Selling antique ivory might not be illegal after all - here's why

A large ivory netsuke of Kan'u, unsigned, circa 1740 Credit: Neil K. Davey, Netsuke: a Comprehensive Study Based on the M. T. Hindson Collection

The Ivory Act of 2018 (yet to be implemented) may have been popular with those who want to see elephant life preserved by any means necessary, but there are others who, while agreeing that poaching has to be stopped, see the section of the Act which imposes a blanket ban on the sale of antique ivory works of art made a hundred years and more ago, as a miscarriage of justice.

Five months ago, the latter party, a small group of antique dealers and collectors, came together to protest and has now persuaded the High Court in London that there is a case to answer.  Last week, in spite of opposition by the Secretary of State, permission was granted for a judicial review of the Act.

The ban was imposed in the belief that the trade in antique works of art contributes to elephant poaching in Africa today. But lawyers for the claimants will argue that the new act is contrary to the EU Wildlife Trade Regulations, which expressly permits trade in worked antique ivory, it not being considered a threat to elephant conservation.

“The Ivory Act is in direct and irreconcilable conflict with the EU’s exercise of competence in this field and cannot stand,” reads the claim. “The true issue is of accurate certification.”  This is because the Government believes that a causal link with elephant poaching can be established through the trade in modern poached ivory faked up as antiques.

The belief is based to some extent on published research by an NGO of several hundred minor British auction rooms that could not tell the difference between fake and genuine antique ivory objects and are therefore susceptible to accepting fake antiques for sale.  However, as none of these auction rooms had any relevant expertise, the issue of whether there could be a licensed body of expert dealers and auctioneers to vet the ivory trade and weed out fakes was not addressed. 

The claimants argue that the emphasis of legislation should not be to ban antiques, but instead to ensure that the ivory objects that are traded are in fact antique (not modern fakes).  The lawyers for the claimants will also state that, referring to the resulting devaluation of property and its effect on livelihood, the Ivory Act is disproportionate in that, however worthy its objectives, it “does not justify the severe interference with fundamental rights and freedom caused by the ban”, and that the exemptions to the proposed law, such as the allowance of portrait miniatures painted on ivory but not miniature Japanese netsuke figures, are arbitrary and inconsistent.

The court has ordered the hearing to take place in October while the UK is still part of the EU.

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