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United Kingdom: Court Upholds Elephant Ivory Ban

(Jan. 8, 2020) On November 5, 2019, the High Court of the United Kingdom (UK) ruled against a claim filed earlier that year by a group of antiques dealers that the Ivory Act 2018 was unlawful. The Act had been enacted to prohibit commercial activities involving ivory in the UK.

There were two primary grounds on which the antique dealers challenged the Act’s lawfulness. The first was that, because the European Union (EU) had exercised its competence to regulate this area, the UK lacked the competence to legislate in a more stringent manner than the EU. EU law has exceptions and allows the trade in antique ivory items made prior to certain dates without the need for permits, and regulates the import and re-export of these items from the EU to third countries. The second ground was that, if the UK was indeed free to introduce a stricter legislative regime than that provided by EU law, a ban on EU and third-country trade in antique ivory is disproportionate under EU law, the EU Charter of Fundamental Rights, and the European Convention on Human Rights.

The antique dealers additionally argued that the ban on commercial activities involving antique items made of, or containing, ivory would not help achieve the fundamental objectives of the Act.

The High Court dismissed the application, ruling that the UK was competent to enact more stringent environmental laws than the EU because this area of law is an area of shared competence with the EU. It also held that the Act did not involve the Charter of Fundamental Rights as there was no expropriation of property involved and the ban was not disproportionate.

A press release from the Department for Environment, Food & Rural Affairs notes that, because the Act requires secondary legislation to bring it into force, the implementation will likely occur early in 2020.

Background to the Act

The government held a public consultation and concluded that a total ban on ivory was necessary to help conserve the elephant population by ending the poaching of elephants, in accordance with the pledge it made in the Conservative Manifesto to protect rare species and to show that the “UK does not consider commercial trade in any ivory that could fuel poaching to be acceptable and … sends a message that similar actions should be taken globally.” The Department for Environment, Food & Rural Affairs had also expressed concern that “the legal market presents opportunities for criminals to launder recently poached ivory as old ivory products.”

In its ruling in this case, the High Court summarized the government policy behind the Ivory Act:

[T]he need for a stricter regime arises because, despite the present panoply of protections in international treaty and the Regulations, between 2007 and 2014 the estimated total number of savanna elephants in Africa declined by 30%, equal to 144,000 elephants, primarily due to poaching. If these rates of decline were to continue, elephants could become extinct within decades in some African countries. Elephants are a “keystone” species and aside from the tragedy that would directly flow, the knock-on environmental consequences would be wide-ranging.

The ban in the Ivory Act 2018 extends to items made of or containing ivory, as well as to commercial activities that include purchasing and selling ivory; brokering the purchase, sale, or hire of ivory; keeping ivory for sale or hire; and importing or exporting ivory into or out of the UK for sale or hire. The ban does not affect the current ownership of ivory or items containing ivory, or prohibit the bequeathing of such items. Failure to comply with the provisions of the Act is punishable by up to five years’ imprisonment and/or a fine.