By Naomi Rea, ArtNet News
The UK’s Court of Appeal has dismissed a legal challenge from antiques dealers trying to reverse the country’s near-total ban on ivory trading.
The Ivory Act passed into law in December 2018 amid fierce criticism from the art and antiques industry, which had been fighting hard to expand the narrow exceptions afforded to some art objects including a small amount of the controversial animal-sourced material. Industry players acting under the group Friends of Antique Cultural Treasures Ltd previously made a failed attempt to overturn the ban last November, and appealed the court’s decision soon after.
On Monday, May 18, the Court of Appeal upheld the lower court ruling, and dismissed their appeal arguing that the Ivory Act “went foo far” and that they were in violation of the human right to respect property.
The UK’s ivory ban is one of the world’s toughest, and it prohibits the trade of a large number of art and antique objects that were previously being traded legitimately.
“The dismissal of this appeal has come at a difficult time for the locked-down UK art trade,” Tim Maxwell, a partner at the law firm Charles Russell Speechlys, who specializes in private wealth and luxury items, says in a statement provided to Artnet News. “No one disputes that any increase in poaching or the market for modern ivory should be curbed and ideally extinguished,” Maxwell adds, explaining that the legal challenge from the group of trade insiders was a question of approach rather than principle.
While there are some exemptions to the ban, traders argue that they are simply too narrow for them to continue doing business. Dealers have been battling to increase the maximum percentage of ivory permitted in objects made before 1947, which is currently capped at just 10 percent. Other exempted items include museum-quality pieces and portrait miniatures painted on thin pieces of ivory that were made more than 100 years ago, as well as musical instruments containing less than 20 percent ivory, which were made before 1975, the date that Asian elephants were listed as an endangered species. In order to be traded, qualifying items need to be registered online at a fee.
Many traders have argued that the strict ban decimates their UK businesses and they have threatened to decamp to other art market hubs to trade instead, which Maxwell points out could be “counter-productive for enforcement.”
Speaking to Artnet News when the ban was first introduced, London-based dealer Max Rutherston, who specializes in Japanese netsuke, small carved ivory ornaments, said that the law would be “disastrous.”
“Works of art that have been treasured for centuries, and which are of significant historical significance, will be outlawed overnight,” Rutherston commented at the time, adding that his business, which has thrived for eight years, would become unworkable in the UK.
Wildlife Advocates’ Relief
Meanwhile, wildlife advocates are rejoicing in the decision. During lockdown, there have been reports of a resurgence in elephant ivory poaching as the tourism industry collapses, removing much-needed funds from conservation programs.
“This welcome judgement hopefully draws a line under the protracted legal challenge to the Ivory Act, which passed into law in December 2018 but has yet to be implemented,” the head of policy at the UK wildlife charity Born Free, Mark Jones, tells Artnet News. “We urge the government to act swiftly in implementing the act in full. Africa’s elephants cannot afford to wait any longer.” Jones adds that the UK should look to extending the ban to include ivory from other species including hippos, walruses, and warthogs “without delay.”
A spokesman for the Museums Association, which represents around 1,500 museums, tells Artnet News that it also supports the implementation of the bill, which will crack down on the illegal ivory trade while allowing museums to continue to acquire, own, and display objects made with ivory. “The exemption for accredited museums recognizes the important place that ivory has occupied in different cultures and locations across the world, and recognizes museums as an appropriate place for the historic, cultural and scientific study and display of such items,” the spokesman says.
The art trade still has a chance to take the case to the UK’s Supreme Court, but it remains to be seen whether it will do so.