South-Africa and the Future of (Il)legal Trade in Rhino Horn

South-Africa has been faced with the issue of illegal trade in rhino horn for a while now - as it is home to the largest population of rhinos worldwide, and has been confronted with a sudden increase in poaching since 2008. This post will look at the international regime on the trade in endangered species, provided by the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES), and how the judgment fits within this regime.

The International Regime of CITES

In 1963 the members of the International Union for Conservation of Nature (IUCN) adopted a resolution to draft a treaty on the international trade in endangered species. It was only ten years later that the representatives of 80 states were able to agree on the text of this treaty. On the 1st of July 1975, the Convention on the International Trade in Endangered Species of Wild Fauna and Flora entered into force. The aim of the treaty is to regulate the international trade in animal and plant species – and any readily recognizable part or derivative thereof – in order to protect the flora and fauna of the world against extinction and to ensure their survival. As such, the regime of CITES covers more than 35.000 animal and plant species. It is important to note that CITES does not prohibit international trade in endangered animal and plant species as such. However, both the export and import of these species require the prior grant and presentation of a special permit, which is subject to several conditions depending on the type of species.

While the Convention itself provides the rules and regulations regarding the international trade, the three appendixes list all the different species which are protected by the treaty. Appendix I concerns those plant and animal species threatened with extinction, while Appendix II concerns species which are not currently threatened with extinction but which may become so in the future unless their trade is strictly regulated, and Appendix III concerns species the trade in which has been regulated by some of the State Parties in order to prevent or restrict exploitation – and which need the co-operation of other States Parties to effectively control such trade. Rhinoceroses in general and its subspecies are included in the Appendixes of the Convention.

There are five species of rhinoceroses worldwide, with three species native to Southern Asia and two species originating in Africa: the Sumatran rhino, the Javan rhino, the Indian rhino, the black rhino and the white rhino. Some of these species, like the Sumatran and Javan rhinos, are on the verge of extinction, while the survival of the other species is severely threatened. Therefore, the general group of Rhinoceroses and its subspecies are included in Appendix I – except for the southern white rhino (the Ceratotherium simum simum), which was close to extinction in the 19th century but revived by conservationists, and which is thus included in Appendix II. With regard to rhino horn, the States Parties have adopted several resolutions to protect the species against decline – even urging States Parties to adopt legislation to prohibit both national and international trade in rhinoceros parts.

The National Regime of South-Africa

South-Africa is home to several subspecies of the black rhino, and houses about 80% of the global rhino population – which amounts to about 20,000 rhinos. Rhino poaching has skyrocketed since 2007, with 1.215 rhinos killed in 2014 alone, compared to 13 in 2007, 83 in 2008, 122 in 2009 and 333 in 2010. South-Africa is State Party to CITES since 1975 and member to the IUCN. Up until 2009, South Africans were allowed under national law to buy, sell or donate horn from their legally owned rhinos within South-Africa. In February 2009, the government implemented a moratorium on the trade in rhino horn, which made any such trade illegal under national law.

Although some have pointed to the moratorium as causing the surge in rhino poaching, the exact reasons for this increase are multifold, ranging from an increase in demand for rhino horn in Asia, the high price of rhino horn, the growth of Asian economies and the accompanying increase of disposable incomes, an increase of organized crime groups and the psychological effects of tighter legislation on the demand for rhino horn.

The case that was decided last Thursday was presented to the Pretoria High Court by two private rhino breeders. Both farmers argued that the costs of protecting and safeguarding their rhino herds exceeded any other costs and that they could no longer afford to maintain their herds because of the 2009 ban. They additionally stated that the 2009 ban was a direct cause of the dramatic increase of rhino poaching. The Court, in turn, stated that the 2009 ban did not comply with the consultative and participatory process as required by national legislation – as a notice of the proposed ban was never published in any national newspaper. Furthermore, the Court argued that the 2009 ban clearly played a role in the increase of poaching and that no disastrous implications could be expected from an immediate lifting of the 2009 ban.

According to Article 14 of CITES, State Parties maintain the right to prohibit the trade, taking, possession or transport of those species included in the Appendixes. The 2009 ban is an example of such stricter domestic measures. Nevertheless, just as the implementation of the 2009 ban did not violate the provisions of CITES, neither does lifting the ban. Indeed, CITES is a convention concerned with international trade, as it defines “trade” as export, re-export, import and introduction from the sea.

The 17th Conference of States Parties

Even though legalized national trade in rhino horn is not prohibited under international law, the judgment must be considered a step backwards. While rhino farmers have argued that such legalized trade would eventually stifle illegal trade of rhino horn, it must be questioned whether the answer to this problem lies with the supply side – instead of the demand side. An important role could be played in this regard by education and increased public awareness. The responsibility for such a change in demand lies with the importing states, some of which have undertaken actions in this regard – and have been successful in decreasing demand.

The South-African government has stated that it will appeal the decision, so it will remain interesting to see how this case will play out – especially considering that next year the 17th Conference of the CITES States Parties will take place in Johannesburg, South-Africa. The question concerning the legality of rhino horn trade and its beneficial effect on poaching and illegal trade will be one of the central issues of the Conference.