, Zimbabwe, and Namibia to sell 50 tons of their
stockpiled ivory in a one-time, experimental sale to Japan.107 The sale was subject
to strict limitations and the after-effects were closely monitored through the Mon-
itoring the Illegal Killing of Elephants (MIKE)108 system and the Elephant Trade
Information System (ETIS).109 The countries agreed that all proceeds from the sale
would go directly to elephant conservation measures.110
News of the temporary removal of the ivory ban spread like wildfire, and poach-
ing increased.111 It was not long before China sought to purchase ivory and be
a party to the ivory sale.112 Thus, in 2008, CITES allowed another one-time sale
of ivory to both Japan and China, with Botswana, Zimbabwe, Namibia, and South

 Id.
 Id.
 Id.
 African Elephants, supra note ; Andrew J. Heimert, Note, How the Elephant Lost His Tusks,  Y ALE L.J. , 
().
 Hitch, supra note , at .
 Video: The History of the Ivory Trade, supra note .
 Hitch, supra note , at .
 Id. at –.
 Id. at .
 African Elephants, supra note .
 US F ISH & W ILDLIFE S ERV ., supra note , at ; Narula, supra note ; Joseph Vandegrift, Note, Elephant Poaching: CITES
Failure to Combat the Growth in Chinese Demand for Ivory,  VA. ENVTL. L.J. ,  ().
 CITES created the MIKE system to help countries that have elephant populations manage those populations and
enforce the laws created to protect the elephants. This is done through the collection of data on the number of ele-
phants killed illegally each year and by analyzing trends in illegal killing. US FISH & WILDLIFE SERVICE, supra note ,
at .
 US F ISH & W ILDLIFE S ERV ., supra note , at ; Narula, supra note .

ETIS is a comprehensive information system to track illegal trade in ivory and other elephant products … its aim
is to record and analyze levels and trends in illegal trade, … The central component of ETIS is a database on
seizures of elephant specimens that have occurred anywhere in the world since .
The Elephant Trade Information System (ETIS), CITES, https://cites.org/eng/prog/ETIS/index.php (last visited  November
).
 US F ISH & W ILDLIFE S ERV ., supra note , at .
 Hitch, supra note , at .
 Narula, supra note .
 JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY 303

Africa as the sellers.113 More than 100 tons of ivory was sold.114 Before exporting
the goods, the Secretariat of CITES “verified the legal origin, weight, and number of
tusks; inspected shipments; and checked CITES permits.”115 This same check was
performed in the country of import.116 Though these were one-time sales, ivory
trafficking continued to increase. Tanzania and Zambia lobbied to sell their stock-
piles of ivory, but CITES did not authorize another sale.117 State governments seized
more illegal ivory in 2011 than any other year.118 TRAFFIC, the wildlife trade-
monitoring network, reported that there were at least 13 large-scale seizures in 2011,
resulting in the confiscation of at least 23 tons of ivory.119 These numbers indicate
that about 2,500 elephants were killed to produce the seized ivory.120
In the years following 2011, more countries followed Kenya’s lead and began
destroying their ivory stockpiles.121 But reports from the MIKE system and ETIS
program show a steady growth in elephant poaching and ivory seizures.122 Within
five years, “international authorities seized about 170 tons of ivory trafficked by
transnational organized-crime networks.”123 This number represents more than
230,000 elephants, which is more than half of the current African elephant popu-
lation.124 Studies have also shown that Tanzania has lost 60 percent of its African
elephant population within five years.125

2.3 High demand for ivory decimates african elephant populations

Today, there are fewer than 500,000 elephants,126 versus the estimated five to ten
million African elephants roaming the entire African continent in 1930.127 This
means that about 4.5 million elephants have been killed in just 85 years, which
amounts to slightly more than 50,000 elephants being slaughtered per year. As the
death rate continues to exceed the birth rate, the number of elephants across the
African continent will continue to decline.128 This drastic population decline is
 US FISH & WILDLIFE SERV., supra note , at ; Vandegrift, supra note , at –.
 Narula, supra note .
 US F ISH & W ILDLIFE S ERV ., supra note , at .
 Id.
 The Ivory Trade, B ORN F REE , http://www.bornfree.org.uk/animals/african-elephants/projects/ivory-trade/ (last visited
 November ); Vandegrift, supra note , at .
 African Elephant WWF, supra note .
 “Record Ivory Seizures” in , D ISCOVERY N EWS ( December ), http://news.discovery.com/animals/ivory-
seizures--.htm.
 Id.
 The Ivory Trade, supra note ; see also Faith Karimi, U.S. Crushes More Than a Ton of Ivory in Times Square, CNN ( June
), http://www.cnn.com////us/times-square-ivory-crush/.
 US F ISH & W ILDLIFE S ERV ., supra note , at .
 Vogt, supra note .
 Id.
 Id.
 Wild African Elephants on Verge of Extinction, Say Experts, A L J AZEERA A MERICA ( March ),
http://america.aljazeera.com/articles////wild-african-elephants-on-verge-of-extinction.html.
 Beth Allgood et al., U.S. Ivory Trade: Can a Crackdown on Trafficking Save the Last Titan?,  A NIMAL
L. ,  (); Reuben Perrin, Are Elephant Populations Stable These Days?, SCI. AMER. ( April ),
http://www.scientificamerican.com/article/are-elephant-populations-stable/.
 Jessica Calefati, California Lawmakers Pass Sweeping Ivory Ban to Curb Elephant Poaching, S AN J OSE M ERCURY N EWS
( September ), http://www.mercurynews.com/science/ci_/california-lawmakers-pass-sweeping-ivory-
ban-curb-elephant.
304 S. PERSAUD

due, in large part, to the high demand for ivory in Asia and North America.129
The world leaders for ivory demand are China, Thailand, Vietnam, the Philippines,
and the United States.130
Despite the ban on the ivory trade, the high global demand for ivory,131 weakened
wildlife conservation laws in source countries and export and transit countries, and
high poverty levels of African villagers132 are propelling an illegal ivory market that
is worth billions of dollars.133 Ivory is coveted as a status symbol for China’s growing
middle class.134 Ornaments made of ivory signify wealth and social status.135 But
Chinese consumers are not the only parties involved. Buyers in the United States and
the Philippines still purchase ivory with the belief that their respective governments
will not allow the elephants to go extinct.136 Consumers in Vietnam are trying to
buy all the ivory before the elephant population goes extinct.137 But an even greater
threat comes from militias and terrorist groups who use the illegal ivory trade to
fund their terrorist activities.138 Park rangers are usually the only defense that ele-
phants have; however, they are no match for terrorist groups and militias.139 These
terrorist groups use such violent and aggressive hunting methods that park rangers
have difficulty protecting the elephants, let alone themselves.140
A map created by National Geographic illustrates the exponential growth of the
price of ivory as it travels across Africa and overseas to other continents.141 Poachers
can receive up to $397 for a pound of ivory.142 Given the size of male elephant tusks,
poachers can receive nearly $80,000 for one large tusk. Poor villagers and unpaid
park rangers generally engage in elephant poaching for the income.143 As the tusks
move from the poaching hot-spots to consolidation hubs and major transit areas in
Africa, the value rises to nearly $500 for a pound of ivory.144 Once they have arrived
at the export centers and ports, the price of the ivory rises again and is valued at

 Peter LaFontaine et al., Treasured to Death: Elephants, Ivory, and the Resurgence of a Crisis, -SUM NAT. RESOURCES &
ENV’T ,  ().
 Mark Strauss, Who Buys Ivory? You’d Be Surprised, NAT’L GEOGRAPHIC ( August ),
http://news.nationalgeographic.com///-elephant-ivory-demand-wildlife-trafficking-china-world/.
 Video: Illegal Ivory Trade Driven by China Demand, G HANA W EB ( September ), http://www.ghanaweb.
com/GhanaHomePage/worldBusiness/Video-illegal-ivory-trade-driven-by-China-demand-.
 E LEPHANTS IN THE D UST , supra note , at .
 See generally Video: Illegal Ivory Trade Driven by China Demand, supra note .
 Rachael Bale, U.S.-China Deal to Ban Ivory Trade Is Good News for Elephants, N AT ’ L G EOGRAPHIC ( September ),
http://news.nationalgeographic.com///-ivory-elephants-us-china-obama-xi-poaching/.
 Strauss, supra note .
 Id.
 Id.
 Bryan Christy, How Killing Elephants Finances Terror in Africa, N AT ’ L G EOGRAPHIC ( August ),
http://www.nationalgeographic.
com/tracking-ivory/article.html; Ashish Kumar Sen, Terrorists Slaughter African Elephants, Use Ivory to Finance
Operations, WASH. TIMES ( November ), http://www.washingtontimes.com/news//nov//terrorists-
slaughter-african-elephants-use-ivory-t/?page=all.
 Id.
 Manley, supra note , at .
 Tracking Ivory Map: Illegal Tusk Trade, N AT ’ L G EOGRAPHIC , http://www.nationalgeographic.com/tracking-ivory/map.
html (last visited  November ).
 Id.
 See generally Christy, supra note .
 Tracking Ivory Map: Illegal Tusk Trade, supra note .
 JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY 305

up to $882 for a pound of ivory.145 Finally, after travelling via plane or ship to its
final destination in Asia, North America, or Europe, the price for pound of ivory
skyrockets.146 Once overseas, ivory is priced from $946 to $4,630 per pound.147
These large monetary figures indicate that the ivory trade is lucrative and that it
may be long before the trade dissipates.
Even though trade in ivory is banned, importers and exporters have found loop-
holes in the governing legislation to aid them in their illegal business. Many have
resorted to fraudulent practices, such as creating fake CITES permits148 and pur-
chasing state registration documents on the black market.149 Merchants also smug-
gle bloody ivory150 or illegal ivory with conservation ivory or legal ivory,151 and
it has proven difficult for officials to differentiate between the two.152 Oftentimes,
ivory can be found hidden in containers filled with dried fish, chili powder, and
African shea butter.153 Bribes and kickbacks have played an important role in allow-
ing the ivory hidden in these containers to exit African nations.
In recent years, authorities at the Port of Mombasa in Kenya, one of the world’s
major transit hubs for illegal ivory, have employed the use of dogs to sniff out ivory
and have installed surveillance cameras, alarms with motion detectors, and finger-
print sensors to help combat ivory trafficking.154 Customs agents will accept bribes
to ensure that containers holding ivory do not undergo inspection, which allows
the ivory to be exported.155 These bribes are as high as $5,000, and through these
bribes, smugglers are given control of trade at the ports.156
TRAFFIC has come up with six practical solutions to combat the illegal ivory
trade.157 The organization has trained thousands of enforcement officers in the
identification of illegal ivory, facilitated the monitoring system used for government-
held ivory stocks, audited government-held ivory stockpiles prior to their destruc-
tion, and employed the use of wildlife detector dogs at several airports.158 The orga-
nization is also working closely with Chinese officials in creating a solution that
 Id.
 Id.
 Id.
 Chris Macsween, The Illegal Trade of Wildlife, L ION A ID ( June ), http://www.lionaid.org/news///the-illegal-
trade-of-wildlife.htm?password=reset.
 Dan Levin, From Elephants’ Mouths, an Illicit Trail to China, N.Y. TIMES ( March ), http://www.nytimes.
com////world/asia/an-illicit-trail-of-african-ivory-to-china.html?_r=.
 “Bloody ivory” is ivory that is essentially tainted with bloodstains. Behind every ivory tusk is a dead elephant,
so the underlying question becomes: How was this ivory obtained? Did the elephant die of natural causes, or
was it poached? If the answer is that the elephant was poached, then this ivory is forever stained and known as
bloody ivory. John Frederick Walker, Rethinking Ivory: Why Trade in Tusks Won’t Go Away, WORLD POL’Y INST. (),
http://www.worldpolicy.org/journal/summer/rethinking-ivory-why-trade-in-tusks-won’t-go-away.
 “Conservation ivory” or “legal ivory” is ivory obtained from elephants that have died of natural causes or elephants
that have been killed out of necessity. Id. At least  tons of legal ivory is produced each year, and this ivory is a
legitimate source for legal trade. Id. It may not be enough, however, to supply the demand for ivory in other parts of
the world, which could explain why illegal ivory trafficking still occurs in such large numbers.
 Levin, supra note .
 Vogt, supra note .
 Id.
 Id.
 Id.
 TRAFFIC, TRAFFIC’ S E NGAGEMENT IN THE F IGHT A GAINST I LLEGAL T RADE IN E LEPHANT I VORY  (), http://www.
traffic.org/mammals/.
 Id.
306 S. PERSAUD

would reduce the demand for ivory and assisting other countries in establishing
regional wildlife enforcement networks.159 These solutions, though practical, pale
in comparison to the scope of the illegal ivory trade.

3. Elephant-sized laws with mouse-sized protections

Several countries across the globe have taken notice of the illegal ivory trade, and
there is growing concern for the issue as well as the African elephant population.
Some states have implemented domestic laws aimed to stop trade in ivory and to
protect the elephant.160 But the largest, and perhaps most important, legal instru-
ment offering protection to the African elephant is the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES).161 However,
CITES alone is not sufficient to protect the large terrestrial mammal. Domestic
laws and regulations in import states and export states offer some protection to
supplement CITES’ conservation efforts. This section will analyze CITES, GATT,
and the domestic laws that are in place to save the African elephant from possible
extinction.

3.1 Convention on international trade in endangered species of wild fauna and

flora (cites)

CITES is an international agreement aimed to ensure that the international trade of

endangered animals and plants does not threaten the survival of those species.162
The Convention entered into force on 1 July 1975163 and has over 175 signatories.164
Of the 54 countries in Africa,165 36 of those countries are parties to CITES.166
CITES extends protection to over 30,000 species,167 thus making it one of the world’s
largest and most successful wildlife conservation treaties.168
CITES is administered through a Secretariat with the United Nations Environ-
ment Programme.169 The Secretariat has a number of duties, primarily executive
functions, including monitoring the implementation of the convention, organizing
the annual Conference of Parties meetings, distributing information, and preparing
annual reports.170 Committees are also created to, among other things, offer advice

 Id.
 See, e.g., African Elephant Conservation Act,  U.S.C. §§ – ().
 See CITES, supra note .
 What Is CITES?, CITES, https://www.cites.org/eng/disc/what.php (last visited  November ).
 Id.
 About CITES, B LOODY I VORY , http://bloodyivory.org/cites (last visited  November ).
 Africa is the world’s second largest continent with  countries, as well as the world’s second-most pop-
ulous continent with a population exceeding one billion people. Africa, WORLDATLAS, http://www.worldatlas.
com/webimage/countrys/af.htm (last updated  August ).
 See generally List of Contracting Parties, CITES, https://www.cites.org/eng/disc/parties/chronolo.php (last visited 
November ).
 About CITES, supra note .
 Stefan Carpenter, The Devolution of Conservation: Why CITES Must Embrace Community-Based Resource Management,
 ARIZ. J. ENVTL. L. & POL’Y ,  (); Kelch, supra note .
 Kelch, supra note , at .
 The CITES Secretariat, CITES, https://www.cites.org/eng/disc/sec/index.php (last visited  November ). The func-
tions of the Secretariat are set out in Article XII of the text of the Convention. CITES, supra note .
 JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY 307

to the parties and states, propose changes, establish policy, and handle technical
issues.171 Member states also play an important role in the implementation and
enforcement of CITES.
CITES is not self-executing, meaning that each member state must take appropri-
ate administrative and legal measures to enforce the provisions in the agreement.172
Each member state is required to appoint one or more management authorities to
issue permits for trade and scientific authorities to provide scientific advice on all
import and export requests.173 States are also required to provide annual reports to
the Secretariat.174 These reports must contain “[the number of] permits granted,
states with which the party is trading, and number of specimens traded.”175
The focal point of CITES is the classification system, known as Appendices.
CITES divides endangered species into three categories.176 Each Appendix provides
a different level of protection for listed species.177
Appendix I includes species that are threatened by extinction and whose popula-
tion is or may be negatively impacted by trade.178 All sea turtles, the great apes, the
black rhinoceros, giant pandas, and some big cats are listed under Appendix I.179
Species listed under Appendix I are afforded the greatest protection under CITES.180
Trade in these species is prohibited, unless there are exceptional circumstances.181
Appendix II is the largest CITES appendix182 with over 34,000 listed species.183
Species listed under Appendix II include:
1. all species that, although not necessarily now threatened with extinction, may
become so unless trade in specimens of such species is subject to strict regu-
lation in order to avoid utilization incompatible with their survival; and
2. other species that must be subject to regulation in order that trade in spec-
imens of certain species referred to in sub-paragraph (a) of this paragraph
may be brought under effective control.184
Essentially, species listed under Appendix II are not threatened by extinction,
but a threat may emerge if trade in these species is not regulated.185 Thus trade is
regulated to support sustainable management of the species,186 which is similar to

 Kelch, supra note , at .

 Id. at .
 CITES, supra note , at art. IX; see also D AVID H UNTER ET AL ., I NTERNATIONAL E NVIRONMENTAL L AW AND P OLICY  (th
ed. ); Kelch, supra note , at .
 Kelch, supra note , at .
 Id.
 The CITES Appendices, CITES, https://www.cites.org/eng/app/index.php (last visited  November ).
 Id.; see also H UNTER ET AL ., supra note .
 CITES, supra note , art. II;  C.F.R. § .(a) ().
 H UNTER ET AL ., supra note , at ; U.S. F ISH & W ILDLIFE S ERV ., supra note .
 Ruth A. Braun, Lions, Tigers, and Bears [Oh My]: How to Stop Endangered Species Crime,  F ORDHAM E NVTL . L. R EV . , 
(); CITES, NOAA FISHERIES, http://www.nmfs.noaa.gov/ia/agreements/global_agreements/cites_page/cites.html
(last visited  March ) (answering frequently asked questions with regards to CITES and fisheries regulations
within the United States).
 Id. The exceptional circumstances exception is addressed in Part II.A., infra.
 H UNTER ET AL ., supra note , at .
 The CITES Species, CITES, https://www.cites.org/eng/disc/species.php (last visited  November ).
 CITES, supra note , art. II.
  C.F.R. § .(b) ().
 Craig T. Donovan, Rhinos and the Illegal Horn Trade Top CITES Agenda,  N ATURAL R ESOURCES & E NV ’ T ,  ().
308 S. PERSAUD

fisheries management.187 The American alligator, polar bears, American ginseng,

paddlefish, and the African elephant are listed under Appendix II of CITES.188
Appendix III, the smallest CITES Appendix with fewer than 200 species,189
includes species that are protected by the domestic laws of a member state.190 In
effect, by listing a species under Appendix III, the member state is seeking the assis-
tance of other CITES member states in promoting the conservation and manage-
ment measures of the listed species.191 These species receive the least amount of
protection under CITES.192 Examples of species listed under Appendix III are map
turtles, walruses, and Cape stag beetles.193
Article II of CITES sets out a general prohibition on trade and provides: “The Par-
ties shall not allow trade in specimens of species included in Appendices I, II and III
…”194 Articles III, IV, and V discuss the import and export permit requirements for
CITES species.195 However, the text of the Convention sets out various exceptions
to the general trade embargo.196
Appendix III has the least stringent trade measures with virtually no import
requirements and minimal export requirements.197 A CITES export permit for
trade in Appendix III species may be issued “[w]here trade originates directly from
the [p]arty that listed the species … [and] when the Management Authority is satis-
fied that the specimens were not obtained in contravention of the laws of that [s]tate
…”198 However, if the species is being exported from any other state that has not
listed the species under Appendix III of CITES, then a certificate of origin199 issued
by the Management Authority of the exporting state is required, as opposed to a

 The Magnuson-Stevens Fishery Conservation and Management Act governs the conservation and manage-
ment of fish stocks along the coast of the United States.  U.S.C. §  (date/currency). Fishery manage-
ment plans are implemented to conserve and promote sustainable development fisheries that have been over-
fished or are subject to overfishing. The key objectives of the act and management plans are to: “prevent
overfishing, rebuild overfished stocks, increase long-term economic and social benefits, and ensure a safe and
sustainable supply of seafood.” Magnuson-Stevens Fishery Conservation and Management Act, NOAA FISHERIES,
http://www.fisheries.noaa.gov/sfa/laws_policies/msa/index.html (last visited  November ). All fishery man-
agement plans must be consistent with the ten National Standards set out in the Magnuson Act.  U.S.C. § 
(date/currency). National Standard One states, “[c]onservation and management measures shall prevent overfishing
while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.” 
U.S.C. § (a)().
 H UNTER ET AL ., supra note , at ; US F ISH & W ILDLIFE S ERV ., supra note ; see also African Elephant, CITES,
https://cites.org/eng/gallery/species/mammal/african_elephant.html (last visited  November ).
 The CITES Species, supra note .
  C.F.R. § .(c) ().
 H UNTER ET AL ., supra note , at .
 Braun, supra note .
 US F ISH & W ILDLIFE S ERV ., supra note .
 CITES, supra note , art. II.
 Id. arts. III, IV, and V.
 Id. art. II.
 How CITES Works, CITES, https://www.cites.org/eng/disc/how.php (last visited  November ).
 CITES, supra note , at art. V; T. Milliken, CITES and the Trade in Wild-Caught Birds, in T HE L IVE B IRD T RADE IN T ANZANIA
 (N. Leader Williams & R.K. Tibanyenda eds., ).
 “A [c]ertificate of [o]rigin [] is an important international trade document attesting that goods in a particular export
shipment are wholly obtained, produced, manufactured or processed in a particular country.” What Is a Certificate of
Origin?, INT’L CHAMBER OF COMMERCE, https://iccwbo.org/resources-for-business/certificates-of-origin/ (last visited 
October ).
 JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY 309

CITES export permit.200 The CITES export permit or certificate of origin must be
presented to the importing country.201
Similarly, trade in Appendix II species does not require an import permit.202
The export of any Appendix II species, regardless of what state the species is com-
ing from, requires an export permit.203 An export permit may be granted if the
following conditions are met:
1. a Scientific authority of the [s]tate of export has advised that such export will
not be detrimental to the survival of that species;
2. a Management Authority of the [s]tate of export is satisfied that the specimen
was not obtained in contravention of the laws of that [s]tate for the protection
of fauna and flora; and
3. a Management Authority of the [s]tate of export is satisfied that any living
specimen will be so prepared and shipped as to minimize the risk of injury,
damage to health or cruel treatment.204
The export permit must be presented to the country of import.205
Species listed under Appendix I are subject to the most stringent import and
export permit requirements.206 Both an export and import permit are required in
order to trade in these species.207 An import permit issued by the Management
Authority of the state of import may be issued “only if the specimen is not to be
used for primarily commercial purposes and if the import will be for purposes that
are not detrimental to the survival of the species.”208 An export permit issued by
the Management Authority of the state of export may be issued “only if the spec-
imen was legally obtained; the trade will not be detrimental to the survival of the
species; and an import permit has already been issued.”209
Despite having permit requirements in place, the CITES permit requirements
do not apply to the trade of specimens within a state’s territory, nor to those
species acquired before being added to the CITES appendices.210 They also do
not apply to specimens being used as personal or household effects, for example,
sport-hunted trophies, unless the specimens were acquired outside of the owner’s
state of residence.211 Trade in species for scientific purposes are also not subject to
the CITES permit requirements.212 CITES has had a number of successes,213 but

 CITES, supra note , at art. V; How CITES Works, supra note .
 CITES, supra note , at art. V.
 Native Federation of Madre De Dios River and Tributaries v. Bozovich Timber Products, Inc.,  F. Supp. d , 
(U.S. Ct. Int’l Trade ).
 CITES, supra note , at art. IV.
 Id.
 Id.
 How CITES Works, supra note .
 Native Federation of Madre De Dios River and Tributaries,  F. Supp. d at –.
 CITES, supra note , at art. III; How CITES Works, supra note .
 CITES, supra note , at art. III; How CITES Works, supra note .
 CITES, supra note , at art. VII.
 Id.
 Id.
 Crawford Allan, CITES: Failure or Veiled Success?, WWF ( April ), http://www.worldwildlife.org/stories/cites-
failure-or-veiled-success.
310 S. PERSAUD

the exceptions to the general trade embargo have proven to be fatal to the African
elephant population, particularly the limitation on species acquired before CITES
regulations were implemented.

3.2 General agreement on tariffs and trade (GATT)

Prior to World War I, the international economy was relatively quiet, and both inter-
national trade and monetary relations were peaceful.214 However, between World
War I and World War II, discriminatory trade practices arose, and an international
agreement was needed to reduce trade barriers and eliminate the discriminatory
trade practices.215 Stemming from the Bretton Woods Agreement, GATT came into
being in 1947.216 The World Bank and International Monetary Fund were the two
Bretton Woods institutions,217 and GATT was implemented as a third institution
with the purpose of handling international trade.218
Article I of GATT sought to eliminate the trade discrimination that came about
during the interwar disaster.219 Article I established the most-favored national
treatment standard stating, “any advantage, favo[]r, privilege or immunity granted
by an contracting party to any product originating in or destined for any other
country shall be accorded immediately and unconditionally to the like product
originating in or destined for the territories of all other contracting parties.”220
Thus any tariff duties imposed on a particular item by a GATT member state
must be the same for all imports of that item from all other GATT member
states.221
Article XX of GATT provides the general exceptions to the rule. It states:
Subject to the requirement that such measures are not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination between countries where the
same conditions prevail, or a disguised restriction on international trade, nothing in this
Agreement shall be construed to prevent the adoption or enforcement by any contracting
party of measures:

(a) necessary to protect public morals;

(b) necessary to protect human, animal or plant life or health; …222

 Douglas A. Irwin, The GATT in Historical Perspective,  HISTORICAL PERSPECTIVES ON INT’L INSTITUTIONS ,  (),
http://www.dartmouth.edu/∼dirwin/docs/GATTHP.pdf.
 Id. at –.
 History, W ORLD T RADE O RGANIZATION , https://www.wto.org/english/thewto_e/cwr_e/cwr_history_e.htm (last visited
 March ).
 This article will not address the Bretton Woods system, but for a brief history on the Bretton Woods
system, see M.J. Stephey, A Brief History of Bretton Woods System, TIME ( October ), http://content.
time.com/time/business/article/,,,.html.
 The GATT Years: From Havana to Marrakesh, W ORLD T RADE O RGANIZATION , https://www.wto.org/english/
thewto_e/whatis_e/tif_e/fact_e.htm (last visited  March ).
 John W. Head, Making International Trade Less Foreign: A “Nutshell” for Nonspecialists on the Changing Rules Governing
International Trade,  DEC J. KAN. B.A. ,  ().
 GATT, supra note , at art. I.
 Head, supra note .
 GATT, supra note , at art. XX.
 JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY 311

In other words, Article XX allows trade restrictions if the prohibited trade prac-
tice is necessary to protect public morals or necessary to protect animal life.
In a complaint filed by Canada and Norway against the European Communi-
ties, Canada and Norway alleged that a European Union (EU) import ban on cer-
tain seal products was inconsistent with GATT.223 The Dispute Settlement Body
(DSB) established a panel to rule on the issue, and the panel found that the EU
acted inconsistently with its obligations under GATT.224 On appeal, the Appellate
Body issued a mixed ruling. The Appellate Body found the EU’s regulatory scheme
for seal products to be arbitrary and unjustifiably discriminatory, thus violating
GATT.225 However, they found that “the EU seal regime could … be exempted
under GATT Article XX(a), which provides that WTO members may take mea-
sures that restrict trade if they are necessary to protect public morals.”226 This is an
expansion of the general rule. The prevention of animal cruelty is typically analyzed
under Article XX(b) of GATT, but after this case, the World Trade Organization
(WTO) is permitting member states to raise issues of animal cruelty under Article
XX(a).227

3.3 African wildlife conservation laws

The majority of the African elephants are found in Botswana, Tanzania, and Zim-
babwe,228 and each of these countries, along with others, lobbied to restore ivory
trading after the 1989 ban.229 However, each of these states has wildlife conservation
acts that offer protection to the African elephant, and some even discuss explicitly
elephant hunting and ivory trafficking.
The United Republic of Tanzania enacted the Wildlife Conservation Act in July
of 2013.230 One of the objectives of this legislation is to enable the government
of Tanzania to fulfill its responsibilities under international wildlife conservation
agreements, especially CITES.231 This is primarily the responsibility of the Wildlife
Division of the Tanzanian government.232 The Act also establishes the Tanza-
nia Wildlife Protection Fund (TWPF).233 Money from this fund is used for the
implementation of international agreements, conservation education, establishing
wildlife research institutions, insurance for the loss of property or human life

 European Communities: Measures Prohibiting the Importation and Marketing of Seal Products, WORLD TRADE ORG.,
https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds_e.htm (last visited  March ).
 Id.
 Duane W. Layton, WTO Extends “Public Morals” Exception to Animal Welfare, L AW  ( June ), https://
m.mayerbrown.com/Files/News/b-dea--bfd-bceccf/Presentation/NewsAttachment/b-
e--bbf-aebbd/WTO%Extends% Public%Morals’%Exception%To%Animal%Welfare
.pdf.
 Id.
 Id.
 Panjabi, supra note .
 See supra notes – and accompanying text.
 Wildlife Conservation Act () (Tanz.).
 Id. at art. –.
 Id.
 Id. at art. .
312 S. PERSAUD

caused by dangerous animals, and other objectives as the Wildlife Division deems
necessary.234 However, the TWPF is underfunded and in need of more donations
from the animal and biodiversity conservation community.235
The Wildlife Conservation and National Parks Act of Botswana and the Parks
and Wildlife Act of Zimbabwe are very similar to each other.236 Both Acts include
provisions governing the preservation, conservation, and propagation of wildlife,
and they both create management authorities to implement these conservation mea-
sures in addition to those pursuant to CITES.237 The unique feature of each of these
acts is that they both discuss specially protected species.238 In Botswana, “protected
game animals” are any animals listed in the Sixth Schedule to the Wildlife Conser-
vation and National Parks Act, and hunting of these animals is prohibited unless the
director has issued a permit.239 In Zimbabwe, “specially protected animals” are also
specified in the Sixth Schedule to the Parks and Wildlife Act.240 Hunting of these
species is completely prohibited unless a permit has been issued.241
A significant governance gap in these two countries’ laws is that the elephant is not
listed in the Sixth Schedules.242 In fact, in Botswana, the elephant is listed in a dif-
ferent schedule as a partially protected animal, which is not afforded the same pro-
tection as a specially protected animal.243 Presumably, based on these laws, African
elephant trophy hunting is permitted and legal.

3.4 Customs and border prohibitions

Every country has customs and border protections limiting what can be exported
from and imported into their territory. The United States has many restrictions on
the import and export of ivory and requires a permit issued by the Fish and Wildlife
Service prior to importing ivory into the United States.244 The permit issued by the
Fish and Wildlife Service allows the import of sport-hunted trophies from African
elephants,245 but in response to the growing decline of African elephants, the United

 Id.
 Press Release, United Republic of Tanzania Ministry of Natural Resources and Tourism, The government has called
on Tanzanians to expose all poachers ( September ), http://www.mnrt.go.tz/highlights/view/the-government-
has-called-on-tanzanians-to-expose-all-poachers.
 Wildlife Conservation and National Parks Act () (Bots.); Parks and Wildlife Act () (Zim.).
 Id.
 Id.
 Wildlife Conservation and National Parks Act, art.  () (Bots.).
 Parks and Wildlife Act, art.  () (Zim.).
 Id. at art. .
 Wildlife Conservation and National Parks Act, sched.  () (Bots.); Parks and Wildlife Act, sched.  () (Zim.).
 Wildlife Conservation and National Parks Act, sched.  () (Bots.).
 Prohibited and Restricted Items, US C USTOMS & B ORDER P ROT ., http://www.cbp.gov/travel/international-
visitors/kbyg/prohibited-and-restricted-items (last visited  November ).
 Import/Export/Re-export Permits Sport-hunted Trophies, US FISH & WILDLIFE SERV., http://www.
fws.gov/international/permits/sporthunted.html (last visited  November ). For sport-hunted ivory,
The trophy ivory must be legibly marked by means of punch-dies, indelible ink, or other form of permanent
marking, under a marking and registration system established by the country of origin, with the following for-
mula: The country of origin represented by the corresponding two-letter ISO country code; the last two digits
of the year in which the elephant was harvested for export; the serial number for the year in question; and the
weight of the ivory in kilograms. The mark must be highlighted with a flash of color and place on the lip mark
 JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY 313

States placed a temporary ban on the import of sport-hunted elephant trophies from
Tanzania and Zimbabwe.246
The primary challenge with the import and export of ivory tusks lies with the
Asian importers and African exporters. All of these countries have import bans
and export bans on many items, except for ivory. In Vietnam, arms, firecrackers,
consumer commodities, documents banned from public dissemination in Viet-
nam, right-hand drive vehicles, second-hand vehicles, wastes, products containing
asbestos, and poisons are all banned from import into Vietnam.247 In China, trav-
elers are prohibited from bringing guns and explosives; radio transmitters; “over
20,000 yuan RMB in cash”; printed material and photographs “which are detrimen-
tal to China’s politics, economy, culture, and ethnics”; drugs; “animals, plants and
products thereof infected with or carrying germs and insects”; germ-carrying food-
stuffs from infected areas; and “other articles the import of which is prohibited by
state regulations.”248
The Philippines prohibits the import of firearms, gunpowder, and weapons of
war; written or printed materials that could pose a threat to the government of the
Philippines; written or printed articles with obscene images; and articles or drugs
that could be used for producing unlawful abortions or provide information about
unlawful abortions.249 In Thailand, obscene literature, goods with the Thai national
flag, drugs, fake currency, fake royal seals, pirated material (e.g., CDs, computer soft-
ware), and counterfeited trademark goods are all prohibited goods for import.250
Prohibited items for export in Botswana include firearms and deadly weapons;
illegal drugs; unauthorized plants, meats, and pets; precious stones; hazardous mate-
rials; fake currency; and obscene material.251 Tanzania prohibits the export of illegal
drugs, pornography, counterfeit items, local currency, and natural souvenirs (e.g.,
starfish, shells, corals, bones).252 Pornographic materials, knives and blades, skin-
lightening creams, counterfeit currency, prison-made goods, alcoholic beverages,
and obscene materials are prohibited exports from Zimbabwe.253 What do all of

area. The lip mark area is the area of a whole African elephant tusk where the tusk emerges from the skull and
which is usually denoted by a prominent ring of staining on the tusk in its natural state.
 C.F.R. § .(e)().
 Sport-Hunted Trophies: Import of Elephant Trophies from Tanzania & Zimbabwe, US F ISH & W ILDLIFE S ERV . I NT ’ L A FFAIRS ,
http://www.fws.gov/international/permits/by-activity/sport-hunted-trophies.html (last visited  November ).
 Regulations on Import-Export, V IET . T RADE P ROMOTION A GENCY , https://www.export.gov/article?id=Vietnam-Trade-
Barriers (last visited  October ).
 China Customs Regulations, C HINA H IGHLIGHTS , http://www.chinahighlights.com/travelguide/guidebook/customs.htm
(last visited  November ).
 Chapter VI. Prohibited/Restricted Importations, P HIL . D EP ’ T OF F IN . B UREAU OF C USTOMS , http://customs.
gov.ph/prohibited-restricted-importations/ (last visited  November ).
 General Prohibitions and Restrictions, T HE C USTOMS D EP ’ T T HAI ., http://www.customs.go.th/wps/wcm/connect/custen/
traders+and+business/prohibited+and+restricted+items/general+prohibitions+and+restrictions/generalprohi
bitionsandrestrictions (last visited  November ).
 Export Regulations by Botswana customs, V ISA HQ, https://botswana.visahq.com/customs/#!export-regulations (last
visited  November ).
 Export Regulations by Tanzania Customs, V ISA HQ, https://tanzania.visahq.com/customs/#!export-regulations (last vis-
ited  November ).
 Restricted and Prohibited Good on Import & Export, Z IM . R EVENUE A UTH ., http://www.zimra.co.zw/index.php?option=
com_content&view=article&id=:restricted-and-prohibited-goods-on-import-export&catid=:did-you-
know&Itemid= (last visited  November ).
314 S. PERSAUD

these states have in common? With the exception of the United States, none of these
countries mentions ivory on their import and export prohibitions.

4. Proposals to save the elephant through reforms, tariffs, and bans

This part of the article proposes three solutions to combat the illegal ivory trade: (1)
an amendment to CITES, (2) a ban on African elephant trophy hunting, and (3) a
subnational ban in conjunction with public educational campaigns. These proposals
are exclusive of each other, and are arguments in the alternative. Thus if one proposal
is too weak or fails, perhaps another solution could work.

4.1 Amending CITES to provide punishments and rewards

Currently, CITES does not explicitly mandate punishments for states that violate the
treaty, nor provide rewards to those states that do comply with the requirements of
the treaty.254 Instead, CITES leaves the task of enforcement to the states, meaning
that each individual state must establish punishments for violators and rewards for
compliant states and actors.255

.. Imposing punishments on African member states that fail to stop poaching
Article XIV of CITES implicitly permits an individualized state sanction.256 The
article states:
The provisions of the present Convention shall in no way affect the right of Parties to adopt:
(a) stricter domestic measures regarding the conditions for trade, taking, possession or
transport of specimens of species included in Appendices I, II and III, or the complete
prohibition thereof; or (b) domestic measures restricting or prohibiting trade, taking, pos-
session or transport of species not included in Appendix I, II or III.257

This provision allows states to impose their own sanctions against other states in
the form of trade embargoes.258 However, as history has shown, bans alone are not
sufficient to end elephant poaching and the illegal ivory trade. CITES needs to be
amended to provide stricter punishments on states that violate the treaty.

4.1.1.1 Higher tariffs on exporting ivory and other goods. States that violate
CITES should receive unfavorable tax treatment when it comes to world trade. Tar-
iffs are “tax[es] levied by governments on the value including freight and insurance
of imported [and exported] products.”259 An “import duty is a tax that the importer
 See generally CITES, supra note .
 See generally Kelch, supra note , at .
 Peter H. Sand, Enforcing CITES: The Rise and Fall of Trade Sanctions,  RECIEL ,  ().
 CITES, supra note , at art. XIV.
 Sand, supra note , at .
 US Dep’t of Commerce Int’l Trade Admin., Tariffs and Import Fees, http://.export.gov/logistics/eg_main_.asp
(last visited  November ).
 JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY 315

has to pay to bring foreign goods into his or her country.”260 For example, if Saudi
Arabia exports oil to Tanzania, then Tanzania is considered to be the importer and
must pay the tax. An export duty, on the other hand, is a “tax levied on exports of
basic commodities entering into world trade”261 and must be paid by the exporting
country. Thus if Tanzania exports ivory to China, then Tanzania is considered to
be the exporting country and must pay the tax. Though export duties are virtually
nonexistent in Africa,262 states that are caught trying to export ivory should have
to pay a heavy export duty.
Although a lot of the illegal ivory being exported out of Africa goes unnoticed
because of the bribery and kickbacks occurring at the ports, an incentive for confis-
cating ivory may reduce instances of bribery.263 If bribery is eliminated at the ports,
then more containers will be able to be properly scanned and checked, which will
allow port authorities to detect more ivory. States that are caught trying to export
ivory will have to pay heavy tax consequences, and quite possibly a fine. They should
also receive unfavorable import tax treatment. An average import tariff in Botswana
is 18.74 percent,264 and an average import tariff in Tanzania is 25 percent.265 If
states are caught exporting ivory, then these numbers should be increased for other
products. For example, if India exports spices to Botswana, but ivory is still being
exported from Botswana, not only should Botswana pay a heavy export duty on the
ivory, but also the state should pay an increased tax on importing the spices from
India. This same logic applies to countries that are caught importing ivory, such as
China, Thailand, and the Philippines.
Opponents of such a measure could raise violations of GATT. Specifically, oppo-
nents of heavy taxes will argue that such trade restrictions are both arbitrary and
discriminatory and in violation of Article I of GATT. That argument, though, could
be dismissed by virtue of Article XX of GATT, which provides an exception to arbi-
trary and discriminatory trade restrictions. The unfavorable import tax treatment
towards states that are found to be exporting ivory can be justified by Article XX(b)
of GATT, which allows arbitrary and discriminatory trade restrictions so long as the
trade restriction is necessary to protect animal life.266 In this situation, the trade
restriction is necessary to protect the African elephant population.
Furthermore, as decided by the WTO, arbitrary and discriminatory trade
practices can be justified by Article XX(a) of GATT, which is the public morals
exception.267 Similar to the EU seals regulatory scheme, a trade regulation for
 Import Taxes Explained in a Nutshell, DUTY CALCULATOR, http://www.dutycalculator.com/help_center/Import-duty-
and-taxes-explained-in-a-nutshell/ (last visited  November ).
 Export Duty, CNBC M ONEY C ONTROL , http://www.moneycontrol.com/glossary/taxes/export-duty_.html (last vis-
ited  November ).
 Global Value Chains and Africa’s Industrialisation, A FRICAN E CON . O UTLOOK , http://www.africaneco
nomicoutlook.org/ sites/default/files/content-pdf/AEO_EN.pdf (last visited  November ).
 See infra Part III.A. (discussing a proposed incentive program).
 Import Duty & Taxes When Importing into Botswana, D UTY C ALCULATOR , http://www.dutycalculator.com/country-
guides/Import-duty-taxes-when-importing-into-Botswana/ (last visited  November ).
 Id.
 GATT, supra note , at art. XX.
 Id.
316 S. PERSAUD

African elephants is necessary to protect public morals. As mentioned earlier, it is

estimated that an African elephant is killed every 15 minutes for its ivory tusks.268
It can be presumed that such a powerful statistic could shock the conscience of
an individual, and an example of how the public reacts to the killing of an animal
is Cecil the lion. When an American dentist killed Cecil the lion, there was quite
a bit of public outcry and many questioned the morality of hunting.269 These
same reactions are generated when an African elephant is killed for its ivory tusks.
Therefore, trade restrictions are needed to protect public morals.
If states are forced to pay higher taxes because they are caught trying to export
or import ivory, then it will not be long before states eventually refuse to export or
import ivory because of the dire tax consequences. Thus ivory essentially will be
taxed out of existence.

4.1.1.2 Promoting ecotourism. Part of the reason why ivory is still be trafficked is
because of the consumer demand for ivory and the social status that it portrays.270
The value of ivory is similar to that of a diamond or gold. Throughout the world,
miners dig for gold and diamonds and sell them for thousands, sometimes millions,
of dollars. This same logic also applies to ivory, with the exception that in order to
get ivory, an animal is usually killed or severely injured. But with heavy taxes on
ivory and stricter trade measures, the value of ivory will eventually decrease and
sales will drop. This will result in a loss of revenue for African nations that receive
money from ivory sales.
A simple solution to the loss in revenue is ecotourism. Ecotourism is defined
as the “responsible travel to natural areas that conserves the environment and
improves the well-being of local people.”271 Many people travel to parts of sub-
Saharan Africa to see the majestic animals that roam the African terrain.272
A live elephant can generate $1.6 million in income just from tourism.273
That money could help the local economy. A seven-night safari in sub-Saharan
Africa can cost over $5,000 for one person.274 If 30 people elect to go on
a safari adventure, the African state government would make over $150,000
in revenue. Thus even if African states lose revenue from the sale of ivory
by establishing strict trade barriers, they can still generate revenue through
ecotourism.
 McLendon, supra note .
 See Judith Woods, Cecil the Lion: Has the Reaction Tipped Dangerously into Overreaction?, THE TELEGRAPH (
July ), http://www.telegraph.co.uk/news/worldnews/africaandindianocean/zimbabwe//Cecil-the-lion-
has-the-reaction-tipped-dangerously-into-overreaction.html.
 Strauss, supra note .
 The Int’l. Ecotourism Soc’y., Ecotourism Definition, T HE I NT ’ L E COTOURISM S OC ., https://www.ecotourism.
org/book/ecotourism-definition (last visited  March ).
 Africa Safari Guide: Why Go to Africa, http://www.goafrica.com/africa-safari-guide/why-go (last visited  November
).
 McLendon, supra note .
 How Much Does a Safari Cost?, W AYO A FRICA , http://wayoafrica.com/Safari-in-Tanzania/safari-cost-calculator.htm (last
visited  November ) (in the search fields select:  days,  walking days, one person, mix camping with nights at
luxury lodges, drive in and fly out, December to March, and coming from the United States).
 JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY 317

.. Providing incentives to member states to disclose confiscated ivory

Ever since the Kenyan president took a stand against the illegal ivory trade in
1989 by burning the nation’s ivory stockpile,275 more states have begun to fol-
low the Kenyan president’s example and have begun burning and destroying their
own ivory stockpiles.276 State governments seized more illegal ivory in 2011 than
in any other year in recorded history.277 But what do these state governments
receive in return for destroying their ivory stockpiles? Nothing. States could appeal
to the CITES Secretariat to allow another one-time sale of ivory and use the money
received from the sale to fund national wildlife conservation programs; however,
they do not because of its illegality and the fear that the sale of ivory will contribute
to rising elephant poaching statistics and fuel the consumer demand for ivory.278
Instead, more and more states have elected to destroy the ivory confiscated at
borders.
In a way, by refusing to appeal to the CITES Secretariat to allow another one-time
sale of ivory and, instead, destroying ivory stockpiles, states are losing revenue that
could be gained from a one-time sale of ivory. Thus states should be rewarded for
destroying their ivory stockpiles. With smugglers gaining control over ports through
bribes and kickbacks, an incentive for states to confiscate ivory could lead to more
ivory being stopped at the ports and less bribery. Thus CITES should be amended to
allow states to receive an incentive when they disclose confiscated ivory and destroy
it as well. This incentive could be in the form of money and/or tax breaks. The inter-
national community could set up a fund for wildlife conservation projects, and states
that disclose and destroy confiscated ivory would be entitled to receive money from
that fund. This fund would be similar to the Green Climate Fund (GCF).
In the climate change context, the GCF was set up by the United Nations to pro-
vide money to developing nations to help them in their efforts to mitigate and adapt
to climate change.279 Reducing Emissions from Deforestation and Forest Degra-
dation (REDD+) is “an initiative that promotes … the protection of forests …”280
Money from the GCF is used to fund REDD+ projects.281 Similarly, if the inter-
national community came together to create a wildlife conservation fund, devel-
oped nations, especially those that are against the illegal wildlife trade, could donate
money into that conservation fund, and the money, in turn, would serve as a reward
to developing nations for confiscating and destroying their ivory stockpiles.

 Narula, supra note .

 See, e.g., U.S. Ivory Crush Questions & Answers, US FISH & WILDLIFE SERV. (), https://www.fws.gov/inter
national/pdf/factsheet-ivory-crush-qa.pdf; Bettina Wassener, China Destroys  Tons of Ivory, N.Y. TIMES ( Jan-
uary ), https://sinosphere.blogs.nytimes.com////china-destroys--tons-of-ivory/; Thailand Destroys Ivory
Stockpile, WWF ( August ), http://www.worldwildlife.org/stories/thailand-destroys-ivory-stockpile.
 African Elephant WWF, supra note .
 U.S. Ivory Crush Questions & Answers, supra note .
 Niranjali Amerasinghe, Green Climate Fund Dos and Don’ts: The Case of REDD+, C TR . FOR I NT ’ L E NVTL . L. ( November
), http://www.ciel.org/green-climate-fund-dos-and-donts-the-case-of-redd/.
 Id.
 Id.
318 S. PERSAUD

4.2 Banning African elephant trophy hunting

The difference between trophy hunting and poaching is quite simple: one is legal,
while the other is not.282 Trophy hunting is defined as “the legal practice of
selectively hunting wild game animals, usually larger animals and usually to take
back home taxidermied parts of the animal such as the head or carcass for dis-
play as a ‘trophy,’ … [whereas] [p]oaching … is the illegal version of killing wild
game.”283 Based on the Wildlife Conservation Acts of both Botswana and Zim-
babwe, one can assume that African elephant trophy hunting is permitted because
the African elephant is not provided special protections under the national acts.284
The special protections provided to African elephants under Botswana and Zim-
babwe’s respective Wildlife Conservation Acts prohibit hunting of any specially
protected animal, which does not include the African elephant.285 By adding the
African elephant to the list of specially protected species, African countries will,
in effect, place a ban on all African elephant trophy hunting. This ban, along
with the ivory ban, will allow the African elephant population to grow. The ban
will also reduce the risk of smugglers being able to hide illegal ivory with legal
ivory.
However, with every ban comes a challenge. Not only is the illegal black market a
concern, but also basic economics. Trophy hunting is a source of revenue for many
African countries and generates more than $200 million in revenue each year.286
Sport hunters spend thousands of dollars just to kill animals in Africa.287 Recently,
a German hunter spent $62,000 to kill an iconic elephant in Kenya.288 Proponents
of sport trophy hunting argue that this money funds wildlife conservation efforts,289
whereas opponents argue that the money earned from trophy hunting ends up in
the hands of corrupt government officials.290 While the implementation of a ban on
African elephant sport trophy hunting will virtually eliminate the revenue received
from sport hunting, there are other ways in which a country can generate money to
promote wildlife conservation.

 Avianne Tan, Beyond Cecil the Lion: Trophy-Hunting Industry in Africa Explained, ABC NEWS ( July ),
http://abcnews.go.com/US/cecil-lion-trophy-hunting-industry-africa-explained/story?id=.
 Id.
 See supra notes – and accompanying text.
 Id.
 Terry L. Anderson & Shawn Regan, How Trophy Hunting Can Save Lions, W ALL S T . J. ( August ), http://
www.wsj.com/articles/how-trophy-hunting-can-save-lions-.
 Azzedine Downes, Trophy Hunting’s Tragic Victims, H UFFINGTON P OST ( October ), http://www.huffi
ngtonpost.com/azzedine-downes/trophy-huntings-tragic-victims_b_.html (stating that “Corey Knowl-
ton paid $, for the rights to shoot a black rhino in Namibia; [and] Walter Palmer spent $, to kill Cecil the
Lion in Zimbabwe”).
 Id.; African Hunting Packages in Zimbabwe, A FRICAN S KY , http://www.africanskyhunting.co.za/africanhuntingpackages
-zim.html (last visited  November ) (commenting that “African Sky Hunting is a company that offers African safari
hunting packages. The company sells -day elephant packages in Zimbabwe, which costs $, for one hunter and
$, for each observer”).
 Bigad Shaban et al., American “Trophy” Hunters Kill Endangered, Threatened Animals Abroad Almost Daily, NBC B AY
AREA ( November ), http://www.nbcbayarea.com/investigations/US-Hunters-Trophy-Hunting-Endangered-
Threatened-Animals-.html.
 Tan, supra note ; Adam Cruise, Is Trophy Hunting Helping Save African Elephants?, N AT ’ L G EOGRAPHIC ( November
), http://news.nationalgeographic.com///-conservation-trophy-hunting-elephants-tusks-poaching-
zimbabwe-namibia/.
 JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY 319

Through its Wildlife Protection Act, Tanzania created the Tanzania Wildlife
Protection Fund (TWPF).291 The money in the TWPF is used to fund various
wildlife conservation measures throughout Tanzania.292 Other African states
should follow Tanzania’s example and create their own wildlife protection funds
to carry out the same objectives as that of the TWPF.293 Though the TWPF is
underfunded,294 a wildlife conservation fund similar to the fund proposed in
the previous subsection could counteract the negative economic effect that a ban
on trophy hunting would have on the African states. Also, the promotion of eco-
tourism, as proposed in Part III, subsection A(1)(b), could generate the revenue
needed to offset the loss of revenue that would come about if sport trophy hunting is
banned.

4.3 Implementing subnational ivory bans and educating the public

The Philippines, China, Thailand, and Vietnam share many similarities when it
comes to prohibited items for import, but the major similarity that these Asian
nations share is that none of them strictly prohibits the import of ivory. This
same point applies to the African nations that are notorious for exporting ivory—
Botswana, Tanzania, and Zimbabwe.295 None of these African countries strictly pro-
hibits the export of ivory. As the number of African elephants continues to decline,
it only makes sense for territories within each country to prohibit the import and
export of ivory.
States within the United States have already banned the import and export of
ivory across state lines,296 and the United States has placed a temporary ban on the
import of sport-hunted ivory.297 By placing a one-year ban on imports of ivory from
Africa, China is making strides in tackling the ivory trade.298 But a one-year ban by
one country is insufficient. In an effort to put an end to the ivory trade and help the
African elephant population grow, more and more subnational governments should
add ivory to their list of prohibited items for import and export. In that way, as more
territories are imposing a ban on ivory and as years go on, the ban will become a
general practice and eventually could become customary international law.
As has been the case with human trafficking and shark finning, public education
campaigns have played an important role in prohibiting the trafficking of human
 The Wildlife Conservation Act, art. , THE UNITED REPUBLIC OF TANZANIA MINISTRY OF NATURAL RESOURCES AND TOURISM
(July ), https://www.unodc.org/res/cld/document/tza//wildlife_conservation_act__html/Wildlife_Con
servation_Act_.pdf.
 Id.
 See supra Part II.C for a discussion on the objectives of the TWPF.
 Press Release, supra note .
 Panjabi, supra note .
 See, e.g., Darryl Fears, New York and California Banned Ivory Sales—Why Not Hawaii?, W ASH . P OST ( October
), http://www.washingtonpost.com/news/energy-environment/wp////california-and-new-york-ban
ned-ivory-sales-but-hawaii-another-huge-market-is-refusing-to-say-aloha/; Rachel La Corte, Initiative Seeks State
Penalties, KOMONEWS.COM ( October ), http://www.komonews.com/news/local/Initiative-seeks-state-penalties-
for-wildlife-trafficking-.html.
 Sport-Hunted Trophies: Import of Elephant Trophies from Tanzania & Zimbabwe, supra note .
 China Slaps One-year Ban on Imports of African Ivory Hunting Trophies, R EUTERS ( October ), http://www.
reuters.com/article////us-china-ivory-idUSKCNSBB.
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beings and the finning of sharks.299 The success of these educational campaigns
demonstrates that similar campaigns could also play a major role in the ban on
ivory import and exports; and, throughout the world, celebrities are known to have a
strong influence on global populations. Having celebrities support these educational
campaigns will strengthen the effect that it has on populations across the globe.300

5. Conclusion
There has been a little progress in the fight against ivory trafficking, but those efforts
have had minimal impact on the illegal ivory trade. So long as terrorist groups con-
tinue to receive large sums of money for selling illegal ivory and consumers continue
to demand ivory to boost their social status, the elephant population will not be able
to recover to a sustainable number.
CITES needs to be amended to provide punishments and incentives for those
states that violate the treaty and those that comply with the treaty. When it comes to
world trade, if countries caught trying to export or import ivory receive unfavorable
tax treatment, then it is very likely that these countries will refuse to continue trading
in ivory. On the other hand, countries that comply with CITES and do not trade
ivory will receive an incentive in the form of favorable tax treatment. Unfavorable
tax treatment balanced with favorable tax treatment will eventually result in ivory
being taxed out of existence.
In addition to the positive and negative consequences of engaging in the trade of
ivory, a ban on African elephant sport trophy hunting will allow the elephant popu-
lation to grow. Though the ban will not have a tremendous impact as the ivory ban, it
will reduce the risk of illegal ivory being hidden with legal ivory. Finally, prohibiting
ivory at the borders will ensure that ivory is not exiting Africa, nor entering a foreign
black market for sale. However, “[i]f something does … [not] happen quickly, we
could be the generation that loses elephants.”301
rrr

 See, e.g., Awareness and Education Are Key to Beating Human Trafficking, UN OFFICE ON DRUGS & CRIME
( February ), https://www.unodc.org/unodc/en/frontpage//February/awareness-and-education-are-key-to-
beating-human-trafficking.html; David Shiffman, Trade in Shark Fins Takes a Plunge, SCIENTIFIC AMERICAN ( February
), http://www.scientificamerican.com/article/trade-in-shark-fins-takes-a-plunge/.
 See, e.g., Joanna Plucinska, “Walter Palmer Is Satan”: Celebrities Rage Over Cecil the Lion’s Killer, T IME ( July ),
http://time.com//walter-palmer-cecil-the-lion-celebrities/.
 National Geographic, Why Elephants May Go Extinct in Your Lifetime, Y OU T UBE ( August ), https://
www.youtube.com/watch?v=zJbFthhZRHY.