Until the early 1970s, people the world over freely obtained, exported, shipped internationally, imported, and used, in unlimited quantities, any product that was derived from wild animals (including the living or dead animals themselves). Musical instrument makers, from individual luthiers to large factories, used some animal products structurally or decoratively for instruments and for some other musical purposes, again without legal or practical restriction. Commonly used wild species and their products for lutherie included hawksbill sea turtles (“tortoise shell” for picks, pickguards, binding, and violin bow frogs), elephants, walrus, hippopotamus, warthogs, sperm whales, and narwhal (ivory for binding, bridges, bridge and end pins, nuts, saddles, and violin bow tips and frogs), baleen whales (whalebone for violin bow grips and violin purfling), pearl oysters (mother of pearl for inlay, for banjo and mandolin nuts, and for violin bow slides), and abalone (abalone shell for inlays and D-45 type purfling). By the late 1950s, wild populations of many of these species had declined noticeably in numbers,attributable partly to overexploitation and partly to habitat loss. The status of many species, including most of the mammal species listed above, had become alarming, enough so that many nations enacted laws that protected imperiled species from further exploitation within their borders. Some nations enacted comprehensive protective laws and enforced them strictly, such as the US under the federal Endangered Species Act of 1973(ESA), but some nations enforced protective laws less rigidly, or their species protection laws were nonexistent or lacked enforcement provisions. This inconsistency resulted in a mosaic of legal protection levels for native wild species worldwide, which caused significant impediments to species protection—nations with strict protective laws might share borders with nations whose wildlife species diversity was similar but whosespecies populations were smaller or not as well protected. The wildlife in the latter nations was thus much more vulnerable to exploitation and smuggling. In this article I examine the history of International and US species protection laws and treaties, explain some of their provisions, and discuss the 21st century realities of this legal framework.
Note: this account does not offer legal advice in any form—US citizens or residents who plan to trade in wildlife or wildlife products domestically or internationally, should obtain all such legal advice in writing from their respective state wildlife agencies and from the US Fish and Wildlife Service (USFWS).
All US states protect wildlife by law and regulations that affectmostly game and “non-game” species. Most states also have active endangered species protection programs, and all states comply with the federal provisions that the US Fish and WildlifeService manage and enforce via the ESA and other laws and regulations. The US Congress enacted a limited ESA in 1966, but the Congress broadened and strengthened the ESA significantly in 1973 to require the US Fish and Wildlife Service to compile legally binding lists of threatened and endangered species worldwide (not just in the US) and to protect species included in that list automatically under the ESA. Contrary to widespread belief, the USFWS does not arbitrarily add species to the ESA list—the public proposes many species, and the USFWS proposes others. The post-proposal listing process typically requires much more than a year (except for “emergency listings” which are very rare) and requires scientific and public input on all listing proposals. The 1973 ESA also provided frameworks for individual and government agency compliance and permitting, and the ESA also authorizesenforcement mechanisms and penalties for violating the ESA. The ESA “worldwide” provision allows the US Fish and Wildlife Service to investigate and determine whether species that do not occur in the US might warrant protection in the US and involving US citizens abroad, including import controls into the US and bans on interstate trade in the species or their products. Several “grandfather” provisions apply to the ESA, typically centered on the date that a particular species was first included on the ESA list. That is, products of species might belegally possessed and possibly traded if the person could prove that the items were obtained before the species was listed underthe ESA and could also provide evidence of the items’ origins.
Many of the species mentioned above are listed under the US ESA. Those not listed under the US ESA are protected under the Lacey Act as amended, the Marine Mammal Protection Act(MMPA) of 1972, the African Elephant Conservation Act, and several other laws that relate to various types of wildlife. The Lacey Act mandates the USFWS to manage all wildlife tradefrom/to the US and interstate wildlife movement within the US. The Marine Mammal Protection Act extends US Congressionalprotection to all marine mammal species, including those not native to US maritime regions, when taken by anyone in US waters or by US citizens on the high seas including foreign nation shores. MMPA-protected species of interest to luthiers in earlier times included the sperm whale, the walrus, and the narwhal. The Lacey Act also mandates US compliance with the laws of other nations so that a species protected in its native range cannot be imported to the US if it was taken or exported in violation of the native or originating nation’s laws. This is the reason that the USFWS requires paperwork for the export or import of musical instruments with mother of pearl or abalone inlays—with that paperwork most abalone and pearl oyster species can be traded routinely. The Lacey Act also prohibits US interstate transfer or trade without appropriate permits ofspecies protected in their native US states, and the Act provides that that species taken in one state in violation of that state’s laws (i.e., poached) cannot be shipped legally between states.
By the late 1960s the various national laws against take of their native species were shown to be reasonably effective in that type of protection, but once a protected species or its products crossed an international border, all protection ended. Thus, if a smuggler succeeded in exporting hundreds of elephant ivory tusks undetected by the authorities, the originating nation had no recourse, no authority to recover the ivory to use as evidence to prosecute the smuggler. Representatives of most of the nations whose native species, especially endangered species, were subject to that type of unregulated and unrestrained trade, met in Washington DC in 1973 to finalize a framework to regulate or outright ban international trade in such species. That plan was adopted as the “Convention for International Trade in Endangered Species of Wild Fauna and Flora” usually called the “CITES treaty,” or abbreviated to “CITES.” As the details of the framework evolved, many, and later most, nations adopted the CITES treaty—today, 184 nations plus the European Unionof the approximately 195 nations and entities in the world are CITES signatories.
CITES is structured as three “Appendices,” ranked according tospecies status in the wild, species vulnerability to unrestricted international trade, and actual trade in each species. Nations and entities that participate in CITES are known as “Parties.” Appendix I includes animal and plant species whose populations are very limited or are largely depleted, whose vulnerability to unrestricted international trade is significant, who are being or have recently been traded internationally in significant numbers at the time of listing, and whose species status is generallyagreed to be potentially in danger of extinction (“endangered”)within a relatively short time from listing. With a very few exceptions such as scientific study, all Appendix I-listed species are barred from any international trade at all, which includes any movement across international borders without CITES documentation. Required CITES Appendix I documentationincludes a CITES export permit from the exporting nation and a CITES import permit from the importing nation. CITES Partiesregard all unauthorized international movements of CITES-listed species as smuggling.
CITES Appendix II includes species that the Parties agree arevulnerable to depletion by international trade, are currently subject to extensive international trade, but whose status in the wild is not yet “endangered.” As with Appendix I listings, listing of species under Appendix II requires the vote of a conference of all the CITES Parties. All international trade of CITESAppendix II-listed species requires a CITES export permit issued by the exporting nation but does not require an import permit from the importing nation, although the importing nation’s laws and regulations may require such a permit independent of CITES. The export permit is also required for international shipments of Appendix II species that originated in some nation other than the exporting nation. In most cases one CITES export permit covers only one shipment that involves just one export from one exporting to one importing nation, even when CITES does not require an import permit. That is, there are no “blanket” export permits that cover more than one export. Most CITES Appendix II species are frequently traded internationally, not usually at such volume or at such a rate that its native populations could quickly and easily become endangered, and whose trade can be readily managed by the exporting nation. However, international trade in Appendix II listed species is carefully monitored, often with export quotas attached within the CITES framework or by the exporting nation, or both.
CITES Appendix III listing is a tool that one or more Parties can use to control international trade of a single native species that the Party or Parties already protect and is not listed in Appendix I or Appendix II. The intent is to allow Parties to seek international cooperation to control and especially to document international trade in such species. Appendix III listing is particularly useful to determine the likely effects of international trade on just one species of concern, so that Parties with few species listed under Appendix I or Appendix II can still gain some of the protections from international trade, one species at a time. Appendix III listing requires that just one or more Parties can finalize the listing–Appendix I and II listing requires a majority vote of the Conference of the CITES Parties.
