¹ This article deals with the African elephant, Loxodonta africana. The Asian elephant, Elephas maximus, is somewhat smaller and more often tuskless. A Program to Save the African Elephant, World Wildlife Fund Letter, No. 2, 1989, at 1–2 [hereinafter To Save the Elephant].

² C. Moss, Elephant Memories: Thirteen Years in the Life of an Elephant Family 34 (1988). Moss, pointing out that no one has established that all members of these groups are related, prefers the term “kin groups.” See also I. & O. Douglas-Hamilton, Among the Elephants (1975).

³ C. Moss, supra note 2, at 35.

⁴ Id. at 34.

⁵ Id. at 114.

⁶ Id. at 103.

⁷ Id. at 188.

⁸ Id. at 123, 185.

⁹ Id. at 239.

¹⁰ Id. at 314.

¹¹ Id. at 314, 316. See also Payne, Elephant Talk, Nat’l Geographic, August 1989, at 264.

¹² C. Moss, supra note 2, at 35.

¹³ Id. at 35, 127, 128.

¹⁴ Id. at 72, 260.

¹⁵ Id. at 73–74, 270.

¹⁶ Id. at 270.

¹⁷ Id. at 271.

¹⁸ Id.

¹⁹ Id.

²⁰ Id. at 289.

²¹ A lion cannot kill an adult elephant, but it can kill a calf. Id. at 48. There is some evidence, however, that an adult elephant was killed by a snake bite, possibly by a puff adder, black mamba or cobra. Id. at 268.

²² Fewer than a thousand elephants are shot each year by sport hunters, who usually possess permits. To Save the Elephant, supra note 1, at 5.

²³ Saving the Elephant: Nature’s Great Masterpiece, Economist, July 1, 1989, at 15. On June 30, 1989, Tanzania banned elephant hunting by its citizens. Director of Wildlife Costa Mlay said: “This is just one step towards our call for a global ban on the ivory trade.” Reuters (June 30, 1989).

²⁴ To Save the Elephant, supra note 1, at 7.

²⁵ C. Moss, supra note 2, at 53–54.

²⁶ Id. at 27, 244, 272.

²⁷ Id. at 53.

²⁸ Id. at 78.

²⁹ Id. at 274.

³⁰ R. Yaeger & N. Miller, Wildlife, Wild Death: Land Use and Survival in East ern Africa 115 (1986) (discussing study on alcoholism by Dr. Ronald Siegal). “Elephants are very vulnerable to stress. These stopped breeding under the pressure of hunting and poaching until 1984, when we began to get a grip on conservation in this area.” Reuters (July 13, 1989) (comments of Garth Owen-Smith, referring to Namibia’s Hoanib River Basin).

³¹ The Shrinking Roots of Heaven, U.S. News & World Rep., May 22, 1989, at 11.

³² Allman, Endangered Species: Can They Be Saved?, U.S. News & World Rep., Oct. 2, 1989, at 52, 53.

³³ N.Y. Times, June 11, 1989, §1, at 6. Estimates vary. In 1987, for example, the African Elephant and Rhino Specialist Group of the Union for the International Conservation of Nature reported that the total was 764,000. H. Rep. No. 827, 100th Cong., 2d Sess. 7 (1988) (Endangered Species Act Amendments of 1988) [hereinafter 1988 House Report]. One recent estimate put the number at 625,000. N.Y. Times, June 2, 1989, at A9. Using sophisticated computer modeling techniques, the United Nations Environment Programme (UNEP) estimated the 1989 population at between 1.3 million and 800,000. UNEP, UNEP/GEMS Environment Library No. 3, The African Elephant 30 (1989) [hereinafter UNEP Report].

³⁴ N.Y. Times, June 11, 1989, §1, at 6. About 40% of the deaths are caused by killing mothers with calves under 10 years old. Economist, supra note 23, at 15, 16.

³⁵ Population projections carried out at Imperial College, London, using fast and slow rates of decline, suggest that the date of disappearance will be somewhere between 2010 and the 2030s. Economist, supra note 23, at 15.

³⁶ N.Y. Times, June 2, 1989, at A9. (The Times listed its sources as Iain Douglas-Hamilton for the 1979 figures, and the Ivory Trade Review Group for the 1989 figures. Id.)

³⁷ “Bands of as many as 75 guerrillas, armed with Russian-made Kalashnikov assault rifles and rocket-propelled grenades, scour the bush in quest of elephants, and when they find them they are destroyed without mercy.” Daily Telegraph (London), May 15, 1989,at 15. At Tsavo National Park in Kenya, poachers killed ten elephants before attacking police—who emerged victorious, killing six poachers in the fire fight. Ransdell, Heavy Artillery for Horns of Plenty, U.S. News & World Rep., Feb. 20, 1989, at 62. In Uganda, elephant poachers have employed rocket-propelled grenades. Id. at 61. See infra note 181 and accompanying text. In the Central African Republic, Chadian and Sudanese poachers allegedly killed elephants with spears, after slowing them down during the chase by slashing the hamstring muscles of their back legs. Achiron, Africa: The Last Safari?, Newsweek, Aug. 18, 1986, at 40–42.

³⁸ According to the London Daily Telegraph, supra note 37:

Those left alive are mostly orphans, growing up without their natural inheritance of family guidance and discipline. Instead of occasional rogue elephants, we have scattered communities of delinquents, wondering what they are supposed to do to behave properly as members of their kind. They are lost and cruelly confused—betrayed by an uncaring enemy grown mad with war and the lust for riches. When their tusks develop, they too will die.

Id. at 25.

³⁹ C. Moss, supra note 3, at 291. This book is the authoritative work concerning the life and plight of the elephant.

⁴⁰ Brennan, Ivory Wars; Fighting to Save the Elephants, Wash. Post, Sept. 24, 1989, at Y7.

⁴¹ Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 6, 1973, 27 UST 1087, TIAS No. 8249, 993 UNTS 243 [hereinafter CITES].

⁴² M. Friedman, Capitalism and Freedom 31 (1961).

⁴³ Id.

⁴⁴ See, e.g., A. Alchian & W. Allen, Exchange and Production: Competition, Coordination and Control 346 (3d ed. 1983). For analysis of a similar argument, see Wijkman, Managing the Global Commons, 36 Int’l Org. 511, 522–23 (1982).

⁴⁵ “The solution to protecting the African elephant and other endangered species is to let individuals with an economic stake in their growth and preservation own them. Idealistic efforts to suppress inevitable demand for tusk of the African elephant will only quicken its extinction.” Woodlief, Banning Ivory Imports Is Counterproductive, Wash. Post, June 9, 1989, at A26.

⁴⁶ “[O]bservable evidence of the willingness of people to ‘buy’ environmental amenities does not fully show the extent of the public’s demand for environmental quality. …” C. Hite, H. Macaulay, J. Step & B. Yandle, The Economics of Environmental Quality 40 (1972).

⁴⁷ These practical difficulties or “transactional costs” can be greater than the benefits to be gained by the exchange. In such circumstances, absent government intervention, the initial allocation of resources will be final. See Calabresi, Transaction Costs, Resource Allocation and Liability Rules—A Comment, 11 J. L. & Econ. 67, 67–69 (1968).

⁴⁸ For a discussion of this issue, see generally E. Dolan, Tanstaafl*: There Ain’t No Such Thing as a Free Lunch 45 (1969).

⁴⁹ A variant is the answer of Professor David W. Pearce: market evidence is available for these preferences only “in the highly approximate form of voluntary donations, which suffer from the usual problem that such charities are in the nature of public goods. Indeed, the main reason such donations take place is that consumers have moral as well as purely selfish motives at heart.” The Valuation of Social Cost 24 (D. Pearce ed. 1978).

Pearce also points out that the free market approach to resource allocation fails to take into account the preferences of future generations, even though they may be radically affected by current decisions, “particularly when these involve long-term or irreversible changes in the environment, for instance by depleting stocks of natural resources.” Although “the views of the unborn cannot be directly taken into account,” he continues, “it can hardly be disputed that those who have made a special study of long-run economic, social and environmental prospects are in a better position to represent their interests (for instance, to argue which resources are in particular need of conservation) than is the man in the street.” Id. It has been forcefully argued that each generation owes a fiduciary obligation to future generations to pass on an environmentally sound planet, “in no worse condition than it receives it.” See Weiss, The Planetary Trust: Conservation and Intergenerational Equity, 11 Ecology L.Q. 495, 499 (1984).

⁵⁰ For a useful discussion of many of these issues, see R. Cooter & T. Ulen, Law and Economics 46, 107, 116–17, 170(1988).

⁵¹ Leopold, A., A Sand County Almanac 225 (1949)Google Scholar.

⁵² See Hargrove, An Overview of Conservation and Human Values: Are Conservation Goals Merely Cultural Attitudes?, in Conservation for the Twenty-First Century 227 (D. Western & M. Pearl eds. 1989).

⁵³ World Charter for Nature, GA Res. 37/7 (Oct. 28, 1982), reprinted in 22 ILM 455 (1983).

⁵⁴ For a more fully developed example of this perspective, see Rolston, Biology Without Conservation: An Environmental Misfit and Contradiction in Terms, in Conservation for the Twenty-First Century, supra note 52, at 232.

⁵⁵ G. Dickie, Aesthetics 170 (1971).

⁵⁶ Willard, On Preserving Nature’s Aesthetic Features, 2 Envtl. Ethics 293, 296 (1980).

⁵⁷ See, e.g., Norton, The Cultural Approach to Conservation Biology, in Conservation for the Twenty-first Century, supra note 52, at 241.

⁵⁸ Gary, R., The Roots of Heaven 274 (J. Griffin trans. 1958) Google Scholar. For the epigraph to this article, see id. at 60.

⁵⁹ Id. at xvi.

⁶⁰ For a provocative exchange, see T. Regan, The Case for Animal Rights (1983); Professor Robert Nozick’s review of the book, About Mammals and People, N.Y. Times, Nov. 27, 1983, §7, at 1, col. 1; and Professor Regan’s rejoinder, Animal Rights, N.Y. Times, Dec. 25, 1983, §7, at 2, col. 1. As characterized by Nozick, Regan argues that mentally normal mammals of a year or more are comparable to mentally enfeebled human beings; they

have beliefs and drives; perception, memory, and a sense of the future, including their own future; an emotional life together with feelings of pleasure and pain; preference- and welfare-interests; the ability to initiate actions in pursuit of their desires and goals; a psychophysical identity over time; and an individual welfare in the sense that their preferential life fares well or ill for them.

Nozick, supra, at 11. Nozick considers this description “highly overblown” and takes issue with the suggestion that a species-membership characteristic is morally irrelevant; yet he acknowledges that he cannot explain completely why membership in the human species does and should have moral weight. “Shouldn’t only an organism’s own individual characteristics matter?” he asks. “Normal human beings have various capacities that we think form the basis of the respectful treatment these people are owed. How can someone’s merely being a member of the same species be a reason to treat him in certain ways when he so patently lacks those very capacities?” Nozick, supra, at 1. Nozick predicts that Regan will respond that Nozick’s view “will smack of ‘speciesism.’” Regan does: “I fail to see how or why species membership is itself a morally decisive consideration for deciding anything, least of all which individuals have moral rights or how much value they possess.” Regan, N.Y. Times, supra, at 2. “Animal rights activists,” Regan concludes, “are moral activists, a part of, not apart from, such larger efforts as the human rights and environmental movements.” Id.

The relevance of animal rights theories to environmental ethics is not universally accepted. See, e.g., Callicott, Animal Liberation, 2 Envtl. Ethics 311 (1980); Warren, The Rights of the Non-Human World, in Environmental Philosophy: A Collection of Readings (R. Elliot &A. Gareeds. 1983).

⁶¹ “This is fundamentally a religious argument. There is no scientific way to ‘prove’ that nonhuman organisms (or, for that matter, human organisms) have a right to exist ….” P. & A. Ehrlich, Extinction 49 (1981).

⁶² See Willard, supra note 56, at 297.

⁶³ There is, I acknowledge, a bit more going on here than “mere” compassion. We might not be so compassionate if extinction of the tsetse fly or black widow were at issue. Why focus on the elephant? Rightly or wrongly, our compassion seems to be generated by empathy—by our ability to identify with a given species because its characteristics are similar to our own. I do not mean to imply that species more like ourselves are entitled to greater protection than species less like ourselves. Nor, for that matter, am I prepared to defend the proposition that any one species is more worthy of protection than some other, although many of us have an intuitive sense that this may be true. These are difficult issues. See supra note 60 and accompanying text. But, according to a study by the General Accounting Office, man now extinguishes more than one species each day—and the rate could soon rise to one species per hour. Boston Globe, Jan. 30, 1989, at 28. Worldwide, the GAO report said, the planet is near a stage of extinction “unequaled since the age of the dinosaurs.” Id. Up to 20% of all species alive in 1980 could now be extinct. U.S. Department of State and Council on Environmental Quality, Global 2000 Report to the President 331 (1980). Not all endangered species can be examined in one article. The problem is worsening, and it is simply necessary to start somewhere.

⁶⁴ For an overview of such arguments with respect to endangered species in general, see S. Fitzgerald, International Wildlife Trade: Whose Business Is It? 5–12 (1989). See generally R. & C. Prescott-Allen, What’s Wildlife Worth? (1982).

⁶⁵ To Save the Elephant, supra note 1, at 6. The general problem confronted here is analyzed brilliantly in Hardin, The Tragedy of the Commons, 162 Science 1243 (1968). Elephants’ poached price “does not indicate the economic value of these animals because here the ‘factory’ is sold along with the ‘product’. ‘A management of fools’ is how some economists term it.” W. Van Dieren & M. Hummelinck, Nature’s Price: The Economics of Mother Earth 137 (1979). “The core of the problem,” The Economist opined, “is that, where rare animals or plants are concerned, the interests of an individual may differ from those of society at large.” The Price of a Tusker, Economist, Oct. 14, 1989, at 19.

⁶⁶ Linden, Last Stand for Africa’s Elephants, Time, Feb. 20, 1989, at 77 (quoting David Western).

⁶⁷ In Kenya, for example, it is the country’s largest foreign exchange earner. N.Y. Times, Feb. 11, 1989, at 4. In 1989, some 700,000 tourists were expected to spend $350 million in foreign currency. L.A. Times, May 8, 1989, at 6.

⁶⁸ See generally Paine, A Note on Trophic Complexity and Community Stability, 103 Am. Naturalist 91 (1969).

⁶⁹ Diamond, Overview of Recent Extinctions, in Conservation for the Twenty-First Century, supra note 52, at 37, 40; S. Fitzgerald, supra note 64, at 5.

⁷⁰ The living community, or biocenosis, comprising the interdependent organisms in a given environment comes over time to achieve a state of balance or biological equilibrium. “If man influences any one of the complexly and delicately interrelated components of this living, modulating equilibrium, a significant displacement which can lead to the destruction of an entire environment may result.” 2 V. Ziswiler, Extinct and Vanishing Animals 72 (1967). See also P. & A. Ehrlich, supra note 61, at 96. “To keep every cog and wheel,” Aldo Leopold said, “is the first precaution of intelligent tinkering.” A. Leopold, supra note 51, at 191.

⁷¹ See Myers, The Extinction Spasm Impending: Synergisms at Work, 1 Conserv. Biol. 14(1987).

⁷² According to Joyce Poole, a biologist who studies elephant behavior in Kenya, “The combined loss of wisdom and leadership as well as genetic strength is incalculable.” Bohlen, Nightmare in Africa: Wanton Elephant Poaching Takes Huge Toll, Focus, March/April 1989, at 1, 6. See generally Council on Environmental Quality, Eleventh Annual Report, Environmental Quality—1980, at 32 (1980); R. Nash, Wilderness and the American Mind 257–58 (3d ed. 1982). For an excellent discussion of the importance of preserving genetic diversity, see Note, Genetic Ark: A Proposal to Preserve Genetic Diversity for Future Generations, 40 Stan. L. Rev. 279 (1987).

⁷³ In an aerial survey of Tsavo in 1985, about two thousand elephants were seen, but only one male as old as 35. The loss of older elephants is particularly threatening to the population, since bulls over 35 are responsible for perpetuating the species. A male that dies before reaching the age of 30 will not likely have reproduced. To Save the Elephant, supra note 1, at 6.

⁷⁴ Marketed tusks used to weigh 15–20 pounds, but the average weight has gradually de clined to about 7 pounds. Id. at 5. “The poachers now must kill three times as many elephants to get the same quantity of ivory.” Outlawing Ivory, Time, June 19, 1989, at 62 (comment of Curtis Bohlen, senior vice president, World Wildlife Fund). According to David Western, the average tusk weight of commercial ivory has fallen from 10.1 kg. in 1979 to 6.2 kg. in 1982. UNEP Report, supra note 33, at 11, 12. A 1986 survey of tusks from the Central African Republic showed none from animals over the age of 35. Id. at 12.

⁷⁵ See infra notes 240–80 and accompanying text.

⁷⁶ See note 41 supra.

⁷⁷ S. Fitzgerald, supra note 64, at 13.

⁷⁸ For a more detailed analysis of the Convention, see S. Lyster, International Wild Life Law 239–77 (1985).

⁷⁹ CITES, supra note 41, Art. 11(1).

⁸⁰ Id., Art. III(2)(a).

⁸¹ Id., Art. III(3)(a).

⁸² Id., Art. III(4)(a). But see Art. I(b)(ii) (discussed at note 90 infra and accompanying text). See also infra text at note 111.

⁸³ An exception is allowed only in “exceptional circumstances.” CITES, supra note 41, Art. 11(1).

⁸⁴ Id., Art. II(2)(a).

⁸⁵ S. Lyster, supra note 78, at 245. However, nearly all are plants; 303 are mammals, 618 are birds, and 340 are reptiles. In 1986 Appendix I contained 179 mammals, 133 birds and 52 reptiles. Woodruff, The Problems of Conserving Genes and Species, in Conservation for the Twenty-First Century, supra note 52, at 83.

⁸⁶ Cites, supra note 41, Art. 11(3).

⁸⁷ Id., Art. XXIII(2)(b).

⁸⁸ S. Fitzgerald, supra note 64, at 377–78.

⁸⁹ 1988 House Report, supra note 33, at 9–10.

⁹⁰ Cites, supra note 41, Art. I(b)(ii). This definition applies with respect to species listed in Appendixes I or II; a different definition applies with respect to species listed in Appendix III. See infra text at notes 321–25.

⁹¹ The terms “readily recognizable” and “derivative” are not defined by CITES. Consequently, trade in certain parts and derivatives is regulated by some parties but not by others. S. Lyster, supra note 78, at 242.

⁹² Cites, supra note 41, Art. IX(3)(b).

⁹³ Id., Art. XV(1)(b).

⁹⁴ Id., Art. XV(1)(c).

⁹⁵ Perlez, Ivory Trade Is Banned To Save the Elephant, N.Y. Times, Oct. 16, 1989, at C13. See also 54 Fed. Reg. 24,759 (1989). No formal change was made to expand the application of CITES to worked as well as raw ivory, but the parties may have assumed that the distinction made in the prior regulatory regime lapsed with that system.

⁹⁶ Cites, supra note 41, Art. X.

⁹⁷ Id., Art. VIII(1).

⁹⁸ Id., Art. VIII(1)(a).

⁹⁹ Id., Art. VIII(1)(b).

¹⁰⁰ Id., Art. XII.

¹⁰¹ Id., Art. VIII(3).

¹⁰² Id., Art. VIII(6).

¹⁰³ Id., Art. XIV(1)(a).

¹⁰⁴ See, e.g., Cal. Penal Code §§653o and 653r (West 1988) (prohibiting, inter alia, the importation and sale of elephants within the state of California). Earlier, federal courts divided over whether the statute was permissible in light of §6(f) of the Endangered Species Act [hereinafter ESA], 16 U.S.C. §1535(f), which precludes the states from prohibiting what is permitted by the ESA. This provision was held by one federal district court to have preempted the California law, Fouke Co. v. Brown, 463 F.Supp. 1142 (E.D. Cal. 1979), and by another to have let the California law stand, H. J. Justin & Sons v. Brown, 519 F.Supp. 1383 (E.D. Cal. 1981), rev’d in part on other grounds, 702 F.2d 758 (9th Cir.), cert, denied, 464 U.S. 823 (1983). For a discussion of the two cases arguing the correctness of the second, see M. Bean, The Evolution of National Wildlife Law 377–78 (1983). The Ninth Circuit settled the dispute in Man Hing Imports v. Brown, 652 F.2d 63 (9th Cir. 1981), and Man Hing Ivory & Imports, Inc. v. Deukmejian, 702 F.2d 760 (9th Cir. 1983), holding that ESA §6(f) preempted operation of the California statute.

¹⁰⁵ 16 U.S.C. §§1531-1541 (1982). The ESA, however, is not the only statute pertinent to the illegal ivory trade. The Lacey Act Amendments of 1981, 16 U.S.C. §§3371-3378 (1982), criminalize under federal law any violation of a state, national or foreign wildlife law. Apparently, difficulty in identifying specific foreign wildlife laws has hampered prosecution. Note, International Trade in Wildlife: How Effective Is the Endangered Species Trade?, 15 Cal. W.L. Rev. 111 (1985).

¹⁰⁶ ESA, 16 U.S.C. §1538.

¹⁰⁷ Id. § 1533(c).

¹⁰⁸ Id. § 1533(d).

¹⁰⁹ 43 Fed. Reg. 20,504 (1978).

¹¹⁰ See 50 C.F.R. §17.40(e) (1988); 47 Fed. Reg. 31,384 (1982); 53 Fed. Reg. 52,242 (1988).

¹¹¹ 50 C.F.R. §17.40(e)(3) (1988).

¹¹² Id. Pursuant to this authority, the Service prohibited the importation of ivory into the United States from Burundi, a country with no resident elephant population and a huge reserve of poached ivory. The Service also prohibited the importation into the United States of ivory from any intermediary country that imports ivory from Burundi. 1988 House Report, supra note 33, at 8. The Service, in February 1988, also banned ivory imports from Somalia. Focus, May/June 1989, at 1. See infra text at notes 161–63.

¹¹³ The unilateral ban announced on June 9 by President Bush (see text infra at note 137) was taken under the authority of §2202(a) and (b) of the African Elephant Conservation Act, requiring the Department of the Interior to establish moratoriums on ivory trade with all nations that cannot meet its criteria for continuation of trade with the United States. 54 Fed. Reg. 24,759 (1989). See supra note 95.

¹¹⁴ African Elephant Conservation: Hearing Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 100th Cong., 2d Sess. 30 (1988) (testimony of Ronald Lambertson, Regional Director for the Northeast, U.S. Fish and Wildlife Service) [hereinafter 1988 House Hearings].

¹¹⁵ Pub. L. No. 100-478, §2001, 102 Stat. 2306, 2315 (1988) [AECA] (16 U.S.C.A. §§4201-4245 (West Supp. 1989)).

¹¹⁶ See, e.g., H.R. 2999, 100th Cong., 1st Sess. (1987) (sponsored by Rep. Anthony Beilenson).

¹¹⁷ AECA, supra note 115, §2201.

¹¹⁸ Id. §2202(a)(1).

¹¹⁹ 54 Fed. Reg. 19,416 (1989).

¹²⁰ AECA, supra note 115, §2202(b). Those criteria included whether the state is a party to CITES, whether it adheres to the CITES Ivory Control System (see supra text at note 89) and the volume of its ivory imports.

¹²¹ AECA, supra note 115, §2102. No dollar amount was set; the funds will derive from private donations, civil and criminal penalties collected for violation of the AECA, revenues from the sale of confiscated ivory and other appropriated funds. Id. §2102(b).

¹²² The maximum criminal penalty for an individual is a $100,000 fine and 1 year in prison. Id. §2204(a). The Secretary is also authorized to pay rewards to individuals who furnish information that leads to civil or criminal penalties under AECA. Id. §2205.

¹²³ Id. §2304.

¹²⁴ Id.

¹²⁵ Reuters (Apr. 24, 1989).

¹²⁶ Daily Telegraph (London), May 15, 1989, at 15.

¹²⁷ In a widely publicized action, following an advertisement on the elephant placed in the Apr. 19 New York Times by Friends of Animals, Sotheby’s of New York City withdrew from sale two elephant tusks valued at $48,000. “We will never again sell elephant tusks,” said Michael Ainslie, President of Sotheby’s. “We would hope it sets an example.” Tush, Tusk, Time, May 1, 1989, at 56. In London, Liberty’s banned the sale of ivory ornaments and jewelry, after complaints from customers concerned about the dwindling African elephant population. The store said it “no longer wants to be involved in this trade or in the corruption involved.” Daily Telegraph (London), May 17, 1989, at 9.

¹²⁸ N.Y. Times, May 23, 1989, at CI.

¹²⁹ Press, Africans Back Ban on Ivory Sales, Christian Sci. Monitor, Apr. 26, 1989, at 6. Leakey’s outspokenness caused one Kenyan government minister to describe him as a “cheeky white” who felt black Africans could not manage their own affairs. L.A. Times, May 8, 1989, at 6.

¹³⁰ Hiltzik, Public Backs Paleontologist Leakey; Rivalries Over Poaching Grip Kenya, N.Y. Times, Apr. 23, 1989, §1, at 4. Shortly before, apparent poachers had attacked two minibuses on safari with tourists.

¹³¹ N.Y. Times, May 12, 1989, at A1. The week before, Tanzania called for a complete ban. Id.

¹³² Reuters (May 23, 1989). Over the previous 2 weeks, British television networks had carried a series of reports about the poaching of African elephants and two national newspapers had initiated campaigns to halt their slaughter. Id.

¹³³ By this time, support also came from Zaire, Gabon and Gambia. N.Y. Times, June 2, 1989, at A9.

¹³⁴ Daily Telegraph (London), June 2, 1989, at 9; Reuters (June 1, 1989). These groups included the International Union for the Conservation of Nature and Natural Resources (IUCN) (which had earlier helped initiate the campaign for a CITES treaty, S. Lyster, supra note 78, at 239) and the World Wide Fund for Nature, which had earlier opposed a complete ban.

¹³⁵ N.Y. Times, June 2, 1989, at A9.

¹³⁶ N.Y. Times, June 5, 1989, at A8.

¹³⁷ Wash. Post, June 6, 1989, at A6. Bush said: “If their populations continue to diminish at current rates, the wild elephant will soon be lost from this Earth. We urge the nations of the world to join us in this.ban.” Id.

¹³⁸ See infra note 175.

¹³⁹ N.Y. Times, June 7, 1989, at A18.

¹⁴⁰ Id.

¹⁴¹ N.Y. Times, June 11, 1989, §1, at 6. It turned out, however, that the ban finally adopted would not apply to tusks taken from elephants killed in authorized culls. Reuters (Aug. 17, 1989).

¹⁴² N.Y. Times, June 11, 1989, §1, at 6.

¹⁴³ Id. But, Mr. Bohlen added, “We should not fool ourselves that the ban alone will solve the problem.” Id. Because the Wildlife Fund had not called for a halt to the global ivory trade before June 2, 1989, some other groups that had worked to save the elephant were not impressed. A spokesman for Friends of Animals said: “They are the last ones to jump on the bandwagon …; they only flip-flopped after seeing that the rest of the world had already changed.” N.Y. Times, June 9, 1989, at A24.

¹⁴⁴ Reuters (June 18, 1989).

¹⁴⁵ N.Y. Times, June 17, 1989, at 6. Japan has not been at the forefront of the international environmental movement. At about the same time, Japanese officials reiterated Tokyo’s in tention to kill at least four hundred minke whales next winter, despite demands from the International Whaling Commission that it completely observe the moratorium on whaling imposed in 1986. Besides six species of whales, Japan also engages in trade of skins or products of the Himalayan musk deer and certain species of sea turtles, monitor lizards and crocodiles. In addition, environmentalists accuse Japan of hastening the destruction of the Amazon rain forest by importing tropical timber products from Brazil. Id.

¹⁴⁶ Economist, supra note 23, at 16.

¹⁴⁷ South African officials argued that a ban penalizes states with effective elephant conservation programs, such as South Africa and Zimbabwe. Both states cull their elephant populations, and the proceeds from ivory so obtained reportedly go back into conservation. N.Y. Times, June 22, 1989, at A8.

¹⁴⁸ Reuters (Sept. 22, 1989); Sunday Telegraph (London), July 16, 1989, at 14. Malawi, Mozambique and Zambia reportedly will join them. UNEP, in a report released June 29, 1989, was pessimistic about chances of closing down the trade: “[A] complete ban on the ivory trade,” it concluded, “is unlikely ever to be successful because world-wide investment in the ivory business is too large.” CITES Secretary-General Eugene Lapointe said later, on July 3, 1989, that a worldwide ban on trade in ivory was unlikely to protect endangered African elephants and could create new problems. Sunday Telegraph, supra.

¹⁴⁹ See text supra at notes 92–95. However, a resolution was passed establishing a set of criteria, based on the African Elephant Conservation Act, that would allow a country to be removed from Appendix I if it were able to comply with the criteria. A panel of experts would be established to review an applicant’s program to assess compliance. In any event, there will be no ivory quotas or commercial trade prior to the next conference in Japan in 1992.

¹⁵⁰ Those states are South Africa, Zimbabwe, Zambia, Botswana and Malawi. In addition, China entered a reservation concerning ivory imports, and Britain entered a reservation on behalf of Hong Kong permitting the colony a 6-month trading extension. Ban on Ivory Takes Effect; Some Nations Defy It, L.A. Times, Jan. 19, 1990, at 11A. Although Japan abstained from voting for the ban in Lausanne, it subsequently announced that it would abide by it. L.A. Times, Oct. 20, 1989, at 1. “That is probably more important than anything that was decided here,” Simon Lyster said. Reuters (Oct. 20, 1989).

¹⁵¹ See supra note 95 and accompanying text.

¹⁵² See infra notes 194–231 and accompanying text.

¹⁵³ Economist, supra note 23, at 16.

¹⁵⁴ Favre, D., International Trade in Endangered Species: A Guide to Cites (1989)Google Scholar; R. Martin, J. Caldwell & J. Berzdo, African Elephants, Cites, and the Ivory Trade (1986); I. Parker & M. Amin, Ivory Crisis (1985).

¹⁵⁵ Bohlen, supra note 72, at 6.

¹⁵⁶ 1988 House Hearings, supra note 114, at 29. “[N]obody has any idea how much is coming out of Africa,” Susan Lieberman testified, “because it is impossible to know what the smugglers and poachers are doing everywhere.” Id. at 25 (testimony of Susan Lieberman, Associate Director of Wildlife and Environment Division, Humane Society of the United States).

¹⁵⁷ See generally S. Fitzgerald, supra note 64, at 61–77; Thornton, The Ivory Trail, Green-peace, September/October 1989, at 7, 8.

¹⁵⁸ 1988 House Hearings, supra note 114, at 37 (testimony of W. K. Nduku, Director, Department of National Parks and Wildlife, Zimbabwe); S. Colb, The Ivory Trade and the Future of the African Elephant (1989); Environmental Investigation Agency, A System of Extinction: The African Elephant Disaster (1989).

¹⁵⁹ Bohlen, supra note 72, at 1.

¹⁶⁰ 1988 House Hearings, supra note 114, at 3 (testimony of Rep. Anthony Beilenson).

¹⁶¹ The protest stated: “The Government of Kenya takes very great exception to this incident where armed members of the Somalia National Army violate the Kenyan territorial integrity, butcher Kenya’s wildlife, and open fire at Kenya security forces, injuring a number of them.” Focus, May /June 1989, at 1.

¹⁶² Id.

¹⁶³ To Save the Elephant, supra note 1, at 9. In 1983 Sudanese hunters were crossing the border with Zaire in groups of up to 60, armed with Kalashnikovs and G3 automatic rifles. UNEP Report, supra note 33, at 15.

¹⁶⁴ UNEP Report, supra note 33, at 16.

¹⁶⁵ Ransdell, supra note 37, at 62. “Savimbi admitted to an arms-for-ivory deal with his South African allies in a 1988 interview with Paris-Match.” Id.

¹⁶⁶ Bohlen, supra note 72, at 1. In 1987 and 1988 the trade is believed to have dropped to about 500 tons per year, though final figures are not yet available. To Save the Elephant, supra note 1, at 7.

¹⁶⁷ Ivory Trade Review Group, Public Statement on the Ivory Trade and the Future of the African Elephant 4 (1989). Most of the profits go to middlemen. See infra note 321 and accompanying text.

¹⁶⁸ In 1986, for example, the entire amount of raw ivory imported into the United States represented the tusks of 500 elephants. 1988 House Report, supra note 33, at 9.

¹⁶⁹ Bohlen, supra note 72, at 6.

¹⁷⁰ Id. The UAE was a party to CITES but has withdrawn (the only party to do so). See note 187 infra.

¹⁷¹ C. Moss, supra note 2, at 299. The CITES Secretariat estimates that in 1986 at least 300 tons of ivory left Africa illegally, much of it from Burundi via the United Arab Emirates for Singapore. Analysis of the stocks registered in Burundi revealed that 40% originated in Zaire, 30% in Tanzania, 20% in Zambia, and 10% in other African countries. UNEP Report, supra note 33, at 35.

¹⁷² To Save the Elephant, supra note 1, at 7.

¹⁷³ Economist, supra note 23, at 17.

¹⁷⁴ 1988 House Report, supra note 33, at 9.

¹⁷⁵ Id. According to the New York Times, however, the figure is much smaller; total U.S. imports of both raw and carved ivory amount to only 10-15% of the amount traded annually. N.Y. Times, June 2, 1989, at A9.

¹⁷⁶ Booth, Africa Is Becoming an Elephant Graveyard, 243 Science 732 (1989).

¹⁷⁷ N.Y. Times, Oct. 29, 1988, at 29.

¹⁷⁸ The Central African Republic’s Emperor Bokassa reportedly presided over a government rife with ivory smugglers. To Save the Elephant, supra note 1, at 7.

¹⁷⁹ The Slaughter of Elephants, Economist, Apr. 15, 1989, at 49, 50.

¹⁸⁰ See text supra at notes 159–60. The gross domestic product per capita for Somalia, in 1982, was about $200; for Kenya, in 1986, about $230; for Tanzania, in 1987, about $240; for Zaire, in 1986, about $140. U.S. Central Intelligence Agency, The World Factbook (1988).

It is interesting to compare these income statistics with those of countries that have conducted more successful elephant conservation programs. The gross domestic product per capita for South Africa, in 1987, was about $1,700; for Zimbabwe, in 1986, $540; for Botswana, in 1985, $880. Id.

¹⁸¹ See supra note 37. In March 1989, when 24 elephants were killed on a foreign-owned ranch in Kenya, one soldier was killed and another wounded in a battle with the poachers. A few days later, the same gang apparently was responsible for the killing of 17 elephants in the Tsavo Park, alongside the ranch. Economist, supra note 179, at 50.

¹⁸² Ransdell, supra note 37, at 64.

¹⁸³ Id. Zimbabwe, with a model elephant conservation program, spends about $160 per kilometer per day. Most of Africa spends about 50 cents. Booth, supra note 176, at 732.

¹⁸⁴ 1988 House Hearings, supra note 114, at 35 (remarks of Clark Bavin, Chief, Law Enforcement Division, U.S. Fish and Wildlife Service).

¹⁸⁵ “In 1986,” The Economist reported, “CITES authorities authorized the export of some 108,000 tusks. That would have represented more than 50,000 dead elephants—ten times the annual figure that some conservationists regard as Africa’s sustainable yield.” Economist, supra note 23, at 16.

¹⁸⁶ To Save the Elephant, supra note 1, at 8. In addition, WWF concluded, most of the export quotas have been set arbitrarily, without regard to the status of the respective elephant populations. Id.

¹⁸⁷ C. Moss, supra note 2, at 299.

¹⁸⁸ See id. When Burundi joined CITES, its Government announced a total ban on ivory trade. Id.

¹⁸⁹ To Save the Elephant, supra note 1, at 8.

¹⁹⁰ Id. at 7.

¹⁹¹ 1988 House Hearings, supra note 114, at 14 (remarks of Ronald Lamertson, Chairman, Standing Committee, CITES; Regional Director for the Northeast Region, U.S. Fish and Wildlife Service); id. at 36 (remarks of Clark Bavin, Chief, Law Enforcement Division, U.S. Fish and Wildlife Service). “It is generally accepted that it should be, but we don’t hold up shipments for that not being on there.” Id. But see supra note 111.

¹⁹² Booth, supra note 176, at 732. Hong Kong indicated in August 1989 that it would require all carved ivory to be accompanied by permits confirming its legal origin. Id.

¹⁹³ UNEP Report, supra note 33, at 37. On June 6, 1989, however, Crown Prince Sheikh Maktoum bin Rashid al-Maktoum of Dubai issued an order banning “all activities relating to manufacture and trade in elephant and rhinoceros tusks.” Reuters (June 6, 1989).

¹⁹⁴ Compare, e.g., testimony of David Western, Chairman, African Elephant and Rhino Specialist Group, 1988 House Hearings, supra note 114, at 29, and William K. Reilly, President, World Wildlife Fund, id. at 23, with testimony of Susan Lieberman, Associate Director, Wildlife and Environment Division, Humane Society of the United States, id. at 26.

¹⁹⁵ “On the one side you have those who believe in conservation, which implies utilization of wildlife as an economic resource; on the other you have those who believe purely in protection, and their pressure on public opinion in the West is enormous,” CITES Deputy Secretary-General Jacques Berney said. Reuters (July 9, 1989). At a 4-day meeting of elephant experts and governmental officials from 26 countries held in Botswana in July 1989, Kenyan and Zimbabwean representatives barely exchanged a word. Id. See also L.A. Times, July 8, 1989, at 4.

¹⁹⁶ N.Y. Times, June 22, 1989, at A8 (comment of Richard E. Leakey).

¹⁹⁷ Wash. Post. July 19, 1989, at 1. The tusks represented more than two thousand elephants shot during the past 4 years. N.Y. Times, July 19, 1989, at A4.

¹⁹⁸ Sunday Telegraph (London), July 16, 1989, at 14.

¹⁹⁹ “If the elephant died from natural mortality or natural culling, I see no reason the ivory shouldn’t be used. Most African countries are very poor, and this is one of the few natural resources they can exploit. But right now it is in a crisis situation,” said Diana E. McMeekin, vice president of the African Wildlife Foundation. Chicago Trib., Mar. 12, 1989, at 5C.

²⁰⁰ According to Tanzania’s proposal to CITES to move the elephant to Appendix I, the CITES registered legal ivory trade in 1987 was only 20% of the total estimated world trade of 771 tons. 54 Fed. Reg. 24,760 (1989). On June 1, 1989, a consortium of wildlife conservation groups concluded that “the legal (i.e., government controlled) and illegal trades have become virtually indistinguishable.” Id.

²⁰¹ In fact, wildlife smugglers not infrequently smuggle narcotics as well. S. Fitzgerald, supra note 64, at 19.

²⁰² This is in fact what has occurred in the international cocaine trade. From 1985 to 1989, worldwide coca production has increased by 50%, from 162,700 metric tons to 229,990 metric tons. The supply glut is reflected in plummeting prices: in 1980, the wholesale price of cocaine was $50,000–$55,000 per kilogram; by 1988, the price hit an all-time low of $10,000–$12,000. Democratic Study Group, U.S. House of Representatives, Special Report, Rhetoric vs. Resources: “Just Saying No” To Funds for Anti-Drug Efforts During the Reagan-Bush Administration 27 (1989).

However, as the supply of ivory dropped over recent months, contrary to some predictions, its price actually declined—perhaps because demand dropped even faster. In Zaire, its price has dropped by 50%; in Hong Kong, by 30%. Perlez, The World Looks for a Way to Save the Elephant, N.Y. Times, Oct. 15, 1989, at E6. The Economist nonetheless predicted that, in the long term, the Lausanne action would cause the price of ivory to rise. The Price of a Tusker, supra note 65.

²⁰³ See D. Aaronson, Public Policy and Police Discretion: Processes of Decriminalization (1984).

²⁰⁴ Bator, An Essay on the International Trade in Art, 34 Stan. L. Rev. 275, 311 (1982).

²⁰⁵ Id. at 318.

²⁰⁶ Id.

²⁰⁷ Unlike the international trade in ivory, for example, that in blood has a more limited supply and a less elastic demand. See Blood Banks: Precious Drops, Economist, Oct. 14, 1989, at 28, 33; Altman, Europe Supplying Blood for the U.S., N.Y. Times, Sept. 5, 1989, at Al; R. Titmuss, The Gift Relationship: From Human Blood to Social Policy (1970).

²⁰⁸ See generally S. Fitzgerald, supra note 64, at 105–14; E. Martin, The International Trade in Rhinoceros Products (1980); Knox, Horns of a Dilemma, Sierra, November/December 1989, at 58.

²⁰⁹ N.Y. Times, May 12, 1989, at A6.

²¹⁰ Western, D. & Olindo, P., Conservationists Worldwide Are Determined to Save the Elephant, N.Y. Times, June 26, 1989, at A18?Google Scholar.

²¹¹ N.Y. Times, June 22, 1989, at A8. Even after the bans were announced, the rhino precedent was still cause for concern. N.Y. Times, June 11, 1989, § 1, at 6. See also Simmons & Kreuter, Wildlife Preservation: Save an Elephant—Buy Ivory, Wash. Post, Oct. 1, 1989, at D3.

²¹² See generally The Status and Conservation of Africa’s Elephants and Rhinos, Proceedings of the Joint Meeting of IUCN/SSC African Elephant and Rhino Specialist Groups at Hwange Safari Lodge, Zimbabwe (1981). I am indebted to Frank Wissmuth for helpful comments on this issue.

²¹³ The daggers sell for up to $12,000. Vollers, A War to Save the Black Rhino, Time, Sept. 7, 1987, at 62, 63.

²¹⁴ N.Y. Times, June 11, 1989, § 1, at 6.

²¹⁵ Focus, May/June 1989, at 2; N.Y. Times, June 2, 1989, at A9.

²¹⁶ Cohn, Halting the Rhino’s Demise, 38 Bioscience 740 (1988).

²¹⁷ Vollers, supra note 213, at 63.

²¹⁸ See generally S. Miller & D. Everett, Cats of the World: Biology, Conservation, and Management (1986).

²¹⁹ Economist, supra note 23, at 16. The argument that the leopard was never truly endangered to begin with (see Simmons & Kreuter, supra note 211) misses the point: whatever the level at which the leopard subsisted when moved to Appendix I, nearly all agree that that placement was in part responsible for its subsequent increase in number.

²²⁰ See D. Favre, supra note 154, at 95. Since 1983, a special quota has allowed the export of lawfully obtained leopard skins, but such skins may not be intended for resale. S. Fitzgerald, supra note 64, at 45–46.

²²¹ See generally Lemonick, Coming Back from the Brink, Time, July 20, 1987, at 70.

²²² S. Fitzgerald, supra note 64, at 9.

²²³ Richard Leakey pointed out that .in June 1989, 22 poachers were killed in Kenya and “not one elephant.” Wash. Post, July 19, 1989, at Al. In Tanzania in that same month, authorities launched a crackdown on elephant and rhinoceros poachers, rounding up several hundred suspects and seizing elephant tusks, rhino horns and police and army uniforms presumably used as disguises. Reuters (June 29, 1989).

²²⁴ Contra D. Favre, supra note 154, at 123; Economist, supra note 23, at 15.

²²⁵ 54 Fed. Reg. 37,027 (1989).

²²⁶ However, it may not be correct a few years from now. See infra notes 315-20 and accompanying text.

²²⁷ See supra note 87 and accompanying text.

²²⁸ In addition, China and Hong Kong continue to import ivory. Ban on Ivory Takes Effect, supra note 150, at 11A. See supra text at notes 149–50.

²²⁹ H.R. 2519, 101st Cong., 1st Sess. (1989), introduced by Rep. John R. Kasich, would ban the importation of all ivory products into the United States and would revoke most-favored-nation treatment for elephant-producing countries that do not have or enforce appropriate elephant protection programs. See 135 Cong. Rec. H2250 (daily ed. May 31, 1989). The bill was referred jointly to the Committees on Foreign Affairs and Ways and Means.

²³⁰ Sen. Daniel Patrick Moynihan has proposed to make actions that undermine agreements such as CITES “unfair trade practices” under §301 of the Trade Act of 1974, Pub. L. No. 96-39, 93 Stat. 295 (19 U.S.C. §2411 (1988)). See S. 261, 101st Cong., 2d Sess. (1989). Sen. Moynihan said:

If countries such as Japan or Hong Kong fail to follow through with the moratorium on ivory trade—or continue to import ivory from African countries should the CITES secretariat designate the African elephant an endangered species this October—retaliatory action should, for example, fall on sophisticated electronics or automotive products, or whatever would be most effective. 135 Cong. Rec. S7377 (daily ed. June 22, 1989). Such retaliatory action would be consistent with GATT, which allows trade restrictions for conservation purposes. General Agreement on Tariffs and Trade, Art. XX, Oct. 30, 1947, TIAS No. 1700, 55 UNTS 188.

²³¹ Reuters (July 14, 1989) (comments of Pickson Chitambala). Nonetheless, Zambia is one of the five producing states that entered a reservation and continue to export ivory. Ban on Ivory Takes Effect, supra note 150, at 11A.

²³² Address by President Ali Hassan Mwinyi (n.d.), quoted in The Launch, Miombo: The Newsletter of the Wildlife Conservation Society of Tanzania, July 1988, at 9.

²³³ See, e.g., Stone, Tax Nations to Repair the Earth, L.A. Times, Aug. 25, 1989, §11, at 7; Chopra, Whales: Towards a Developing Right of Survival as Part of an Ecosystem, 17 Den. J. Int’l L. & Pol’y 255 (1989); Magraw, International Law and Park Protection: A Global Responsibility, in Our Common Lands: Defending the National Parks (D. Simon ed. 1988); Hahn & Richard, The Internationalization of Environmental Regulation, 30 Harv. Int’l L.J. 421 (1989); Sands, The Environment, Community and International Law, id. at 393; Blueprint for the Environment: A Plan for Federal Action 227–28 (T. Comp ed. 1989); Sandbrook, Towards a Global Environmental Strategy, in Environmental Policies (C. Park ed. 1986); Myers, Endangered Species in the North-South Dialogue, in Economics of Ecosystem Management (D. Hall, N. Myers & N. Margolis eds. 1985); N. Myers, A Wealth of Wild Species (1983); McDougal & Schneider, The Protection of the Environment and the World Public Order, in World Priorities 81 (B. Preger, H. Lasswell & J. McHale eds. 1977).

²³⁴ N.Y. Times, Sept. 26, 1989, at A8.

²³⁵ United Nations Conference on the Human Environment, Report at 3, 5, UN Doc, A/CONF.48/14/Rev.1, UN Sales No. E.73.II.A.14 (1973).

²³⁶ See General Assembly Resolutions: 1803 (XVII) (Dec. 14,1962), 2692 (XXV) (Dec. 11, 1970), 3016 (XXVII) (Dec. 18, 1972), 3201 (S-VI), para. 4e (May 1, 1974), 3202 (S-VI), sec. 8 (May 1, 1974). See generally O. Schachter, Sharing the World’s Resources 124–34 (1977).

²³⁷ Restatement (Third) of the Foreign Relations Law of the United States, pt. VI (1987) [hereinafter Restatement].

²³⁸ “General principles common to the major legal systems” constitute a supplementary source of customary international law. Id. §102(4). See Statute of the International Court of Justice, 59 Stat. 1055 (1945), TS No. 993, Art. 38(1)(c) (directing the Court to apply “the general principles of law recognized by civilized nations”).

²³⁹ Such treaties include not only CITES, supra note 41, and other wildlife protection instruments, infra notes 261 and 264, but also treaties protecting other “internal” resources such as cultural heritage. See, e.g., Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 23, 1972, 27 UST 37, TIAS No. 8226.

²⁴⁰ World Charter for Nature, supra note 53, Principle 3.

²⁴¹ Caron, The Law of the Environment: A Symbolic Step of Modest Value, 14 Yale J. Int’l L. 528, 529(1989).

²⁴² O. Schachter, supra note 236, at 125.

²⁴³ Id. at 124.

²⁴⁴ See Henkin, The Internationalization of Human Rights, in 6 General Education Seminar, Proc. 7 (1977). It was “unthinkable that international law should concern itself with protecting the interests of the individual against his own government, even less that it might give the individual international remedies against his own government.” L. Henkin, R. Pugh, O. Schachter & H. Smit, International Law: Cases and Materials 980 (2d ed. 1987).

²⁴⁵ Restatement, supra note 237, §702; Henkin, supra note 244.

²⁴⁶ See Convention on the Regulation of Antarctic Mineral Resource Activities, Art. 4(2), June 2, 1988, reprinted in 27 ILM 868 (1988). See generally Restatement, supra note 237, pt. VI (Introductory Note), §601.

²⁴⁷ Restatement, supra note 237, §603.

²⁴⁸ See Convention on Wetlands of International Importance, Especially as Waterfowl Habitat, Feb. 2, 1971, reprinted in 11 ILM 963 (1972).

²⁴⁹ See Nanda & Ris, The Public Trust Doctrine: Viable Approach to International Environmental Protection, 5 Ecology L.Q. 291, 294 (1976).

²⁵⁰ Restatement, supra note 237, §102(2). See also ICJ Statute, supra note 238, Art. 38(1)(b) (directing the Court to apply “international custom, as evidence of a general practice accepted as law”).

²⁵¹ See T. Meron, Human Rights and Humanitarian Norms as Customary Law 3 (1989).

²⁵² Restatement, supra note 237, §102(3).

²⁵³ See, e.g., Convention on Wetlands of International Importance, supra note 248; Convention Relative to the Preservation of Flora and Fauna in their Natural State, Nov. 8, 1933, 172 LNTS 241; International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, TIAS No. 1849, 161 UNTS 72; International Convention for the Protection of Birds, Oct. 18, 1950, 638 UNTS 186.

There are several regional wildlife preservation conventions. See, e.g., Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, Oct. 12, 1940, 56 Stat. 1374, TS No. 981, 161 UNTS 193; African Convention on the Conservation of Nature and Natural Resources, Sept. 15, 1968, 1001 UNTS 3; Convention on European Wildlife and Natural Habitats, Sept. 19, 1979, ETS No. 104, 1982 Gr. Brit. T.S. No. 56 (Cmd. 8738).

²⁵⁴ CITES parties, in a preambular provision, supra note 41, “recogniz[e] that peoples and States are and should be the best protectors of their own wild fauna and flora.”

²⁵⁵ See supra text at note 96.

²⁵⁶ Restatement, supra note 237, §102 comment i.

²⁵⁷ North Sea Continental Shelf (FRG/Den.), 1969 ICJ Rep. 3, 28–29, 37–43 (Judgment of Feb. 20). See also Restatement, supra note 237, §102 comment i.

²⁵⁸ ICJ Statute, supra note 238, Art. 38(1)(c). See also Restatement, supra note 237, §102 comment l.

²⁵⁹ See supra text at notes 97–99.

²⁶⁰ See S. Lyster, supra note 78, at 264–69, 276–77. In 1986 the World Wildlife Fund described CITES as “perhaps the most effective conservation treaty in existence.” World Wildlife Fund, Factsheet: CITES, December 1986. But see Kosloff & Trexler, The Convention on International Trade in Endangered Species: No Carrot, But Where’s the Stick?, 17 Envtl. L. Rep. 10,222(1987).

²⁶¹ Several major legal systems contain legislation that protects certain species or sets aside protected areas for certain species. See generally C. Du Saussay, Legislation on Wildlife, Hunting and Protected Areas in Some European Countries (UN Food and Agriculture Organization Legis. Study No. 20, 1980).

²⁶² Virtually all European countries have such laws. National Strategies for the Protection of Flora, Fauna and Their Habitats, UN Doc. ECE/ENVWA/4, UN Sales No. E.88.II.E.2(1988).

²⁶³ The ICJ found that opinio juris may be deduced from consent to General Assembly resolutions (in that case, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 99–100 (Judgment of June 27).

²⁶⁴ In the World Charter for Nature, supra note 53, the General Assembly proclaimed that “the population levels of all life forms, wild and domesticated, must be at least sufficient for their survival.” Id., Principle 2.

See also Conference on Security and Co-operation in Europe (CSCE), Final Act, Aug. 1, 1975, 73 Dep’t St. Bull. 323 (1975) (participating states agreed to cooperate in the conservation of existing genetic resources, especially rare animal species); Declaration on the Conservation of Flora, Fauna and their Habitats (adopted by the ECE at its 43d annual session in 1988, Decision No. E(43) (members agree to take necessary measures to prevent and reduce damage to flora, fauna and their habitats, and to implement national legislation for their conservation)).

²⁶⁵ It is clear, however, that in a number of instances such legislation preceded CITES. See, e.g., Belgian Law No. 1268 of July 12, 1973, on the Preservation of Nature, Art. 5, 1973 Bulletin Usuel des Lois et Arrêtés 831; French Law No. 76-629 of July 10, 1976, on Protection of Nature, Art. 5, J.O. July 11, 1976, at 4203, 59 Bulletin Législatif Dalloz 308 (1976).

²⁶⁶ In Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), the U.S. Supreme Court construed the ESA as requiring the courts to enjoin the operation of the virtually completed Tellico Dam when it had been determined that its operation would eradicate an endangered species, the snail darter, a small fish that eats snails. The district court had determined that saving the genetically unique fish would mean wasting a large portion of the $78 million spent on the dam. Tennessee Valley Authority v. Hill, 419 F.Supp. 753, 760 (E.D. Tenn. 1976).

²⁶⁷ 1969 ICJ Rep. at 43 (emphasis added).

²⁶⁸ Asylum (Colom./Peru), 1950 ICJ Rep. 266 (Judgment of Nov. 20).

²⁶⁹ See generally Restatement, supra note 237, § 102 comment d; Stein, The Principle of the Persistent Objector in International Law, 26 Harv. Int’l L.J. 457 (1985); Waldock, General Course in International Law, 106 Recueil des Cours 1, 49–53 (1962 II).

²⁷⁰ The only international environmental norms recognized by the Restatement, supra note 237, involve transfrontier pollution, §§601–602, and injury to the marine environment, §603.

²⁷¹ Id. §§901, 902.

²⁷² Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain), Second Phase, 1970 ICJ Rep. 3, 32 (Judgment of Feb. 5). For an earlier argument along these lines, see Weiss, supra note 49.

²⁷³ This was pointed out by the ICJ in the earlier South West Africa cases. In those cases, however, the Court declined to accept this theory. South West Africa (Ethiopia v. S. Afr.; Liberia v. S. Afr.), Second Phase, 1966 ICJ Rep. 6, 47 (Judgment of July 18). For a useful discussion of the origins of the doctrine, see T. Meron, supra note 251, at 188–93.

²⁷⁴ For an informative and creative discussion of this doctrine, see Nanda & Ris, supra note 249. See also Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970).

²⁷⁵ See Sax, Liberating the Public Trust Doctrine from Its Historical Shackles, in The Public Trust Doctrine in Natural Resources Law and Management: Conference Proceedings 6 (H. Dunning ed. 1981).

²⁷⁶ Sandars, T., The Institutes of Justinian 159 (1865)Google Scholar.

²⁷⁷ Sax, supra note 275, at 7.

²⁷⁸ See Nanda & Ris, supra note 249.

²⁷⁹ Geer v. Connecticut, 161 U.S. 519, 522–23 (1896) (upholding Connecticut’s statutory prohibition against taking certain wildlife on the theory that wild animals have been seen as common property since Roman times).

²⁸⁰ Lacoste v. Department of Conservation, 263 U.S. 545, 549 (1924).

²⁸¹ See Nanda & Ris, supra note 249, at 303 (discussing cases).

²⁸² Id.

²⁸³ For a discussion of use of the doctrine by California courts with respect to water rights, see Dunning, Instream Flows and the Public Trust, in Instream Flow Protection in the West (MacDonnell, Rice & Shupe eds. 1989).

²⁸⁴ See Sax, supra note 275, at 6. See also Tribe, Ways Not to Think About Plastic Trees: New Foundations for Environmental Law, 83 Yale L.J. 1315(1974); Reich, The New Property, 73 Yale L.J. 733(1964).

²⁸⁵ See R. Nash, The Rights of Nature (1989).

²⁸⁶ Stone, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450(1972).

²⁸⁷ 405 U.S. 727, 741–60 (1972) (Douglas, Blackmun and Brennan, JJ., dissenting).

²⁸⁸ Reuters (Aug. 16, 1989).

²⁸⁹ See supra text at notes 240–80.

²⁹⁰ Reuters (July 3, 1989).

²⁹¹ Economist, supra note 23, at 17.

²⁹² See generally Robinson, Introduction: Emerging International Environmental Law, 17 Stan. J. Int’l L. 229, 249–58 (1981).

An African Elephant Coordinating Group has been established, consisting of major nongovernmental donor organizations and the United States and EEC, to develop a coordinated funding program aimed at assisting protection and management of 42 key elephant populations. France, in the name of the EEC, has called for a donor conference in Paris in March 1990 to further coordinate assistance activities and implement the African Elephant Action Plan developed by the Coordinating Group.

²⁹³ See Spitler, Exchanging Debt for Conservation, 37 Bioscience 781 (1987).

²⁹⁴ What Can Americans Do?, Time, Sept. 18, 1989, at 85; Arias Sánchez, For the Globe’s Sake, Debt Relief, N.Y. Times, July 14, 1989, at A13.

²⁹⁵ Reuters (Aug. 30, 1989).

²⁹⁶ Id.

²⁹⁷ A Debt to Nature, Economist, Aug. 19, 1989, at 31.

²⁹⁸ Reuters Library Report (Aug. 15, 1989).

²⁹⁹ “If the rain forest standing really has a greater value than the rain forest destroyed,” The Economist said, “the world’s consumers have the money to prove it.” The Month Amazonia Burns, Economist, Sept. 9, 1989, at 16.

³⁰⁰ S. 1160, 101st Cong., 1st Sess. §§601–661 (1989); S. Rep. No. 46, 101st Cong., 1st Sess. 12(1989).

³⁰¹ Economist, supra note 23, at 15.

³⁰² In recommending against movement of the elephant to Appendix I, the CITES Secretary-General warned: “Denied the opportunity to sell ivory through natural mortality, control operations and confiscation, producer states would lose significant revenues which could otherwise be used to finance anti-poaching and enforcement operations.” Letter from Eugene Lapointe, Secretary-General, CITES, to all CITES Management Authorities (June 8, 1989) (on file with author).

It has been reported that from 1985 to 1989, the CITES Secretariat has received $200,000 from ivory traders, including at least one alleged poacher. Thornton, supra note 157, at 8.

³⁰³ Reuters (June 19, 1989). This figure includes the cost of buying off ivory traders, paying game park wardens more so they do not poach, buying and maintaining vehicles for patrols, and equipping personnel properly. Pearce, Britain’s leading environmental economist, argues that we should value not only assets that are generally recognized as such—property, machinery, roads, housing—but also environmental assets such as clean water, clean air, forests, wetlands, wildlife, the ozone layer, even natural beauty. We may not pay for these assets, but the cost of replacing them is so high that it is vital to value them correctly. See Daily Telegraph (London), Aug. 16, 1989, at 13. Pearce’s approach is set out in Pearce, Optimal Prices for Sustainable Development, in Economics, Growth, and Sustainable Environments 57 (Collard, Pearce & Ulph eds. 1988); The Valuation of Social Cost, supra note 49; D. Pearce, Environmental Economics (1976).

³⁰⁴ D. Favre, supra note 154, at 122.

³⁰⁵ N.Y. Times, July 19, 1989, at A4.

³⁰⁶ His excellency the ivory smuggler, New African, April 1989, at 13. In Kenya, the wildlife department fired or transferred 40 of its own officials suspected of participating in poaching. L.A. Times, May 8, 1989, at 6.

³⁰⁷ 1988 House Hearings, supra note 114, at 21 (testimony of William K. Reilly, President, World Wildlife Fund).

³⁰⁸ See UN Charter Art. 43(1).

³⁰⁹ 1988 House Hearings, supra note 114, at 145 (testimony of Iain Douglas-Hamilton).

³¹⁰ See supra notes 159–60 and 179–80 and accompanying text.

³¹¹ See generally A. Gupta, Ecology and Development in the Third World (1988); MacKellar & Vining, Natural Resource Scarcity: A Global Survey, in Population Growth and Economic Development: Issues and Evidence (D. Johnson & R. Lee eds. 1987); O. Schachter, supra note 236. For a discussion of the problem of reconciling development with wildlife conservation, see Note, Wildlife in the Third World: Current Efforts to Integrate Conservation with Development, 5 B.C. Third World L.J. 83 (1984). The clash between development and environmental preservation often arises in industrialized countries as well. See, e.g., J. McPhee, Encounters with the Archdruid (1971), for a readable and provocative presentation of arguments for and against mining in wilderness areas in the United States.

³¹² Zimbabwe officials called the drive for a ban on ivory trade “cultural imperialism” by outsiders. Chicago Trib., July 9, 1989, at 21. One Zambian wildlife manager, referring to Western conservationists, said: “The dimension they forget is that of people.” Reuters (July 9, 1989).

³¹² In one of the more innovative programs aimed at generating local support for conservation, the Government of Kenya charged a “bed fee” for each bed used by a tourist in Amboseli lodges. The fee was passed on to the Masai, who in return agreed to move out of the elephant’s watering areas. May, Preservation for Profit, N.Y. Times, Sept. 12, 1987, §6 (Magazine), at 146. Kenya’s new conservation minister, Richard E. Leakey, said: “Tourism and the diversification of tourism are fundamental. I cannot let you think that I would see wildlife as anything but an integral part of development.” N.Y. Times, May 23, 1989, at A1. “We should be using elephants and wildebeest, in terms of the money they generate, to build good schools, to put in cattle dips and clinics, to buy books,” he said. Id. Kenya plans to use money generated by the parks for schools, health clinics and water systems. Allman, supra note 32, at 58.

³¹⁴ See supra note 180.

³¹⁵ Wiehl, New Forensics Lab Joins War on Wildlife Crime, N.Y. Times, Aug. 11, 1989, at A5.

³¹⁶ This is useful because, as the price of ivory has soared, other ivory-producing species such as the walrus have also faced increased pressure from poachers; enforcement efforts are aided if the source of the ivory can be identified.

³¹⁷ Telephone interview, official of United States Fish and Wildlife Service, Department of the Interior (Sept. 14, 1989) (name withheld at official’s request).

³¹⁸ Efforts to tag ivory and other specimens with permits, certificates or other paper work have proven notoriously unsuccessful. When a wildlife smuggler was arrested in 1975, a search of his files revealed “a dazzling array of documents from all over the world—Africa, Asia, Australia—which hinted at extensive smuggling, double-invoicing, and other false documentation.” P. & A. Ehrlich, supra note 61, at 195. “Getting the paperwork is easy,” another observer noted. “CITES permits for ivory are sold and traded by smugglers.” Thornton, supra note 157, at 8.

³¹⁹ Richard Leakey has estimated that this could take 5–10 years. UPI (Sept. 22, 1989).

³²⁰ It is possible to determine the date on which an individual elephant was killed within a period of plus-or-minus 2 years. This means that only a 4-year age window can be ascertained with respect to any unmarked tusk. Consequently, under current technology, a marking system that is initiated in, say, 1992 would not provide effective enforcement possibilities until 1996, since unmarked ivory taken before 1992 could not be said with certainty to have been poached.

³²¹ 1988 House Hearings, supra note 114, at 166 (testimony of William K. Reilly, President, World Wildlife Fund). The entire ivory trade nets African countries only $35 million per year. N.Y. Times, June 2, 1989, at A9. Total exports of ivory represent only 0.2% of Africa’s merchandise exports (excluding South Africa and the Mediterranean states). Economist, supra note 23, at 16.

³²² See supra text at notes 91 and 190–93.

³²³ Special Working Session of the Conference of the Parties, Conf. Doc. 2.18, in Proceedings of the First Meeting of the Conference of the Parties 23–24 (1976).

³²⁴ See D. Favre, supra note 154, at 18; Favre, Tension Points within the Language of the CITES Treaty, 5 B.U. J. Int’l L. 247, 259 (1987); S. Lyster, supra note 78, at 242.

³²⁵ 1988 House Hearings, supra note 114, at 163 (testimony of William K. Reilly, President, World Wildlife Fund). Reportedly, one infamous poacher has held talks in the Congo, Zaire and the Central African Republic to move equipment and Chinese carvers from Hong Kong to Africa. Id.

³²⁶ CITES, supra note 41, Art. 11(1). See supra note 95 and accompanying text.

³²⁷ See supra text at note 135.

³²⁸ CITES is “paid by the ivory trade,” Iain Douglas-Hamilton said. “The result is, in the last five years there has been a complete decline of the elephant.” Boston Globe, May 30, 1989, at 2. As noted above, the CITES Secretary-General urged parties not to move the elephant to Appendix I. See supra note 302.

³²⁹ At first blush, this appears to be the quintessential situation, discussed by Professor Richard Bilder, in which unilateral state action, because of its promptness, was effectively brought to bear against conduct threatening environmental injury. See Bilder, Unilateral State Action, 14 Vand. J. Transnat’l L. 51, 79 (1981). As Bilder warned, however, “[p]rohibiting importation of endangered species or their products in one nation will not protect such species if other states increase their imports of such products by an equivalent amount.” Id. at 85. We do not yet possess adequate data to assess the impact of the unilateral state bans of June 1989 on ivory imports. We do know that the bans were not universally adopted, and that some major consumer states such as Japan did not join in the bans; but we do not know whether ivory normally imported by banning states such as the United States, Britain and France was merely diverted to Japan. “[S]ome environmental problems,” Bilder concludes, “may be incapable of solution if each nation acts alone ….” Id. at 80.

³³⁰ See generally J. Nichol, The Animal Smugglers (1987). Species include the giant panda; their skins have been sold for $4,000. Only about a thousand remain in the wild. Branson, Poaching the Pandas, World Press Rev., March 1989, at 53.

³³¹ For an excellent overview of this problem in East Africa, see R. Yeager & N. Miller, supra note 30.

³³² Costa Rican President Arias Sanchez has written: “Efforts to negotiate as common resources our shared elements—such as atmosphere, the oceans and biodiversity—should be encouraged and expedited.” Arias Sanchez, supra note 294, at A13.

³³³ Nozick, supra note 60, at 1.

³³⁴ S. Rep. No. 46, supra note 300, at 12. The committee reported legislation authorizing $1,511,000 to meet U.S. obligations for dues and arrearages. S. 1160, supra note 300.

³³⁵ See S. 1160, supra note 300, §641.

³³⁶ The provision would have restricted ivory imports into the United States to those from countries that enforce the existing ban on the illegal hunting of elephants or on the illegal trade in ivory. S. Rep. No. 46, supra note 300, at 39. The bill was filed on June 8, three days after President Bush announced the U.S. ban. See supra note 137. The floor manager (and author of the provision), Sen. Claiborne Pell, thus announced in presenting the bill to the Senate that “the President has preempted my provision by banning the importation of ivory.” 135 Cong. Rec. S7963 (daily ed. July 14, 1989).

³³⁷ Dewar, State Dept. Spending Bill is Cornucopia of Pet Projects; Elephants, Ben Franklin’s House Embraced, Wash. Post, May 31, 1989, at A1. By including provisions such as that relating to the elephant, the committee basically “dabbled and tinkered, with members pursuing their own agendas, often in small or symbolic ways.” Id. at A5.

³³⁸ R. Gary, supra note 58, at 60.

³³⁹ Id.

³⁴⁰ Id. at 149.

³⁴¹ Id. at 142.

³⁴² See Weiss, supra note 49, at 499; see also Agora: What Obligation Does Our Generation Owe to the Next? An Approach to Global Environmental Responsibility, infra at p. 190.