How the Elephant Lost His Tusks
Heimert, Andrew J., The Yale Law Journal
"`When we are hungry, elephants are food. When we are full, elephants are beautiful.'"(1)
The elephant is surely one of the most widely liked animals. Despite this general popularity, the number of African elephants has declined significantly in recent years. This Note explores two alternative strategies that African nations have employed in their attempts to halt the decline of elephant populations. Each strategy is an effort to restrict access to the proverbial "commons." One method, used in Kenya, attempts to maintain elephant populations by ensuring absolute protection from poachers and by banning all trade in elephants. The other approach, used primarily in southern Africa - including Zimbabwe and South Africa - actively manages elephant populations, culling some animals in order to provide sufficient habitat and protection for the remaining ones. The southern African countries share proceeds earned from wildlife with local people, in effect creating a form of property rights in elephants. This Note argues that the current international ban on ivory trade harms the latter kind of program, which has been more effective at protecting elephants.
Poaching and habitat destruction as a result of human encroachment are the two primary threats to the elephant.(2) These twin forces have reduced African elephant(3) populations from an estimated 1,300,000 in 1979 to 609,000 in 1989.(4) This Note assumes that there is, and will continue to be, an economic value for elephants, both from tourism as well as from tusks, hides, and meat. A demand for elephant products creates an economic value for those products,(5) which in turn leads to trade in those products. A substantial amount of illegal animal trade currently exists(6) and is unlikely to dissipate. Therefore, it is unlikely that an international trade ban, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),(7) will stem the flow of such products to parts of the world where demand still exists.(8) The removal of hide and tusks necessitates killing the elephant,(9) but elephants would be killed even without the demand for elephant products. Because elephants are a danger and a nuisance to fan-farmers and families, they are often viewed as pests to be exterminated. These sentiments clearly conflict with the desire for live elephants for tourism, other utilitarian goals, or moral reasons.(10)
In recent years, much of the debate over the elephant has focused on the level of protection international law will extend to the species. The development of international law to protect the elephant, and the structure of CITES in particular, is examined in Part I of this Note. Part II describes the method that Zimbabwe and South Africa have used in attempts to preserve their elephant stocks and contrasts those schemes with the method used in Kenya. The Note then examines the results each country has achieved in recent years and suggests that the southern African active management programs have been more effective.
Numerous scholars have described multitudinous variations on commons problems. Part III applies the theoretical "commons" model to the elephant. This Part analogizes the elephant to marine and other natural resources and uses solutions to standard commons problems to explain the relative efficacy of Zimbabwe's active management policy for elephants. Part IV illustrates that a democratic government better fosters preservation of elephants through electoral incentives than does an undemocratic government. A democratic government is less likely to be corrupt than an undemocratic government, and so is less likely to allow poaching to continue. Despite similarities between South Africa's and Kenya's management programs, because South Africa's government has faced more electoral competition than Kenya's government, South Africa has avoided the adverse effects that corruption has had on Kenya's elephant population. …