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The Future of the African Rhinoceros: It’s Anything But Black & White

Robert Saxton


Animal Legal & Historical Center
Publish Date:
2007
Place of Publication: Michigan State University College of Law
Printable Version

The Future of the African Rhinoceros: It’s Anything But Black & White

 

  

 

Detailed Discussion Table of Contents: 

I. Introduction 

II. Biology and Natural History 

III. Current Threats to the African Rhino 

IV. The International Legal Context of Rhino Conservation  

V. Rhino Population Trends 

VI. National Policies and Positions 

VII. Suggestions for the Future Conservation of African Rhinos 

VIII. Conclusion

 

 

 

Topics & Links – Other Documents in the Web Center: 

Text of the CITES Treaty

 

Text of the Rhinoceros and Tiger Conservation Act (16 USC 5301-5306)

 

CITES Topic Area

 

 

 

Non-Web Center Resources: 

World Wildlife Fund – International Rhino Foundation available at http://www.rhinos-irf.org/rhinoinformation/index.htm

 

 

 

“The black rhino is one of WWF’s ‘flagship species’ not only because it is endangered, but also because efforts to conserve this species help to conserve a range of other species.”

                         [FN1]  - Raoul du Toit, WWW-South African Regional Programme

 

Introduction

               Conservation of the African rhinoceros has historically been a complex mixture of philosophies, techniques and strategies, all set against widely different socioeconomic, political and cultural backgrounds.  Consequently, drawing general conclusions about the “best” way to carry out future rhino conservation programs is, at the very least, difficult. 

               This paper will briefly review the biology and ecology of the various African rhino species and subspecies before presenting a description of the major current threats to African rhinos.  The international legal response to rhino population declines will be outlined, followed by a discussion of concurrent rhino population trends.  Then, an important subset of national legal (and, in some cases, rhino management) responses will be presented in order to draw conclusions regarding what has worked and what has not.  Suggestions for the future legal protection of rhinos will follow.  In essence, given the extraordinary expense of African rhinoceros conservation [FN2] and recent successes of the market, [FN3] the rhinos in Africa might benefit in the long run from an easing of trade restrictions combined with vigilant monitoring in addition to strict domestic legislation and enforcement regarding rhino poaching crimes.

 

1. Biology and Natural History

               There are five distinct species of rhinoceros worldwide, three distributed throughout parts of Asia (Indian, Javan, and Sumatran) and two in Africa.  The African species are commonly known as the white rhino and the black rhino, each of which probably derived their non-descriptive names from the same common translational error:    The white rhino (Ceratotherium simum) probably got its main common name for the Afrikaans word describing its square-lipped mouth, “weit,” which translates into “wide.” [FN4] The wide mouth of the white rhino has led to its other common name, the square-lipped rhino, which lacks the characteristic prehensile hooked lip of the African black rhino. [FN5]  Mature white rhinos weigh between 4,000 and 6,000 pounds and reach a height of five to six feet at the shoulder, making this animal the largest land mammal after the elephant. [FN6] 

               There are two subspecies of white rhinos, the Southern White (Ceratotherium simum simum) and the Northern White (Ceratotherium simum cottoni).  Each of these subspecies feed by grazing in long-grass and short-grass savannahs in Africa; the square upper lip of each subspecies is ideally adapted to this lifestyle. [FN7] The white rhino can live up to 50 years of age, and females reach sexual maturity as young as six years old, while males become sexually-mature between the ages of ten and twelve years. [FN8] Females and young white rhino are rarely found in isolation, whereas mature bulls are usually solitary and territorial. [FN9]

               The black rhino (Diceros bicornis meaning “two-horned”) is believed to be derivatively misnamed as juxtaposed to the white rhino; it is also possible that the soil in which black rhinos wallow contributed to their name being darker than their actual skin tone. [FN10] The black rhino has a relatively narrow mouth with a prehensile lip, and thus is also commonly referred to as the prehensile-lipped rhino or the hook-lipped rhino.  The black rhino weighs between 1,750 and 3,000 pounds and stands between four and one-half and five and one-half feet high at the shoulder. [FN11]

               There are four subspecies of black rhino:  Western (Diceros bicornis longpipes); Eastern (Diceros bicornis michaeli), South-western (Diceros bicornis bicornis) and South-central (Diceros bicornis minor). [FN12]  Each of these subspecies are browsers – using the specially-adapted prehensile upper lip to feed on leaves and branches of shrubs and trees - in habitat that varies from grassland, to savannah, to tropical bush. [FN13]  The black rhino can live up to 35 years in the wild. [FN14] Females reach sexual maturity as young as four years of age, while males become sexually active starting at seven years of age. [FN15] Females have overlapping ranges, whereas males are believed to be primarily solitary. [FN16]

               While the African rhino species and subspecies vary in terms of size, physical appearance, horn size and shape, current range, and level of aggression towards humans, [FN17] they share one very important characteristic:  the threat to their future existence.

 

2. Current Threats to the African Rhino

               The primary contemporary threat to rhino species worldwide is poaching as a result of demand for rhino horn. [FN18] Rhino horn is a similar to hair and fingernails in that it is made of keratin. [FN19]  The horns of white rhino are slightly larger on average than those of the black rhino. [FN20]  Like fingernails, rhino horn grows throughout the life of the animal and even grows back on dehorned animals. [FN21]

               The economic demand for rhino comes from two end uses, one medicinal and one aesthetic. [FN22] Rhino horns are highly valued in Asia and in places throughout the world with large East Asian populations as a fever-reducing agent in traditional Chinese medicine (TCM), and have been for centuries. [FN23] Rhino horn has also been used by TCM practitioners to treat a range of illnesses including the flu, epilepsy, and severe skin burns. [FN24]  Thus, some members of the TCM community believe there exists no suitable substitute for the healing properties of rhino horn, creating a cultural divide and a difficulty in voluntary reduction of demand for rhino horn. [FN25]

               The primary modern-day aesthetic use is in the fabrication of ceremonial dagger handles in Middle Eastern countries, Yemen and Oman in particular. [FN26]  Older dagger (jambiya) handles develop an “amber translucency and after being handled many years develops a special patina … while remaining durable.” [FN27]  Thus, older daggers are more prized and confer more status on the wearer than those made of fresh rhino horn or less expensive materials such as camel toe or water buffalo horn. [FN28] While new high-quality substitutes have begun to be accepted, the prohibitive cost as compared to fresh rhino horn make these substitutes unobtainable by many ceremonial dagger users. [FN29]

               The weapons wielded by poachers, who supply the middle men and ultimately the end users with the rhino horn, are anything but ceremonial; poaching and defending against poaching can be deadly business. [FN30]  The cost-benefit analysis conducted by poachers in deciding whether or not to participate in the illegal activity is impacted by the poachers’ perceptions of alternative economic opportunities, the risks of getting caught and the perceived penalties if they are caught, among other things. [FN31]  These factors are, in turn, impacted by the level of political and economic stability within the countries that contain African rhinos, hereinafter the “range states.”  Unfortunately, the colonial history of Africa has left a legacy of conflict and economic instability that has often created a favorable environment in which poachers can work. [FN32]  What, then, is being done to ensure the continued existence of highly sought-after species such as the black and white rhino of Africa?

 

3. The International Legal Context of Rhino Conservation

               It is estimated that trade in illegal wildlife is worth somewhere in the five to ten billion dollar a year range, placing wildlife products third on the list of illegal trade commodities behind drugs and firearms. [FN33] In an effort to put a halt to this illegal trade, the International Union for the Conservation of Nature and Natural Resources began meeting in 1967 to discuss problems facing endangered wildlife worldwide and the specific threat of trade in endangered and threatened wildlife. [FN34]  From this early work and continuing discussions of potential stakeholders, a conference and multilateral treaty sprung, the Convention on International Trade in Endangered Species (CITES), in 1973. [FN35]  The preamble to CITES makes a number of important points related to the conservation of African rhinos:

Recognizing that wild fauna and flora in their many beautiful and varied

forms are an irreplaceable part of the natural systems of the earth which

must be protected for this and the generations to come;

Conscious of the ever-growing value of wild fauna and flora from

aesthetic, scientific, cultural, recreational and economic points of view;

Recognizing that peoples and States are and should be the best protectors

of their own wild fauna and flora;

Recognizing, in addition, that international cooperation is essential for the

protection of certain species of wild fauna and flora against over-

exploitation through international trade;

Convinced of the urgency of taking appropriate measures to this end;

Have agreed as follows….

[FN36]  Based on these principles, the Parties to CITES placed species into three Appendices, the first two of which are relevant to African rhino conservation:  Appendix I species “include all species threatened with extinction which are or may be affected by trade.  Trade … must be subject to particularly strict regulation … and must only be authorized in exceptional circumstances.” [FN37]  Appendix II species “may become … [extinct] unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival….” [FN38] 

               Thus, embedded within CITES itself appear to be dueling philosophies on the management of the trade of wildlife. [FN39] Effectively, Appendix I sets up a commercial trade ban on species that are endangered, whereas Appendix II allows regulated trade.  According to one commentator, the “elephant, the rhino, the tiger, and over forty species of parrots are prime examples of CITES’ failed protection under its Appendix I trade ban.  Critics of the trade ban further note the multitude of enforcement difficulties associated with the trade ban.” [FN40]  Different countries have fallen into different camps according to their preservation versus conservation priorities. [FN41]

               One group of nations, “conservationists,” would view wildlife as a resource to be exploited, often primarily for consumptive reasons, and thus might favor a down-listing of Appendix I species to Appendix II or a relaxation of Appendix I’s tight restrictions.  As long as a listed species is not used beyond its capacity to regenerate itself, then the use is “sustainable” and should be encouraged, according to the conservationists.

               The second camp, “preservationists,” would view wildlife as a resource as well, but in a broader context:  “[U]nless wildlife has some use to people, then wildlife will not be valued by people…. People can value wildlife for commercial, recreational, scientific, aesthetic or spiritual reasons.” [FN42]  In the late 1980s, this debate of sustainable utilization as it applies to wildlife was focused squarely on the African elephant which had been listed in Appendix I of CITES since the seventh Conference of the Parties in 1989, thus prohibiting the international commercial trade of ivory from elephant tusks.  [FN43]  The conservation of African rhinos also became subject to this same debate. 

               Should trade in rhino horn be allowed, and even encouraged, within the CITES framework in order to better protect the African rhino into the future?  A look at the history of the African rhino populations since the inception of CITES and the listing rhino species and subspecies might be beneficial to the discussion….

 

4. Rhino Population Trends

               In the latter part of the 20th Century, with the exception of southern white rhinos in South Africa, rhino populations experienced a precipitous decline.  There were as many as 100,000 black rhinos left in Africa in 1960, despite significant hunting pressure in the first half of the 20th century. [FN44] By 1970, the numbers were close to 65,000 black rhinos remaining. [FN45] While there were an estimated 14,785 black rhinos in Africa in 1980 spread throughout 18 different countries, by 1992 there were only an estimated 2,475 black rhinos in the wild in Africa, and only four countries had populations estimated at larger than 50 animals. [FN46] The northern white rhino fared even worse:  In 1960, there were an estimated 2,230 northern white rhinos concentrated in three countries. [FN47] By 1984, the single remaining population, located in the Democratic Republic of the Congo, was down to fifteen individuals. [FN48]

               The southern white rhino, on the other hand, is considered to be one of the greatest conservation stories of the 20th century. [FN49] Despite an onslaught by Europeans hunting the animal for sport and meat bringing the species number down to a slim 20 animals in 1895, under protection the subspecies had rebounded to over 5,000 animals by the beginning of the 1990s. [FN50]  All black and white rhino populations were initially listed on CITES Appendix I, but the southern white rhino was moved to an Appendix II listing in 1994. [FN51]

               Rhino populations have rebounded somewhat since their lowest levels in the early to mid-1990s.  [FN52]  From a low of 2,410 individuals in 1995, black rhinoceros numbers have increased by 55% overall and 4.5% annually to reach 3,725 individuals at the end of 2005. [FN53]  White rhinos numbers overall have grown to an estimated population of 14,550 animals at the end of 2005, an increase of 92% over ten years and an annual growth rate of 6.8%. [FN54]  While these overall trends are very encouraging, the western black rhino - one of the six recognized African subspecies [FN55] - is believed to have gone extinct over this same time frame. [FN56]  What is more, another recognized African subspecies, the northern white rhino is down to a mere four individuals in the wild, and its future existence is tenuous at best. [FN57]

               While recognizing the importance of extending the range of African rhinos and reintroducing them into suitable historical habitats across the continent, the reality exists that the effective range of the species has been shrinking. [FN58]  Rhinoceros management is expensive, up to $1000 per km2, [FN59] and requires a stable political and economic environment in which to thrive. Poachers have had greater success when the political and economic situation within a range state is unstable. [FN60] As a result, in spite of the overall rise in numbers discussed above, there has been a concentration of rhino populations in fewer areas within fewer range states over time. Currently, four ranges states – Kenya, Namibia, South Africa, and Zimbabwe - conserve over 95% of both the black and white rhinoceros in Africa. [FN61] 

               Given that CITES is a non-self executing treaty, it relies on Parties to pass implementing legislation domestically. [FN62]  A broad look national plans, policy and coordination – including a brief examination of some individual state actor’s legislation and programs - might be helpful in detecting successful strategies in rhino conservation and making targeted suggestions for the future….

 

5. National Policies and Positions

               There are numerous national stakeholders in African rhino conservation.  The current paper will focus on a sampling of countries that might impact rhino conservation from their supply of and/or demand for rhinoceros products, including the four major range states, the United States, China and Yemen.

i. Conservationists:  The Major Range States of Namibia and South Africa

            Each of the major African range states has national rhino conservation plans and policies. [FN63]  These policies and plans, similar in many respects, are based largely on the Conservation Plan for the Black Rhinoceros, Diceros bicornis, in South Africa (1997), which has been adopted by the Rhino Management Group (RMG). [FN64]  One overarching strategy employed in the past decade has been the concentration of rhinos in increasingly smaller, but better-protected, areas.  Numerous studies have shown the correlation between population density, the level of anti-poaching patrols and measures, and rhino population success. [FN65]

            The similarities in many of the on-the-ground rhino management strategies in the major and minor range states do not capture the overarching philosophical debate occurring within the CITES framework. [FN66]  South Africa and Namibia both fall squarely in the “conservationist” camp.

            South Africa is the site of the world’s largest rhino populations, and the greatest success story in the history of the rhino:  the recovery of the southern white rhino subspecies from the brink of extinction.  As such, some deference might be due to the tactics and strategies developed and employed by rhino managers here. 

           In the 1960s, South Africa developed the strategy of rhino privatization to effectuate the white rhino comeback, along with the creation of a market for the sport hunting of “surplus” white rhinos.  [FN67]  In spite of the fact that this privatization push came around the same time as Middle Eastern demand for rhino horn was reaching its high point, [FN68] the white rhino numbers continued to rise.  South Africa was apparently attempting to create incentives for the private sector to defray the huge costs of conservation and anti-poaching patrols, and it appears to have been successful. [FN69]  What is more, the strategy is catching on; according to the Species Survival Commission’s African Rhino Specialist Group (AfRSG), “[t]he private sector is playing an increasingly important role is rhino conservation, with 27.5% of Africa’s rhinos being either privately owned (4,234) or managed for the State on a custodianship basis (797).” [FN70]

            This did not devolve all responsibility to the hands of the private sector for rhino conservation, however.  Jail sentences of up to ten years have been handed down in South Africa for rhino poaching, serving as a credible and real sentencing precedent to be feared. [FN71]  In addition, the South African Police Service includes a special Endangered Species Protection Unit which has reportedly had great success investigating crimes against rhinos.  The use of expert witnesses at trials is helping to secure convictions in rhino crime prosecutions, as well. [FN72]  What is more, it has been reported that there is legislation pending in South Africa which mandates compulsory rhino horn stock registration, “…with failure to register horns a criminal offence. Organized Crime Units of the South African Police also are planning to do an audit of horn stocks in private possession.” [FN73]

              South Africa is a signatory to the Lusaka Agreement. [FN74] The Lusaka Agreement is a treaty between many African nations that seeks to “reduce and ultimately eliminate illegal trade in wild fauna and flora and to establish a permanent Task Force for this purpose.” [FN75]  The Task Force members, endowed with broad diplomatic immunities, are charged with the task of investigating violations of various national laws and presenting evidence to the appropriate countries. [FN76]

              Namibia is another major range state with a conservationist philosophy.  While Namibia has been a part of cooperative international efforts, [FN77] it has drafted its own management plan, the Rhinoceros Conservation Plan for Namibia. [FN78] The goals of Namibia’s plan, in addition to reaching certain population targets for black and white rhinos, includes the development of a “sustainable use programme for black and white rhino to advance and justify the above [population target] goal, preferabl[y] within the CITES environment.” [FN79] 

            Namibia’s laws have, in fact, kept pace with the international obligations and expectations of CITES.  The prime mover in the Namibian legislative landscape regarding protection of species and limiting trade in particular species is the Nature Conservation Ordinance of 1975, as amended. [FN80]  The ordinance divides the fauna of Namibia into broad categories - game, protected game, and specially protected game - none of which is given a formal definition. [FN81]  Instead, one is left to infer that specially protected game receives more protection than protected game which, in turn, receives a higher level of protection than other game species.  Both white and black rhinos are located in Schedule 3, the list of specially protected game. [FN82]  Rhinos and elephants receive special protections, with stiffer penalties associated with certain rhino crimes than crimes involving other specially protected game species. [FN83] Rhino poachers have, in fact, “… recently received [the maximum] 20-year jail sentences which is hoped will prove an effective deterrent.”  [FN84]

            During to 13th Conference of the Parties (CoP 13) in 2004, South Africa and Namibia were able to pass a resolution that would allow an initial quota of five black rhinos to be trophy hunted in each country per year. [FN85] Ostensibly, this proposal was made in order to allow South Africa and Namibia greater flexibility in dealing with particular problems within the black rhino populations, specifically male biased sex ratios and aggressive translocated males. [FN86]  But, apparently South Africa and Namibia had been building their case for an easing of trade restrictions on black rhino and rhino horn. [FN87] Thus, within the CITES framework, the old debate of “conservation versus preservation” had reared its head once again and, for the first time, it appeared that the consumptive conservation school of thought was gaining a foothold….

               ii. Preservationist States: United States & the Major Range State of Kenya

              Although a major African rhino range state, Kenya can be categorized as a preservationist; it is possible to infer Kenya’s position from its international actions. [FN88]  Kenya vigorously opposed the South African and Namibian proposals to allow a limited hunt quota of black rhinos during CoP13.  In fact, citing “new information on management problems in Namibia and a rise in rhinoceros poaching in South Africa,” as well as its fear that the export quotas from Namibia and South Africa might harm the Kenyan populations of black rhino, Kenya unsuccessfully attempted to persuade the attendees of CoP14 to rescind the limited export quotas. [FN89] 

               The United States was a major proponent of CITES, and influenced the drafting of the Convention significantly.  The Convention, in turn, had a big impact on the U.S., serving as a major impetus for the passage of the Endangered Species Act (ESA) of 1973. [FN90]  It can be said that the United States would fall into the “preservationist” camp, as did many of those who influenced the original language of CITES. [FN91]

               ESA provides for the creation of a list of species deemed to be either “threatened” or “endangered,” the designation of critical habitat for these species, and the preparation of recovery plans for these species. [FN92]  It is important to note that the “endangered” and “threatened” categories under ESA are not coterminous with Appendix I and Appendix II listings under CITES. [FN93] What is more, the ESA is much broader that CITES. [FN94]

               The ESA does proscribe trade in endangered species, and specifies ports of entry for wildlife and wildlife products as well as making violations of wildlife trade a crime. [FN95] The ESA also outlines the domestic implementation of CITES within the United States, designating the Secretary of the Interior as the domestic Management Authority and Scientific Authority for the purposes of making CITES permitting decisions. [FN96] 

               The United States is not only enforcing CITES protection of rhinos domestically, but has proactively passed and reauthorized the Rhinoceros and Tiger Conservation Act of 1994. [FN97]  RTCA has set up the Rhinoceros and Tiger Conservation Fund (RTCF), which between 1996 and 2006 has supported 332 grant projects in 23 countries, with over $9 million contributed (not counting the approximately $20 million in matching funds secured). [FN98]  Projects funded included surveying, education, law enforcement, habitat protection, and capacity building in the range states of these various species [FN99]  All of these projects can be seen to promote the goal of the United States to absolutely limit trade in endangered species.

iii. The Wild Card:  The Major African Range State of Zimbabwe

            Zimbabwe has proceeded down the path of rhino conservation, much like many of the other three major southern African range states.  For example, Zimbabwe designated the Department of National Parks and Wildlife Management (DNPWLM) as the party responsible for rhino management. Beginning in 1991, DNPWLM began a dehorning program to deter poachers. [FN100]  Government anti-poaching patrols adopted a “shoot to kill if necessary” policy to deal with armed poachers. [FN101]  In 1996, Zimbabwe joined the regional Rhino Management Group, and the following spring the Minister of Environment and Tourism approved the Zimbabwe Rhino Policy and Management Plan (ZRPMP). [FN102]   Unlike some of its counterparts, however, Zimbabwe has allowed for no private ownership of its rhino populations; even if a rhino is found on private land, it is deemed to be managed under a private custodianship arrangement for the benefit of all Zimbabweans. 

            Currently, the situation in Zimbabwe is bleak, both for the rhinos and the people.  The government is in turmoil, with inflationary pressures skyrocketing and land tenure tenuous at best. [FN103] Many of the programs proposed in the ZRPMP have not come to fruition, and it does not appear that they will anytime soon.  [FN104] The rhino population here is less than fully protected, and poaching pressure is consequently on the rise. [FN105] Rhino populations have declined recently, prompting the SSC Report 2007 to state, “In terms of overall numbers, the recent escalation of poaching in Zimbabwe (one of four major African rhino range States) is of particular concern.” [FN106]  It appears that, in spite of past political will and resources being spent to set up a conservation plan for rhinos in Zimbabwe, the program will most likely fail as a result of government instability, a good example of the phenomenon of “implementation risk” of endangered species policy and program implementation.  [FN107]

               iv. Sample Consumer Stakeholders:  China & Yemen

               One of the biggest problems in some consumer countries such as China and Yemen [FN108] is that the trade in rhino horn was once legal.  Thus, there are stockpiles of raw rhino horn and rhino horn products within these countries.  A sort of “gray market” can develop under these conditions, whereby there is a mixture of historically-obtained legal product in circulation along with recently imported, illegal rhino horn.  Once the rhino horn enters a market, unless there are domestic bans on possession of any non-registered existing stocks, the new horns gets mixed up with the legally-held products and are “laundered” in a sort of way. [FN109]

               So, while many consumer nations have responded to international pressure and passed domestic laws ostensibly meant to restrict trade in rhino, the effectiveness of some such laws can be questioned.  For example, in 1993 in China, during a ban on the trade of rhino horn – including removal from the official pharmacological texts and a ban on manufacture and commercial sale of rhino-derived medicines – undercover investigators commonly found rhino products being marketed. [FN110]  In Yemen, a 1982 ministerial decree banned the importation of rhino horn and an Islamic edict was issued to the effect that killing rhinos to manufacture daggers was against the tenets of Islam. [FN111]  In spite of Yemen becoming a party to CITES in 1997, the bans on horn carving in Yemen are not being rigorously enforced. [FN112] 

 

6. Suggestions for the Future Conservation of the African Rhinos

               It should be clear from the preceding sections that the history of rhino conservation in Africa is a complex morass of interrelated geopolitical and socioeconomic issues, management philosophies, and degrees of success.  Unfortunately, the future of rhino conservation will probably not be much less complex.  Nevertheless, it is important to look to the future to outline the legal and technical strategies that will give the extant wild black and white rhino populations in Africa an opportunity to recover to the greatest extent possible. 

               The first legal line of defense is stricter laws combined with law enforcement implementing the existing trade restrictions outlined in Appendix I and Appendix II of CITES.  CITES, recall, is a non-self executing treaty, [FN113] and thus member nations must pass implementing legislation that – at a minimum – proscribes the commercial trade in the wildlife and products from wildlife for species listed in Appendix I.  Namibia appears to be a good model to follow in terms of setting stiff monetary fines and jail sentences for rhino crimes. [FN114]  When the domestic laws implementing CITES relate to a species for which there potentially could be large international demand, the laws themselves must focus on the illegal take and capture of rhinos (to serve as a deterrent to poachers) as well as for the middle men who often export the wildlife or wildlife products.  The Namibian Nature Conservation Ordinance of 1975, as amended, appears to do just that; in fact, maximum fines and jail terms are set higher for rhinos and elephants than the other specially protected species. [FN115]  So, all African range states which have yet to clearly mandate stiff penalties for poaching extremely endangered wildlife such as the Black Rhino should bring their statutes in line. [FN116]

               Related to the first suggestion is the following:  Given that many developing nations around the world experience rates of inflation far higher than those experienced in a highly economically developed nation such as the United States, laws that spell out the fines for rhino crimes should include inflation adjustment mechanisms.  As a result, the penalty is equally stiff when handed down as when the legislation mandating the penalty was passed.  The SSC Report 2007 seems to indicate that this has been a problem in the past, and that the true deterrent effect of strong legislation can be rapidly watered down along with the value of the local currency. [FN117]  Meanwhile, the poachers and middle men are often paid in western currencies and, thus, potential profits from the illegal endeavors are paid in currencies that do not devalue as quickly, if at all.

               Along with stiff penalties for rhino crimes, there has to be a credible risk to the individual poacher of being caught.  Thus, a focus on the funding and training of law enforcement personnel should also be a priority in international rhino conservation.  Preferably, the pool of applicants for anti-poaching ranger and park management positions would draw on the local population to provide incentives to the local population to protect rhinos, to monitor for poaching activity, and to turn in any suspected poachers in a given rhino range area.  What is more, profits from ecotourism and other economic gains derived from rhinos should also be - to the maximum extent feasible- reinvested in the local community.  

               The bottom line, however, is that demand for the illegal rhino horn is currently relatively high.  The reduction of this demand would solve some of the problems discussed above. [FN118]   In Yemen, where the ceremonial jambiya handles are the end use of rhino horn, a few suggestions seem reasonable and feasible:  First off, Yemen should set up a registry of jambiyas with rhino horn handles; because Yemen and other similarly-situated countries have allowed the practice to go on in the past, and the possession of a rhino horn handled jambiya is not per se illegal, it is important to register the existing jambiyas so that any non-registered jambiya owners can be made subject to fines and/or prison sentences.  Next, the government of Yemen should support a program of subsidizing the raw materials for the high-quality, acceptable jambiya handles; for example, agate and jasper are acceptable substitutes. [FN119]  Both the proposed registry and subsidy programs might benefit from grant-writing to highly-active international governments and organizations. [FN120] 

               The situation in East Asia with the rhino horn demand from Traditional Chinese Medicine (TCM) practitioners is a bit like trying to fit a round horn into a square hole.  Some TCM practitioners believe there are no substitutes for rhino horn in certain treatments that date back thousands of years.  While it might be a good goal to attempt to collaborate with the TCM community and communicate about the possibility of finding alternative adequate substitutes, it is important for the preservationists to realize the extent to which animal products have infused themselves into certain cultures and it is highly unlikely that all demand will be stopped by education and public outcry in western countries. [FN121]  Instead, the countries in which TCM and similar practices are regularly conducted, rhino horn stocks should be registered and tracked so as to attempt to reduce the gray market influx of new rhino horn. 

               Another solution is to attack the problem on the supply side of the equation.  One way to reduce the supply of rhino to be poached and to take away the primary economic value of the animal to the poacher is to dehorn the animals themselves. [FN122]  Dehorning programs have been successfully implemented in Zimbabwe, Namibia and Swaziland.  [FN123]  Because the horn contains no nerve cells, there is neither pain nor bleeding from the dehorning process. [FN124] In fact, because the horn grows throughout the life of the rhino, the dehorning process must be repeated at regular intervals in order to reduce the likelihood that poaching pressure will resurface in a given area. [FN125]

               The question remains:  What should be done with the horns that are in current stockpiles within range or consumer states?  What should be done with the new horn that is harvested or taken from the wild rhinos to reduce poaching pressure?  Poaching pressure might also be alleviated if a limited trade in horn stockpiles and harvested horn is allowed to proceed in a highly-regulated and monitored system.  Techniques used to monitor horns include stockpile databases, microchip implants, and DNA fingerprinting of rhinos.

               Horn stockpile monitoring and data gathering has already been suggested prior to CoP15 using a standardized format to allow for easy sharing of information. [FN126]  Stockpiled horns should be catalogued and a small sample of each horn should be preserved.  Microchip implants should be inserted into each horn.  These microchip implants allow for identification and tracking of each horn in the event of a security breach at a stockpile location. [FN127]  

               DNA fingerprinting of rhino horn is under development. [FN128]  Tissue samples can be taken from stockpiled rhino horns, horns obtained during dehorning programs, and live rhinos captured in the course of translocations, [FN129] ear notching, [FN130] or other veterinary or management interactions.  DNA fingerprinting can thus serve as a mechanism not only to enhance biological management by, for example, reducing genetic inbreeding, but also can serve as a valuable technique in rhino trade management.  If linked to the proper databases, the genetic fingerprints of each horn could make it very difficult for poachers and smugglers to hide the origin of the horn itself, potentially even after a given horn has been processed into end products such as medicines or dagger handles.  Along with the microchip implants that are already in use, the actual location of horns can be determined.  This technology combination should add a significant weapon into the arsenal of those attempting to deter and combat rhino poaching. [FN131]

               The final suggestion for the future of African rhino conservation is the continuation of limited white and black rhino hunting, as long as funds are reinvested to ensure sustainability of the rhino population (as indicated by continued growth of populations in which trophy hunting is allowed, not simply population maintenance). [FN132] The burden of proof should be on the individual actors proposing increased extraction rates.

 

Conclusion

               The debate on how and whether to “use” endangered wildlife has been a long and contentious one.  There are different philosophies that spring from different social, political and economic factors.  The debate over African rhino conservation is just one subset of the larger philosophical debate.  Like the larger debate, there are no black and white answers as to how best to protect species such as the black and white rhinos.  But, if the world is to have wild rhinos, it is important to take decisive and bold action into the future.  While it may seem oxymoronic, permitting the hunting of a limited number of African rhinos may increase revenue for domestic conservation measures in major range states. In conjunction with strong anti-poaching legislation and implementation, sound biological management, reducing the black market demand for rhino horn, and involvement of the local people, limited trophy hunting can and should contribute to the future existence of wild rhinos in Africa. 

Footnotes:

[FN1] Lectures in Conservation: African Rhino Conservation, Raoul du Toit, of the Word Wildlife Fund Southern African Regional Programme.  Lecture located at:

http://www.worldwildlife.org/lectures/rhino.cfm

Last accessed June 29, 2007.

The World Wildlife Fund is one of the oldest and most highly respected conservation organizations in the world.  To learn more about their work, in general, visit:

http://www.worldwildlife.org/

Last accessed July 16, 2007.

[FN2]  See infra note 59.

[FN3] See infra notes 67, 85-87.  South Africa has been moving to privatizing White Rhino herds, thus giving private land owners incentives to protect the species.  Recently, South Africa and Namibia have obtained five annual permits to export trophy hunted  Black Rhinos, and the money generated is earmarked for reinvestment into rhino conservation. 

[FN4] http://www.rhinos-irf.org/rhinoinformation/whiterhino/index.htm

The International Rhino Foundation (IRF) is a leading non-profit organization which is dedicated to the mission of rhino conservation. 

Last accessed on June 29, 2007.

[FN5] Id.

[FN6] Id. 

[FN7]  http://www.rhinos-irf.org/rhinoinformation/whiterhino/habitatandecology.htm

Last accessed June 29, 2007.

[FN8] http://www.rhinos-irf.org/rhinoinformation/whiterhino/lifehistory.htm

Last accessed June 29, 2007.

[FN9]  Id. 

[FN10] http://www.rhinos-irf.org/rhinoinformation/blackrhino/index.htm

Last accessed June 29, 2007.

[FN11] Id.

[FN12] Id.

[FN13] http://www.rhinos-irf.org/rhinoinformation/blackrhino/habitatandecology.htm

Last accessed June 29, 2007.

[FN14] http://www.rhinos-irf.org/rhinoinformation/blackrhino/lifehistory.htm

Last accessed June 29, 2007.

[FN15] Id.

[FN16] Id. 

[FN17] See IRF website, supra notes 4-16.

[FN18]  WWF FACTSHEET: 13th Meeting of the Conference of the Parties to CITES, Bangkok, 2-14 October 2004.  “Earlier in the 20th Century hunting to clear land for agriculture and human settlement was the main cause for the decline of African rhinos.  However, the single most important cause for the catastrophic decline of rhinos in the last quarter of the 20th century was the demand for their horn in the Middle Eastern and Eastern Asian markets…. In the Far East, and in the many East Asian communities elsewhere, the horn is still used as a fever-reducing ingredient in traditional Chinese medicine; and in the Middle East it is carved and polished to make prestigious dagger handles.” Id. at 2.

Located at www.panda.org/species/CITES

Last accessed June 29, 2007. 

[FN19]  Richard Emslie and Martin Brooks.  Status Survey and Conservation Action Plan – African Rhino, at 25.  IUCN/SSC African Rhino Specialist Group (1997) [hereinafter Status Survey 1997].  

[FN20] Id.

[FN21] Id. 

See infra notes 122-5 for a discussion of dehorning rhinos and sustainably harvesting the horn.  Unlike elephants, dehorning the hair-like horn cuts no blood vessels or nerve endings and is, therefore, not fatal to the rhino as it is to the de-tusked elephant. 

[FN22] See supra note 18, at 2. 

[FN23] Id.

See also Status Survey 1997, at 26.  The popular media has reported the common use as an aphrodisiac, but this is “a mistaken and ignorant view perpetuated by the world’s media.” Id. 

“Rhino horn has been one of the most revered ingredients in the pharmacopeoeia of traditional Chinese medicine (TCM) for centuries, and is listed in an ancient pharmacology text, ‘The Divine Peasant’s Herbal,’ written about 2,000 years ago” (internal citations omitted). Id. 

[FN24] Status Survey 1997, at 26.

[FN25] Id.  See also infra notes 110 & 121 and accompanying discussions. 

[FN26] Status Survey 1997, at 28. 

The rhino horn has been used to make bowls, cups and carvings for almost 1500 years.  Drinking cups made of rhino horn have been prized possessions due to their special capacity to detect alkaloid-laden poisons, which react with the keratin and other chemicals found in the horn.  Id. 

NOTE:  A large increase in oil revenues in the region during the 1970s placed an increased demand for rhino horn. See infra note 68.

[FN27] Status Survey 1997, at 28.

[FN28] Id.  It is interesting to note that agate and jasper handles have recently emerged as acceptable, high-quality alternatives to the well-worn rhino handles, but these materials are much more expensive alternatives than camel toe or water buffalo horn.  Id. at 28-29. 

[FN29] See infra notes 118-20 and accompanying discussion (possible subsidization and/or opening markets to jasper and agate to reduce demand for “new” rhino horn). 

[FN30]  National Public Radio, Confronting Central Africa’s Poaching Crisis, January 14, 2003.

www.npr.org/templates/story/story.php?storyId=912962

Last accessed July 2, 2007. 

[FN31]   Namibian Ministry of Environment and Tourism, The Rhino Custodianship Scheme of Namibia, http://www.met.gov.na/programmes/rhino/rhino.htm

Last accessed July 2, 2007. 

“In Africa rhino are being killed by people at enormous personal risk for tiny rewards, but many destitute people and entrepreneurs regard these risks as acceptable.  If the reward for illegal hunting increases even more people may become tempted.  Together with the frustrating fact that illegal traffic of smuggled animal products continues to pass through Namibia en route to South Africa and overseas, the unresolved issues of land use and tenure are central to the problems facing rhino conservation.”

[FN32] See, for example, the current status of Zimbabwe, one of four remaining major African rhino range states. 

No Author, Rhino Poaching on the Increase in Africa (2007) (hereinafter Wildlife Extra Article). Found on the web at:  http://www.wildlifeextra.com/poaching-rhinos.html

Last accessed July 16, 2007.

With the political situation in Zimbabwe deteriorating, poaching has been on the rise over the last few years.  In the early 2000s, rhino poaching in Zimbabwe accounted for two-thirds of all rhino mortalities, affecting over one in eight individuals.  What is more, Zimbabwe has a horrible record of recovering illegally poached rhino horn with an 8% recovery rate (as compared to 42% Africa-wide).  Id. 

See also Terari Karimakwenda, Businesses Lose Billions to Task Force Looting, SW Radio African (London) News, as reported on allAfrica.com:

http://allafrica.com/stories/printable/200707121204.html

Rampant inflation has turned to crisis, with the government price monitoring task force requiring business owners to set artificially-low prices for goods – even below those prices set by legislators - that are then bought up by opportunists and resold in rural areas for huge profits.  Meanwhile, it is reported that 1,768 business people were arrested over a two week span for overcharging.  Businesses have been forced to reopen and charge extremely low prices.  Id. 

[FN33] Jay E. Carey, Improving the Efficacy of CITES by Providing the Proper Incentives to Protect Endangered Species, 77 Wash. U.L.Q. 1291 (1999).

See also, TRAFFIC’s website.  TRAFFIC is considered a leader in wildlife trade monitoring, and is often called upon by international actors to provide studies and data at conferences, etc.  TRAFFIC’s web site discusses the economic value of wildlife trade at:

http://www.traffic.org/wildlife/wild4.htm

Last accessed July 16, 2007.

“While this is a difficult estimate to make, as a guideline, TRAFFIC has calculated that wildlife products worth about 160 billion US dollars were imported around the globe each year in the early 1990s. According to other estimates, wood products exported in 1999 were calculated to be worth over 132 billion US dollars, while seafood exports in 1998 were valued at around 50 thousand million US dollars. These figures obviously do not include values for wildlife trade, which is illegal, for which no reliable value can be given.” Id.

[FN34] Dale B. Goble & Eric T. Freyfogle, Wildlife Law: Cases and Materials, at 713, Foundation Press, New York, NY (2002).

[FN35] Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 1976 U.N.T.S (entered into force July 1, 1975) [hereinafter CITES].

[FN36] Id. at Preamble.

[FN37] Id. at art. II, para. 1.

[FN38] Id. at art. II, para. 2.

Note that the permitting required for trade in Appendix I species require an export and import permit from the respective trading countries, with approval by each domestic scientific authority making determinations that the trade will not be detrimental to the survival of the species.  What is more, Appendix I species may not be used for a “primarily commercial purpose.” Id. at art III.

Appendix II species only require the export permitting and scientific authorization from the exporting countries. Id. at art. IV.

By the way, Appendix III species are those which “any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other Parties in the control of trade.” Id. at art. II, para. 3. 

[FN39] See e.g. Carey, supra note 33, at 1292.

[FN40] Id.

[FN41]  There is varying terminology surrounding the debate and, in fact, some authors would divide into more than these two categories.  See e.g. David Favre, Debate Within the CITES Community: What Direction for the Future?, 33 Nat. Resources J. 875, 878-80 (1993).

For the purposes of this paper, the term “preservationist” will be used to signify environmentalists and western-thinking individuals and actors who would typically support trade bans as the most effective means of ensuring endangered species conservation.  The drafters of the original CITES treaty can be roughly grouped into the preservationist camp, which finds its philosophy reflected in the first line of the CITES Preamble:  Recognizing that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come….”  

On the other hand, “conservationists” will connote those who view wildlife as a resource to be protected because, among other reasons, it often has significant economic value to the human populations with which wildlife shares space.  Many southern African nations fall into the conservationist camp, and have their philosophy represented at line 2 of the CITES Preamble:  Conscious of the ever-growing value of wild fauna and flora from aesthetic, scientific, cultural, recreational and economic points of view….”

[FN42] John Robinson and Kent Rutherford, as quoted in Favre at 884.

Favre states that this debate stretches back at least to the 1980s when the World Conservation Union (IUCN), the very same organization responsible for the original draft of CITES, promoted the concept of “sustainable utilization.” Id at 876.

[FN43] Id. at 877.

By the time of the 1992 Kyoto Conference, a block of Southern African nations had put together a proposal to down-list the African elephant to Appendix II of CITES.  In the meantime, these nations had taken reservations on the Appendix I listing of the African elephant, thus opting out of the strict commercial trade prohibitions.  Id.

See also CITES, art. XXIII, paras. 1-3.

The broad reservation clause included in CITES has often been attacked as one of its weakest points, but the inclusion of the reservations clause may have made the treaty palatable to Parties who might otherwise have opted not to participate.

[FN44] Status Survey 1997, at 5.

See also WWF FACTSHEET supra note 18, at 2.

[FN45] Status Survey 1997, at 5.

[FN46] Id. See Table 2.1.  

[FN47] Id. at 9. See Table 2.2. 

[FN48] Id.

[FN49] Status Survey 1997, at 7:  “The southern white rhino is now the most numerous of the rhino taxa and its recovery has been internationally recognized as one of the world’s greatest conservation successes.”

[FN50] Status Survey 1997, at 10.  See Table 2.3.

[FN51]  Fred Nelson, Black Rhinoceros Conservation and Trophy Hunting in Southern Africa: Implications of Recent Policy Changes, University of Michigan School of Natural Resources and Environment, at 2 (2006).  Provided by ProQuest Information and Learning Company:

http://findarticles.com/p/articles/mi_qu4444/is_200604/ai_n17184537/

Last accessed June 29, 2007.

Note:  The Appendix II listing of the southern white rhino contains an annotation regarding the continuation of export from South Africa in the form of legal sport hunting trophies and sales of live animals to approved and acceptable recipients. Status Survey 1997 at 32. 

[FN52]  Richard Emslie et al., African and Asian Rhinoceroses – Status, Conservation and Trade: A report from the IUCN Species Survival Commission (SSC) African and Asian Rhino Specialist Groups and TRAFFIC to the CITES Secretariat, CoP14 Doc. 54, January 2007 [hereinafter SSC Report 2007].

[FN53] Id. at 8.  See Figure 2 Black rhinoceros population trend, 1991-2005 and captions. 

[FN54] Id. at 7-8. See Figure 1 White rhinoceros population trend, 1991-2005 and accompanying text at 7-8.

[FN55] See IRF website, supra note 12. 

[FN56]  IUCN News, West African Rhino Feared Extinct, July 7, 2006.  Located at http://www.iucn.org/en/news/archive/2006/07/7_pr_rhino.htm

Last accessed June 29, 2007. 

See also SSC Report 2007 at 9-10.  “Following surveys over most of its possible range in 2006, the western black rhino D. d. longpipes in Cameroon is feared extinct as no signs of rhino were found by survey teams, but evidence of general wildlife poaching was widespread.  It is feared that this subspecies may now be extinct.” Id. at 10.

[FN57]  SSC Report 2007 at 9. “Northern white rhino (C. s. cottoni) numbers have declined rapidly since 2003 due to an upsurge in poaching in the only surviving wild population in the Garamba National Park, Democratic Republic of the Congo, and surveys have confirmed the presence of only four rhinos.” Id. at 10.

[FN58] See supra notes 44-48, 56-7 and accompanying text and discussion.

[FN59]  SSC Report 2007, at 14.   

[FN60]  Id., at 12.  “In Africa, the greatest rhino conservation successes have occurred in stable political and economic situations where governments have demonstrated political will, providing sufficient resources to enable dedicated staff to undertake effective field conservation (i.e. protection and management of rhinos to meet demographic and genetic goals – including translocations and the establishment of new populations.)” Id.

[FN61] SSC Report 2007, at 9.

[FN62]  See Goble & Freyfogle, supra note 34, at 1165: “The need for legislation to implement CITES was the primary impetus that led to the enactment of the ESA [Endangered Species Act in the U.S.] in 1973.” 

See also CITES, at Preamble:  “Recognizing that peoples and States are and should be the best protectors of their own wild fauna and flora….”

CITES art. VIII outlines the measures to be taken by Parties in order to implement CITES domestically.

[FN63]  Richard Emslie, Plenary Presentation: Rhino Conservation, The African Rhino Specialist Group, Proceedings of the EAZA Conference 2005, Bristol.  At 61. 

See also SSC Report 2007, at 14. 

[FN64]  Status Report 1997, at 52.

See also The Rhino Management Group (RMG), as described at the SADC Regional Programme for Rhino Conservation website: 

http://www.rhino-sadc.org/

Last accessed July 3, 2007.

This organization is comprised of representatives from Zimbabwe, Namibia, Swaziland and South Africa and largely represents the management philosophy of conservationist states of Southern Africa.  For example, research projects on privatizing rhino populations and exploring the option of trophy hunting black rhinos were some of the key topics at a recent meeting.  Id.

[FN65] Status Report 1997, at 66.

[FN66] See supra notes 39-43 and accompanying text and discussion.

[FN67] See Status Survey 1997.   Note that there appears to be sound biological management behind the determination that an animal is “surplus.”  For example, these are individuals which will be prohibitively expensive to relocate, that are aggressive towards calves, etc. 

[FN68] The rise in profits of the oil-based economies of the Middle East led to a huge demand in that region for rhino horn jambiyas.  In the mid-1970s, at the highest point of demand, 40% of rhino horn entering the world market is believed to have ended up in northern Yemen, for example.  Status Report 1997 at 28.

[FN69]  For example there is even an African Rhino Owners Association, an organization of private rhino game ranchers who have significant southern white rhino populations on their property.  The World Wildlife Fund works in conjunction with these South African rhino owners to survey these populations and collect information on rhino protection and biological management. 

http://64.233.167.104/search?q=cache:uAhwr_JzHfsJ:assets.panda.org/downloads/africanrhino2006w.pdf+african+rhino+owners+association&hl=en&ct=clnk&cd=2&gl=us

Last accessed July 12, 2007. 

[FN70]  SSC Report 2007, at 10. 

[FN71] Status Report 1997, at 52.

[FN72] Id. at 54

[FN73] SSC Report 2007, at 10.

[FN74] Status Report 1997, at 55.

[FN75] Lusaka Agreement on Co-operative Environment Operations Directed at Illegal Trade in Wild Fauna and Flora.  Adopted at Lusaka on 8 September 1994.

See art. 2.

http://www.lusakaagreement.org/documents/LA%20Final%20Act.pdf

Last accessed July 16, 2007.

[FN76] Id. at art. 5. 

[FN77] Status Report 1997, at 50. 

For example, Namibia has participated in the Rhino Management Group (RMG) since its formation in the late 1980s.  In addition, it shares data with and attempts to comply with other organizations such as the African Rhino Specialist Group (AfRSG) and the World Wildlife Fund.  Id.

[FN78] Id.

[FN79]

http://www.met.gov.na/programmes/rhino/rhino.htm

Last accessed July 2, 2007. 

[FN80] Nature Conservation Ordinance, 1975.  Ordinance No. 4 of 1975.  Full text of this document can be downloaded in pdf format at the following web address:

http://www.thecommonwealth.org/Internal/147147/149388/153614/151243/namibia/

[FN81] Id. at 9. 

Game is defined as “specially protected game, protected game, huntable game, huntable game birds, and exotic game.” Id. at 9. 

Protected game and specially protected game are given even less helpful definitions, simply referencing “every species of game mentioned in Schedule [4 and 3, respectively].” Id. at 12-3. 

Schedules 4 and 3 are lists of species, with no defining qualities or characteristics associated with the schedules/lists.  Id. at 87-8.

[FN82] Id. at 87. 

[FN83] 

See, e.g.,  “Prohibition of hunting in game parks and nature reserves. 

10.(1) Notwithstanding anything to the contrary in this Ordinance contained, no person shall, without written permission … hunt any animal in any game park or any nature reserve: Provided that a dangerous animal may be killed in defence of a human life or to prevent a human being from being injured.

(2) Any person who contravenes or fails to comply with any provision of subsection (1) or any condition requirement or restriction of any permission granted thereunder, shall be guilty of an offence and liable on conviction –

            (a)  to a fine not exceeding R 200,000 or to imprisonment for a period of not exceeding twenty years or to both such fine and such imprisonment if such offence relates to the hunting of any elephant or rhinoceros; or

            (b) to a fine not exceeding R 20,000 or to imprisonment for a period of not exceeding five years to both such fine and such imprisonment if such offence relates to the hunting of any other specially protected game. [emphasis added]”

Id. at 20. 

[FN84] Status Report 1997, at 50. 

[FN85] Resolution Conf. 13.5.

[FN86] SSC Report 2007 at 19. 

[FN87] See Nelson, supra note 51, at 3.

At CoP9 to CITES 1994, the Parties in attendance “…passed a broad resolution on rhino conservation which recognized that the trade ban was insufficient to protect and recover rhino populations. This resolution called for rhino range states to develop their own locally appropriate management plans for self-sufficient rhino conservation and recovery.” (emphasis added and internal citations omitted) Id.

Then, “South Africa and Namibia introduced a request to the thirteenth CITES CoP, held in October 2004 in Bangkok, Thailand, to grant them a limited number of export permits for black rhino hunting trophies. This represents the first proposal for trade in black rhinos since the Appendix I listing in 1977….”  The proposal was “controversial and precedent-setting” … opposed by animal welfare groups as well as rhino range states of Kenya and India fearing an encouragement of poaching. 

“The conference approved the proposal, and in its resolution on the matter cited the prior CoP-9 resolution instructing rhino range states to develop management plans, highlighting the potential value of sustainably managed hunting to species conservation and recovery.” (internal citations omitted)  Id. 

Important factors in the success of the proposal most likely included: South Africa’s experience with white rhino trophy hunting, Namibia’s practice of encouraging community conservancies, and the fact that the proposal was meant to cover surplus black rhinos with the money to be reinvested back into conservation and recovery of the species. Id.

[FN88]  Like South Africa, Kenya is a signatory to the Lusaka Agreement, but has a very different view of how management should occur. 

Kenya is the stronghold for the eastern black rhino subspecies, containing 87% of the wild individuals of this subspecies in 1997 (Status Report 1997, at 46) and 85% in 2005 (SSC Report 2007, at 9).

Kenya’s history of ecotourism and cooperation with western nations has, at least in part, placed it in a position where it is philosophically aligned with the United States and Western Europe on many wildlife issues.  This is a fairly rare position to hold for a developing nation in Africa. 

See also, the Kenya Wildlife Service “Rhino Programme” web site, in which the term “sustainable use” of rhinos is conspicuously absent:

http://www.kws.org/rhino.html

Last accessed June 29, 2007.

[FN89]  CoP14 Doc. 37.2, at 1. 

See also CoP14 Inf. 39. 

Both documents can be found at:

http://www.cites.org/eng/cop/14/doc/

Last accessed July 12, 2007.

[FN90] See Goble & Freyfogle, supra note 62, at 1165.

[FN91] See Favre, supra note 41, at 875. 

CITES “… is based upon 1960s perceptions of wildlife issues, as seen by North American and European drafters.  With the passage of time new ideas and perceptions have developed.  Many of the developing countries have a different perspective about wildlife management arising out of their own philosophy, economic reality and social needs.” Id.

[FN92] The Endangered Species Act, 16 U.S.C. §§1531-1544 (1973). 

[FN93]  Most countries give the same protective status as CITES Appendix I and Appendix II in their domestic implementing legislation, but not the United States. For example, under CITES a trophy mount taken across borders is not for a “commercial” purpose and is thus not strictly prohibited under Appendix I of CITES; however, under the Endangered Species Act, if a species is listed as “endangered” then the United States legislation allows no import, even for a trophy that can be legally exported from the source country under CITES and the exporting country’s domestic laws.  If, however, the species is listed as “threatened” then import into the U.S. of a CITES Appendix I species trophy would be allowable. (David Favre, MSU College of Law, personal communication 7/11/2007)

[FN94] David S. Favre, The Risk of Extinction: A Risk Analysis of the Endangered Species Act as Compared to CITES, 6 N.Y.U. Envtl. L.J. 341 (1998).

“The ESA is all-encompassing in that it seeks to deal with the threats of species endangerment from all sources.  CITES seeks to deal only with one component of the basketful of risks humans impose upon other species, which is that of international trade in animals and plants, be they alive or in parts.” Id. at 342.

[FN95] 16 U.S.C. § 1538 (a)-(g).

This is not to say that even the United States, a relatively prosperous and well-funded country, can have complete success in implementing the goals of CITES. 

For example, in 1989, there were only “… 60 specially trained port inspectors to check the 90,000-plus shipment of wildlife and wildlife products that enter and leave the country annually … [and] many illicit items … slip through.” Sarah Fitzgerald, International Wildlife Trade: Whose Business Is It?, at 23 (1989).

[FN96] 16 U.S.C. § 1537a. 

[FN97] Rhinoceros and Tiger Conservation Act of 1994, Pub. L. No. 103-391 §§ 1-7 (1994). 

Find on the web at:  http://www.fws.gov/international/laws/rtc-fv.html

Last accessed June 29, 2007.

[FN98] Kenneth Stansell, Testimony of Kenneth Stansell, Acting Deputy Director, United States Fish and Wildlife Service, Department of the Interior, Before the House Subcommittee on Fisheries, Wildlife and Oceans, House Natural Resources Committee, Regarding H.R. 50, The Multinational Species Conservation Funds Reauthorization Act of 2007 and H.R. 465, The Asian Elephant Conservation Reauthorization Act of 2007 (March 13, 2007). 

Find on the web at http://www.fws.gov/laws/Testimony/110th/2007/StansellMNSCFandAsianElephants.html

Last accessed June 29, 2007.

[FN99] Id. 

[FN100] Status Report 1997, at 59.

[FN101] Id.

[FN102] Id. 

[FN103] See Wildlife Extra Article, supra note 32 and accompanying text and discussion.

See also, Getting Horny: Discouraging a trade that is still rife, The Economist, July 19, 2007. Find at:

http://www.economist.com/world/africa/displaystory.cfm?story_id=9527037

Last accessed July 23, 2007.

[FN104]  See du Toit, supra note 1, at lecture page 2.  The Black Rhino populations that were once faring well under management in Zimbabwe “… are now at risk because of a breakdown of the national economy and of law-and-order within Zimbabwe. This problem highlights the third major dimension of the sustainability that we need for WWF’s rhino projects: sociopolitical sustainability.  Unfortunately, in developing countries this can be an elusive objective ….” Id.

[FN105] See Wildlife Extra Article, supra note 32.

[FN106]  See SSC Report 2007, at 10. “While poaching levels have not prevented rhino numbers in most countries from increasing, poaching for horn has impacted negatively on certain subspecies in Cameroon, the Democratic Republic of the Congo and Zimbabwe in recent years.  In terms of overall numbers, the recent escalation of poaching in Zimbabwe (one of four major African rhino range States) is of particular concern.”  Id. 

[FN107] See Favre supra note 94, at 348-9. Implementation risk “… is the danger that the adopted public policy, as reflected in the language of the statute or regulation, will never be, or will only partly be, achieved in the real world.  It is the risk that the law will not work …. The risk is that, notwithstanding the positive words of the public law, the threat to the threatened species will not be reduced or modified.” Id.

See also du Toit, supra note 104.

[FN108] See Status Report 1997, at 27: “Law enforcement seizures world-wide indicate that the majority of manufactured medicines containing or purporting to contain rhino horn are produced in China. [internal citations omitted].” Id.

See supra note 68, discussion on Yemen’s historical market share. 

[FN109] See Status Report 1997, at 27.  “Most of the [Chinese TCM] merchants holding supplies of raw horn claimed that it was old stock and that new horn was not available [internal citations omitted].” Id.

[FN110] Id.

[FN111]  Id. at 28.

[FN112] Id. at 29.

[FN113] See CITES, supra note 62 and discussion.   

[FN114] See Namibia’s Nature Conservation Ordinance of 1975, as amended, supra note 83, at 20. 

[FN115] Id.

[FN116] See SSC Report 2007, at 14.  Mozambique “… only provide[s] for a small fine [for rhino poaching] and this is a problem that needs to be rectified.”

[FN117] “Many range states in Africa have mandated jail terms and/or hefty fines for those convicted of poaching, to act as a deterrent. Unfortunately where the option of a fine is prescribed, the stipulated maximum fine after a few years can become insufficient due to inflation or a failure to match changes in real economic value of rhinos (i.e. price of a live animal). While a number of deterrent sentences (significant fines and or jail terms) have been handed down in some range States, in some instances only small fines … have been handed down.  It is also important, whenever possible, that rhino criminals are charged and tried under the acts with the stiffest penalties.” Id. at 14. 

[FN118]  See Status Report 1997, at 25:  “It is a simple but undeniable fact that if there was no demand for rhino horn, there would be little or no rhino poaching.  Controlling the illegal supply of horn through anti-poaching measures is a very expensive strategy, and its long-term effectiveness is threatened by declining budgets…. If illegal demand could be reduced, the black market value of rhino horn may drop, poaching pressure may decline, and the costs of successfully protecting rhino populations in the wild might also decline.” 

[FN119] Id. at 28-9.  See supra note 28 and discussion.

[FN120] For example, the United States government, through the USFWS, provides grants for rhino conservation projects and initiatives.  See Stansell, supra notes 98 and 99. 

[FN121] See Status Report 1997, at 26-7.  There have been conferences between CITES representatives and TCM practitioners that have at least opened the lines of communication between historically adversarial parties. 

[FN122] See Douglass W. Allen, The Rhinos Horn: Incomplete Property Rights and the Optimal Value of as Asset, 31 J. Legal Stud. 339, 348-350 (2002), for an interesting discussion of creating disincentives to poach rhino horn by dehorning.  “Dehorning lowers the gross value by systematically eliminating the attribute that the thief values highly.” Id. at 350. 

[FN123] Id. at 349-50. 

See also Status Report 1997, at 67. 

[FN124] Status Report 1997.  “Extensive experience in Zimbabwe has shown that dehorning does not affect the social behavior or rhino, and death due to dehorning is minimal [internal citations omitted].” Id. at 67. 

[FN125] Id.

[FN126] SSC Report 2007, at 21.  It is believed that there are at least 19,830kg of rhino horn in Africa, at least 91% of which is State owned. Id. at 13.

CITES Resolution Conference 9.14 recommends the stockpiling and registration of all horns at a secured location. 

[FN127] See e.g., Namibia MET supra note 31. 

[FN128] Status Report 1997 at 68.  The absorption of trace elements from the environment that it taken up and incorporated into tissues give each horn a chemical signature or fingerprint the horn.  This could be used to determine likely source of poached horn and improve law enforcement information gathering as to trade routes and poaching techniques.  Id. 

[FN129] Translocations, moving animals from one place to another, are a huge part of the biological management of rhinos; this technique has led to the increasing concentration of animals in the wild to reduce poaching pressure on outlier animals, but it also reduces genetic inbreeding and other issues and problems in biological management.

[FN130] Ear notching is a relatively low-tech and self-explanatory technique of marking rhinos for monitoring in the field.

[FN131] This suite of techniques and suggestions has potential benefits for much rarer Asian rhino species, as well.

[FN132]  SSC Report 2007, at 19-20: “To date, black rhino hunting in South Africa has generated in the region of USD 870,500 averaging USD 145,083 per rhino …. Average prices are unlikely to remain as high in the future as premium prices were probably paid by hunters wishing to become some of the first to hunt black rhino for many decades.  Further, the inability of American hunters to import black rhino hunting trophies into the United States of America is likely to limit demand.”

It is interesting to note that Namibia has put a moratorium on granting hunting concessions until a system of equitable allocation of hunting concessions can be developed.  What is more, South Africa has only granted six of the possible ten permits since the quota was set at five per year at CoP 13.  Id. at 19. 

This seems to indicate that these nations are not simply rushing out to turn rhinos into economic resources, but that managers are carefully considering the biological and economic consequences of their decisions.

 

 

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