CITES - An Informal Guide

[Mark]

What is CITES?

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international treaty the purpose of which is to preserve endangered species through control of their trade. There is a CITES web site (www.cites.org) that has a lot of information and links, including a list of member countries. The United States is a signatory, as are many other countries, so check the list to see if your country of origin and/or destination are there.

The treaty itself has no force as law in any country. Enforcement of its terms occurs through laws enacted by the signatory countries to implement the treaty. In the U.S. the most significant of these are the Endangered Species Act, the African Elephant Conservation Act, the Asian Elephant Conservation Act, and the Marine Mammal Protection Act. The links are just for reference – you will likely go blind and/or mad trying to read them. Between these three, all of the species listed in CITES are covered, as near as I can tell, and then some, but there are a number of other laws under which the FWS operates, which might be applicable (see http://www.fws.gov/international/laws/laws.html for a full listing).

Each signatory country has a CITES managing authority, which in the U.S. is the U.S. Fish & Wildlife Service. The FWS has an Import/Export information page with useful information and links. The national CITES managing authority is the entity responsible for enforcing the implementing laws of a country, and for overseeing the CITES permitting process. The CITES web site has a link to a list of managing authorities for each member country (by the way, the map at this link shows that virtually every country in the world has signed on to the treaty).

CITES Basics

Under CITES, it is prohibited to sell, buy, transport, import, export, re-import, re-export or even possess any plant/animal (or part thereof) covered by the treaty. There are, however, circumstances under which one is excepted from the provisions of the treaty, and objects that are not subject to the treaty, which I will get to in a second. In terms of species covered, as it turns out virtually any animal part that is used in or on an ethnographic edged weapon is covered. Specifically, ivory of any kind – African or Asian elephant, whale, walrus, manatee, etc. – is covered. Rhino horn is covered. Most “exotic” antler material is covered (i.e., basically anything other than white-tail, reindeer and North American elk antler). Virtually anything from any cat other than a house cat, and from any monkey or ape is covered. Many snakes, alligators, turtles & lizards are covered. True horn (like cow or carabao horn) and bone are the areas where there is some leeway, but the issue then becomes proving the horn/bone is not from a listed species. A full list of all covered species, by both common and scientific name, can be found in the CITES Appendices, linked here.

Some examples of prohibited transactions: I buy today a sword with an elephant ivory grip made in 1965, from someone in France. That right there is a prohibited transaction (both I and the seller are liable); it gets shipped from France to me in the U.S. -- a second prohibited transaction (again, both parties liable); I hang the sword up on my wall and keep it for a while -- a third violation (just me liable this time); I bring the sword up to Timonium for the annual EEWRS dinner, which involves transporting it across state lines -- a fourth prohibited act (just me liable, again); I then sell it to a fellow forumite in another state in the U.S. and mail it to him/her -- two more prohibited transactions (both myself and the buyer liable).

There are several classes of items that are exempt from the CITES prohibitions, the most relevant in the “ethnographica”-collecting world being the exemption for items that are over 100 years old, and the exemption for items that were not, and have not been, “in commerce” as of December 28, 1973 (the effective date of the treaty. By "in commerce" it is meant that it has not been sold, or for sale, since that date (if the item has changed hands via sale even once after December 28, 1973, it loses the exemption).

[Mark]

The permit: In order to buy, sell, possess, transport, import, export, re-import or re-export protected material legally in or from a CITES signatory country, you must have the appropriate permit issued by the national CITES managing authority. The whole thing is mostly geared toward live animals, and animal parts like pelts, tusks, rhino horns, etc., but it does cover things made with them, such as grips and sheaths. The U.S. FWS has a web page with information and links on the import/export permitting process in the U.S.

If you want to take something out of the country and bring it back in, you need an "export/re-import" permit. To simply bring something in, or send it out, you need only an import or an export permit. To get a permit, you must establish that the article in question falls into at least one of certain exempted classes. The ones most applicable in the ethnographica collecting world are the exemption for items that are over 100 years old, and the exemption for items that were not, and have not been, “in commerce” as of December 28, 1973 (the effective date of the treaty. By "in commerce" it is meant that it has not been sold, or for sale, since that date (if the item has changed hands via sale even once after December 28, 1973, it loses the exemption).

Here is an interesting legal wrinkle that I have encountered during my own efforts to obtain an export permit. According to the U.S. law, and the regulations established by the FWS for carrying them out, an object that is more than 100 years old (as of at least the permit application date), is exempt from the restrictions imposed by the Endangered Species Act, i.e., not subject to the law at all. Thus, one should be able to get any sort of permit by merely establishing the age of the object. However, the FWS seems to be taking the view that everything is subject to the restrictions of the Endangered Species Act, but you can get a permit to undertake a restricted activity anyway by getting an exception to the rules from them (meaning, a permit). As a lawyer, its pretty clear to me that this is an improper reading of the law, but practically speaking they hold all of the cards unless and until you appeal their actions to a higher authority. The whole thing may seem like a subtle difference, but it is a significant one because it is the difference between starting in the position of simply not falling within the reach of the law, and of being per se restricted unless they give you their permission to proceed – it makes it easier for the FWS to deny a permit by exercising “discretion,” rather than having to justify why they should be allowed to apply this law to something to which it appears it should not apply.

Supporting documentation: An application for a permit requires a supporting certification, with supporting documentation, that establishes that the object(s) in question fall within an exempted class. Documentation can be a sales receipt showing that YOU bought the item prior to the cut-off date (re-selling something bought prior to 1973 is still a no-no unless it is over 100 years old, because re-sale makes it "an article of commerce" again). It can also be an affidavit from an expert attesting to the antiquity or source of the material/item, with supporting documentation, or that the item is not in fact a part of a protected animal. I understand from the U.S. authorities that an affidavit from a museum opining on the antiquity of the object would be enough, so long as the basis for the opinion is reasonable and set out in the affidavit. I haven't asked any museum folk if they ever do this sort of thing or would be willing to. The relevant exception for the sword collector (in most cases), is that the piece is an antique (more than 100 years old), OR that it has not been in commerce since December 28, 1973. The certification alone does not put you in compliance – it is just the supporting evidence for a permit application, which if granted will put you in compliance. The certification can be made by anyone with expertise, and is usually in the form of a signed declaration that includes the certifier's credentials. I have applied for an export permit for some of my swords, and supplied my own declaration, in part supported by an antique dealer’s appraisal.

CITES compliance – best practices: Once the permit is obtained, you are well-advised once you have made specific arrangements for shipping to contact the Customs authorities and have them review and sign off on the permit, so that there is no delay in the export. The Customs Service (at least in the U.S.) has the power to inspect the item if they want, and this can save time in the end if they choose to because they have a separate authority under the U.S. laws to enforce import/export bans. In the U.S., the item must be exported from one of six specific ports, but there isn't a problem getting a waiver of that from the Customs office of the port you would otherwise have to use (BTW, the Customs office you need to deal with throughout this process is the one in charge of this port). What you should do, according to my contact at my regional port authority, is to bring or send the permit, along with the bill of lading (which is the shipping invoice), to the port authority office. This way they know what is being shipped, when, how, and from where. At this point they might want to check the package, but I am told in these cases usually don’t. Once you have the Customs’ stamp of approval, there will be no more problems or interference in the shipment, as a copy of all of the approved documentation accompanies the shipment, showing that Customs has already inspected and/or approved the shipment.

Finally, you are also well-advised to contact the managing authority in the destination country so see if they require a separate permit application to receive the item into the country. Some seem to accept an export permit from a CITES country as sufficient basis to grant their own import permit without obstacle. Again, contact information for all signatory countries is on the CITES web site. So now you have all the right papers to export, and generally this is enough to get something into another country, since the basic requirements are uniform. The U.S. actually has stricter standards because we have the Endangered Species Act and a specific law about trade in African ivory, which have tighter standards than CITES.

Once in the destination country, you need to obtain another permit if you want to get the thing back out. Basically the same process in reverse, which I personally haven't gone through yet, but I am told that the original export permit is usually enough to get the new export permit from the other country. I would assume that it becomes all part of the same transaction if you contact the destination country about getting import permission – in other words you ask for an import/re-export permit.

The CITES process is painful, because it isn't always clear exactly what you need to do, but once you have everything in place, all you really need to do is wait for the wheels of government to turn. Approval can take up to 3 months in the U.S., and there is a considerable backlog right now, apparently.

Fine Print -- Please Read. I have to put the usual lawyer caveats in this, which apply equally to this and to the proceeding post: I offer this solely for information purposes and it should not be construed as legal advice in any form. Read the statute (it is found in Title 15, United States Code, sections 1531-1534), and the regulations (Title 50, Code of Federal Regulations, Chapters 14-21 more-or-less, mostly Chapter 17), or the corresponding laws and regulations in your country. Contact the CITES managing authority in your country (they are listed in the CITES website at http://www.cites.org), and/or get a legal opinion before proceeding with a transaction you think might violate CITES as enacted into law.

[Mark]

I applied in August, 2005 for a CITES permit to export three swords to Macao for the History of Steel exhibition. For this I provided my own declaration regarding the age of the swords, which is copied in the next post for reference.

I did not even receive an acknowledgment of my application until November, at which time I was asked for additional information to establish that the swords had "legally entered" the United States, which means that applicable Customs laws/regulations (including CITES) were complied with when they entered the U.S. Oddly, all I needed to do to satisfy this requirement was to show that I had bought them in the U.S. I presented a thorough legal argument supporting my interpretation that 100+ year old artifacts simply are not subject to CITES (or rather, the enabling U.S. statute, the Endangered Species Act), and thus all I needed to do was establish their age, but this was not successful. I am quite sure that I am correct, but the FWS holds all of the cards, so their interpretation governs until someone challenges it in court.

In the end, I was only approved to export three of the five swords for which I requested the permit. The reason for denying a permit for the other two was the FWS's position that in order to be granted a permit to "re-export" an item, you must establish that it was legally imported. Those two swords were ones that I bought from dealers overseas and had sent to me in the U.S., while the other three were bought by me within the U.S. I contested the decision, but was not successful. My only other option was to file a legal action against FWS, which would have been more time, effort and money than I was willing to put into it, so I let the matter drop.

[Mark]

Department of the Interior
U.S. Fish and Wildlife Service

Affidavit of Mark I. Bowditch
Re: Application for pre-CITES Import/Export Permit


I, Mark I. Bowditch, declare and affirm as follows:

1. I reside at ---------------------------------.

2. I submit this Affidavit in support of an application for a pre-CITES export/re-import permit for the exportation and re-importation of certain antique Southeast Asian swords in my personal collection, as described in the permit application form and shown in the appended Appendix of Photographs, the purpose of the exportation being a loan to the Macao Museum of Art for display as part of the exhibition “The History of Steel.” This is a non-commercial activity.

3. My educational qualifications are as follows. I received a B.Sc. in Botany, with an emphasis in ecology, from George Washington University in 1986, and an M.Sc. in Biology from George Washington University in 1988. I received a J.D. degree from the National Law Center, George Washington University, in 1993.

4. My expertise in the field pertinent to this application, in addition to the educational qualifications stated in paragraph 3, is as follows. I have been collecting and researching edged weapons from continental Southeast Asia, primarily Burma and Thailand, for over five years. I am considered one of three experts in this field, world-wide, and have prepared and published two articles on the subject, with a third in press. I am the creator and web-master of the most comprehensive web site treating the edged weapons of continental Southeast Asia, named the Dha Research Index (http://www.dharesearch.bowditch.us).

5. In recognition of my expertise in this field I have been selected by the Macao Museum of Art as co-curator of the continental Southeast Asian section of their up-coming exhibition “The History of Steel” (see attached invitation letter from the Director of the Macao Museum of Art, Exhibit A hereto).

6. Based on my personal expertise and experience outlined above, and a careful examination of the articles listed hereafter, I am of the opinion that the age of the swords for which this export/import permit is sought (in the order in which they appear in the accompanying Appraisal Report of William P. Weschler, Jr.), which accompanies this permit application, is as follows.

Sword 1: Mid-to-late 19th century Burmese, this estimate being based on the nature and quality of the carving of the ivory handle, a style which, though still used in ivory carving from workshops in Yangoon (Rangoon), Burma, is one that is no longer employed in the making of sword handles and is rarely seen of this quality, due to the loss of royal patronage after the completion of the British annexation of Burma and abolishment of the Burmese monarchy in 1885.

Sword 2: Early 19th century Burmese, this estimate again being based on the nature and quality of the ivory carving of the handle, which is rarely used in Burma today, for the reason stated above. Also the even, dark patina of the blade visible beneath the deeper areas of corrosion is such that only develops after a century of more. Furthermore, the blade of this sword is heavy, tempered, and sharp, indicating that it is a functional weapon. The manufacture of functional swords in Burma effectively died as a result of the Arms Control Act that became effective after the British annexation of Burma in 1885.

Sword 3: Late 18th to early 19th century Thai, this estimate being based on the quality and manufacture of the blade, which is extremely high and has not been achieved outside of Japan (and recently in the United States), for at least a century and a half; this blade shows a high degree of sophistication in form and in execution, with a complex blade geometry and a differentially hardened edge made by the Japanese “refractory clay” technique, a technique that was introduced into Thailand circa the early 1600’s by Japanese mercenaries employed in the Royal bodyguard, who were evicted from the country in 1632, leading to the decline and eventual disappearance of this particular sword-making tradition in Thailand.

Sword 4: Late 18th century Burmese, this estimate being based on the use of iron fittings and elaborate “koftgari” silver and copper adornment on the fittings and blade, a technique that is no longer practiced to my knowledge in Burma, and furthermore on the unusually high quality of the decorations, as well as the deep, even patina on the blade even after a light polish. Furthermore, the blade of this sword is heavy, tempered, and sharp, indicating that it is a functional weapon. The manufacture of functional swords in Burma effectively died as a result of the Arms Control Act that became effective after the British annexation of Burma in 1885.

Sword 5: Late 18th century Burmese, this estimate being based on the unusually high quality of the koftgari blade decoration and carving of the antler handle, the elaborate decoration of the silver scabbard, which furthermore bears a deep, even patina that only develops on silver after many years, and a dark even age patina on the blade which only develops after a century or more. The sword also bears a dedicatory inscription dated 1798 in the Western calendar (as set forth in the document entitled “CITES Certification” by Daniel Wilke and Intranun Ittipong, a copy of which is attached hereto as Exhibit B), indicating that this sword was a gift of Royal patronage. Swords of this quality, and furthermore having a scabbard entirely covered in silver, where only permitted to be born by nobles of very high status in Burma; in view of the fact that the Burmese monarchy was abolished by the British in 1885 and the institution of the Arms Control Act effectively ended the production of functional weapons in Burma, the dedicatory inscription is consistent with the historical context in which this blade must have been created.

7. My age estimate of these swords is consistent with the expert appraisal of William P. Weschler, Jr., of Adam A. Weschler & Son, Inc., a copy of which is attached to this permit application, who examined the swords in my presence and provided his expert opinion as to their age based on the age of the ivory and antler material used in the swords.

8. Though the sections of ivory used in Swords 1 through 4 are too small to identify the species of origin definitively, based on my knowledge of the fauna of continental Southeast Asia, and the practices of the craftsmen of Burma and Thailand in the relevant time-period, it is my opinion that the ivory material used in Swords 1 through 4 is tusk ivory of the Asian elephant (Elephas maximus). My opinion is also based on the lack of any record of importation or use of African, whale, walrus or dugong ivory in Southeast Asia due to the relative abundance of local Asian elephant ivory.

9. Though the sections of antler used in Sword 5 are too small to identify the species of origin definitively, based on my knowledge of the fauna of continental Southeast Asia, the practices of craftsmen in Burma, and extensive research into the particular species of Cervidae found in continental Southeast Asia and Burma in particular, it is my opinion that the antler material used in the handle of Sword 5 is derived from either the Red Deer (Cervus elaphus), or the Thamin Deer (Cervus eldii thamin). This opinion is also based on the robustness of the antler material, which indicates that it came from a large deer, the Red Deer and Thamin Deer being the largest antlered deer found in Southeast Asia, as well as the most abundant during the relevant time-period.

10. It is also my opinion that the ivory material used in Swords 1-4, and the antler material used in Sword 5, is original to the pieces, and has not been repaired or modified with any additional animal material of any endangered species after December 28, 1973. This is based on my careful inspection of the swords, which shows that the handles have not been replaced and comprise either a solid piece of animal material firmly affixed to the blades and fittings and showing no signs of disturbance, or in the case of Sword 5, three pieces of antler of identical texture, patination, and style and quality of carving, firmly incorporated into the metal fittings of the handle, the connections between antler, fittings and blades being very firm and showing no signs of disturbance.

11. I have read and understood 50 C.F.R. §§ 14.22, 17.4, and 23 of the implementing regulations of CITES and the Endangered Species Act. Based on my personal experience and expertise, and the totality of evidence set forth above, it is my opinion that Swords 1-5 are more than 100 years old and have not been repaired or modified with any part of any endangered species on or after December 28, 1973, and are thus antiques under the definition set forth in 50 C.F.R. § 14.22.

12. I further declare and affirm that the foregoing statements and the attached exhibits are true, correct and complete to the best of my knowledge, understanding and belief. I understand that this affidavit is being submitted for the purpose of inducing the Federal government to issue an export/re-import certificate for the five swords listed in paragraph 6, above, and illustrated in the attached photographs, which contain pieces made from animals protected under the Endangered Species Act of 1973 (15 U.S.C. 1531-1534) and the regulations promulgated thereunder, and further that any false statement made herein may subject me to the criminal penalties of 18 U.S.C. § 1001.

___________________ __________________________
Date Mark I. Bowditch

[Andrew]

lol. Are you a lawyer or something?

To the classics!
http://www.vikingsword.com/vb/showthread.php?t=3699

[Mark]

Originally Posted by Andrew

lol. Are you a lawyer or something?

To the classics!
http://www.vikingsword.com/vb/showthread.php?t=3699