Working with the antique trade to change the law on ivory

Anna Rose: Welcome to Life Solved. In this episode, we hear how research from the University of Portsmouth has helped to change the law and fight the illegal ivory trade. Wildlife crime sees billions of pounds changing hands around the world every year, from private trade to hidden corners of the Internet as the demand for animal and plant materials continues to surge everything from medicines to antiques and food. One of the most prominent of these materials is elephant ivory. The tusks of these animals have been used for centuries in instruments, art, household and decorative items and jewels. Although UK law already existed to discourage the slaughter of elephants in the present day and prohibit the trade of new ivory, it wasn't tight enough to stop mistakes happening and rules being bent. All this meant the UK trade in ivory continued to encourage further hunting. That was until the government took action on new legislation, and there to support it were University of Portsmouth experts and their body of research. They're now taking the fight to the global stage. John Worsey spoke to Caroline Cox about the ivory project. Caroline Cox is a senior lecturer in law. She's a colleague of Nick Pamment, who will meet later in this series. Nick set up the wildlife crime module here at the university. Caroline and Nick started the Ivory Project to explore what antiques dealers understood about the law when it came to the sale of ivory. Her real motive was to help change legislation that was contributing to the slaughter of elephants for their ivory.

Caroline Cox: The illegal wildlife trade is worth 20 billion dollars a year. At the back of my mind, secretly, I wanted to change the law, but I'd never say that out loud, really. I feel I certainly wouldn't have said it to members of the antiques trade. But secretly, yes, that's what I wanted to do, or at least to be able to gather enough evidence so that people who were more important than me could have a serious say in how legislation would be changed. 

Anna Rose: It turns out that was just the beginning. She told John Worsey how things took a surprise turn. 
 

Caroline Cox: It's gotten bigger, John. There was a real grassroots all the way up to royalty, quite literally, people calling for a change in the law and change in the way we dealt with ivory here in the UK. So, you know, in the same year that my first report was published, Prince William was on a stand at the London Wildlife Conference saying, you know, we've got to stop this. It's got to come to an end. And of course, as soon as somebody like that, with all of his influence, speaks out, government listens. Just by pure luck, really. What the government then did was decide that they'd really like to introduce new legislation here in England and Wales to combat the illegal ivory trade, specifically dealing with how antiques dealers sold ivory. So, oh, my goodness me, we started off as two people just talking to lots of really, really interesting people about their ivory. And we ended up speaking to members of the government and elephant organisations and wildlife organisations, and it suddenly became much bigger than it was probably intended to be at the start. But it was wonderful to be included in all of those conversations. We got to talk to some fabulously interesting people, members of the Wildlife Crime Unit, the National Wildlife Crime Unit, to people who know so much about antique ivory it was astounding. Then, of course, what happened because Nick and I were going out there and talking to lots of different people with different stakes in the ivory trade in the U.K., we ended up being the experts on the ivory trade in the U.K. So when it came to the government drafting legislation, we were really privileged that we were able to say, you know what, you don't want to do that. You want to do this and have a real input into how the legislation came about. 

Anna Rose: It's important to say that Caroline has a passion for antiques. Her husband, Alistair, is a dealer himself. But the rules around which ivory is legal to sell and which isn't mean that the global ivory trade is sadly still alive.

Caroline Cox: The legislation was very complicated so that there was this cut-off point of 1947, which was effectively 50 years before the CITES, the international piece of law, the CITES law came into effect that said you couldn't sell unworked ivory that had come from an elephant that had died after that date. So it was quite complicated. There were complications around what was worked and what was not worked. And so it led to a number of court cases. And they came very quickly, one after another from about 2014, up to about 2016, 2017 around concepts like, how do you know whether a tusk that you're selling has come from an elephant that died before or after the cut-off date? How do you say whether that item has been worked or not worked? What does worked actually mean?

John Worsey: Was it something like every 15 minutes an elephant being killed illegally for their ivory at the time?

Caroline Cox: That's right. But the thing I heard again and again from dealers was, that's terrible and I really like elephants. And I think it's great that there are organisations out there to protect elephants, but that's got nothing to do with me or my trade. I'm only interested in antique ivory. I don't deal in new ivory. And it was when you got down to the nitty-gritty of how do you know, how can you be sure that the item that you're selling is pre 47? How can you be certain of that, that you start to see the gaps? Because I don't believe, John, that any of the dealers that I talk to and discuss the changes in legislation with, I don't think any of them want to see elephants killed. They don't, but they do want to protect their livelihoods and businesses, you know, that they have built up over many decades.

Anna Rose: Changing the law and discouraging the slaughter of elephants is not simply a case of banning all ivory trade. John asked Caroline to explain.

John Worsey: You sort of accept the principle that it's OK that old ivory can remain in circulation. But it was about very much tightening up all the loopholes, wasn't it, and kind of specifying specific derogations legally.

Caroline Cox: Totally. Ivory is culturally and historically very important. Ivory as a medium was used by the Romans, by the ancient Greeks. It has been around for millennium. And you can't simply wipe off a whole era of cultural art because it's no longer OK to go ahead and kill elephants. So I had to accept that, that there is a lot of art, artistic ivory out there that needs to be preserved. The main recommendation that we made in our report was that there should be some kind of passport system and that only really special pieces of ivory should be given a passport. So you can't sell it without your passport, and that passport will stay with that item forever and ever. And if you sell the item, the passport goes with it. We thought that is what you needed, some kind of way to track an item. And actually, we ended up getting something very much like that. So under the new legislation, every item, there are five derogations of items that can be sold under the new act. But it doesn't matter whether you're selling a musical instrument or the finest piece of carved ivory ever seen in the history of the world. It goes through the same process and that process is it gets registered and it cannot be sold without certification. So we pretty much got what we wanted, which was brilliant. On the downside, what it does mean for somebody like Max Rutherford who has dealt for years and years and years in these little Japanese Netsuke, is that although the items that he's dealing in are always more than a hundred years old, in the cases of most of them, they will not be legal to sell under the new Ivory Act because the Ivory Act's derogations don't say, well you can sell anything if it's over 100 years old or anything like that, it has to fall within a very specific set of one of five derogations. So some people like Max will lose out under the new legislation. But I think what it does do is it does protect the most important items, you know, museum-quality items, John, that we

Anna Rose: Now, the important part, what does the new legislation feature? Caroline explained the five new categories.

John Worsey: Does the time cut-off remain 1947 then?

Caroline Cox: Well, no, no, that's all changed, too, because the new ivory act starts on the basis that you can't sell ivory. End of story. That's it. And then it goes on to say unless it's a musical instrument where less than 20 per cent of the volume of the whole instrument is ivory. So for instance, if you think about a piano before 1975, most pianos had ivory keys. And there are an awful lot of pianos out there right now being used. So 20 per cent equates effectively to the keys on a piano. So there's that. So a musical instrument. Portrait miniatures, uh, portrait miniatures are tiny little pictures, maybe a couple of inches high square only, and they're painted on a sliver of ivory. Now, it was decided that these should have their own derogation because even if you bought a portrait miniature didn't want it and wanted to reuse the ivory, effectively you couldn't. You can't carve it into anything else because there's not enough ivory there to do that. So musical instruments, portrait miniatures. Next, you've got items of such special cultural or artistic importance that they should remain and be able to be sold. So this could be something like a Netsuke, but by a very, very famous Netsuke carver that's got a particularly special character to it. And before something like that will even get its certificate, it will go through a panel of experts who will decide whether it's good enough to get a certificate. Then there are items that are held by museums. So museums can deal in ivory between them. So if the British Museum, for instance, the British Museum, has got a rather lovely Pyxis in its collection, a little ivory box from Byzantine times. If they wanted to sell that to another museum, they could do that under this one. So, you know, it's very, very narrow, strictly controlled derogations. But the old 1947 rule, bye-bye. It's gone.

John Worsey: So your research obviously fed into this and you were consulted and spoke to someone panels in the House of Commons, if I'm right. And this was Ivory Act of 2018. Now I read that in March of last year, so in March of 2020, there was a call to action to try and prevent it coming into law.

Caroline Cox: Yes. So, you know, put yourself in the position of an antiques dealer who's just been told that the government has effectively closed down your business. They were not happy. Very, very, very, very unhappy. And a group of dealers got together, formed a little company and took the government to court. They asked for a judicial review of the Ivory Act, saying that the Ivory Act was illegal because it went beyond its powers. So that went all the way to the Supreme Court. The government won. I'm pleased to tell you. And so there's now nothing stopping the Ivory Act coming into force. It hasn't yet because we're just doing secondary legislation bits. The secondary legislation will be things like how do you decide what the penalty is going to be for a breach of the law and who's going to sit on the panel and this kind of thing. So that's being dealt with right now. And once that's dealt with, the Act can actually come into force. But it is the law. It is now law.

Anna Rose: Caroline's expertise in the subject area has seen her consulting on some important legal cases. These exposed some of the problems with the old 1947 rule.

Caroline Cox: There were lots of cases all around those particular issues. It was helped a little bit when the first case that I covered came to court, a piece of ivory that was put up for sale. It was actually sold at Chiswick auction rooms in London. So a major London auction house, John. They advertised for sale in one of their auctions a train of elephants. So that's like a tusk that's been carved to look like elephants following on after each other. And the question was, was this item pre or post-1947? In that case, the Metropolitan Police actually got it carbon dated. So they could say, for instance, that it came from an elephant that had died in the 1980s. So it was very illegal. But, you know, this thing had been through the hands of a very experienced valuer, an auctioneer at Chiswick, who had looked at it and said, you know, it's probably close to the 1947 date, but we're happy that it is a legitimate piece. So it shows you that without carbon dating, that piece wouldn't have been picked up at al.

Anna Rose: But carbon dating is expensive, and it's not practical to expect businesses to use this in daily practice.

Caroline Cox: Carbon testing is four/five hundred pounds ago, and of course, the problem with carbon testing is they take a piece of the item, you know, you can't just put something on the item, you have to take out a piece of the item. So you're potentially damaging something that could be very valuable and precious and rare. So it's not something that anybody likes to use. And that's actually what came out of the second court case that I covered where an auctioneer in the Portobello Road in London had advertised in her shopfront a carved bust. She'd been a dealer for many, many, many years. She said that, you know, I, in my opinion, in my expert opinion, this is an old item. It's antique. It's not infringing the rules. The Metropolitan Police didn't agree, took her to court, but this time they didn't get it carbon tested. And the judge in the courtroom said, look, it's a bridge too far to expect somebody to pay for carbon testing when they're an expert and they're telling you it's fine. It probably was. I've seen the item and it, to be fair, it does look like it's an antique. But, you know, the thing is, John, there are ways to make new ivory look older. If you've got an unscrupulous dealer who doesn't really care what it is they're selling, it's very hard to tell the difference sometimes.

Anna Rose: There were clearly problems in the past in identifying which ivory was legal and illegal to trade. And that ambiguity has also created opportunities for some to bend the rules. Under the new laws, it's now harder even for experts to sell ivory without meeting the right conditions. But antiques dealers, passionate about protecting elephants and dealing legally supported Caroline and Nic. She explained how they surveyed people as part of their report.

Caroline Cox: I think that was the most difficult part of the whole exercise. It wasn't like I was asking for stakeholders to help me in an enquiry that was going to benefit them. You know, if my enquiry brought out what I thought it was going to bring out, it was going to mean the end of their trade. So the way we did it, we spent a lot of time and spoke to people face to face or on the telephone to convince them that we weren't out to get them. We weren't trying to turn them into, you know, the antichrist of the antiques world or anything like that. It was really, really hard. But I think we were very lucky because two of the big antiques trade associations backed us in that, you know, this is worthwhile research. And we had our little list of questions. And you ask, now, have you ever sold illegal ivory? Of course not, no, never! Do you know anyone who has? Oh, yeah. So that tells you quite a lot, doesn't it? Maybe it tells you a little bit too much about the trade, but it also tells you about perception and how a dealer perceives their own work compared to their competitors.

Anna Rose: Caroline has met some incredibly skilled and inspiring antique deals in her research. She's also met some who had been at risk of breaking the law unwittingly.

Caroline Cox: This is something that one of the dealers at a car boot sale told me. They were selling various pieces of ivory and I said, OK, oh, that's really interesting. Do you know about the legislation? Oh, yes. They said this is old ivory. I said how can you tell? How can you tell that it's old ivory? I put a hot pin in it and I said, well, that might tell you whether it's plastic, but it won't tell you about how old the elephant was. Yeah, so there was a lot of misconceptions and that was a problem – for sure.

Anna Rose: Thankfully, that sort of anecdote should now be a thing of the past in the UK. But what about the global trade in ivory? Caroline explained how she plans to use technology that explores outer space to scour the dark corners of the Web.

Caroline Cox: What I see going on online, it's greatly disturbing, greatly disturbing. And it's not just elephant ivory, it's illegal wildlife trade generally. And it's some of these you know, these big, big companies that you would expect better.

John Worsey: There was a euphemism that I guess is probably well known within the relevant circles, antique bovine bone was the search term that you were coming across on these auction sites and sales platforms online. Is that the kind of thing people are doing then to circumvent the law? They're just coming up with querns that if you're in the know, it's a kind of dog whistle.

Caroline Cox: Totally, absolutely. Completely right. I've had a couple of students this year carry on the research looking at euphemisms, and they've done it for elephant ivory and tiger bone as well - there's another one. And it's the same thing across the illegal wildlife trade these euphemisms are used. But the latest thing that we've noticed is that people take really good pictures, and, of course, you can take a really good photo on your iPhone these days, can't you? It's – you can be the next David Bailey with your iPhone. So people are taking really good pictures of the item, making sure they're showing things like the Schreger lines in the item, which tells you immediately it's real elephant ivory and uploading pictures and very, very little text. So the project we're just about to start is with the Institute of Cosmology and Gravitation looking at using their software because I mean, these guys are seriously clever, John. I understand, maybe one word in ten that they say to me. They are amazing! They're also and of course, they're using this kind of technology all the time, big science, technology to find new galaxies and whatnot. And it was really just a chance conversation with David Bacon over in ICG. And I said you know what, we can use our gear to find ivory for you. That will be amazing. Thank you. So we've just managed to get a little bit of funding to get that project off the ground. My thought process is if two guys in the ICG can do it, eBay can do it too. So there's really no excuse if we can prove a fail-safe way of finding ivory online just from the picture. How awesome is that? They call it machine learning.

John Worsey: Right.

Caroline Cox: And the idea is I've got a big library of pictures of ivory and crosshatching, some slices of ivory. So all of that's gone over to David's chaps. They're putting it into their machine and doing whatever the machine does. In my head, I see this little spider going out of ICG into the aether and finding the ivory, and that's pretty much how it works. They set it loose on eBay and they come back and say, we found your ivory here, here, here and here. It's brilliant. So clever.

Anna Rose: If this works, what incredible implications will this kind of technology have for cracking down on other crime on the Web? Whether it's searching out other illegally traded animal products, plants or other items, it really is the perfect example of how great things happen when researchers in different disciplines put their heads together. As that project progresses, what's also on the agenda for Caroline and the Ivory project?

Caroline Cox: There's a lot of discussion in the southern African states about human-wildlife conflict generally, but particularly about elephants, because, you know, the thing with elephants is they're big, big animals. And if a farmer decides they're going to enclose a piece of land that happens to be on an elephant's route, that elephant isn't going to stop because there's a fence there. They just don't. And so there have been some reports of elephants getting shot by farmers and these guys are subsistence farmers, you know, they're trying to just make a living. So it's a very big, complicated question that I think I'm going to be spending a bit more time looking at alongside the ivory trade, certainly over the next few years, because it is something that really interests me. How do we build a world where our iconic species can live alongside the human population? How can you say to Africa, you're really lucky to have these amazing iconic species in your backyard, you've got to look after them and deny them the opportunity to build a growing economy. You just can't do that as the West. It's ridiculous. So we have to come up with a way for humans and animals to coexist side by side peacefully. Nature, wildlife. It's more than just iconic species. It's all around you. Do you want to benefit from that? Do you want your children to benefit from that? Because if you do, you've got to preserve it. And there has got to be proper, workable legislation in place that helps with its preservation. That would be my number one top rallying call, I think.

Anna Rose: Thanks to Caroline for taking time out to talk to us, we're really excited to see what tools her research can offer to tackling wildlife crime online in the next few years. Next time, we're staying with our environmental theme. John will be talking to Dr Marina Davila-Ross about the rediscovery of a great ape species in Indonesia, the Tapanuli Orang-utans.

Marina Davila-Ross: As a result of this study, the ICN identified these Tapanuli orangutans as critically endangered, with only 800 individuals making up the population. So they are the most endangered great ape species. Also, there was a plan to build a hydroelectric power plant and that is now being in discussion, is being re-evaluated due to a petition signed by over a million people.

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