Antiques and Ivory - the new white elephant?

27 Sep 2017

Elephant ivory has come under increased public and press scrutiny of late; not least because in March 2017, China, the world’s largest ivory importer and trader, introduced a ban on the trading and processing of elephant ivory, other than auctions of legitimately sourced antiques. Recently in New York there was an ‘ivory crush’ event where US$8 million worth of ivory was destroyed. Here in the UK, there has also been much talk surrounding changing the law on dealings with elephant ivory such that the issue has become rather confused. This is therefore a good opportunity for a brief reminder as to the current state of the law.

The Law

The Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) was signed by 182 member states in 1989. The signatories agreed to impose controls on the import and export of the specimens of various endangered species. The CITES Convention was transposed into EU law by two Regulations which, on the basis of current Brexit legislation, will continue to apply to the UK after our departure from the EU.

In the case of elephant ivory, the EU adopted measures which are even stricter than the CITES provisions. All trade in elephant ivory is strictly regulated in the EU and sanctions for failing to comply with the Regulations can result in a fine of up to £5000, a 2 year imprisonment, or both.

There are currently different rules governing the trade of ivory within the EU and for the (re-)export of ivory outside the EU. The current Regulations prohibit all intra-EU trade of ‘raw’ ivory without a certificate issued by a member state, which takes the form of a licence to undertake a particular activity, such as import or export. However, there is an exception to the requirement for certification in respect of ‘worked specimens’ acquired before 1947, ie antiques. In order to be described as ‘worked’, the ivory must be ‘significantly altered from its raw state for jewellery, adornment, art, utility, or musical instruments; and need no further carving, crafting or manufacture to effect their purpose’. Whole tusks, therefore, would be subject to the ban, whereas the sale of antique carved pieces that were ‘worked’ could be freely traded within the EU.

The re-export of ivory to a country outside the EU is only permitted for specimens acquired before the date on which CITES became applicable to them, i.e. 1976 or 1975 for African and Asian Elephants respectively.

A Movement towards change?

Guidance was published by the European Commission in May 2017 which indicated that the current regime on the intra-EU trade and re-export of ivory would be reviewed by the European Parliament in 2019 in light of a surge in elephant poaching and ivory trafficking driven by demand from Asia. It is expected that this will result in a further tightening of the rules as the guidance makes recommendations for temporary measures which includes member states not issuing any re-export certificates for raw ivory from 1 July 2017, other than in exceptional cases.

As for the UK specifically, although it has implemented the above EU legislation, it still remains one of the world’s biggest exporters of ‘legal’ ivory, due to the strength of its antiques trade. Back in 2015, however, David Cameron announced an intention to 'press for a total ban' on ivory sales in the Conservative Party manifesto. Then, in September 2016, the Government announced that, as a step towards this, it would consult on strengthening the rules, specifically in relation to the current exception in place under the EU Regulations for 'antiques' produced before 1947.

At present, a dealer or auctioneer’s declaration that the item is a pre-1947 worked piece would be enough to enable the specimen to be traded as an antique within the EU. The Government was therefore considering, among other things, imposing official standards for documentary proof to evidence the age of an object before it could be sold in the UK. This was debated in Parliament in February 2017, following which, DEFRA Minister, Thérèse Coffey, repeated the Government’s intention to explore its options with a public consultation but failed to set a timetable. Four months later, however, the matter was notably absent from Theresa May’s June 2017 Manifesto.

For now, then, the law in the UK remains as follows:

  • Whole tusks (unworked): Cannot be sold, regardless of the date of origin
  • Worked materials pre-1947: Can be sold without any official documentation
  • Worked materials post-1947: Cannot be sold

It should be noted that even if the ivory itself originates from before 1947, if it has been significantly altered since 1947 then it will fall outside the scope of the exception. For example, if a tusk was fashioned into an ornament pre-1947, but was subsequently reworked into a different item or items, for example, including a piece of jewellery, post-1947, this would mean the new item(s) could not be sold. Those in the business of repairing antique pieces should also be careful to ensure that any ivory added as part of the repair was also worked before 1947 in order to keep the piece within the acceptable category of worked materials pre-1947.

It is not just sales that are banned under current legislation as it is also an offence to purchase, offer to purchase, acquire for commercial purposes, display to the public for commercial purposes, use for commercial gain, sell, keep for sale, offer for sale or transport for sale items containing ivory worked after 1947.

Pre-1947 Ivory: Proof

Critics of the current ‘1947 Rule’ have suggested that the ageing process can be faked, by methods such as tea staining. Further issues have also arisen in litigation surrounding who has the burden of proving that ivory was produced pre/post-1947 and how this process should be undertaken. Carbon dating can be used to give a rough idea of the time the ivory was harvested, but is expensive and can result in damage to the item due to the fact that a sample has to be taken for testing.

In R v Sara Wilkinson, the Crown Prosecution Service, on behalf of the Metropolitan Police, tried to assert that the burden of proving the provenance of the ivory should be on the defendant auctioneer/dealer, rather than on the prosecution. The case was later dropped but a shift towards such a rule in future would arguably be a reversal of the standard criminal presumption of 'innocent until proven guilty'.

What’s next?

As an emotive topic for conservationists and antique dealers alike, it is likely that the arguments surrounding ivory will remain a hot topic for some time. The current political climate has left some ambiguity as to the current state of the law, particularly with regard to proving the age of worked items. However, those who deal in ivory products should remain alert to any changes.

Collyer Bristow LLP are members of the British Antique Dealers’ Association and LAPADA - The Association of Art & Antiques Dealers and are able to offer comprehensive advice on all aspects of dealing in art, antiques and cultural property.

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