ART + LAW
152
The Possibility
of Trade in
Antique Ivory By Yves-Bernard Debie
The proponents of a total and blind
ban have failed. French law enacted on May 4,
2017, regulates the trade in antique ivory but
falls short of obliterating centuries of art and
culture.
Whether collectors or dealers, the participants
in the Parcours des Mondes international tribal
art show, which will be held once again this year
in early September, can rest assured: Trade in
antique ivory artworks and objects is not illegal
in France. That is the main point that can be
gleaned from a new law passed on May 4, 2017,
which has signifi cantly modifi ed the hotly contested
one of August 16, 2016, as it related to a
“ban on trade in elephant ivory and rhinoceros
horn on French soil.”
The hysteria is over. The ill-informed statements
of the minister of ecology and the sermons
of the militants of the NGOs have failed
to prevail. For elephant ivory or rhinoceros
horn objects “manufactured” before March 2,
1947, a “simple” declaration procedure will be
required, and objects that are less than 20% elephant
ivory or rhinoceros horn by volume are
exempt from any restriction or declaration. Additionally,
objects made after March 2, 1947,
but before July 1, 1975 —the effective date of
the Washington Convention, known as CITES
(Convention on International Trade in Endangered
Species of Fauna and Flora)—are subject
to exceptions established by the Environmental
Code (Articles L. 411-2 and R. 411-6 through
R. 411-14) if the amount of ivory or horn present
in them is under 200 grams. Other exceptions
are specifi ed, but these have no relevance
to the tribal art marketplace.
Some will undoubtedly complain, legitimately,
about what seems to be improvised or arbitrary
judicial stipulations. Why March 2, 1947? Why
thresholds of 20% or 200 grams? And then
there is the issue of placing too much confi dence
in the effi ciency and capability of the bureaucratic
offi ces that will be charged with enforcing
the declaration procedures and maintaining the
national database. In order to form an accurate
assessment, we will have to wait for the publication
of the announced decree, which will defi ne
its provisions more thoroughly.
In the meantime, the new law and the declaration
procedures it allows give the expert a quasi
monopoly on determinations. In the absence
of relevant documents dating to prior to 1947,
which in actual practice are rare, or without recourse
to radiocarbon dating, experts will attest
to the age of the works that will be declared and
registered in the “national database.” In addition,
Article 2 of the May 4, 2017, law clearly
states that the “age of the specimen is to be
clearly established by its owner,” which in practice
will mean at the owner’s expense.
The fi ght against the illegal trade in elephant
tusk and rhinoceros horn that threatens these
animals with extinction is both laudable and
indispensable, and it is worthy of support by
all reasonable people. However, it is a very curious
application indeed of the chicken-or-theegg
paradox that casts the trade in antique art
objects as one of the causes of contemporary
poaching. According to nature conservation associations,
more than 20,000 elephants were illegally
killed for their ivory in 2016 alone, and,
according to the World Wildlife Fund (WWF),
there are only 415,000 of them left in Africa.
This is clearly a tragedy that must be stopped,
but it is diffi cult to see how prohibiting the sale
of a miniature painted on an ivory plaque during
the nineteenth century or an ikoko pendant
sculpted in 1910 would do anything to prevent
these contemporary massacres.
Like Germany and the United Kingdom,
France took a series of measures in 2015 that
were designed to combat the illegal ivory trade,
notably by forbidding the import of raw unworked
ivory. In fact, the trade in elephant