International Law of Sharks : Obstacles, Options and Opportunities [1 ed.] 9789004345515, 9789004345508

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International Law of Sharks

Legal Aspects of Sustainable Development Series Editor David Freestone This series publishes work on all aspects of the international legal dimensions of the concept of sustainable development. Its aim is to publish important works of scholarship on a range of relevant issues including conservation of natural resources, climate change, biodiversity loss and the role of international agreements, international organizations and state practice.

VOLUME 24

The titles published in this series are listed at brill.com/lasd

International Law of Sharks Obstacles, Options and Opportunities By

Erika J. Techera Natalie Klein

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Techera, Erika J., author. | Klein, Natalie (Natalie S.), author. Title: International law of sharks : obstacles, options and opportunities / By Erika J. Techera, Natalie Klein. Description: Leiden : Brill Nijhoff, 2017. | Series: Legal aspects of sustainable development ; V 24 | Includes bibliographical references and index. Identifiers: lccn 2017007102 (print) | lccn 2017008643 (ebook) | isbn 9789004345508 (hardback : alk. paper) | isbn 9789004345515 (E-book) Subjects: lcsh: Shark fisheries--Law and legislation. | Sharks--Law and legislation. | International law. | Sharks--Conservation. | Sharks--Conservation--Government policy. Classification: lcc K3900.S5 .T43 2017 (print) | lcc K3900.S5 (ebook) | DDC 343.07/69273--dc23 LC record available at https://lccn.loc.gov/2017007102

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1875-0923 isbn 978-90-04-34550-8 (hardback) isbn 978-90-04-34551-5 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Series Editor’s Preface ix Acknowledgements x List of Figures xi List of Abbreviations xii List of Treaties xiv List of Foreign Legislation xvi List of Cases xvii 1 The Case for Sharks 1 1 Why Sharks 2 1.1 Scientific Knowledge 2 1.2 Societal Attitudes and Approaches 4 1.3 Values 8 2 Legal Dimensions 12 2.1 Legal Responses 12 2.2 Legal Challenges 16 3 Global Influences 18 3.1 Holistic Approaches 18 3.2 Ecosystem-based Management 20 3.3 Inter-Disciplinarity 20 4 Moving Forward 23 4.1 Underpinning Principles, Concepts and Approaches 23 4.2 Fragmented Governance 25 4.3 Implementation 25 5 Conclusion 26 2 International Law Framework 27 1  u n Convention on the Law of the Sea (unclos) and the 1995 Fish Stocks Agreement 28 2 International Plan of Action for Sharks 32 3 Convention on the International Trade in Endangered Species 35 4 Convention on Migratory Species and the Sharks Memorandum of Understanding 43 5 Key Environmental Principles 48 5.1 Sustainable Development and Sustainable Management 48 5.2 Precautionary Approach 49 5.3 Environmental Impact Assessments 51

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5.4 Ecosystem-based Approach 51 5.5 Biodiversity Protection 53 6 Conclusion 53 3 Governance and Regulation 55 1 Linking Governance and Sustainability 56 1.1 Defining Sustainability 57 1.2 What is Good Governance 61 2 Environmental Governance Theories 67 2.1 Hierarchical Theories 68 2.2 Multi-layered Approaches 70 2.3 A Return to Principles 73 3 Regulation 77 3.1 Regulatory Theory 78 3.2 Environmental Regulation 83 3.3 Regulatory Pluralism 83 4 Governance, Regulation and Sharks 85 4.1 Foundations 85 4.2 Achieving Goals 85 5 Conclusion 86 4 Species-based Measures 88 1 Species-based Approaches 88 1.1 Background 89 1.2 The Emergence of Law and Policy 90 1.3 Defining Species-based Approaches 92 1.4 Substance of Species-based Approaches 93 1.5 Inter-disciplinarity 95 2 Legal Frameworks for Protection of Species 97 2.1 Historical Developments 97 2.2 International Environmental Laws 98 2.3 Fisheries Regulation 100 2.4 Other Activities Impacting Species: Marine Eco-tourism 103 3 Shark Specific Measures 105 3.1 Fishing and Finning Bans 105 3.2 Gear and Equipment 106 3.3 Supply Chain 107 4 Gaps and Challenges 108 5 Conclusion 112

Contents

5 Spatial and Area Measures 114 1 Exploring Area-based Measures 115 1.1 Background 115 1.2 The Value of Spatial Measures 117 1.3 Defining Protected Ocean Areas 118 1.4 The Substance of Protected Areas 121 2 Spatial Measures in International Law 123 2.1 International Treaties 123 2.2 Regional Agreements 131 3 Implementation of Spatial Measures 134 3.1 Shark-focused mpas 135 3.2 Sanctuaries 136 4 Challenges and Opportunities 137 4.1 Gaps and Challenges 137 4.2 Synergies and Solutions 140 5 Conclusion 141 6 Institutions: Key Roles and Structural Issues 143 1 Background to the Law of International Organisations 145 2 Key Roles for International Environmental Institutions 150 2.1 Law-making and Standard Setting 151 2.2 Stakeholder Participation 153 2.3 Collection of Information 154 2.4 Monitoring, Compliance and Dispute Settlement 155 3 unep, fao and Treaty Organisations 156 3.1 unep 156 3.2 fao 158 3.3 cites 160 3.4 cms and the Sharks MoU 163 4 Responses within rfmos 165 5 A Shark Commission? Lessons from Whales 169 6 Interaction between International Institutions 176 7 Conclusion 179 7 Enforcement and Compliance 181 1 Legal Framework for Enforcement under unclos and the 1995 Fish Stocks Agreement 184 1.1 In the eez 185 1.2 On the High Seas 187

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1.2.1 Exclusive Flag State Jurisdiction 187 1.2.2  Boarding and Inspecting Vessels Flagged to Another State 188 2 Port State Measures 190 3 Inspections, Monitoring and Other Enforcement Processes: Lessons from rfmos 193 4 Compliance with Treaty Obligations: cites, cms and cbd 200 4.1 cites 201 4.2 cms 203 4.3 cbd 205 5 Dispute Settlement Options 206 6 Sanctions and Trade Restrictions 211 7 Conclusion 213 8 Broader Lessons Learned: A Principled Approach 215 1 Lessons Learned for Sharks 216 1.1 International Legal Regime 216 1.2 Spatial and Species Measures 222 1.3 Structural Issues 224 1.4 Compliance and Enforcement 227 2 Lessons Learned for Other Marine Species 232 2.1 Commonalities between Sharks and Other Marine Species 233 2.2 Lessons from Other Marine Species 234 3 Lessons for Governance and Sustainability 236 4 Virtual Treaty Regime 239 5 Conclusion 243 Bibliography 245 Index 274

Series Editor’s Preface This work by Professors Erika Techera and Natalie Klein is the twenty-fourth volume in the Brill Nijhoff series on Legal Aspects of Sustainable Development published under my General Editorship. The aim of this series is to publish works at the cutting edge of legal scholarship that address both the practical and the theoretical aspects of this important concept. Sharks are among the oldest of all fish species and, Techera and Klein tell us, also the most misunderstood of marine species. Far from being restricted to the apex predators of popular legend, there may be as many as 1000 species, including of course filter feeders like the basking shark and the whale shark. What most shark species share however is a precipitous decline in numbers. Slow reproduction rates, overfishing through both targeted catch as well as ­by-catch, exacerbated by the high value of their fins, are now bringing some species to the brink of extinction. This volume is a detailed and erudite study of the way in which the conservation of shark species is currently addressed by law and policy, but it has wider significance as a fascinating case study of the operation, and essential limitations, of our existing system of global environmental governance. In a very wide ranging analysis it considers the general international law framework within which shark conservation is set, including relevant principles developed by treaty and custom; it looks generally at the range of applicable ­species-based measures; it considers relevant spatial and area measures as well as assessing critically the role of key institutions and issues of enforcement and compliance. The authors conclude with a number of interesting and challenging proposals including discussion of an innovative ‘virtual treaty’ regime, ­under which the global governance of sharks could be ‘reimagined as a molecular structure; organic, living and evolving, just as sharks have done for millennia’. I am delighted to include this volume in the series. It is based on excellent research and scholarship; it addresses a specific and highly topical aspect of our global effort to achieve sustainable development. The spotlight of the work is on sharks but there are important lessons here for the management of other marine species and resources. David Freestone Washington dc

Acknowledgements This book is drawn from a project funded by an Australian Research Council Discovery Grant. Erika would like to thank the University of Western Australia, and in particular Professor Dawn Freshwater, for the encouragement to continue researching during her deanship. In particular she is grateful to her friend and Deputy Dean, Dr Brenda McGivern, who has provided support in myriad ways that helped her finish this book. Erika owes particular thanks to Professors Jessica Meeuwig and Shaun Collin of the University of Western Australia Oceans Institute for the interest they have shown in this work and much needed inter-disciplinary information and guidance. Thanks also go to Liam Elphick who has been a research assistant throughout, and contributed significantly to the analysis on environmental governance theories. Finally, and perhaps most importantly, Erika is grateful for the constant intellectual stimulation provided by her gifted co-author and the chance to collaborate with her on a wonderful piece of research. Natalie would like to acknowledge the supportive research environment provided through Macquarie Law School’s Centre for Environmental Law and the Macquarie University Marine Research Centre. She is extremely grateful for the excellent research and editorial assistance provided by Laura Muir for this book, and also thanks Danielle Kroon for her excellent research assistance during an earlier stage of the project. Natalie also acknowledges with appreciation her amazing co-author, whose inspiration and drive made this project possible – who knew that a debate on sharks versus whales so many years ago would lead us to this point. Special thanks to our families for their support and forbearance throughout the project. Many thanks to Luis Techera who has a healthy respect for sharks and continues to suffer (largely in silence) through long periods of research and writing – the day will soon come when we can write together on what we really think about the environment and human populations. And thanks to Matthew Kelly, who loves the sharks in his own way, as well as Josh, Tessa and Dulcie who might think one day that this book is almost as good as having a mum working as a part-time waitress down Clovelly Rd. Ultimately, though, this book is for the sharks.

List of Figures 1 A solutions strategy 18 2 Types of disciplinarities 22 3 Governance and sustainable development principles mapped 66 4 An alignment of good environmental governance principles with environmental governance theories and approaches 75 5 Principles of governance, sustainable development and regulation 79 6 Regulatory approaches mapped to principles 81

List of Abbreviations abnj ais cbd ccamlr ccsbt cites cmms cms cofi cop (cops) cti ebm eez eia eu fao figis firms ga (or unga) gatt gfcm iattc iccat icj icrw imo iotc ipoa Sharks itlos iucn iuu fishing

Area Beyond National Jurisdiction Automatic Identification Systems Convention on Biological Diversity Convention for the Conservation of Antarctic Marine Living Resources Convention for the Conservation of Southern Bluefin Tuna Convention on International Trade in Endangered Species of Wild Fauna and Flora Conservation Management Measures Convention on the Conservation of Migratory Species of Wild Animals fao Fisheries and Aquaculture Committee on Fisheries Conference(s) of the Parties Coral Triangle Initiative Ecosystem-based Management Exclusive Economic Zone Environmental Impact Assessment European Union Food and Agriculture Organisation of the United Nations Fisheries Global Information System Fisheries and Resources Monitoring System United Nations General Assembly General Agreement on Tariffs and Trade General Fisheries Commission for the Mediterranean Inter-American Tropical Tuna Commission International Commission for the Conservation of Atlantic Tunas International Court of Justice International Convention for the Regulation of Whaling International Maritime Organisation Indian Ocean Tuna Commission International Plan of Action for Conservation and Management of Sharks International Tribunal for the Law of the Sea International Union for Conservation of Nature and Natural Resources Illegal, Unreported and Unregulated fishing

List Of Abbreviations iwc jpoi

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International Whaling Commission The Johannesburg Plan of Implementation of the World Summit on Sustainable Development mpa Marine Protected Area msy Maximum Sustainable Yield nafo Northwest Atlantic Fisheries Organization neafc North East Atlantic Fisheries Commission ngos Non-Governmental Organizations npoa National Plan of Action ospar Oslo/Paris Commission for the Protection of the Marine Environment of the Northeast Atlantic osy Optimum Sustainable Yield pssa Particularly Sensitive Sea Area rfmo Regional Fisheries Management Organization sar Synthetic Aperture Radar sbt Commission Southern Bluefin Tuna Commission Sharks MoU Memorandum of Understanding on the Conservation of Migratory Sharks srfc Sub-Regional Fisheries Commission ssg Shark Specialist Group of the iucn tac Total Allowable Catch tpp Trans Pacific Partnership traffic Trade Records Analysis of Flora and Fauna in Commerce un United Nations unclos United Nations Convention on the Law of the Sea unep United Nations Environment Programme us United States vms Vessel Monitoring System wcpfc Western and Central Pacific Fisheries Commission wwf World Wildife Fund for Nature

List of Treaties Agreed Measures for the Conservation of Antarctic Fauna and Flora, 13 June 1964, 17 ust 992, entered into force 1 November 1982 Agreement on the Conservation of Polar Bears (Oslo, 15 November 1973), 13 ilm 13 (1974), entered into force 26 May 1976 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 24 Nov. 1993, 2221 unts 91, entered into force 24 Nov. 2003 Charter of the United Nations, 26 June 1945, 1 unts xvi, entered into force 24 October 1945 Constitution of the United Nations Food and Agriculture Organization, 16 October 1945, cts 1945/32, 40 ajil Supp. 76, entered into force 16 October 1945 Convention for the Conservation of Antarctic Marine Living Resources, 1 August 1980, 1329 unts 48, entered into force 7 April 1982 Convention for the Conservation of Southern Blue Fin Tuna, 10 May 1993, 1819 unts 360, entered into force 20 May 1994 Convention for the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 unts 151, entered into force 17 December 1975 Convention on Biological Diversity, 5 June 1992, 1760 unts 79, entered into force 29 ­December 1993 Convention on Future Multilateral Cooperation in the North West Atlantic Fisheries, 24 October 1978, 1135 unts 369, 34 ilm 1452 (1955), entered into force 1 January 1979 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 unts 243 (1973), entered into force 1 July 1975 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, 5 September 2000, 40 ilm 278, entered into force 19 June 2004 Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, 1651 unts 333, 19 ilm 15 (1980), entered into force 1 November 1983 Convention on the Protection of the Underwater Cultural Heritage, 11 February 2001, 51 ilm 40, entered into force 2 January 2009 Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971, 996 unts 245, entered into force 21 December 1975. General Agreement on Tariffs and Trade, October 30 1947, 61 Stat. A-11, 55 unts 194 International Convention for the Conservation of Atlantic Tunas, 14 May 1966, 673 unts 63, entered into force 21 March 1969 International Convention for the Establishment of an Inter-American Tropical Tuna Commission, 31 May 1949, 80 unts 3, entered into force 3 March 1950

List Of Treaties

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International Convention for the Regulation of Whaling, (Washington, 2 December 1946), 161 unts 72, entered into force 10 November 1948 International Convention for the Prevention of Pollution from Ships, 2 November 1973, 12 ilm 1319, as modified by the Protocol of 1978 to the 1973 Convention, 1341 unts 3, 17 ilm 546, entered into force 2 October 1983 (marpol 73/78) International Convention for the Protection of Birds (Paris, 18 October 1950), 638 unts 185, entered into force 17 January 1963 Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region, 9 July 1992, 32 ilm 1238 (1993), entered into force 20 May 1993 Protocol Concerning Specially Protected Areas and Biological Diversity in the ­Mediterranean, 10 June 1995, un Doc unep (oca) med IG6/7, entered into force 12 December 1999. Protocol on Environmental Protection in the Antarctic Treaty, 4 October 1991, 30 ilm 1455 (1991), entered into force 14 January 1998 Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 26 ilm 154, entered into force 1 January 1989 (Madrid Protocol) The Antarctic Treaty, 1 December 1959, 402 unts 71, entered into force 23 June 1961 The United Nations Agreement for the Implementation of the Provisions of the ­United Nations Convention on the Law of the Sea of 10 December 1982 relating to the ­Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 unts 88, 34 ilm 1542 (1995), entered into force 11 ­December 2001 unece Convention on Environmental Impact Assessment in a Transboundary Context, 26 February 1991, 1989 unts 309, entered into force 10 September 1997 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 unts 3, 21 ilm 1261 (1982), entered into force 16 November 1994 United Nations Framework Convention on Climate Change, 9 May 1992, 31 ilm 849, entered into force 21 March 1994 United Nations Statute of the International Court of Justice, 26 June 1946, 33 unts 993, entered into force 24 October 1945

List of Foreign Legislation Basic Act on Biodiversity Act No. 58 of 2008 (Japan) Biological Diversity Act, 2002 (India) Endangered Species Act of 1973, 16 usc §§ 1531–1544 (United States) Environment Protection and Biodiversity Conservation Act 1999 (Cth) (Australia) Fish and Wildlife Act 1980, snb 1980 (Canada) Fisheries Act 1985 (Act 317) (Malaysia) Fisheries Law (22/2013 of 1 November) (Mozambique). Fisheries Law of the People’s Republic of China, (1986), Zhonghua Renmin Gongheguo Falu Huibian (China) Fisheries Resources (Jurisdiction and Conservation) Amendment Regulations 2011 (Bahamas) Magnuson-Stevens Fishery Conservation and Management Act of 1976, 16 usc §§ 1801–1891(d) (2007) (United States) Marine Resources Act 2005 (Cook Islands) Sea Fisheries Decree No. 71 of 1992 (Nigeria) Shark and Fishery Conservation Act of 2010 usc §§102–103 (2010) (United States) Species at Risk Act (s.c. 2002) (Canada)

List of Cases Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), Provisional Measures, Order of 8 October 2003, itlos Reports 2003 Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South Eastern Pacific Ocean (Chile v. European Union), Order of 16 December 2009, itlos Reports 2009 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, icj Reports 1962 (July 20) Chagos Marine Protected Area Arbitration (The Republic of Mauritius v. The United Kingdom of Great Britain and Northern Island), Award, 18 March 2015 accessed 12 October 2016 Fisheries Jurisdiction (Spain v. Canada), Judgment, (1998) icj Reports 1998 (December 4). Gacikovo-Nagymaros (Hungary v Slovakia), Judgment, icj Rep. 1997 (25 September) M/V ‘saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Provisional Measures, Order of 11 March 1998, itlos Reports 1998 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, icj Reports 2010, 18 (April 20) Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, (1949) icj Reports 1949 (April 11) Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (srfc), Advisory Opinion, Order of 2 April 2015, itlos Reports 2015 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, itlos Reports 2011 Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, itlos Reports 2000 The Anglo-Norwegian Fisheries Case (United Kingdom v. Norway), Judgment, icj ­Reports 1951 (December 18) The Hoshinmaru Case ( Japan v. Russian Federation), Prompt Release, Judgment of 6 August 2007, itlos Reports 2007 The Mox Plant Case (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001, itlos Reports 2001 The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Award, 12 July 2016 accessed 12 October 2016

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List of Cases

The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Award on Jurisdiction and Admissibility, 29 October 2015 accessed 12 October 2016 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, icj Reports 2014 (March 31)

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The Case for Sharks Sharks rose from the primordial deep over 400 million years ago and have survived mass extinctions and evolutionary cycles. Yet they now face unprecedented assaults by humans. There is no question that sharks are integral to ocean health and have considerable ecological and intrinsic value, nor that proactive human responses are needed to address these threats. A growing body of scientific research indicates that sharks play a critical role in maintaining marine ecosystem health where they occur in ocean environments. Furthermore, there is sound scientific evidence showing that many shark species throughout the world are rapidly declining in numbers, with some at risk of extinction, largely due to anthropogenic activities.1 In this context, there has been clear recognition of the pressing need for improved international governance because ‘it is appropriate and necessary to attempt restoration on a global scale’.2 The research contained in this book responds directly to this need by critically analysing efforts thus far, including the adoption of focused rules and procedures as well as institutional measures. It is clear that a diverse number of actors are involved in endeavours to halt the damage to shark stocks. Their actions range from the application of regulatory measures prohibiting the most damaging behaviours to facilitative interventions aimed at encouraging more sustainable activities. This research has involved reviewing existing law for the conservation and management of sharks, identifying ways to overcome obstacles that hamper its implementation, and exploring opportunities to improve the effectiveness of existing laws and in doing so enhance the global governance of sharks. This research will contribute to the literature on good environmental governance and regulatory approaches to the sustainable utilisation of marine living resources through the lens of one case study. Sharks are an appropriate focus for this study as they include some species conserved and utilised in non-consumptive ways and others that are harvested for human ­consumption. 1 Ian C. Field and others, ‘Susceptibility of Sharks, Rays and Chimaeras to Global Extinction’ (2009) 56 Advances in Marine Biology 275. 2 Ransom A. Myers and Boris Worm, ‘Rapid worldwide depletion of predatory fish communities’ (2003) 423 Nature 280, 282; Mary Lack and Glen Sant, The Future of Sharks: A Review of Action and Inaction, (TRAFFIC International and The Pew Environment Group, 2011), accessed 27 October 2016.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004345515_002

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Sharks also raise important socio-cultural concerns as they are revered and feared in different cultural contexts. In undertaking this research, insights have been gained from efforts made to address similar challenges facing other species, in other complex contexts, such as marine mammals. This research will also add to the body of work on holistic governance methods in pluralist regulatory environments involving a range of legal mechanisms and institutions. In particular, integrated approaches to conservation and management are essential, involving collaboration amongst institutions and alignment of regulatory tools. This analysis includes examining contemporary approaches, such as marine spatial planning, which specifically focus on multiple pressures on the ocean environment. Finally, the work engages directly with the perennial problem of compliance and enforcement; analysing the problems and offering innovative options for enhanced implementation of legal frameworks for effective governance of sharks. 1

Why Sharks

1.1 Scientific Knowledge Sharks are perhaps the most misunderstood marine species. Although they are found in all of the world’s oceans, few people ever encounter them and common understanding is limited to a handful of iconic species that are unrepresentative of the diversity of sharks.3 Sharks include a range of species of fish within the group Chondrichthyes which includes others Elasmobranchs such as rays, as well as chimaera.4 Although there is some controversy about precisely how many types of sharks exist, there are at least 500 different species and possibly as many as 1,000.5 The diversity within the species is extreme 3 The great white shark is well known, for example, as are the whale shark, bull shark and reef shark. The myriad of other species are more obscure: Paolo Momigliano and Rob Harcourt, ‘Shark conservation, governance and management: the science-law disconnect’ in Erika J Techera and Natalie Klein (eds), Sharks: Conservation, Governance and Management (Routledge 2014) 89. 4 ‘Shark Biology Primer’ (Shark Savers) accessed 20 October 2016. Throughout this book sharks means all species under this classification. 5 Jeremy Kiszka and Michael Heithaus, ‘The state of knowledge on sharks for conservation and management’ in Erika J Techera and Natalie Klein (eds), Sharks: Conservation, Governance and Management (Routledge 2014) 70. See also ‘The iucn Red List of Threatened Species’ (iucn) accessed 20 October 2016 which includes 1095 chondrichthyes.

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in terms of size, geographic range, habitat, and biology. For example, some are stereotypical apex predators such as the great white shark, and others are docile filter feeders, including the basking shark. Some are ocean giants, such as the largest fish on Earth – the whale shark – and others are small animals including the lantern sharks, which are less than 25 cm in length.6 Historically, relatively little scientific attention was paid to sharks, compared to marine mammals for example. This lack of focus has resulted in a low level of baseline data that has only been addressed to any great extent in the last 10 to 20 years.7 This lack of data is a problem where ‘conservation policies and trade regulations [are] based on inaccurate and deflated data’.8 In the last decade in particular, much more scientific knowledge has been acquired including details of shark biology, behaviour, movement and species’ status. This research has revealed that many species reach sexual maturity late, are slow to reproduce and have relatively few young, limiting or slowing their ability to recover from impacts such as over-fishing. For the apex predator sharks, this occurs because they ‘are not used to mortality threats and thus do not naturally need high rates of population growth to sustain their populations’.9 Many also have large ranges, which involve movements across several jurisdictional ocean boundaries. Those with smaller ranges tend to live around reefs and coastal areas where anthropogenic effects are greatest. Many species of sharks are under threat from over-fishing as target species (for meat and fins), as non-target but commercially valuable harvest, or as bycatch (meaning they are caught incidentally during the pursuit of other fish species). This practice places extreme pressure on shark numbers, with current estimates indicating that up to 100,000,000 are killed each year for their fins and as bycatch.10 This level of harvest is not sustainable and commentators have indicated that if it continues some species may shortly become extinct.11 These effects are compounded by other environmental impacts such as habitat loss, pollution, and climate change as well as poorly governed non-consumptive exploitation through tourism. Sharks’ diminishing numbers have repercussions not only for their own survival, but also for the health of entire marine ecosystems and the 6 Kiszka and Heithaus (n 5) 69. 7 Ibid. 8 Holly Edwards, ‘When Predators become Prey: The Need for International Shark Conservation’ (2006–2007) 12 Ocean and Coastal Law Journal 305, 327. 9 Ibid 306. 10 Boris Worm and others, ‘Global catches, exploitation rates, and rebuilding options for sharks’ (2013) 40 Marine Policy 194. 11 Field et al. (n 1).

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security of human communities that depend upon them for subsistence.12 The removal of predator pressure on other species can result in damage to food chains (trophic cascades) and indirectly harm populations of other species which themselves may be economically valuable fisheries.13 1.2 Societal Attitudes and Approaches Following on rapidly from the expanding scientific interest referred to above, there has been public curiosity and growing endorsement for the conservation of sharks across the world. In some contexts this support is not new: for example, in Hawaiian culture as well as other Pacific nations such as Fiji, sharks are considered to be gods and revered rather than reviled.14 This increasing public interest in sharks can be demonstrated by the growing number of specific shark-focused non-governmental organisations (ngos).15 These organisations range in size and focus with one of the largest being Shark Alliance, a consortium of over 85 ngos established by Pew Charitable Trusts, which works globally to conserve shark populations and improve laws and policies that protect them.16 Other ngos, such as Shark Savers, a WildAid program, support local initiatives to protect sharks in confined geographic areas.17 Global ngos such as the International Union for the Conservation of Nature (iucn) and World Wildlife Fund (wwf) have also focused attention on sharks.18 One of 12

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16 17 18

William D. Robbins, Mizue Hisano, Sean R. Connolly and J. Howard Choat, ‘Ongoing Collapse of Coral-Reef Shark Populations’ (2006) 16 Current Biology 2314; Myers and Worm (n 2); Arie Trouwborst, ‘Global large carnivore conservation and international law’ (2015) 24(7) Biodiversity & Conservation 1567. Ransom A. Myers, Julia K. Baum, Travis D. Shepherd, Sean P. Powers, and Charles H. Peterson, ‘Cascading Effects of the Loss of Apex Predatory Sharks from a Coastal Ocean’ (2007) 315 Science 1846; Andrew S. Brierley, ‘Fisheries Ecology: Hunger for Shark Fin Soup Drives Clam Chowder off the Menu’ (2007) 17(14) Current Biology 555; see also Field (n 1), 343. In Hawai’i sharks are ‘aumakua’ (family or personal Gods) and taboo due to their status: Erika Techera, ‘Finning, Fishing and Tourism: Trends in Pacific Shark Conservation and Management’ (2012) 27(3) The International Journal of Marine and Coastal Law 597. For a summary of organisations with significant shark-related conservation activities see Jill Hepp and Elizabeth Griffin Wilson, ‘Shark conservation efforts: as diverse as sharks themselves’ in Erika J Techera and Natalie Klein (eds), Sharks: Conservation, Governance and Management (Routledge 2014) 178. ‘About the Shark Alliance’ (The pew Charitable Trusts) accessed 20 October 2016. ‘Shark Sanctuaries’ (Shark Savers) accessed 20 October 2016. See ‘International Union for Conservation of Nature’ (iucn) accessed 20 October 2016; ‘Sharks’ (wwf Global) accessed 20 October 2016.

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the ­earliest sub-groups to be formed is the iucn Shark Specialist Group (ssg), which was established in 1991.19 Some of these organisations are focused on data collection, scientific study and raising awareness of the issues facing shark populations; others play a strong advocacy role in shark conservation including the development of law and policy to address finning and other unsustainable fishing practices and to establish shark sanctuaries. An important ngo in terms of wildlife trade monitoring, for sharks and other species, is TRAFFIC,20 as well as the World Conservation Monitoring Centre (unep-wcmc).21 Both of these organisations play a critical role in analysing and sharing information about wildlife and its trade. Despite some strong public support for shark conservation, including from celebrities,22 and shark attack victims,23 it is clear that for many people sharks are animals to be feared to such an extent that it has been said they possess ‘negative charisma’.24 This is important because ‘[w]hen a species’ characteristics do not inspire a popular concern for the species or, as in this case, actually hamper it, it is more difficult to create the necessary momentum to induce government action’.25 Critically, ‘in order to defeat economic interests, there will need to be substantial public involvement and interest, and fear of sharks may prevent these from occurring’.26 In contrast, species identified as ‘charismatic

19 ‘iucn ssc Shark Specialist Group’ (iucn ssc) accessed 20 October 2016. 20 ‘TRAFFIC – Wildlife Trade News’ (TRAFFIC) accessed 20 October 2016. 21 ‘United Nations Environment Programme: World Conservation Monitoring Centre’ (unep-wcmc) accessed 20 October 2016. 22 ‘Projects We Support’ (Leonardo DiCaprio Foundation) accessed 20 October 2016; ‘Yao Ming Calls for a Shark Fin Ban in China’ WildAid (22 September 2011) accessed 20 October 2016. 23 For example, Rodney Fox: ‘Amazing Man.Amazing Life’ (Rodney Fox Shark Expeditions) accessed 27 October 2016. Another example is Achmat Hassiem: ‘The shark attack survivor who loves sharks’, bbc News (22 February 2015) < http://www.bbc.com/news/magazine-31534163> accessed 27 October 2016. 24 John Dobson, ‘Shark! A New Frontier in Tourist Demand for Marine Wildlife’ in James Higham and Michael Luck (eds), Marine Wildlife and Tourism Management: Insights from the Natural and Social Sciences (cabi 2008) 51. 25 Romney Philpott, ‘Why Sharks May Have Nothing to Fear More than Feat Itself: An Analysis of the Effect of Human Attitudes on the Conservation of the Great White Shark’ (2002) 13 Colorado Journal of International Environmental Law and Policy 445, 469. 26 Ibid.

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megafauna’,27 such as whales, pandas and polar bears, receive widespread public support. This phenomenon is a lament of many researchers and conservationists of less attractive but often ecologically critical species.28 Nonetheless, flagship species play an important part in drawing attention to conservation issues, building the public’s connections with wildlife and changing attitudes.29 Clearly the media has also played a role in maintaining interest in the more charismatic species and sensationalising negative aspects of others – and this is particularly the case with sharks.30 In relation to sharks, whenever there are fatal shark incidents, some sections of the media and public call for removal of the ‘perpetrator’, and this has led some governments to take action in response such as beach netting, baiting and ‘shark culls’.31 This tension, between public support for conservation and species annihilation, illustrates the importance of engaging with human (mis)perceptions and fears in order to identify ways to address community concerns and achieve conservation goals. Nonetheless, every time there is a negative incident, it takes away from more positive human-­shark interactions that build support for conservation. 27 28

29

30

31

A phrase famously coined by EO Wilson. Rachel Nuwer, ‘Conservation’s elephant in the room: Media focus on charismatic, sexy animals loses sight of the bigger picture’ ScienceLine (10 March 2011) accessed 20 October 2016. Although the precise nature of positive effects on human behaviours to wildlife more broadly is under-researched: see Jeffrey C. Skibins and others, ‘Charisma and conservation: charismatic megafauna’s influence on safari and zoo tourists’ pro-conservation behaviors’ (2013) 22(2) Biodiversity and Conservation 959. There are many examples of sensationalist headlines and articles: Nandini Krishnamoorthy, ‘California shark attack victim recounts horror’ ib Times (8 June 2016) accessed 20 October 2016; Rosh Lowe, ‘South Florida surfer survives shark attack, details encounter’ wsvn (20 September 2016) accessed 20 October 2016; Will Worley, ‘Australia shark attack victim reveals gruesome leg injuries after being bitten by great white’ The Independent (27 September 2016) accessed 20 October 2016. See for example, Christopher Neff, ‘Human perceptions and attitudes towards sharks: examining the predator policy paradox’ in Erika J Techera and Natalie Klein (eds), Sharks: Conservation, Governance and Management (Routledge 2014). See also PW Pearlman and Erika J Techera, ‘Sharks: Conservation, Culling and Controversy’ (2015) 30(2&3) Australian Environment Review 56; and Christopher Neff, ‘The great shark debate: to cull or not to cull?’ The Conversation (22 October 2012) < http://theconversation.com/the-great-shark -debate-to-cull-or-not-to-cull-9550> accessed 27 October 2016.

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Contemporary public campaigns by ngos and conservationists have tended to focus on drawing attention to one particular shark fishing method, and a driver of declines in numbers, the abhorrent practice of live shark finning. This practice involves removing the fins of a shark whilst the animal is alive and returning the carcass to the ocean where it will drown or be eaten alive.32 Even shark finning involving dead fish is an unsustainable practice resulting in significant wastage as the carcass is discarded. Campaigns opposing this practice have achieved widespread public support and been endorsed, for example, by various commercial sectors from airlines involved in transporting fins33 to hotels that might otherwise serve shark fin soup.34 The important role that these and other stakeholders are playing, and can play in the future, is examined further below. Just as the ‘fear factor’ must be acknowledged, other societal concerns need to be addressed. Shark fishing (for fins or otherwise) is a source of income for many people and communities. Indeed there are examples of sustainable shark fisheries involving species that reproduce more quickly than others and regulations that prevent over-fishing.35 These examples must however be considered in light of the continued decline in numbers of many shark species and growing human populations demanding seafood. Fins in particular are high value commodities and therefore seeking support for conservation efforts, or indeed enforcing regulatory controls, is likely to be challenging in the absence 32

33

34

35

‘Australian Marine Conservation Society’ (Marine Conservation) accessed 20 October 2016; ‘The Brutal Business of Shark Finning’ (Sea Shepherd) accessed 20 October 2016. Cathay Pacific and Thai Airways have announced bans on the transportation of shark fins on their planes: see ‘Hong Kong airline Cathay Pacific announces shark fin ban’ bbc News (23 June 2016) accessed 20 October 2016; ‘Thai Airways bans shark’s fin from cargo flights’ Straits Times (30 July 2014) accessed 27 October 2016. For example, Peninsula Hotel Group has banned the service of shark fin soup in its hotels: Stephen Coates, ‘Shark fin soup off the menu at Peninsula Hotels group’ News.com.au (22  November 2011) accessed 20 October 2016. In addition, China has indicated it will stop serving shark fin soup at official banquets: Bettina Wassener, ‘China Says No More Shark Fin Soup at State Banquets’ The New York Times (3 July 2012) accessed 20 October 2016. ‘Gummy Shark’ (Southern Shark Industry Alliance Inc.) accessed 20 October 2016.

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of strong incentives including support for alternative livelihoods and economic opportunities. Efforts to enhance conservation and management of sharks must also be considered in the broader context of food security concerns, taking into account livelihoods such as fishing but also tourism, and the growing recognition of the value of cultural diversity, which can conflict or align with shark conservation and management. Politico-legal agenda play a part in attitudes towards sharks as it is clear that some countries are more heavily focused on fishing and others on conservation. This can be illustrated by the recent declarations of marine protected areas (mpas) across the entire Exclusive Economic Zones (eez) of some states, in order to create Shark Sanctuaries.36 Increasingly, sustainable development agenda are placing emphasis on the Blue Economy, which in turn depends upon healthy ocean environments and marine living resources.37 In addition, politico-legal alliances are important as they often relate to defence and maritime security, which then impacts on the ability to engage in joint enforcement activities.38 In advancing the effectiveness of legal frameworks it is therefore critical to recognise the significance of politicolegal and socio-cultural influences. This illuminates the need to engage a broad range of social scientists in research and solutions to enhance shark conservation and management. 1.3 Values The justification for improving the conservation and management of sharks is reinforced by the range of values that they have for ecosystems and people. Sharks have intrinsic value as part of biodiversity and life on Earth. They evolved 450 to 420 million years ago and have survived successive mass extinctions in the past.39 It is humans that are having the greatest impact upon sharks now and therefore it is imperative that efforts are made to ensure conservation and sustainable utilisation to prevent the continued decline in abundance. Beyond their intrinsic worth, they have ecosystem, economic, and socio-cultural value that underpins the rationale for improving global governance. 36 37

38 39

Explored in detail in Chapter 5. China, India and countries such as the Seychelles have articulated such ambitions: Vijay Sakhuja, ‘Blue economy: An agenda for the Indian government’ cimsec (19 September 2014) accessed 20 October 2016. See Chapter 7 in relation to collaborative monitoring and enforcement including shiprider agreements. Kiszka and Heithaus (n 5) 70.

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Sharks have ecosystem values that are directly and indirectly important to humans. An ecosystem is a community of organisms that interact in a particular environment. Sharks are a valuable part of, and play a critical role in, the web of ocean life. Marine science has established the considerable value that sharks have in the oceans and the ecosystems services they provide: by maintaining balance in the oceans through removing sick and weaker species and thereby contributing to the health of whole ecosystems as well as a range of fisheries and bio-networks that are important for human food security and livelihoods. Sharks prevent trophic cascades and when they are removed or significantly depleted, it has been shown other species grow and collapse. For example, in the north of Australia, when shark numbers were depleted, octopus and ray numbers exploded resulting in them eating more shellfish; the prawn industry was decimated as these cephalopods and rays ate prawns, which were relied upon for the valuable industry.40 In other jurisdictions, similar experiences have demonstrated the role that sharks play in the food chain.41 As noted above, sharks have economic value because they are the basis for both consumptive and non-consumptive exploitation activities and enterprises. Sharks are used for their ‘meat, skins, organs, and tissues for human consumption, liver oil extracted for vitamins, carcass used for fishmeal and fertilizer, skin for leather, cartilage for medicines, fins for shark-fin soup’.42 The most significant activity impacting upon sharks is fishing that is undertaken globally. There are specific shark fisheries, some of which are sustainable and involve utilisation of the entire animal, and others that focus on the lucrative shark fin industry. It is important to distinguish between live shark finning,43 and activities whereby sharks are landed with fins attached, and the fins are removed after the shark is dead. If the carcass of the shark is discarded then the activity remains unsustainable but does not raise animal welfare issues. Sharks are also taken as incidental catch (alongside legally harvested species) and affected by tuna and other fisheries when inadvertently captured as bycatch. Furthermore some shark species, including great white sharks, ‘will actively investigate human behavior, increasing the likelihood that they will be 40

41 42

43

Sean Pascoe, Tomas A. Okey, and Shane Griffiths, ‘Economic and ecosystem impacts of illegal, unregulated and unreported (iuu) fishing in Northern Australia’ (2008) 52 Australian Journal of Agricultural and Resource Economics 433. Myers and others (n 13) and Brierley (n 13). Commonwealth of Australia, ‘Proposal to Include Carcharodon carcharias (Great White Shark) on Appendix i of the Convention of International Trade in Endangered Species of Wild Fauna and Flora’ (cites 1999) 8. Whereby the fins of sharks are removed whilst alive and returning the carcass to the ocean where the shark will drown or be eaten alive.

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caught either incidentally or by design’.44 In such circumstances, fins may then be harvested, but in many cases sharks caught as bycatch are returned to the sea but are dead or dying and thereby contribute to their decline.45 Increasingly, sharks are the focus of non-consumptive exploitation through tourism. As noted above, tourism can be a means to raise public awareness about sharks and to build support for conservation efforts. Shark-based tourism takes a number of forms and can include cage-diving with dangerous species such as great white sharks,46 and snorkelling or swimming with other species.47 Invariably, shark-based tourism relies upon sites of natural fidelity where sharks consistently inhabit, enhanced in some cases by berleying or chumming to attract greater numbers and for longer periods.48 Berleying, feeding and baiting can be controversial because of the potential impact on species: wasted energy for no calorific reward or unnaturally altered feeding patterns.49 There are, however, distinct advantages of tourism over fishing: primarily that sharks are not killed or injured in the activity and can therefore be ‘utilised’ many times over, as well as the potential to raise awareness and better understanding of sharks through visitor interactions. Recent studies have demonstrated the greater economic benefits that can be achieved through utilisation of a live shark through repeated tourism interactions versus the one-off financial gain that can be achieved by killing a shark and selling its carcass and fins.50 If conservation and management recommendations involve decreasing 44 45

46 47

48

49

50

Philpott (n 25) 454. ‘Shark Bycatch in Tuna Fisheries: Kobe 2 Bycatch Workshop’ (The Pew Environment Group) accessed 20 October 2016. As occurs in Australia and South Africa for example. For example, involving bull sharks in Fiji, whales sharks in Australia, basking sharks in the uk. See Christine A. Ward-Paige, ‘Shark conservation efforts: as diverse as sharks’ in Erika J Techera and Natalie Klein (eds), Sharks: Conservation, Governance and Management (Routledge 2014). Berleying or chumming involves introducing fish blood or oil into the water to attract sharks closer to tourism participants or to encourage longer interactions. Berleying is distinguished from feeding (where fish meat is provided to the sharks) and baiting (where fish meat is used to lure sharks to a place then withdrawn before it is eaten). Barry D. Bruce and Russell W. Bradford, The effects of berleying on the distribution and behaviour of white sharks, Carcharodon carcharias, at the Neptune Islands, South Australia: Final report to the Department of Environment and Natural Resources, South Australia (csiro 2011). Gabriel M.S. Vianna, Mark G. Meekan, David Pannell, Sally P. Marsh and Jessica J. Meeuwig, Wanted Dead or Alive? The Relative Value of Reef Sharks as a Fishery and an Ecotourism Assessment in Palau (Australian Institute of Marine Science (aims) and the University of Western Australia 2010).

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shark take in the fisheries sector then in order to be effective other sustainable livelihoods must be identified to provide income for former fishers. Tourism provides potential but again relies upon healthy stocks at sites of fidelity and appropriate regulations to ensure human and shark safety. In particular, the consequences of one negative tourism experience could outweigh any possible benefits and so legal frameworks that involve best practice administration as well as licensing arrangements that include the full value of compliance and enforcement are critical.51 Lastly, sharks have contested socio-cultural values depending upon different national contexts. As noted above, in some states, sharks are revered and even considered gods.52 This affords them a level of protection from targeted and incidental commercial harvest, and in some cases acts as an incentive for stewardship by communities including recreational fishers. In other countries, principally China, cultural heritage is associated with consumption of shark fin soup.53 Although the origins of this cultural utilisation is not entirely clear, it appears to have developed in the Ming Dynasty about 600 years ago.54 Today, the market for shark fins for soup is one of the most significant drivers of declining shark numbers because fins remain high value stocks. Studies have shown the significance of the number of shark fins being sold through Hong Kong, for example, and contemporary dna testing has established the breadth of species and habitats from which they have come.55 The conflict between conservation and utilisation is not easily resolved where cultural values collide. However, it is clear that socio-cultural factors are important in garnering public support for regulatory efforts and thereby encouraging compliance with legal frameworks that are adopted. In seeking to address the pressing issue of the conservation and management of sharks, inherent environmental concerns such as habitat degradation, pollution and climate change must be considered, but by far the most significant threats are from consumptive and non-consumptive human ­exploitation. 51 52 53

54 55

Erika Techera and Natalie Klein, ‘The role of law in shark-based eco-tourism: Lessons from Australia’ (2013) 39 Marine Policy 21. Paul D’Arcy, The People of the Sea: Environment, Identity and History in Oceania (University of Hawai’i Press 2006). Sarah L Fowler and others, Rays and Chimaeras: The Status of the Chondrichthyan Fishes: Status Survey (iucn, 2005); LC Koo, ‘The Use of Food to Treat and Prevent Disease in Chinese Culture’ (1984) 18(9) Social Science & Medicine 757. Koo (n 53). See for example, Shelley C. Clarke, Jennifer E. Magnussen, Debra L. Abercrombie, Murdoch K. McAllister and Mahmood S. Shivji, ‘Identification of Shark Species Composition and Proportion in the Hong Kong Shark Fin Market Based on Molecular Genetics and Trade Records’ (2006) 20(1) Conservation Biology 201.

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Anthropogenic effects require better governance of human activities combined with proactive conservation of species and their habitats.56 Law has an important role to play in these areas in order to address the sustainability of shark stocks: establishment of standards and regulation of exploitative activities, protection of critical habitats and sites of fidelity, implementation of effective governance of ocean areas, and incentivisation of sustainable practices and livelihoods. Because sharks, and fishing activities impacting upon them, occur throughout the world, and also because of their varied habitats and migratory ranges, all levels of governance are implicated, complicating the implementation of comprehensive and coherent solutions. The above issues have led to an assortment of responses including legal frameworks and institutional measures explored below and throughout this book; yet to date there have been relatively few success stories and no slowing of plummeting global shark numbers. 2

Legal Dimensions

2.1 Legal Responses Although scientific research in relation to sharks has lagged behind other areas, law has also been slow to respond to the problem of declining shark numbers. At the international level, there have been laws in place since the 1970s as a reaction to information that arose about over-harvesting. This response occurred when the environmental movement first emerged and environmental law began to develop as a specific sub-field. Many of these instruments focused on specific species or particular concerns: for example, the Polar Bear Agreement (1973)57 and the Convention for the Conservation of Antarctic Seals (1972)58 both focused on species that had been specifically harvested by humans with negative consequences. Subsequently, key treaties such as the Convention on Migratory Species (cms)59 and the Convention on International 56

57 58 59

Douglas J McCauley and others, ‘Marine defaunation: Animal loss in the global ocean’ (2015) 347(6219) Science accessed 1 September 2016. Agreement on the Conservation of Polar Bears (Oslo, 15 November 1973), 13 ilm 13 (1974), entered into force 26 May 1976. Convention on the Conservation of Antarctic Seals 1 June 1972, 1080 unts 175, entered into force 11 March 1978. Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, 1651 unts 333, 19 ilm 15 (1980), entered into force 1 November 1983.

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Trade in Endangered Species (cites)60 were adopted principally to focus on conservation issues but taking an approach that in part addressed the drivers of species’ declines. These instruments were not used to conserve and manage sharks until much later than their original adoption. For example, the first shark listing under cms was achieved in November 1999 at the Sixth Conference of the Parties,61 and sharks were first included in Appendix ii of cites in 2003, when the basking shark and whale shark were included.62 Fisheries regulation, as a sub-field of natural resources law, tended to develop earlier and separately from legal efforts focused upon conservation, at the international and other levels. Concerted and collaborative efforts to address fishery issues at the international level were hampered for many years by disagreements on the extent of coastal state rights and competing freedoms on the high seas. The un Convention on the Law of the Sea (unclos)63 settled issues concerning maritime zones and adopted general obligations to ‘protect and preserve’ the marine environment in those and high seas areas. unclos also adopted key concepts and approaches including a requirement for states to set a ‘total allowable catch’ based upon an established ‘maximum sustainable yield’ in achieving ‘optimum utilisation’ of marine living resources. unclos prescribed no detailed measures for conservation or management of specific fisheries in particular geographic areas and these issues were left to subsequent instruments and have largely been addressed at the regional level through Regional Fisheries Management Organisations (rfmos). Globally, there are a number of rfmos that may be focused on particular species or regions.64 One of the earliest to be established was the Intra-American Tropical Tuna Commission in 1949,65 and the most recently created is the ­Commission 60 61

62 63 64 65

Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 unts 243 (1973), entered into force 1 July 1975. Earth Negotiations Bulletin, ‘Summary of the Technical Meeting for the Elaboration of a Conservation and Management Plan for Migratory Sharks and the Third Meeting on International Cooperation on Migratory Sharks Under the Convention on Migratory Species and Wild Animals’ (iisd, 15 February 2010) accessed 21 October 2016. ‘History of cites listing of sharks (Elasmobranchii)’ (cites) accessed 21 October 2016. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 unts 3, 21 ilm 1261 (1982), entered into force 16 November 1994. For example, the Commission for the Conservation of Southern Blue Fin Tuna, and the Western Central Pacific Fisheries Commission. International Convention for the Establishment of an Inter-American Tropical Tuna Commission, 31 May 1949, 80 unts 3, entered into force 3 March 1950.

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of the South Pacific Regional Fisheries Management Organisation.66 The objectives contained in the treaties establishing the rfmos invariably include reference to maintaining stocks and ensuring sustainable utilisation of marine resources67 and some of the more modern instruments incorporate principles such as the precautionary approach and ecosystem-based management.68 These principles are explored in further detail below. One of the ways in which rfmos respond to particular challenges is through conservation and management measures (cmms), which may provide for data collection, catch limits, bycatch mitigation requirements, equipment regulation and other technical measures. The North Atlantic Fisheries Organization (nafo) was the first to address shark conservation and management adopting a shark catch limit in 2004 for a targeted fishery69 and shark finning is now prohibited by most ­r fmos, which either prescribe a fin-to-carcass ratio or require sharks to be landed with fins attached.70 The role and focus of rfmos in shark conservation and management is explored in Chapter 6 in the context of a critical analysis of the international institutional framework. Fisheries management71 is by no means a new field and some of the oldest domestic regulatory controls are in this area. For example, many coastal traditional communities had customary laws governing fishing areas, species and seasons.72 Similarly, early legislation in the 18th century prescribed catch 66

‘About the sprfmo’ (sprfmo) accessed 21 October 2016. 67 See for example, International Convention for the Conservation of Atlantic Tunas, 14 May 1966, 673 unts 63, entered into force 21 March 1969. 68 See for example the establishment of the sprfmo under the ‘Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean’ (sprfmo, 2015) accessed 21 October 2016. 69 ‘2004 Report to Congress Pursuant to the Shark Finning Prohibition Act of 2000’ (Public Law 106–557) (noaa-nfms) accessed 27 October 2016, 40. 70 ‘Regional Fisheries Management Organizations (rfmos) (iucnssg) accessed 21 October 2016. 71 The fao defines fisheries management as ‘The integrated process of information gathering, analysis, planning, consultation, decision-making, allocation of resources and formulation and implementation, with enforcement as necessary, of regulations or rules which govern fisheries activities in order to ensure the continued productivity of the resources and the accomplishment of other fisheries objectives’: ‘fao Technical Guidelines for Responsible Fisheries: Fisheries Management’ (fao, 1997) accessed 21 October 2016. 72 R E Johannes ‘Traditional Marine Conservation Methods in Oceania and Their Demise’ (1978) 9 Annual Review of Ecology and Systematics 349.

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limits, closed areas and seasons, and other tools such as territorial use rights, as well as quotas and licences over common property areas.73 Although the first Overfishing Conference was held in 1936 in London,74 again it is relatively recently that attention has been paid to measures specifically related to sharks and many of these developments have been at the national level. Some countries have focused upon non-consumptive exploitation, designing laws and policies to facilitate shark-based tourism as an area of economic development aligned with national strategy.75 Others have established sustainable shark fisheries: Australia, for example, has the oldest shark fishery in the world, established in the early 20th century and remaining viable today.76 The contemporary issues associated with declines in shark numbers have been directly addressed in other countries in different ways. The United States has passed legislation banning shark finning at the federal level and also possession and trade of shark fins in some states.77 Different approaches have been taken in other countries, where marine protected areas have been established, sometimes over the entire eez.78 In Palau and Madagascar, shark sanctuaries have been created, now termed ‘shark parks’.79 Although it is clear that a diversity of approaches have been taken, the legal mechanisms can largely be divided into activity (fishing and tourism) regulation, species and spatial measures.

73 74 75 76

77

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79

‘Territorial use rights in marine fisheries: definitions and conditions’ (fao) accessed 21 October 2016. S Engesæter ‘The importance of ices in the establishment of neafc’ (2002) 215 ices Marine Science Symposia 572. Countries such as Australia have well-established shark-based tourism regulations. See Techera and Klein (n 51). The gummy shark fishery in South Australia: Charlie Huveneers and William Robbins ‘Species at the intersection’ in Erika J Techera and Natalie Klein (eds), Sharks: Conservation, Governance and Management (Routledge 2014), 237. ‘Shark Conservation in the United States and Abroad: Leading the Way in Shark Conservation’ (nmfs) accessed 21 October 2016. For example, the Marshall Islands and Honduras: Jeremy Hance, ‘Marshall Islands creates world’s biggest shark park’ Mongabay (3 October 2011) accessed 21 October 2016. Chris Mooney and Juliet Eilperin, ‘Palau: Tiny Pacific island declares world’s sixth largest marine reserve’ The Independent (uk) (26 October 2015) accessed 21 October 2016; Wildlife Conservation Society, ‘Madagascar creates shark park’ ScienceDaily (4 February 2015) accessed 21 October 2016.

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The various spatial and species-based legal tools are explored in Chapters 4 and 5 in greater detail. 2.2 Legal Challenges The above analysis demonstrates the extent of regulatory activity in relation to shark conservation and management, but in the absence of a unifying framework and global ‘champion’, the actions are fragmented across different jurisdictions and sectors. Although this need not be a problem, it is clear that key outcomes have not been achieved and shark abundance is continuing to decline. The resulting risk is that the ecosystem, economic and socio-cultural benefits that sharks provide will be lost, as will the options for establishing or expanding non-consumptive exploitation activities (such as tourism) in the future. This research engages directly with these issues and also seeks to advance the global governance of sharks through more holistic approaches that are more comprehensive, coherent and consistent. In doing so, the approach taken has not been to discard or disregard the existing laws, policies and governance frameworks that have been established over the last half a century. Rather, the goals have been to build on these foundations and identify ways to work better with what we have to achieve more positive conservation and management outcomes for sharks. In doing so, this research has engaged with examples of efforts to address declines in other marine species. In identifying solutions, other species-focused frameworks, such as the International Convention on the Regulation of Whaling,80 have been explored. However, in keeping with the desire not to abandon existing international efforts for the conservation and management of sharks, an approach has been taken that accepts the regulatory pluralist context. Improving the global governance of sharks requires improvements in laws, institutions and processes that support both conservation and management. As the issue sits at the intersection of conservation efforts and management of utilization activities, a range of possible approaches could be taken. From a legal viewpoint, there have been suggested solutions including the adoption of a focused shark treaty,81 calls for global finning bans,82 an expansion of the 80 81

82

International Convention for the Regulation of Whaling, (Washington, 2 December 1946), 161 unts 72, entered into force 10 November 1948. Andrew Herndon, Vincent F Gallucci, Douglas DeMaster, William Burke, ‘The Case for an International Commission for the Conservation and Management of Sharks (iccms)’ (2010) 34 Marine Policy 1239. Jessica Spiegel, ‘Even Jaws Deserves to Keep His Fins: Outlawing Shark Finning Throughout Global Waters’ (2001) 24(2) Boston College International and Comparative Law

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concept of world heritage to include species,83 and enhanced international efforts both in terms of international environmental law and conservation as well as fisheries management through rfmos and cmms and trade-related mechanisms.84 In order to avoid perverse outcomes and negative synergies, the regulatory mix will be essential. For example, ‘a combination of demand growth and antifinning regulations intended to encourage the full utilization of carcasses has seen the market for shark meat expand considerably. In turn this has led to fishers seeing sharks increasingly as commercial species to be actively targeted, rather than bycatch species landed unintentionally while targeting more-valuable species such as tuna or swordfish’.85 This has had the effect of broadening the market for sharks, rather than aiding their recovery. Whilst a market-based approach would appear to be most appropriate in these circumstances, it has been noted that the issue is exploitation not trade per se. ‘As a result, trade is but one pathway through which sustainable utilization can potentially be assessed, monitored and controlled. For sharks, other pathways such as high seas fisheries management, national initiatives, and consumer sentiment are also critical avenues for shark conservation actions’.86 For these reasons, it is unlikely that there will be any single approach or law that will solve all problems and ‘it is important to avoid considering trade-based systems in isolation’.87 In moving forward, this research adopts a regulatory pluralism approach and in doing so identifies the underlying foundations for success including principles of good governance and sustainability, key tools across the sub-fields of fisheries, environmental and international law that can be integrated for greater effectiveness and thereafter actions that can be taken to

­Review 409; Ingrid M. Gronstal Anderson, ‘Jaws of Life: Developing International Shark Finning Regulations Through Lessons Learned from the International Whaling Commission’ (2011) 20 Transnational Law and Contemporary Problems 511. 83 Chris Wold, ‘World Heritage Species: A New Legal Approach to Conservation’ (2008) 20 Georgetown International Environmental Law Review 337. 84 Stijn van Osch, ‘Save our Sharks: Using International Fisheries Law within Regional Fisheries Management Organizations to Improve Shark Conservation’ (2012) 33 Michigan Journal of International Law 383. As Young observes, shark conservation was mentioned in the environment chapter of the draft Trans Pacific Partnership agreement and shark finning was discussed in negotiations: Margaret Young, ‘International trade law compatibility of market-related measures to combat illegal, unreported and unregulated (iuu) fishing’ (2016) 69 Marine Policy 209. 85 Felix Dent and Shelley Clarke, State of the Global Market for Shark Products (fao Fisheries and Aquaculture Technical Paper 590, 2015) 1. 86 Ibid 9. 87 Ibid.

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chapter 1 Foundational principles & concepts

Good govenance Sustainability Inter-disciplinarity

Figure 1

Key legal tools, mechansims and standards Species tools Spatial measures Fisheries regulation

Effective Implementation Compliance Monitoring Enforcement

Holistic shark conservation and management

A solutions strategy

enhance implementation and enforcement. This three-fold focus, as reflected in Figure 1, has been identified as necessary through a critical analysis of obstacles that hinder, and opportunities that lie, for improved governance of sharks. 3

Global Influences

3.1 Holistic Approaches As the environmental movement progressed in the 1970s, approaches to management tended to be sectoral and reactionary, focusing on critical issues and addressing them at the local level. Over time, it became clear that aspects of the environment are all interconnected and more holistic approaches were needed that recognise people within the broader ecosystem context. This transition can be seen through the language of various international environmental conferences that took place between the 1970s and 1990s. For example, the Stockholm Declaration adopted at the United Nations Conference on the Human Environment in 1972 includes a list of principles such as the need to safeguard the environment, including through wildlife conservation and pollution prevention.88 The necessity for rational planning is articulated and Principle 13 identifies that ‘states should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population’. In 1987, the Brundtland Report, Our Common Future, included for the first time reference to sustainable development, defined as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.89 Sustainable development inherently involves reconciling economic, environmental and social concerns and thereby seeks to balance human and non-human interests. This critical step towards 88 89

unga, Stockholm Declaration on the Human Environment, un Doc. A/CONF.48/14 (1972) (Stockholm Declaration). Report of the World Commission on Environment and Development: Our Common Future (Brundtland Report), gao, 42nd Session Supplement No. 25, un Doc. A/42/427 (1987). Chapter 2: Towards Sustainable Development.

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ensuring holistic approaches were embedded in planning and management was cemented in 1992 in the Rio Declaration signed at the United Nations Conference on Environment and Development. Although the Rio Declaration reiterated many of the principles in the Stockholm Declaration, it added specific references to sustainable development and integration. For example, it is recognised that ‘environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’,90 developmental inequities between developed and developing countries must be addressed91 and even temporal concerns are provided for through the principle of inter-generational equity.92 Since 1992, new treaties and instruments, as well as working agenda and resolutions of existing conventions, consistently refer to ‘holistic’ and ‘integrated’ approaches as well as ‘sustainable development’. These words and concepts have been embedded across all scales and sectors. For example, the cms Memorandum of Understanding on the Conservation of Migratory Sharks (Sharks MoU) includes the objective ‘to achieve and maintain a favourable conservation status for migratory sharks based on the best available scientific information, taking into account the socio-economic and other values of these species for the people of the Signatories’.93 The Food and Agriculture Organisation’s (fao) Code of Conduct for Responsible Fisheries refers to the ‘sustainable and integrated use’ and ‘effective conservation and management’ of marine resources including through ‘integration of fisheries into coastal area management’.94 The International Plan of Action for Sharks (ipoa Sharks) also demonstrates a commitment to holistic approaches that ‘ensure the conservation and management of sharks and their long-term sustainable use’ and a commitment to assess ‘threats to shark populations, determine and protect critical habitats and implement harvesting strategies consistent with the principles of biological sustainability and rational long-term economic use’.95

90 91 92 93

94 95

unga, Rio Declaration on Environment and Development, un Doc. A/CONF.151/26 (Vol. 1), 31 ilm 874 (1992) (Rio Declaration), Principle 4. Ibid Principle 6. Ibid Principle 3. cms, ‘Memorandum of Understanding on the Conservation of Migratory Sharks’ (Manila, 12 February 2010) accessed 20 October 2016 (Sharks MoU). Articles 6, 7, 8 and 10 in particular: fao, ‘Code of Conduct for Responsible Fisheries’ accessed 20 October 2016. fao, ‘International Plan of Action for Conservation and Management of Sharks’ (Rome, 1999) accessed 20 October 2016 (ipoa Sharks).

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3.2 Ecosystem-based Management One particular development that has achieved widespread endorsement and incorporates an holistic approach in alignment with the above discussion is ecosystem-based management (ebm). ebm has no single definition but ‘acknowledges the complexity and interspecies relationship within ecological systems, but [may] also account for social and governance objectives’.96 It is also clear that ebm must be based on sound science and both the management and science approaches have been incorporated into key international instruments. ebm is not mentioned specifically in the Stockholm Declaration, although there is a flavour of it through references to ecosystems and the need for ‘scientific research and development in the context of environmental problems’.97 Similarly, the Rio Declaration does not mention ebm or science-based policy making, but clearly engages with the need for scientific information through the precautionary principle: ‘Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’.98 Again the Sharks MoU makes reference to ebm and scientific information as the evidence base: ‘Sharks should be managed to allow for sustainable harvest where appropriate, through conservation and management measures based on the best available scientific information’99 and by favouring a conservation status whereby ‘the abundance and structure of populations of migratory sharks remains at levels adequate to maintain ecosystem integrity’.100 Similarly, the fao Code of Conduct on Responsible Fisheries refers explicitly to ‘Conservation and management decisions for fisheries [that] should be based on the best scientific evidence available’.101 3.3 Inter-Disciplinarity Just as trends and approaches to environmental management have identified the importance of science-based evidence, so has it been recognised that law does not operate in a vacuum and that if global conservation and management 96

Rachel D. Long, Anthony Charles, and Robert L. Stephenson, ‘Key principles of marine ecosystem-based management’ (2015) 27 Marine Policy 53, 54. In that article the authors distil 26 principles that elucidate the concept of ebm. 97 Stockholm Declaration (n 88) Principle 20. 98 Rio Declaration (n 90) Principle 15. 99 Sharks MoU (n 93) Section 3.8. Further reference is made to ‘ecosystem and precautionary’ approaches in Section 3.9. 100 Ibid Section 1.3(d)(i). 101 ‘Code of Conduct for Responsible Fisheries’ (n 94) Article 6.4.

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goals are to be achieved then disciplines must work more closely together. The above analysis indicates the involvement of scientific and other disciplines in achieving good environmental governance and that evidence must come not only from marine sciences and environmental management, but also technological sciences, economics and other social sciences.102 Law-makers must utilise relevant knowledge and expertise from other disciplines to ensure the effectiveness of legal frameworks. This engagement can most readily be seen in the area of compliance and enforcement where better use of technology is needed to monitor oceans and fishery and tourism activity. New technologies are being developed that could significantly enhance the ability of enforcement agencies to monitor ocean areas. For example, although most fishing vessels are not required to have vessel monitoring systems (vms), multiple sources of information including Automatic Identification Systems (ais) (originally designed to prevent collisions at sea) combined with satellite Synthetic Aperture Radar (sar) technology is now being used to identify the location of vessels engaged in potential illegal activities.103 Similarly, unmanned vehicles and drone technology can be utilised for surveillance and optical identification of vessels and gear and equipment being used and thereafter guide enforcement vessels to specific locations.104 Economics is clearly relevant in the context of determining the value of sharks dead or alive, the efficacy of different livelihood options and the ‘cost’ of decreases in shark numbers taking into account damage to the ecosystems to which they contribute. In addition, other disciplines including social sciences such as cognitive, behavioural science and psychology, will be important in determining what drives non-compliance and therefore how to encourage compliance.105 102 See for example, Peter J. Jacques, ‘The social oceanography of top oceanic predators and the decline of sharks: A call for a new field’ (2010) 86 Progress in Oceanography 192; Colin A. Simpfendorfer, Michelle R. Heupel, W.T. White and Nicholas K. Dulvy, ‘The importance of research and public opinion to conservation management of sharks and rays: a synthesis’ (2011) 62 Marine and Freshwater Research, 518. In the area of legal regulation see Bettina Lange, ‘The Emotional Dimension in Legal Regulation’ (2002) 29(1) Journal of Law and Society 197–225. 103 See Stuart Martin, ‘Combatting the multi-billion Dollar illegal fishing industry’ (Catapult Satellite Applications) (21 January 2015) accessed 21 October 2016. 104 Task Force on iuu Fishing on the High Seas, ‘Closing the Net: Stopping illegal fishing on the high seas’ (imcsnet, March 2006) accessed 21 October 2016. 105 Aaron Hatcher and others, ‘Normative and Social Influences Affecting Compliance with Fishery Regulations’ (2000) 76(3) Land Economics 448; Jesper Raakjaer Nielsen and

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Relatively little research has been undertaken on how such disciplines might work better together rather than simply alongside each other. Relatively little attention has been paid to inter-disciplinarity in the context of law, policy and governance.106 Indeed, the term itself is often misused or interchanged with multi-disciplinarity. Multi-disciplinarity involves different disciplines working alongside each other but relatively independently, whereas inter-disciplinarity includes greater integration of ideas between disciplines. The differences, as well as other relevant concepts, are best described diagrammatically, as seen in Figure 2. Historically, legal research has been intradisciplinary in focus and execution. Multi-disciplinarity is a relatively new phenomena and is more often driven from one particular discipline. In most cases, it can be seen that advances have been made towards cross-disciplinary engagement but rarely has interdisciplinarity been achieved. For example, the involvement of scientific panels within environmental law treaties such as cms and cites is an example of multi-disciplinarity whereby science informs the listing of endangered species, or fisheries conservation and management measures. But in such circumstances, scientific advisors rarely form part of the decision-making body; their advice being ‘considered’ but not necessarily followed by those with authority.

Intradisciplinary

Figure 2

Multidisciplinary

Crossdisciplinary

Interdisciplinary

Transdisciplinary

Types of disciplinarities.107

Christoph Mathiesen, ‘Important factors influencing rule compliance in fisheries: Lessons from Denmark’ (2003) 27(5) Marine Policy 409. 106 There is almost no published research in this area compared, for example, with health: CBC Choi and AW Pak, ‘Multidisciplinarity, interdisciplinarity and transdisciplinarity in health research, services, education and policy: 1. Definitions, objectives, and evidence of effectiveness’ (2006) 29(6) Clinical & Investigative Medicine 351; and social sciences more broadly: Marilyn Stember, ‘Advancing the social sciences through the interdisciplinary enterprise’ (1991) 28(1) The Social Science Journal 1. 107 Alexander Refsum Jensenius, ‘Disciplinarities: intra, cross, multi, inter, trans’ Alexander Refsum Jensenius (12 March 2012) accessed 21 October 2016.

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Some international instruments do incorporate at least implicit reference to inter-disciplinarity. In the Sharks MoU, for example, it is acknowledged that ‘[s]harks should be managed to allow for sustainable harvest where appropriate, through conservation and management measures based on the best available scientific information’.108 If genuine inter-disciplinarity is to be achieved then greater consideration needs to be given to processes that facilitate multiple disciplines being involved at all levels of decision-making including law, marine science, technology, behavioural science, sociology and cultural studies. 4

Moving Forward

If advances are to be made beyond the current state of play for shark conservation and management, then the challenges articulated above must be addressed. Enhancements will include clarity around concepts and principles that currently underpin the legal frameworks as well as future advances that could be made. Greater understanding is needed within the different subfields and body of laws, policies and governance mechanisms themselves, as well as within and between disciplines engaged in shark conservation and management and those that should be engaged prospectively. Furthermore, new ways must be explored to improve compliance, monitoring and enforcement, which remain key problems; but before doing so, barriers and challenges must be identified. 4.1 Underpinning Principles, Concepts and Approaches At the same time as environmental management has become more holistic, and the value of inter-disciplinarity recognised, there has been a broadening of regulatory approaches. Borrowing from political and organisational theory, the concept of global governance has been applied to the area of environmental law. This thinking involves progression beyond consideration of law as an isolated and binding set of rules, to incorporate the broader concept of governance. There is no globally accepted definition of governance, good governance or good environmental governance. On the one hand, governance could therefore be considered a vague term that has no common definition and is therefore less helpful than limiting approaches to pure law. It is the case, however, that there are some well-accepted principles of good governance including transparency, accountability, responsibility, participation, responsiveness, 108 Sharks MoU (n 93) Section 3.7.

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equitable and inclusive, effective and efficient and adherence to the rule of law.109 These principles are particularly attractive as many of them overlap with principles of sustainable development. Furthermore, it could be argued that it adds considerable value as there has been some coalescence around governance defined as including rules, processes and institutions. By engaging with these three areas of rules, processes and institutions, better outcomes can be achieved because the laws themselves as well as processes for decisionmaking and key stakeholders are considered together. It is certainly the case that much more research has been undertaken by legal academics, including environmental law specialists, around the proliferation of governance theories. This topic is considered in greater detail in Chapter 3, but in summary it is clear that so-called governance theories are in reality different selections of the above principles utilised to achieve different goals. In combination with an approach that engages rules, processes and institutions, it can be seen that holistic approaches to conservation and management of sharks inherently require improvements in governance and a principles-based approach can add clarity and certainty as well as consistency when aligned with sustainable development. Sustainable development is now the paradigm of choice in environmental management and in order to ensure sharks continue to provide ecosystem services, utilisation of these species must be sustainable. Similarly, other livelihood options for people and communities must also be sustainable. Although the common definition of sustainable development includes balancing developmental, environmental and social concerns, this description is largely unhelpful for those tasked with operationalisation of sustainability within law and policy. In seeking to achieve greater clarity, sustainable development has been defined as including a number of key principles as articulated in the Rio Declaration and New Delhi Declaration.110 Importantly, a number of these principles overlap with those articulated above in relation to good governance: for example, participation, equitable and inclusive approaches, and accountability. As will be explored in Chapter 3, the number of principles that overlap with principles of good governance adds to the strength of utilising both these foundations for improved conservation and management of sharks. Regulatory theory is another area of study that has emerged in recent dec­ ades and this is also explored briefly in Chapter 3 before attention is turned to regulatory pluralism. The latter concept recognises that for complex r­ egulatory 109 ‘What is Good Governance?’ (Good Governance) accessed 21 October 2016. 110 See Chapter 3.

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landscapes, such as that involving the conservation and management of sharks, a unifying legal framework may not be appropriate as it is unlikely to be well-received and may be unable to achieve optimal control of the drivers leading to declines in shark numbers. Instead, a multi-faceted and collaborative approach is more likely to achieve key objectives.111 Exploring the international governance of sharks through this lens, allows for enhancement of existing legal frameworks rather than requiring their replacement with one single regime. 4.2 Fragmented Governance It is clear that there is a myriad of laws and regulations that are focused upon addressing the challenges of shark conservation and management, but as ­noted above these have tended to be fragmented in several different ways. Sectorally, they are split horizontally between, for example, fisheries regulations that seek to manage utilisation, and environmental laws focused on conservation. There is further fragmentation vertically between international, regional, national and local levels of governance. Although not inherently problematic, where key goals are not being achieved, fragmentation must be examined as a possible barrier to success. An examination of the literature reveals that lack of cohesion has hampered regime interaction and in combination with treaty congestion and lack of a ‘champion’ for sharks, good governance and sustainable management of sharks is not being achieved. In addressing this fragmentation and achieving conservation and management, it is necessary to work better with the legal tools that already exist. As noted above, a more horizontally integrated approach between laws and areas of regulation is clearly necessary. Furthermore, greater cohesion is needed between levels of governance. Again there is a body of literature on multi-level governance and regulatory pluralism, and this is explored in Chapter 3 in the context of vertical fragmentation. These issues are explored in further detail throughout this work, as well as the possible solutions that can take several forms. 4.3 Implementation Improving conservation and management outcomes for sharks is unlikely to be effective even with enhanced governance frameworks in the absence of effective implementation. Compliance and enforcement are perennial problems in international law and exacerbated in ocean areas where the challenges 111 Peter N Grabosky, ‘Using Non-Governmental Resources to Foster Regulatory Compliance’ (1995) 8(4) Governance: An International Journal of Policy and Administration 529.

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of monitoring are significant. Again this is an area where fragmentation can be problematic as it results in duplication of effort in some areas and gaps in policing elsewhere. Inter-disciplinary research is also critical here. Although marine science is often relatively easily embedded in international fisheries and environmental law, social science research on compliance and criminological theories, for example, are not. Similarly, technological sciences are rarely engaged with to the same extent as marine sciences and in circumstances where remote sensing and other developments are moving at a rapid pace, there is a missed opportunity for enhanced monitoring and enforcement. This research engages squarely with these issues and examines innovative and inter-­disciplinary approaches to compliance as well as improved monitoring to support better enforcement. 5 Conclusion In moving forward, the principles of good governance and sustainable development have been identified as key bases that provide a solid foundation upon which to build. Before exploring ways forward, Chapter 2 examines the current international law and regulatory landscape. Chapter 3 examines good governance and sustainable development in detail, along with regulatory theory and regulatory pluralism. Chapters 4 and 5 respectively examine in detail the range of species-based and spatial measures that exist. Chapter 6 focuses upon the critical role that international institutions play in terms of setting standards, building capacity through data collection and information sharing, for example, and providing a forum for discussion. Thereafter, Chapter 7 addresses the perennial problem of compliance and enforcement. The lessons learned from efforts to date are explored in detail in Chapter 8, including shark specific measures such as the Sharks MoU, the ipoa Sharks, illegal, uncontrolled and unregulated (iuu) fishing, cites listings, mpas including ‘shark parks’, and tourism. The analysis also includes developments in governance theories, principled-approaches to governance and sustainability, regime interaction and institutional coherence. In addition, Chapter 8 explores trends in multidisciplinarity and how challenges of fragmentation can be overcome and science and technology better embedded in law and policy. The conclusion of this Chapter sets out recommendations for reform focusing on the key issues of providing a more holistic and integrated approach to the conservation and management of sharks thereby contributing to the advancement of the global governance of sharks.

chapter 2

International Law Framework The international law framework for shark conservation and management serves a range of purposes. In the first instance, the starting point for the regulation of any activity at sea is international rules dividing ocean space and ascribing rights and responsibilities to different state actors for the activities being undertaken. These principles are set out in the un Convention on the Law of the Sea (unclos).1 International law also sets out rules and principles specific to sharks that rely on state actors to implement these standards at the national level. In some instances, these standards are intended as guidelines and states have flexibility in deciding what and how they will implement these rules. In other instances, states have an international obligation to adjust their national laws and thereby regulate and control the actions of their nationals consistently with those requirements. These varied international law approaches to shark conservation and management are explained and explored in this chapter. The most important instruments are unclos, the 1995 Fish Stocks Agreement,2 the International Plan of Action for Sharks (Sharks ipoa),3 the Convention on the International Trade in Endangered Species (cites),4 the Convention on Migratory Species (cms),5 and its Memorandum of Understanding on Sharks (Sharks MoU).6 In addition, there are key environmental law principles that must be brought to bear in conservation and management efforts and should inform state efforts 1 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 unts 3, 21 ilm 1261 (1982), entered into force 16 November 1994, art 56 (unclos). 2 The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 unts 88, 34 ilm 1542 (1995), entered into force 11 December 2001 (Fish Stocks Agreement). 3 fao, ‘International Plan of Action for Conservation and Management of Sharks’ (Rome, 1999) accessed 20 October 2016 (ipoa Sharks). 4 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 unts 243 (1973), entered into force 1 July 1975 (cites). 5 Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, 1651 unts 333, 19 ilm 15 (1980), entered into force 1 November 1983 (cms). 6 cms, ‘Memorandum of Understanding on the Conservation of Migratory Sharks’ (Manila, 12 February 2010) accessed 20 October 2016 (Sharks MoU).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004345515_003

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in implementing measures that affect the conservation status of sharks. Indeed, these principles should be taken into account in state decision-making where there may otherwise be no specific rules applicable. As highlighted at the end of the previous chapter, there is considerable fragmentation in the legal regime relating to sharks. This difficulty emerges partially because of the under-researched foundations of the different treaties and soft law at issue and partially because of the responsive nature of international environmental law in addressing specific problems as they emerge. The examination of the international law framework will bring this fragmentation into sharper relief, but also seek to demonstrate some of the strengths and the utility of these different instruments. Given that the existing complex regulatory landscape has not achieved success, it is essential to provide such analysis in identifying ways to overcome barriers. The goal of this Chapter is thus to explore and analyse the existing legal frameworks, including soft law, so as to inform the environmental governance framework and highlight the regulatory pluralism that are assessed in the next Chapter. 1

un Convention on the Law of the Sea (unclos) and the 1995 Fish Stocks Agreement

As mentioned at the outset of this Chapter, unclos provides the essential legal framework to shark conservation and management, as it divides the oceans into different maritime zones according states with varied rights and responsibilities depending on where the state is operating and what it is doing. States also have different roles under unclos depending on whether they are the coastal state, the flag state or the port state in varied scenarios. unclos recognises coastal state sovereignty over fisheries up to 12 nautical miles from the coast, as well as the coastal state’s sovereign rights to conserve, manage and exploit the living resources of the Exclusive Economic Zone (eez), which extends up to 200 nautical miles from the coast. Within the eez, coastal states are required to set a maximum sustainable yield in establishing the total allowable catch of any species and promote the objective of optimum utilisation.7 Other states are entitled to utilise the eez for navigation and related uses, and each group of states must show due regard for the rights of other users in this maritime area.8 Exclusive authority to decide on the harvest and

7 unclos (n 1) art 62. 8 Ibid art 58.

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protection of shark species rests with the coastal state and it is the coastal state that may establish national laws to this effect. This authority to prescribe law extends to an authority to police and enforce those laws against vessels from other states.9 The remaining maritime areas that are not subject to the authority of any coastal state are high seas. All states enjoy a range of freedoms on the high seas and their jurisdiction is limited to those vessels flying their flag. On the high seas, unclos affirms the freedom to fish as one of the freedoms of the high seas, but it is tempered by requirements to cooperate in conservation and management efforts.10 Moreover, states are also to cooperate in the conservation and management of living resources in exercising authority over vessels that are flagged to them.11 One of the critical challenges for fisheries conservation and management has been illegal, unregulated or unreported (iuu) fishing. If a vessel is in violation of conservation and management requirements on the high seas then it usually falls to the flag state to take action against that vessel. No other state may interfere with a foreign-flagged vessel on the high seas unless the flag state has consented.12 As a result, states must take action against their own vessels to ensure that international rules relating to shark protection are being followed when those vessels are on the high seas. The International Tribunal for the Law of the Sea (itlos) has reaffirmed the responsibilities of flag states in its Advisory Opinion for the Sub-Regional Fisheries Commission.13 The Tribunal stated that ‘[t]he flag State is under the “due diligence obligation” to take all necessary measures to ensure compliance and to prevent iuu fishing by fishing vessels flying its flag’.14 Another critical issue in fisheries regulation arises from the fact that marine living resources are unaware of political boundaries and move freely across different states’ maritime zones. For these straddling stocks and highly 9 10 11 12

13

14

Ibid art 72. Ibid arts 118, 119. Ibid art 117. The right of hot pursuit and the right of visit are exceptions, but the right of visit is only conferred by treaty, which reflects the importance of flag state consent. unclos (n 1) art 110. See further Natalie Klein, ‘The Right of Visit and the 2005 Protocol on the Suppression of Unlawful Acts against the Safety of Maritime Navigation’ (2007) 35 Denver Journal of International Law & Policy 287. Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (srfc), Advisory Opinion, Order of 2 April 2015, itlos Reports 2015, 31 (srfc Advisory Opinion). Ibid, para 129.

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­migratory species, unclos imposes duties on states to cooperate either directly or through international organisations.15 The 1995 Fish Stocks Agreement goes some way in filling gaps left by unclos in relation to straddling stocks and highly migratory species. It requires that states utilise the precautionary approach,16 and that states party to the Agreement ‘assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks’.17 These principles are to inform the measures that are taken by states in the management of straddling stocks and highly migratory species. A key feature of the 1995 Fish Stocks Agreement is the reliance on the operation of regional fisheries management organisations (rfmos) and arrangements. Essentially, the 1995 Fish Stocks Agreement is predicated on the existence of rfmos to manage particular species while accounting for the possibility that not every state party to the 1995 Fish Stocks Agreement will also be a member of a relevant regional organisation. The 1995 Fish Stocks Agreement discourages flag states from authorising vessels to fish on the high seas unless they are party to the rfmo. Under Article 10 of the 1995 Fish Stocks Agreement, states in rfmos are to inter alia: agree on and comply with conservation and management measures; agree on participatory rights; adopt and apply international minimum standards for the responsible conduct of fishing operations; obtain and evaluate scientific advice; agree on standards for collection, reporting, verification and exchange of data; compile and disseminate accurate and complete statistical data; promote and conduct scientific assessments; establish appropriate cooperative mechanisms for effective monitoring, control, surveillance and enforcement; have appropriate institutional mechanisms in place; and give due publicity to the conservation and management measures. Some rfmos have been active in agreeing regulations or collecting data about shark catches, and these actions are discussed in more detail in Chapter 6. The legal framework provided by rfmos is relevant in terms of setting up catch limits where sharks are a targeted fishery, or in addressing sharks as bycatch in (most commonly) tuna fisheries.18 In particular, rfmos have established regulations in relation to shark finning, most frequently a fin-to-carcass

15 16 17 18

unclos (n 1) arts 63, 64. Fish Stocks Agreement (n 2) art 5(c). Ibid art 5(d). See Paula Walker, ‘Oceans in the Balance: As the Sharks Go, So Go We’ (2010) 17 Animal Law 97, 119–120.

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ratio,19 for either targeted shark fishing or bycatch.20 rfmos are also important vehicles for data collection and have created different reporting mechanisms as part of monitoring and compliance regimes, consistent with the requirements under Article 10 of the 1995 Fish Stocks Agreement. Critical in the fight against iuu fishing has been rfmos putting in place diverse enforcement mechanisms for flag states, coastal states and port states.21 An inspection regime is anticipated under the 1995 Fish Stocks Agreement to enhance enforcement, so one state party may board and inspect a vessel flagged to another state on the high seas. However, the results of that inspection must be referred to the flag state and the greatest reliance falls on the flag state to monitor and enforce, potentially through prosecution, relevant fisheries conservation and management regulations. Some states are renowned for their failures in properly enforcing or participating in conservation and management measures. Fishing vessels wishing to avoid international regulation may choose to register their vessels with these ‘flag of convenience’ or ‘open registry’ states precisely for this reason. Ultimately, for detailed regulation on the high seas (areas beyond national jurisdiction), there is a need for specific regional agreements or arrangements, including rigorous compliance, and these are lacking thus far for shark species generally. The un General Assembly has proposed the adoption of a new treaty in response to the ongoing gaps in international legal regulation in areas beyond national jurisdiction for the protection of marine biodiversity.22 A preparatory committee is meeting in 2016 and 2017 to draft this new instrument.23 A focus of the new treaty is the conservation and sustainable use of marine genetic resources.24 It is also anticipated that it will affirm key environmental principles, including the need for environmental impact assessments and international 19

20 21 22

23 24

Passantino describes the fin-to-carcass ratio as follows: ‘This means that although fishermen may cut the fins off sharks, the total weight of the fins on board may not be more than a set percentage of the weight of the rest of the shark carcasses present, generally 5%’. Annamaria Passantino, ‘The eu Shark Finning Ban at the Beginning of the New Millennium: The Legal Framework’ (2014) 71 ices Journal of Marine Science 429, 430–431. Discussed in Chapter 6. Discussed in Chapter 7. Development of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, ga Res 69/292, un gaor, 69th session, 96th plenary meeting, Agenda Item 74(a), un Doc A/RES/69/292 (6 July 2015, adopted 19 June 2015). Ibid para 1(a). Ibid para 2.

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cooperation, and anticipates the creation of marine protected areas (mpas) and marine parks. These principles may all have varying degrees of relevance to shark protection on the high seas. Any rules set forth in this instrument will only become binding on those states that become party to the treaty and once the treaty enters into force. As it is not specifically addressing shark management, the extent of its direct significance is likely slight but it should affirm the environmental framework to be applied in shark conservation and management efforts on the high seas. 2

International Plan of Action for Sharks

The main international instrument that is focused on sharks is the ipoa Sharks, which was adopted under the auspices of the Food and Agriculture Organisation (fao). Encouraged by a resolution coming out of a cites meeting,25 the ipoa Sharks was part of a suite of measures adopted under the Code of Conduct for Responsible Fisheries.26 The Code of Conduct for Responsible Fisheries is a voluntary instrument, as are each of the International Plans of Action. There were International Plans of Action adopted on Reducing Incidental Catch of Seabirds in Longline Fisheries, for the Management of Fishing Capacity, as well as for the Conservation and Management of Sharks. These Plans were adopted in 1999 and endorsed by the fao Council in November 2000. ipoa Sharks is also supported by the International Plan of Action to Prevent, Deter and Eliminate iuu Fishing.27 The latter instrument is to apply to both states and fishers, and sets out a far-reaching set of measures to prohibit trade in illegally caught fish at the national level as well as trade measures internationally. Along with its Technical Guidelines, ipoa Sharks is comprehensive in its coverage but is non-binding as a legal matter and has been poorly implemented as a result. Nevertheless, it has catalysed international efforts to improve shark conservation and management, as well as triggering national and 25

26 27

Resolution 917, adopted at the ninth Conference of the Parties to cites, called on the fao and rfmos to collect data and cooperate in data collection efforts. Decision 10.48, which was adopted at the tenth Conference of the Parties to cites in 1997, required cites parties to reduce bycatch and record the data collected under Resolution 917. See Walker (n 18) 116. fao, ‘Code of Conduct for Responsible Fisheries’ accessed 20 October 2016. fao, ‘International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing’ (Rome, 2001) accessed 23 September 2016.

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r­ egional responses. This section sets out the key features of the ipoa Sharks and reflects on its strengths and weaknesses within the overall international legal framework for shark protection. ipoa Sharks covers all species of sharks, skates, rays and chimaeras, and it addresses ‘shark catch’, which includes directed, bycatch, commercial, recreational and other forms of taking sharks. It further encompasses target and non-target catches. It covers both target species and bycatch,28 and applies to states whether sharks are caught in their waters or elsewhere by their nationals. It is the most comprehensive instrument on the international regulation of sharks in terms of species coverage, as it is not limited to critically endangered species but also encompasses the many species whose status are data deficient. Its coverage to encompass target and non-target catches is also important, as concerns have been voiced as to the quantity of sharks taken and not reported as bycatch in other fisheries operations.29 ipoa Sharks comprises principles and implementation procedures to achieve the key objective of ensuring conservation and management of sharks for their long-term sustainable use. Guiding principles include management and conservation strategies that employ the precautionary approach so that the total fishing mortality of each stock is maintained within sustainable levels.30 Nutritional and socio-economic considerations are to be factored into management and conservation strategies.31 Under ipoa Sharks, states are called on to assess the status of sharks and adopt regional and national Plans of Action to conserve and manage sharks.32 There are suggested contents for national shark plans and assessment reports.33 The provisions draw together many existing mechanisms on biodiversity conservation and sustainable fisheries management: for example, the identification of vulnerable and threatened species, improved data collection, 28 29

30 31 32 33

ipoa Sharks (n 3) para 4. Sharks are also by-catch in shrimp trawls and gillnetting operations. Romney Philpott, ‘Why Sharks May Have Nothing to Fear More than Fear Itself: An Analysis of the Effect of Human Attitudes on the Conservation of the Great White Shark’ (2002) 13 Colorado Journal of International Environmental Law and Policy 445, 454. Sharks have been threatened as bycatch in tuna and swordfish longline fisheries. Holly Edwards, ‘When Predators Become Prey: The Need for International Shark Conservation’ (2006–2007) 12 Ocean and Coastal Law Journal 305, 318. See Boris Worm et al., ‘Global Catches, Exploitation Rates and Rebuilding Options for Sharks’ (2013) 40 Marine Policy 194, 195. ipoa Sharks (n 3) para 14. Ibid para 15. Ibid arts 17–28. Ibid para 22; Appendices A and B, respectively.

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assessment and reporting, sustainable use of target species and full utilisation of dead sharks.34 Under the ipoa Sharks, every country was responsible for developing, implementing and monitoring a shark plan, and that plan was to be in place by 2001.35 However, only 17 countries were preparing national plans by the time of the 2001 meeting of the fao Committee on Fisheries.36 ipoa Sharks requires states to report biennially on the progress of the assessment, development and implementation of shark plans.37 States that did not adopt a shark plan within the first two years of the adoption of ipoa Sharks are still to carry out regular assessment of the status of shark stocks subject to fishing so as to determine if a shark plan has become necessary.38 These states are also expected to collect data on catches, landings and trade even if there is no shark plan in place.39 ipoa Sharks and its Technical Guidelines are commendable for their scope in addressing shark conservation and management. Yet the ipoa Sharks status as a non-binding instrument is a central weakness when regard is had to its variable implementation with uptake at the national level being slow.40 In addition, issues surround the consistency and effectiveness of existing national plans of action.41 Lack has summarised the key concerns as: ‘the slow rate of implementation of the ipoa Sharks; the extent to which actions purportedly taken under its name were consistent with its provisions; and, as a result, about the plan’s effectiveness in improving the conservation and management of sharks’.42 Studies of the implementation of ipoa Sharks have starkly revealed the relatively small number of countries that have adopted effective national plans of action, the poor reporting of states on shark catch to the fao, and the failure of the highest volume of shark fishing states to put in place plans to

34 35 36 37 38 39 40

41 42

Ibid para 22. Ibid para 19–20. Philpott (n 29) 458. ipoa Sharks (n 3) para 28. Ibid paras 21, 24. Ibid para 24. Only 13 of the top 20 shark fishing nations have developed plans: Mary Lack and Glenn Sant, ‘The Future of Sharks: A Review of Action and Inaction (2011) Traffic International and the pew Environment Group, 16. Ibid 17. Mary Lack, ‘Challenges for International Governance’ in Erika Techera and Natalie Klein (eds), Sharks: Conservation, Governance and Management (Earthscan, 2014) 48. See also Edwards (n 29) 323–324.

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i­mprove their capacity for shark management.43 The failure of states to take the anticipated steps under the ipoa Sharks undermines the efforts of states that have sought to adopt and implement shark plans.44 Lack concludes that ‘[b]ased on the assessments undertaken to date, there is no clear evidence that the ipoa Sharks has delivered improved management of sharks’.45 3

Convention on the International Trade in Endangered Species

The Convention on the International Trade in Endangered Species (cites) provides an important mechanism to prevent international trade in those species at greatest risk of extinction. cites has been lauded as ‘one of the most comprehensive and successful international environmental treaties in existence’.46 It operates on the basis of listing, which is discussed in more detail in Chapter 5. cites entered into force in 1975. As of 1 October 2016, cites has 183 parties, including the European Union. The cites Secretariat is provided by the United Nations Environment Programme and arranges for the meetings of the state parties (Conference of the Parties), as well as undertaking scientific and technical studies, overseeing implementation of the listings and making recommendations for the implementation of the aims and provisions of the treaty.47 There is a Conference of the Parties held every two to three years to inter alia consider and adopt amendments to the species listed under the Appendices to cites and consider reports presented by the Secretariat or by any party.48 There is scope for appropriately qualified intergovernmental as well as nongovernmental and national agencies and bodies to attend the meetings as observers.49 The cites Secretariat seeks to coordinate with the fao, and the two organisations have worked

43 44 45 46

47 48 49

Lack in Techera and Klein (n 42) 49–50 (referring to different studies that have tracked the national implementation of the ipoa Sharks). Edwards (n 29) 325. Lack in Techera and Klein (n 42) 50. Elisabeth M. McOmber, ‘Problems in the Enforcement of the Convention on International Trade in Endangered Species’ (2002) 27 Brooklyn Journal of International Law 673, 674 (citing various commentators to this effect). cites (n 4) art xii. Ibid art xi(3). Ibid art xi(7).

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together in the scientific and technical evaluation of proposals for listing commercially exploited aquatic species in the cites Appendices.50 Species may be listed in one of three Appendices under cites: Appendix i is reserved for species threatened with extinction,51 and prohibits international trade in these species (including their body parts),52 unless there are exceptional circumstances. These circumstances require certification from a ‘Scientific Authority of the State’ that any export is not detrimental to the survival of the species; the species was obtained lawfully; living specimens are transported so as to minimise risk of damage or injury; and an import permit was obtained.53 Listing a species on Appendix i means that it may not be imported for ‘primarily commercial purposes’.54 An activity is considered ‘“commercial” if its purpose is to obtain economic benefit, including profit (whether in cash or in kind) and is directed toward resale, exchange, provision of a service or other form of economic use or benefit’.55 No sharks are listed on Appendix i, but seven sawfish species have been included. Any listing constitutes an amendment to cites, and a two-thirds majority of parties present and voting (not abstaining) must agree for an amendment to be made.56 The amendments then enter into force ninety days after the Conference of the Parties. States are able to enter reservations to the listing of a species on Appendix i, but even in this situation, the trade of the species must be conducted consistently with the requirements of a species listed in Appendix ii.57 For species listed in Appendix ii, there is a recognised need for trade regulation through the use of import and export permits in order to prevent the species from becoming threatened with extinction. Rather than prohibiting trade, the listing in Appendix ii is intended to enable the tracking of trade. Marine species included on Appendix ii may only be harvested (cites refers to species ‘introduced from the sea’) when there is evidence that the specimen 50 51

52 53 54 55 56 57

Lack in Techera and Klein (n 42) 54. The criteria for listing a species has been controversial and undergone review within cites. This issue is discussed further in Chapter 5. For commentary, see McOmber (n 46) 683–686. cites (n 4) art i(b)(ii) refers to ‘any readily recognizable part or derivative thereof’. Ibid art iii(2). Ibid arts iii(3)(c), (5)(c). cites, ‘Definition of ‘Primarily Commercial Purposes’, Resolution Conf. 5.10 accessed 20 October 2016. cites (n 4) art v(1). cites, ‘Effects of Reservations’, Resolution Conf. 4.25 (Rev. CoP14) accessed 20 October 2016, para 16.

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was so taken in a sustainable manner.58 Differing views remain as to whether the flag state or port state are the relevant states of introduction for the purpose of issuing the required certificate.59 Importing states are not required to issue specific permits, but are required to ensure that the necessary export or re-export permits accompany imported specimens. For exports, it must be demonstrated that the specimen was not taken illegally.60 In addition, to trade Appendix ii listed species, there must be a ‘non-detriment finding’; that is, that the trade is not detrimental to the survival of the species.61 There is a further possibility of individual states opting to list a species on Appendix iii, which may be done without the agreement of other state parties. This listing is a way to alert other states to a species of concern and open up the possibility of ‘cooperation of other parties in the control of trade’.62 Other parties are to monitor trade in the species, but not necessarily limit trade.63 Sharks first garnered attention at cites in 1994 when a resolution was adopted on ‘Status of International Trade in Shark Species’, which instructed the cites Animal Committee to compile and review existing biological and trade data regarding shark species.64 It was almost another ten years before listings of shark species began. Three shark species with the longest protection under Appendix ii of cites are the great white, basking and whale sharks. The great white shark was listed in 2005 whereas the other two species were listed in 2003.65 A small number of states have filed reservations to the listing of these shark species.66 58 59

cites (n 4) art iv(6). Philippe Sands and Jacqueline Peel, Principles of international Environmental Law (3rd edn, Cambridge University Press 2012) 478. The situation has not been clarified despite revisions to the interpretation of ‘introduction from the sea’. See cites, ‘Introduction from the sea’, Resolution Conf. 14.6 (Rev. CoP6) accessed 20 October 2016. 60 cites (n 4) art iii. 61 Ibid. 62 Ibid art ii(3). 63 Ibid art v. 64 cites, ‘Status of International Trade in Shark Species, Resolution Conf. 9.17 accessed 20 October 2016, 74. 65 cites, ‘History of cites Listing of Sharks (Elasmobranchii)’ accessed 20 October 2016. 66 Iceland, Indonesia, Japan, Norway and South Korea have entered reservations for the basking shark; Iceland, Japan, Norway and Palau have reservations for the great white shark; and, Iceland, Indonesia, Japan, Norway, Palau and South Korea have reservations for the whale shark.

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At the 2010 cites Conference in Doha, proposals were submitted to list an additional eight species of sharks on Appendix ii,67 but these submissions were unsuccessful. Despite the scientific evidence provided at the time and the support from the fao, significant commercial interests as well as a preference for regulating trade within rfmos prevailed over the permit process that would have been required with an Appendix ii listing in cites.68 A difficulty with cites has been in determining whether there is reliable data about the status of particular species, and also what information is available to demonstrate the productive capacities of wild populations to allow for sustainable utilisation.69 Economic imperatives have also prevented the listing of some shark species during cites meetings.70 Greater results were achieved at the 2013 cites Conference of the Parties, where states did agree to list an additional five shark species for protection under Appendix ii of cites: the oceanic whitetip; porbeagle; scalloped hammerhead; great hammerhead, and smooth hammerhead. Only a small number of states have objected to their listing (including Japan and Guyana), although other significant shark-fishing states, such as China, have not done so. The status under cites to these recently-added species came into effect in September 2014 (an extra year than usual was considered necessary to allow for sufficient preparation). The spiny dogfish, the sandbar shark and the dusky shark, which had been nominated for listing in Appendix ii in 2010, were not included for listing in 2013. At the 2016 Conference of the Parties in Johannesburg, proposals were submitted to increase protection for the silky shark and three species of thresher sharks by listing them on Appendix ii. It was reported that ‘Fiji, Sri Lanka and the Maldives, which rely on marine life for tourism, are leading proposals to have 13 threatened species of shark and rays given stronger cites protection’.71 67

68 69

70 71

The species proposed for listing were: porbeagle shark, white-tipped sharks, scalloped hammerheads, the great hammerhead, the smooth hammerhead, spiny dogfish, the sandbar shark and the dusky shark. See Mark Jones, ‘Has cites Had its Day?’ bbc News (London, 6 April 2010) accessed 20 October 2016. See Catharine L. Krieps, ‘Sustainable Use of Endangered Species under cites: Is it a Sustainable Alternative?’ (1996) 17 University of Pennsylvania International Economic Law 461, 491. Note, ‘The cites Fort Lauderdale Criteria: The Uses and Limits of Science in International Conservation Decisionmaking’ (2001) 114 Harvard Law Review 1769, 1784. ‘Sharks – Feared Predator in Need of Protection’ Japan Today (Tokyo, 2 October 2016) accessed 20 October 2016.

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There was success in listing the silky shark and three species of thresher shark, as well as Mobula rays, on Appendix ii at the Conference.72 Part of the challenge in utilising cites lies in the difficulty in seeking to reconcile two competing perspectives on the utilisation of non-human animals. On the one hand, cites can be viewed as an instrument that is about conservation and hence seeks to utilise the species but in a sustainable manner to ensure long-term exploitation.73 On the other, there is a preservation imperative, which is reflected at the outset of cites where contracting states recognise ‘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’.74 The distinction between these approaches has been described as follows: ‘A preservationist philosophy emphasizes the need to protect parts of nature, leaving them untouched, while a conservationist philosophy emphasizes the use of parts of nature in a sustainable and responsible fashion’.75 The competing interests as between utilisation and preservation may therefore influence decision-making in cites.76 cites has been a particularly difficult instrument upon which to rely for the purposes of better managing commercially exploited marine species. One of the concerns about using cites in relation to such species is the potential harm to global food supply and to fishing industries in the countries concerned.77 For example, Australia sought to have Patagonian toothfish listed in 2002 but withdrew the proposal following pressure from states party to the regional fisheries management regime within the Antarctic,78 the Convention 72

73 74 75 76 77

78

Michael Krumholtz, ‘Shark species win international protection despite Costa Rica’s abstention’, The Tico Times (San José, 3 October 2016) accessed 20 October 2016; TRAFFIC, ‘Traceability key to successful shark listing implementations’ (4 October 2016) accessed 20 October 2016. See Krieps (n 69) 469 (considering how this perspective is reflected in the preamble to cites). See also Note (n 70) 1769. cites (n 4) Preamble, para 1. Note (n 70) 1772. Krieps (n 69) 470. See Katherine Weber, ‘Can you Eat your Fish and Save it Too? Improving the Protection of Pirated Marine Species through International Trade Measures’ (2010) 25 Journal of Land Use and Environmental Law 265, 289. See also Anna Willock, A TRAFFIC Report: Uncharted Waters: Implementation Issues and Potential Benefits of Listing Toothfish in Appendix ii of cites 11 (TRAFFIC International 2002). Laura Little and Marcos A. Orellana, ‘Can cites Play a Role in Solving the Problem of iuu Fishing?: The Trouble with Patagonian Toothfish’ (2004) Colorado Journal of International Environmental Law and Policy 21, 25. See also Weber (n 77) 293.

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for the Conservation of Antarctic Marine Living Resources (ccamlr).79 Like many shark species, the toothfish has been vulnerable to exploitation because of its longevity, late maturation and low fecundity.80 Rather than ban international trade, it appears that states party to rfmos prefer to manage the exploitation of the species by setting smaller catch limits and resorting to a range of monitoring and compliance measures.81 As Little and Orellana have observed, ‘cites is not focused on management of species, but rather is focused on ensuring that trade does not compromise the biological existence of endangered species’.82 Sturgeon reflect one example of a commercially exploited marine species being regulated relatively successfully under cites. Again like some shark species and toothfish, sturgeon species are characterised as slow-growing with low fecundity.83 Sturgeon are commercially desired for caviar. All 27 species of sturgeon were listed on either Appendix i or ii of cites in the late 1990s.84 Sturgeon are reported as having recovered to some extent, although numbers are still low and there are high incentives for black market activity because of the trade restrictions.85 A further complication for regulating marine species under cites arises in the context of the definition of ‘trade’, which covers ‘introduction from the sea’ as well as export, import and re-export.86 ‘Introduction from the sea’ is defined as ‘transportation into a State of specimens of any species which were taken in the marine environment not under the jurisdiction of any state’.87 This definition references catch from high seas areas, but creates difficulties in relation 79 80 81

82

83 84 85 86 87

Convention for the Conservation of Antarctic Marine Living Resources, 1 August 1980, 1329 unts 48, entered into force 7 April 1982. See Little and Orellana (n 78) 25. See Weber (n 77) 293. ccamlr state parties were also concerned about reputational damage to the ccamlr regime if it was considered that cites regulation was instead needed. See ibid. Little and Orellana (n 78) 64. Little and Orellana have also criticised the use of cites for marine species on the bases that cites lacks expertise in marine issues; that listing criteria are not designed to deal with commercial fisheries; listing procedures make it difficult to de-list or change the listing of a species. Ibid 77–81. See also Diana S. Weber, et al., ‘Unexpected and Undesired Conservation Outcomes of Wildlife Trade Bans – An Emerging Problem for Stakeholders?’ (2015) 3 Global Ecology and Conservation 389, 390. Weber (n 77) 290. Ibid 291. Ibid 291–292. cites (n 4) art i. Ibid art i(c).

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to highly migratory species and straddling stocks that traverse the high seas and the eez. As a result, different regulations may apply to a fish catch depending on where it was harvested.88 cites regulations will also have no impact on those sharks harvested and landed within one state’s eez for domestic consumption.89 Enforcement difficulties may also arise in relation to determining whether a species had been traded legally or illegally.90 Commentators have criticised the greater weight accorded to the decision of the importer in receiving Appendix i listed species, as it is the importer whose assessment of the biological status of the species that prevails.91 Wigginton also suggests that some fishers may seek to change the physical properties of shark fins so as to evade inspections.92 It may also be difficult to identify parts of sharks to determine whether the fins or other products come from a listed species.93 Compliance with cites relies on states to enact the relevant domestic legislation to regulate trade as required under the listing regimes.94 Each state party must have a licensing system to authorise import, export, re-export and introduction from the sea, as well as management and scientific authorities to oversee the implementation of cites requirements.95 The cites Secretariat has followed up with state parties that fail to implement national legislation.96 Parties are to submit annual reports on compliance, and information on compliance may also be presented through reports from non-governmental and intergovernmental organisations and communications from state parties.97 The cites Secretariat or Committees may recommend measures to a state party in the event of non-compliance, and potentially provide advice and assistance.98 88 89 90 91 92 93 94

95 96 97 98

See Little and Orellana (n 78) 80. Jared R. Wigginton, ‘Governing a Global Commons: Sharks in the High Seas’ (2014) 25 Villanova Environmental Law Journal 431, 447. See Krieps (n 69) 491. Yvonne Fiadjoe, ‘cites In Africa: An Examination of Domestic Implementation and Compliance’ (2004) 4 Sustainable Development Law and Policy 38, 41. Wigginton (n 89) 447–448. Philpott (n 29) 460–461. cites (n 4) art viii(1); Rosalind Reeve, Policing International Trade in Endangered SpeciesThe cites Treaty and Compliance (Earthscan 2002) 134–147. For discussion, see Fiadjoe (n 90) 38. cites (n 4) art viii. See also Kaitlin M. Wojnar, ‘Shark Laws with Teeth: How Deep Can u.s. Conservation Laws Cut into Global Trade Regulations? (2012) 19 Animal Law 185, 193. See McOmber (n 46) 697. See Little and Orellana (n 78) 72–73; Krieps (n 69) 491–492. Little and Orellana (n 78) 72–73.

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In the event of continued non-compliance, cites parties may be authorised to suspend temporarily trade with the non-complying party in one or more cites-listed species.99 This regime is discussed further in Chapter 7. The effectiveness of cites has been criticised because of the weaknesses that exist within the treaty text and its mode of operation.100 For example, the ability of states to enter reservations to listings and thereby exclude themselves from the effects of a listing may undermine the overall effort. The variety of exceptions that curtail regulation of species and sit as exemptions from the controls that would otherwise be in place may also prejudice the operation of the cites listing.101 International trade bans have been criticised because they do not address domestic trade, which can be significant, and because such bans are just one tool that can be used to improve conservation.102 Weber et al. have commented: ‘Trade bans can work in the short term, in effect buying the species / population time while an action plan is developed’.103 Hence engagement with broad conservation efforts and promoting national implementation strategies are both critical to the success of cites listings. To enhance the implementation of the 2013 cites listings of sharks and manta rays, the cites Secretariat has coordinated with the fao to run a series of consultative workshops in Africa and Asia,104 as well as developing training and awareness materials.105 The output of one of these workshops included the Xiamen Declaration and an Action Plan for the Implementation of cites Requirements in Relation to Sharks and Manta Rays.106 The Xiamen D ­ eclaration identified priority actions including improvement of data 99 100 101 102 103 104

Ibid 23. See also Weber (n 77) 288. See, e.g., Krieps, (n 69) 472–474; Fiadjoe (n 90) 38; Wigginton (n 89) 447–448. cites (n 4) art vii. Weber et al. (n 82) 390–391. Ibid 390 (emphasis in original). The countries where the workshops were held were determined on the basis of whether the states were range states for one or more of the recently listed species; whether they had reported significant catches and/or exports of sharks, or whether they were recognised ‘as “developing countries” by the un, assigning priorities to those that are classified as “low-income food-deficit countries” by fao, or “least developed countries” and “small island developing states” by the un’. cites Secretariat and fao, ‘Implementing cites Listings of Sharks and Manta Rays 2013–2016’ (2015) accessed 20 October 2016. 105 Ibid. 106 cites, ‘Xiamen Declaration and an Action Plan for the Implementation of cites Requirements in Relation to Sharks and Manta Rays’ (15 May 2014) accessed 20 October 2016.

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c­ ollection, ­strengthening national legislation and enforcement, strengthening conservation and management measures as well as enhancing training and capacity building.107 The regional action plan for implementation identifies the key challenges and the activities to respond to the identified needs of the states concerned. As such, the work of the cites Secretariat and the fao to assist implementation are facilitating the identification of central challenges and setting in place a series of actions for states to follow to allow for the successful implementation of the listing requirements under cites. Further for implementation purposes, the fao has also sought to incorporate actions relating to the new cites-listed sharks and manta rays into existing fao program activities, such as: • • • • •

npoa-Sharks; national fisheries legislation review; iSharkFin shark identification software; international shark trade and traceability; and rfmo management database with reference to relevant measures regulating shark and manta ray bycatch.108

Yet key implementation needs include improving data collection on catches, updating national legislation, developing traceability capacity, as well as training on how to make non-detriment findings for the purposes of export.109 These capacity building exercises on a coordinated basis between the fao and cites as well as the information sharing and use of technology reflect important steps forward in improving the global governance for sharks. 4

Convention on Migratory Species and the Sharks Memorandum of Understanding

The Convention on Migratory Species (cms) offers more comprehensive protection than cites, as range states are potentially banned from taking the protected species at all. The cms also takes into account the habitats of the species concerned. Similar to cites, it operates on the basis of listing species. As of 1 October 2016, the cms has 124 parties.

107 Ibid. 108 cites Secretariat and fao (n 104). 109 Ibid.

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The institutional structure of the cms consists of a secretariat, a Scientific Committee and the Conference of the Parties, with the latter as the key decision-making body. Again similar to cites, the Conference of the Parties assembles every three years and adopts decisions by a two-thirds majority of those states present and voting. There is a Memorandum of Understanding in place between the cites and cms Secretariat, which has allowed for the involvement of the cites Secretariat in developments relating to sharks under the cms.110 The goal of the cms is the restoration and long-term viability of populations of migratory species that are listed in the convention. Migratory species may be defined as ‘the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries’.111 There are general obligations imposed on cms state parties to ‘promote, co-operate in and support research relating to migratory species’ as well as endeavouring to provide immediate protection to species in Appendix i and conclude agreements for species listed in Appendix ii. Migratory species are listed in Appendix i to the cms if they are endangered throughout all or a significant proportion of their range.112 These species are frequently endangered because of habitat destruction and disturbance.113 Once listed, state parties that are ‘range states’ are prohibited from taking the species. ‘Range states’ are defined in the cms to include states that exercise jurisdiction over any part of the range of a migratory species, as well as states that have vessels registered to them that take migratory species on the high seas.114 A listing in Appendix i therefore has significant coverage, provided states with vessels engaged in taking the species are parties to the cms and do not enter reservations to the listing. Three shark species are afforded Appendix i protection: the basking, great white and whale sharks. Now listed, states should endeavour to take steps to protect the habitat of these species, prevent adverse impacts on the migration of the species, and respond to factors that may further endanger the species. 110 111 112 113

Lack in Techera and Klein (n 42) 53–54. Sands and Peel (n 59) 502, drawing on cms (n 5) Preamble, arts i(1)(a), ii(1). cms (n 5) arts i(1)(e), iii(1)–(2). Richard Caddell, ‘International Law and the Protection of Migratory Wildlife: An Appraisal of Twenty-Five Years of the Bonn Convention’ (2005) 16 Colorado Journal of International Environmental Law and Policy 113, 117. 114 cms (n 5) art i(1)(h).

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There are limited circumstances where states may still be permitted to take the Appendix i listed species, including for scientific purposes, traditional subsistence uses and if ‘extraordinary circumstances so require’. The latter exception provides considerable scope of action for state parties. It potentially allows, for example, for a state party to conduct a cull of great white sharks if they are perceived to be too great a threat to beach goers in a particular location.115 For a listing under Appendix ii, the species must have ‘an unfavorable conservation status and which require[s] international agreements for their conservation and management, as well as those which have a conservation status which would significantly benefit from the international cooperation that could be achieved by an international agreement’.116 A listing under Appendix ii requires range states to enter into agreements with each other for the benefit of the species,117 irrespective of whether the range states are parties to the treaty or not. The cms serves as a framework treaty in this regard, as it provides a mechanism for interested and affected states, including non-parties to cms, to take national and regional measures on a species-specific basis and can thereby target the particular protection needs of the species concerned.118 States are able to choose whether to adopt binding agreements in order to ‘restore the migratory species concerned to a favourable conservation status or to maintain it in such a status’.119 Four shark species were listed in Appendix ii in 2008: spiny dogfish, porbeagle, shortfin mako and longfin mako. In 2014, the great hammerhead, scalloped hammerhead, silky shark, common thresher, bigeye thresher and pelagic thresher were added to Appendix ii. A further 22 species were added in early 2016, greatly extending the coverage of this treaty regime. When a species is listed, the listing takes effect ninety days after the meeting, unless a state makes a reservation within that time period.120 As an Appendix ii listing anticipates that states will enter into agreements for the benefit of the species, states have taken steps under the auspices of the cms to adopt such agreements, or to adopt memoranda of understanding 115 PW Pearlman and EJ Techera, ‘Sharks: Conservation, Culling and Controversy’ (2015) 30(2&3) Australian Environment Review 56–61 (also noting that the action taken would not have a ‘significant impact’ on the species, as permitted under the Convention on Biological Diversity). 116 cms (n 5) art iv(1). 117 Ibid arts iv(3), v. 118 See Walker (n 18) 117. 119 cms (n 5) art v(1). 120 Ibid art xi.

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as an initial step towards a more specific, binding, agreement. To address the protection of sharks listed in Appendix ii, parties to cms agreed that a specific instrument was necessary to set out conservation measures, but could not initially agree on whether the agreement would be legally binding or not.121 States ultimately preferred a non-binding instrument, even though various ngos advocated for a binding agreement.122 A memorandum of understanding (Sharks MoU) was adopted by states party to the cms in 2010, and as of 1 October 2016 has 41 signatories, including the European Union. The Sharks MoU is intended ‘to achieve and maintain a favourable conservation status for migratory sharks based on the best available scientific information and taking into account the socio-economic value of these species for the people in various countries’.123 The Sharks MoU is global but only applies to the species already listed on Appendices i and ii of the cms, which are set out in Annex i to the Sharks MoU. The focus of an international instrument on migratory sharks is nonetheless important given that ‘the proportion of species that are threatened increases markedly with geographic size measured by number of [eezs] spanned’.124 The fundamental principles in Section 3 of the Sharks MoU highlight the need for cooperation among governments, international organisations, nongovernmental organisations and other stakeholders, as well as the role of states to take measures to improve the conservation status of sharks and the establishment of other management plans consistent with the Sharks MoU. Another fundamental principle of the Sharks MoU is the ecosystem-based and precautionary approach. Further sections of the Sharks MoU address the objectives of conserving and managing migratory sharks and outlines measures that may be taken to meet these objectives. At the first meeting in 2012, the then-26 signatories adopted a Conservation Plan as Annex 3. The Conservation Plan is important because of the detail set forth for states, as it begins with a series of overall principles and then five primary objectives to be attained. Each objective is then spelled out to guide state conduct across issues such as awareness-raising, stakeholder ­cooperation, 121 Walker (n 18) 118–119. 122 cms, ‘Report of the Meeting to Identify and Elaborate an Option for International ­Cooperation on Migratory Sharks Under the Convention of Migratory Species’ (Mahe, Seychelles, 11–13 December 2007) UNEP/CMS/MS1/Report, 15. 123 Sharks MoU (n 6). 124 Ibid 13; Nicholas K Dulvy, et al., ‘Extinction Risk and Conservation of the World’s Sharks and Rays’ (2014) 3 eLife 12. Dulvy et al. further note that ‘there may be more than 150 chondrichthyans that regularly migrate across national boundaries’.

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b­y-catch, law enforcement, ecologically sustainable management, habitat conservation and research. The steps in the Conservation Plan relate back to specific provisions of the Sharks MoU and provide a broad sweep of actions, addressing many key concerns for shark conservation and management. The Sharks MoU follows only ten years after the adoption of ipoa Sharks. There are considerable similarities between the two instruments, as both reflect an over-arching objective to ‘ensure the conservation and management of migratory sharks and their long-term sustainable use’.125 Both instruments recognise the importance of the precautionary approach in decision-making.126 There is also a shared recognition of the need for international collaboration on data collection and data sharing systems to exchange information.127 Both ultimately rely on domestic implementation efforts, including domestic efforts for compliance and enforcement. The Sharks MoU tends to emphasise conservation efforts for environmental protection over conservation and management for the purposes of commercial utilisation, which is a more recognised context within the ipoa Sharks. The Sharks MoU Conservation Plan is very detailed and specific, whereas the Shark Plans anticipated under ipoa Sharks start with a reasonably broad frame of reference, with technical guidance to be developed.128 While Sharks MoU calls for coordination and cooperation to avoid duplication, it is unclear how state efforts towards a Conservation Plan as well as a Shark Plan are to be directed. Will one such plan suffice for both purposes? Are states to undertake two exercises? Realistically, states are most likely to undertake one such plan for both purposes. The Sharks MoU is still only in its relative infancy with the second Meeting of Signatories taking place in early 2016 preceded by the first Advisory Committee meeting. The Sharks MoU Conservation Working Group will only have its first workshop at the start of November, 2016. At this point, it cannot be assumed that it is likely to have more success at garnering domestic implementation efforts than the ipoa Sharks has achieved.129 The new publicity that may be associated with the advocacy and policy-making efforts within 125 126 127 128 129

ipoa Sharks (n 3) s 16; cms (n 5) Preamble para 6. Ibid s 14; ibid s 3, para 9. Ibid para 21; ibid s 9, para 28. ipoa Sharks (n 3) Appendix A. Walker (n 18) has further commented at 149, ‘[v]oluntary instruments are not providing adequate protection, and drafting and ratifying binding agreements appears to be almost impossible given the monetary returns that shark catch provides, as evidenced by the earlier account of the protracted negotiations of the cms sharks group’.

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the Sharks MoU may assist in motivating changes at the national level. From a law-making perspective, the gradual accumulation of soft law may contribute to the formation of binding law, either as customary international law,130 or in laying the groundwork for codification efforts for a new treaty.131 The Sharks MoU might reflect a deepening of the commitments that states accepted in the ipoa Sharks.132 Whether it achieves better success than ipoa Sharks in its implementation remains to be seen. 5

Key Environmental Principles

Also relevant from an international law perspective in the conservation and management of sharks are general norms developed in international environmental law, such as sustainable development, the precautionary approach and obligations to conduct environmental impact assessments. International environmental law offers a range of tools, including the development of mpas and associated requirements for habitat protection, as well as principles and approaches such as the ecosystem-based approach and sciencebased management,133 that may be brought to bear in shark conservation and management. The following section will discuss how environmental principles underpin the global governance of sharks and so introduces these principles as part of the international law framework for shark conservation and management. 5.1 Sustainable Development and Sustainable Management Sustainable development encapsulates ‘[meeting] the needs of the present without compromising the ability of future generations to meet their own needs’.134 The International Court of Justice (icj) has described the ­concept as the ‘need to reconcile economic development with protection of the 130 See, e.g., Gail L. Lutgen, ‘Soft Law with Hidden Teeth: The Case for a fao International Plan of Action on Sea Turtles’ (2006) 9 Journal of International Wildlife Law and Policy 155. 131 See, e.g., William Edeson, ‘Closing the Gap: The Role of ‘Soft’ International Instruments to Control Fishing’ (1999) 20 Australian Year Book of International Law 83. 132 See, e.g., Daniel Bodansky, The Art and Craft of International Environmental Law (Harvard University Press 2009) 184–186. 133 See, e.g., David Freestone, ‘Modern Principles of High Seas Governance: The Legal Underpinnings’ (2009) 39 Environmental Policy and Law 44. 134 Report of the World Commission on Environment and Development: Our Common Future (Brundtland Report), gaor, 42nd Session Supplement No. 25, un Doc. A/42/427 (1987).

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environment’.135 The pillars of sustainable development are exploiting natural resources in a sustainable manner; preserving natural resources for future generations (inter-generational equity); the equitable use of resources so the needs of others are taken into account; and ensuring that environmental considerations are integrated into development plans.136 Thus within the framework of sustainable development is the concept of sustainable use or sustainable utilisation. Sustainable use captures the idea of using an organism, ecosystem or other natural resource at a rate that is consistent with the capacity for renewal.137 Sustainable development and, more particularly, sustainable use therefore underlie the regulation of fishing activities. In the Advisory Opinion for the Sub-Regional Fisheries Commission, itlos considered what ‘sustainable management’ meant in the context of u ­ nclos. It drew particularly on paragraphs 2, 3 and 4 of Article 61 and commented that ‘the ultimate goal of sustainable management of fish stocks is to conserve and develop them as a viable and sustainable resource’.138 In developing those stocks, states could consider exploitation of under- or non-exploited stocks, or stock restoration so that a given stock is not endangered by over-­exploitation.139 In relation to shared stocks, the itlos noted that the obligation to ensure sustainable management could include the obligation to cooperate with the competent international organisations and the obligation to seek to agree on measures necessary to coordinate and ensure conservation and development of such stocks.140 Further, any measures taken are to ensure that consideration is taken of species associated with or dependent upon harvested species and that there is an exchange of available scientific information, as well as other data relevant to the catch and fishing efforts or to the stocks more generally.141 All of these principles captured within the concept of sustainable management can be applied in state decision-making in the harvesting of shark species. 5.2 Precautionary Approach The requirement to apply the precautionary approach both in the eez and on the high seas is important in relation to the relevant shark species, as this 135 Gacikovo-Nagymaros (Hungary v Slovakia), Judgment, icj Rep. 1997, para 140 (25 September). 136 Sands and Peel (n 59) 207. 137 Krieps (n 69) 463. 138 srfc Advisory Opinion (n 13) para 190. 139 Ibid para 198. 140 Ibid para 208. 141 Ibid para 209.

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­ rinciple accounts for the fact that there may be scientific uncertainty viz the p status of a species and demands a more cautious approach in conservation and management decisions. This approach is necessitated even where sharks are not the targeted species of a particular fishing operation. The precautionary approach, which was articulated in the Rio Declaration,142 ensures that lack of scientific uncertainty does not delay conservation measures.143 One commentator has observed that ‘[d]eveloping countries have resisted the application of this principle, because its application will mean that they must be more diligent in the preservation of wildlife’,144 and that it therefore fails to consider the particular situation of developing countries.145 Nonetheless, the precautionary approach has featured in disputes relating to the conservation and management of marine living resources, as well as with regard to the marine environment more generally. The itlos required Australia, New Zealand and Japan to ‘act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna’.146 This order responded to Australia and New Zealand’s request for provisional measures challenging Japan’s institution of an experimental fishing program to take southern bluefin tuna in excess of the national allocations agreed within the relevant rfmo. The itlos has also prescribed orders requiring ‘prudence and caution’ to protect the marine environment in the mox Plant case,147 and the Land Reclamation case.148 In its Advisory Opinion on Responsibilities and Obligations in the Area, the itlos Seabed Disputes Chamber more explicitly recognised a customary law obligation to apply a precautionary approach in the context of the exploitation of 142 Principle 15 provides: ‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effect measures to prevent environmental degradation’. unga, Rio Declaration on Environment and Development, un Doc. A/CONF.151/26 (Vol. 1), 31 ilm 874 (1992), Principle 15. 143 Weber (n 77) 272. 144 Fiadjoe (n 90) 40. 145 Ibid 40. 146 Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, itlos Reports 2000, para 77 (sbt Cases). 147 The Mox Plant Case (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001, itlos Reports 2001, para 84. 148 Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), Provisional Measures, Order of 8 October 2003, itlos Reports 2003, para 99.

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the deep seabed.149 While the principle has received considerable support for its accepted legal status, its practical application in different contexts allows for some level of discretion and flexibility. As a result, different views will undoubtedly emerge as to whether the steps taken are sufficient to meet what might be anticipated as a precautionary approach. 5.3 Environmental Impact Assessments Environmental impact assessments (eia) anticipate that environmental considerations will be incorporated into socio-economic development and decision-making processes.150 The process involved in eia is that the environmental consequences of certain activities must be ascertained prior to the activity commencing so as to determine if any adjustments are required to reduce adverse environmental impacts. eias are required as a matter of international law and are to be undertaken at the national level by relevant authorities. In the maritime context, unclos provides in Article 206: When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments… Although this provision is located in the Part of unclos dealing with the protection and preservation of the marine environment, it could be considered as applying in the context of fisheries conservation and management. As has been noted by itlos, ‘the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’.151 5.4 Ecosystem-based Approach An ecosystem-based approach involves ‘tak[ing] into account all ecological relationships between species and their marine environment in harvesting and restoration decision making’.152 This approach is evident in the cms to reduce 149 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, itlos Reports 2011, paras ­121–122, 125–127. 150 Sands and Peel (n 59) 601. 151 sbt Cases (n 146) para 70. 152 Weber (n 77) 272.

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a number of impediments to migration, whereas cites addresses protection measures in a much narrower frame.153 As mentioned above, the ecosystembased approach is set out in the 1995 Fish Stocks Agreement,154 and has found reflection in the maritime context in relation to fisheries regulation, pollution prevention and species and habitat protection.155 unclos also requires states to take measures ‘necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’.156 The ecosystem-based approach may also encapsulate the notion of integrated management, which seeks to address challenges created in current governance models as well as spurring new rules.157 The ecosystem-based approach drives the habitat protection afforded in the Convention on Biological Diversity (cbd),158 which envisages both in situ and ex situ conservation, including the establishment of protected areas.159 By focusing on the importance of maintaining ecosystems, the cbd provides a vehicle to consider the implications of over-fishing shark species to an ecosystem as a whole. In this regard, one of the central principles stipulated in the cbd is the requirement for states ‘to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’.160 The weakness of the cbd lies in the soft language utilised in pertinent provisions, which does not establish concrete obligations on the part of states. The language is not highly prescriptive as to what steps states must take, but instead directed at empowering states if they wish to take action. There is considerable flexibility afforded to states in terms of taking action relative to resource availability.161 This approach may derail efforts at ensuring conservation and sustainable use of biodiversity, including sharks species and their habitats. States may consider that efforts to limit habitat destruction are more intrusive in the regulation of their domestic affairs than, for example, trade bans and may be more willing to pursue measures under cites than under an instrument like the cbd.162 153 154 155 156 157 158 159 160 161 162

See Caddell (n 113) 146. Fish Stocks Agreement (n 2) art 5(d). Sands and Peel (n 59) 345. unclos (n 1) art 194(5). Sands and Peel (n 59) 345. Convention on Biological Diversity, 5 June 1992, 1760 unts 79, entered into force 29 ­December 1993 (cbd). Ibid art 8. Ibid art 3. Ibid art 6. See Note (n 70) 1773.

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5.5 Biodiversity Protection Also important from the cbd are core obligations relating to the protection of biodiversity, which, in the context of sharks, provides further standards and principles devoted to ensuring the conservation of all shark species. Since its first Conference of the Parties, the states party to the cbd have pursued a Marine and Coastal Program assessing a variety of issues pertaining to the protection of the marine environment. In particular, the cbd currently has a key role in supporting the work of the un General Assembly with regard to its drafting efforts for a new treaty that will address marine protected areas beyond national jurisdiction and thereby support marine biodiversity. Of recent significance has been the adoption of the Aichi Biodiversity Targets.163 The Strategic Goals set forth encompass the following: • Address the underlying causes of biodiversity loss by mainstreaming biodiversity across government and society • Reduce the direct pressures on biodiversity and promote sustainable use • To improve the status of biodiversity by safeguarding ecosystems, species and genetic diversity • Enhance the benefits to all from biodiversity and ecosystem services • Enhance implementation through participatory planning, knowledge management and capacity building.164 Each of these goals encompass a series of targets for more specific action and, if applied in the context of sharks, would be significantly supportive of the conservation and management of sharks. The objectives of the Aichi Biodiversity Targets are of course much broader as they are devoted to biodiversity, but their elements reflect important techniques and tools that could be incorporated into the global governance of sharks. How this is to be done is explored in the following chapter. 6 Conclusion There is a considerable body of international law available to regulate state ­decision-making in relation to the conservation and management of sharks. This chapter has identified the key treaties and agreements, as well as highlighting core environmental principles that also inform state efforts in this 163 See Convention on Biological Diversity, ‘Aichi Biodiversity Targets’ accessed 20 October 2016. 164 Ibid.

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regard. Other international agreements will also have bearing on the tools, techniques and approaches that are used in taking practical steps to improve the status of sharks. The cbd can be considered as one such treaty, as well as the World Heritage Convention, which provides an important framework for mpas and is discussed in more detail in Chapter 5. The constitutive instruments, resolutions and recommendations of rfmos have been mentioned in this chapter, especially as they fall within the framework of the 1995 Fish Stocks Agreement. These organisations are also an important source of law in the conservation and management of sharks, and the standards deriving from these institutions and their processes will be considered in greater detail in Chapter 4 in addressing tools, as well as in relation to institutional structure (Chapter 6) and compliance and enforcement (Chapter 7). When we have regard to these diverse sources of law, the fragmentation of the legal regime pertaining to sharks is evident. This fragmentation is due to a variety of reasons, including competing state interests, a lack of focus on the plight of sharks, the availability of broader principles to address sharks in particular. Dulvey et al. have rightly noted in this regard: ‘In a world of limited funding, conservation priorities are often based on immediacy of extinction, the value of biodiversity and conservation opportunity’.165 While the fragmentation is undesirable, there are ways to manage it. Having explored the diversity of laws, principles, standards and approaches in this chapter, the next chapter seeks to place these elements within their theoretical framework.

165 Dulvy et al. (n 124) 9.

chapter 3

Governance and Regulation As outlined in Chapter 1, just as environmental management approaches have become more holistic, so too have legal and regulatory approaches progressed beyond rules developed in isolation to entire frameworks and regimes. Simi­ larly, approaches have expanded from those focused on single issues to plural­ istic responses. It is clear from Chapter 2 that the international legal landscape for the conservation and management of sharks has matured in the last dec­ ade and now includes a range of laws and institutions, and yet species num­ bers continue to decline. What is essential in moving forward is to improve the effectiveness of these laws. It is clear that this involves becoming more outcomes-based, but the way forward is not clear. The myriad of laws and in­ stitutional responses need to be understood and organised in some meaning­ ful way so that they may be effectively analysed. Only then can barriers and hurdles be overcome. Approaching the issues from a regulation and governance perspective pro­ vides a solid foundation upon which to begin. Contemporary approaches to regulation and governance recognise not only laws for conservation and man­ agement but also critical institutions and essential processes associated with them. In this way, enhanced frameworks would involve streamlining these three elements of laws, institutions and processes across different instruments. Again approaches to regulation and the concept of good governance can assist with this through an exploration of the principles at their core. The advantage of doing so is that these principles align well with those at the heart of the concept of sustainability. Both good governance and sustainability have heav­ ily influenced environmental and natural resources law and are well-endorsed globally. A principles-based approach can also have a unifying effect in its own right. In addition, as good environmental governance lacks a universally ac­ cepted definition, greater clarity is needed if the concept is to be utilised effec­ tively. Again an examination of the central principles has value in this context. Having established a solid foundation for the way forward, ways and means must be identified to overcome the fragmentation in global responses to the conservation and management of sharks. Whilst focused responses are valu­ able in addressing discrete issues (such as endangered species protections and trade restrictions), they can create unnecessary complexity, multiple ­partially-overlapping layers of rules, and duplication of effort at all levels. Sus­ tainability requires integration and yet does not provide detail on how it might

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004345515_004

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be achieved. Looking more prospectively, it can be seen that these issues are unlikely to disappear in the context of conservation and utilisation of sharks, as listings continue, as does demand for fins resulting in increased fisheries regulation. Chapter 6 explores potential solutions including the establish­ ment of an international institution for shark conservation and management. However, considerable political will is needed to establish such a body, and sharks (and their values) are not perceived in the same way as whales – the most successful of the species-focused treaty regimes. Furthermore, given the ­considerable advances made in the last decade in terms of species listing, area-based restrictions, trade and fisheries measures, attempting to create a new ­all-encompassing institution-led regime risks losing momentum on con­ servation and management issues and possibly undoing some of the recent advances. It is in this context that good environmental governance and regula­ tory pluralism can be applied to achieve harmonisation without doing dam­ age to existing frameworks and institutions; to overcome treaty congestion, poor regime interaction and framework fragmentation, all of which have been ­identified as preventing outcomes from being achieved. Before exploring the obstacles and opportunities for enhanced conserva­ tion and management, this Chapter outlines the emergence of the concepts of good governance and sustainability followed by an exploration of the vari­ ous governance theories and regulatory approaches that have developed in the environmental arena. Thereafter, the analysis distils the key principles that underpin good environmental governance, drawing upon international ­environmental law and sustainable development principles, and applies them as a sound foundation for enhancing the conservation and management of sharks. Such a principles-based approach aligns well with similar develop­ ments in the area of regulation research, which leads to the examination of regulatory ­pluralism as an aligned concept that provides a solid foundation for harmonisation of legal frameworks into a more functional pluralistic re­ gime. In this way, this research contributes to the body of work on governance and regulation, illuminating the way forward for shark conservation and management. 1

Linking Governance and Sustainability

As outlined in Chapter 1, sharks are coming under increasing pressure from tar­ get fisheries, incidental harvests and as bycatch. Responses have included in­ creased scientific research, identification of alternative business o­ pportunities

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and livelihood options, and growing public support for shark conservation. This activity has led to the development and expansion of legal responses for shark conservation and management as explored in Chapter 2. Many of these responses, however, have developed independently of each other and now provide a fragmented regime.1 In seeking to overcome obstacles and identify options to enhance legal frameworks, an important first step is to identify core concepts that can provide unifying elements. Clearly many international envi­ ronmental and natural resources law treaties have the same principles at their core. This section explores the concepts of sustainability and good environ­ mental governance and the principles that define them. Thereafter, this sec­ tion demonstrates how a unified set of principles can be articulated not only to help to identify common themes and explain the synergies that might exist between legal frameworks but also to better operationalise the frameworks go­ ing forward. 1.1 Defining Sustainability Sustainability, as a concept focused on maintaining resources, has probably underpinned the management of environmental and natural resources for a considerable time. It is clear that early international laws were focused on en­ suring stocks were kept at sufficient levels to maintain industries. For example, the Preamble to the International Convention on the Regulation of Whaling notes that ‘whaling operations should be confined to those species best able to sustain exploitation in order to give an interval for recovery to certain species of whales now depleted in numbers’.2 However, it was not until 1987 that the concept of sustainable development was introduced into the broader inter­ national arena, where it was defined as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.3 Since then sustainable development has become the para­ digm of choice in environmental management, widely endorsed by states both through international instruments and domestic legislation. Its attraction lies in the simplicity of a three pillared approach that seeks to balance economic development with environmental concerns and socio-cultural issues. Such 1 Erika J. Techera and Natalie Klein, ‘Fragmented Governance: Reconciling legal strategies for shark conservation and management’ (2011) 35(1) Marine Policy 73–78. 2 International Convention for the Regulation of Whaling, (Washington, 2 December 1946), 161 unts 72, entered into force 10 November 1948, Preamble. 3 Report of the World Commission on Environment and Development: Our Common Future (Brundtland Report), gao, 42nd Session Supplement No. 25, un Doc. A/42/427 (1987).

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simplicity is attractive but its operationalisation is hampered by a lack of clar­ ity around its precise meaning, which makes its translation into action more difficult. Indeed, it is not entirely clear whether sustainability and sustainable development are concepts or principles themselves. The way in which these issues have been addressed is through the articula­ tion of a core set of principles, rather than a definition as such. Famously, the un Conference on the Human Environment, held in Stockholm in 1972, was the first global environmental conference, and following on from it interna­ tional environmental law began to develop as a discrete field.4 The seminal Stockholm Declaration was adopted at the Conference, and was comprised en­ tirely of key principles.5 The subsequent un Conference on Environment and Development (1992) endorsed the Rio Declaration,6 as well as a critical plan of action for implementation, Agenda 21.7 These instruments are important because they mark the emergence of globally endorsed principles and thus an advance on the previous position where a disjointed collection of environ­ mental protection norms had developed under customary international law. Thus the Stockholm Declaration (1972) is a significant instrument and marks a milestone in international environmental law. The principles that are articulated in the Stockholm Declaration include: • ‘States have … the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities … do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction’.8

4 Although it is clear that the environmental movement preceded this conference with result­ ing national developments such as the creation of the us Environmental Protection Agency and the adoption of environmental legislation in Australia in 1970. 5 The Stockholm Declaration was endorsed at the un Convention on the Human Environment held in Stockholm in 1972: unga, Stockholm Declaration on the Human Environment, un Doc. A/CONF.48/14 (1972) (Stockholm Declaration). It should be noted that there was one earlier global conference where experts met for the first time to discuss global environmental problems, such as pollution, loss of natural resources, and destruction of wetlands: The un Biosphere Conference in Paris, France, 1968. 6 unga, Rio Declaration on Environment and Development, un Doc. A/CONF.151/26 (Vol. 1), 31 ilm 874 (1992) (Rio Declaration). 7 Report of the United Nations Conference on Environment and Development, gaor, 46th Session, Agenda Item 21, un Doc. A/CONF.151/26 (1992) (Agenda 21). 8 Stockholm Declaration (n 5) Principle 21.

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• ‘Nature Conservation … must … receive importance’ [r]ecognising humans have ‘a special responsibility to safeguard and wisely manage’ nature which is now ‘gravely imperilled’.9 • ‘Steps must be taken ‘to prevent pollution of the seas’ and ‘[p]lanning must be applied … with a view to avoiding adverse effects on the environment’.10 • Utilisation of resources must ‘guard against the danger of their future ­exhaustion’ and ‘[t]he discharge of … substances … must be halted in or­ der to ensure that serious or irreversible damage is not inflicted upon ecosystems’.11 • ‘[N]atural resources … must be safeguarded for the benefit of present and future generations’, [e]nvironmental policies should ‘not adversely affect the present or future development potential of developing countries’ and ‘taking into account the circumstances and particular requirements of ­developing countries’.12 • ‘International matters … should be handled in a cooperative spirit by all countries’ including ‘[c]ooperation through multilateral or bilateral ar­ rangements’. Environmental challenges can ‘best be remedied by acceler­ ated development through the transfer of … financial and technological as­ sistance’ and the ‘free flow of up to date scientific information and transfer of experience must be supported and assisted’.13 • ‘States should adopt an integrated and coordinated approach to their devel­ opment planning’.14 • ‘Economic and social development is essential’ and ‘[e]nvironmental de­ ficiencies generated by the conditions of under-development and natural disasters pose grave problems and can best be remedied by accelerated development’.15 Analysing the above, it is clear that some crucial principles emerge: sover­ eignty, conservation, cooperation, integration, prevention, precaution, and the right to development.

9 10 11 12 13 14 15

Ibid Principle 4. Ibid Principles 7, 15. Ibid Principles 5, 6. Ibid Principles 2, 11, 12. Ibid Principles 9, 20, 22, 24. Ibid Principle 13. Ibid Principles 8 and 9.

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To these, the Rio Declaration added the principles that the polluter pays, participation, prior informed consent and the newly endorsed ‘sustainable development’: • States should ‘promote the internationalisation of environmental costs and the use of economic instruments …[and] the polluter should … bear the costs of pollution’.16 • ‘Environmental issues are best handled with participation of all concerned citizens, at the relevant level’.17 • ‘States shall immediately notify other States of any natural disasters or other emergencies … likely to produce … harmful effects on the environment’.18 • ‘In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process’ and ‘States should reduce and eliminate unsustainable patterns of production and consumption’.19 The principles of sustainable development that have emerged since, in large­ ly soft law instruments, essentially incorporate international environmental law principles drawn from the Stockholm and Rio Declarations.20 These prin­ ciples provide considerable guidance in achieving sustainability.21 Although the principles themselves are open to interpretation, there is widespread con­ sensus regarding the list.22 The rapid increase in international environmental law treaties, in 1992 and thereafter, endorsed sustainable development and these principles. For example, the Convention on Biological Diversity (cbd) 16 17 18 19 20

21 22

Rio Declaration (n 6), Principle 16. Ibid Principle 10. Ibid Principle 18. Ibid Principles 4 and 8. These instruments include the New Delhi Declaration on Principles of International Law Relating to Sustainable Development (International Law Association 2002), Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development (United Nations 1995), Draft International Covenant on Environment and Development (4th ed iucn 2010): see Marie-Claire Cordonier Segger and Ashfaq Khalfan, Sustainable Development Law: Principles, Practices and Prospects (Oxford University Press 2004). Ibid 87–162. Evidenced by their inclusion in key texts such as: Philippe Sands and Jacqueline Peel, Principles of International Environmental Law, (3rd Ed, Cambridge University Press 2012). See also Nicolas de Sadaleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press, 2002).

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includes objectives directly aligned with the above principles: ‘conservation of biological diversity, the sustainable use of its components and the fair and eq­ uitable sharing of the benefits’.23 The importance of sustainable development and its principles have also been recognised in resolutions and decisions of pre-existing treaty bodies including those relevant to this research: the Con­ vention on International Trade in Endangered Species (cites) and the Con­ vention on Migratory Species (cms). Although cites, for example, does not refer specifically to sustainable development, the fundamental principles in Article ii are clearly aimed at the same goals in terms of ensuring that trade does not endanger species’ survival.24 Similarly, the cms does not refer to sus­ tainability but refers to maintenance of species in the context of improving or ensuring their conservation status.25 The un Convention on the Law of the Sea (unclos) employs the concept of ‘maximum sustainable yield’ as well as rely­ ing on key principles such as cooperation.26 Some of the principles have also been endorsed in regional fisheries management organisations (rfmos), such as the Western Central Pacific Fishery Commission Convention that refers spe­ cifically to ‘conservation and sustainable use’ in its Preamble and objectives.27 1.2 What is Good Governance Almost simultaneously, good governance emerged as another concept in­ fluencing the achievement of sustainable development and environmental goals. As a concept it is equally as vague as its fellow concepts, without pre­ cise meaning and having a ‘diversity of intellectual underpinnings’.28 As will 23

24

25 26 27

28

Convention on Biological Diversity, 5 June 1992, 1760 unts 79, entered into force 29 December 1993, art 1. See also United Nations Framework Convention on Climate Change, 9 May 1992, 31 ilm 849, entered into force 21 March 1994 (cbd), art 2. Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 unts 243 (1973), entered into force 1 July 1975 (cites); see also art iv(3) on the role of the Scientific Committee in terms of ensuring the maintenance of species throughout their range. Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, 1651 unts 333, 19 ilm 15 (1980), entered into force 1 November 1983 (cms), art i(1). See also art v. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 unts 3, 21 ilm 1261 (1982), entered into force 16 November 1994 (unclos). Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, 5 September 2000, 40 ilm 278, entered into force 19 June 2004, Preamble, art 2. Cameron Holley and Neil Gunningham, ‘Natural Resources, New Governance and Legal Regulation: When Does Collaboration Work?’ (2011) 24 New Zealand Universities Law Review 309, 310.

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be explored further below, it has received particularly wide usage in relation to responses to environmental issues leading to the emergence of a range of environmental governance theories. The concept has also been described in relation to ­responses to challenges in the marine environment, where ‘oceans governance’ has been described as ‘an open-textured concept’ casting a ‘wide discursive net’.29 Governance is not mentioned in the Stockholm or Rio Declarations but, as will be seen below, the environmental governance principles that have emerged align well with sustainable development. Agenda 21 is the key instru­ ment that provides an action plan for the achievement of sustainable devel­ opment and it does refer to governance in a number of places,30 including relevantly chapters on integration31 and international environmental law.32 In terms of integration, a specific Agenda 21 programme area focuses on an effective legal and regulatory framework and included within that is refer­ ence to the objectives of assisting countries to ‘modernise and strengthen the policy and legal framework of governance’ recognising that they will set their own national priorities.33 This differentiation between law and regula­ tion and ­governance is s­ ignificant because, as will be explored below, the con­ cepts are connected though not synonymous. Agenda 21 goes on to refer to strengthening legal and institutional capacity ‘to cope with national problems of ­governance and effective law-making and law-applying in the field of en­ vironment and sustainable ­development’ through ‘regional centres of excel­ lence’ and ‘specialized databases and training facilities’.34 In Chapter 39, on international legal instruments and mechanisms, recognition is given to the need for further ­development of international environmental law and the importance of ­clarifying and strengthening the relationship between instru­ ments. ­Governance is specifically referred to in relation to ensuring the par­ ticipation of all countries to ensure ‘balanced governance’.35 Agenda 21 does not, ­however, elaborate any elements of good governance or otherwise define the term.

29 30 31 32 33 34 35

Donald R Rothwell and David L VanderZwaag (eds), Towards Principled Oceans Governance: Australian and Canadian approaches and challenges, (Routledge 2006) 5. Agenda 21 (n 7) paras 3.2, 8.16, 21.8, 33.14, 39.1, 39.3. Ibid Chapter 8. Ibid Chapter 39. Ibid para 8.16(b). Ibid para 8.26. Ibid paras 39.1(c), 39.3(c).

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Subsequently, the President of the Governing Council of unep identified governance as relevant, in particular, to achieving a coherent framework and advancing effectiveness: To date, gaps in environmental governance were a fundamental reason for the gap between goals and results. The responses of the international community had all too often lacked coherence. It was therefore essen­ tial to develop a model of sound environmental governance that could serve as the basis for sustainable international development and poverty eradication.36 The importance of good environmental governance was cemented in later conferences and instruments. For example, the World Summit on Sustainable  ­Development (2002) considered governance in the context of its inter-connectedness with the implementation of environmental law. The Johannesburg Plan of Implementation of the World Summit on Sustainable Development (jpoi) identifies good governance as ‘essential’ and ‘fundamen­ tal’ for sustainable development.37 The jpoi also endorsed Appendix i of the unep Governing Council report above calling for its decision on international environmental governance to be fully implemented38 and that it is essential to ‘promote environmental governance’.39 The Johannesburg Declaration on Sustainable Development recognises the need to ‘strengthen and improve governance at all levels’ for the effective implementation of key instruments including Agenda 21.40 This focus on governance continued with the Rio+20 Conference on Sustainable Development (2012).41 The final Report of the 36

37

38 39 40 41

unep (Governing Council of the United Nations Environment Programme), ‘Global Min­ isterial Environment Forum, Report of the Governing Council on the Work of its Seventh Special Session’ (2002) un Doc unep/gcss.VII/6 at Chapter i(A)(5). wssd (World Summit on Sustainable Development), ‘Johannesburg Plan of Implementa­ tion’, Report of the World Summit on Sustainable Development, 4 September 2002, un Doc A/CONF 199/20, para 4, 138 and 141. Ibid para 140(d). Ibid para 141. wssd (World Summit on Sustainable Development), ‘Johannesburg Declaration on ­Sustainable Development’ (2002) un Doc A/CONF.199/20, para 30. unga (United Nations General Assembly), ‘General Assembly Resolution: The Future We Want’ (2012) unga Res A/66/288; International Institute for Sustainable Development, ‘The Future of Sustainable Development: Rethinking sustainable development after Rio+20 and implications for unep’ (iisd, 2013) accessed 11 August 2016.

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­ onference ­re-asserted that ‘effective governance at the local, subnational, na­ C tional, ­regional and global levels representing the voices and interests of all is critical for advancing sustainable development’ and ‘good governance and the rule of law at the national and international levels are essential for sustained, inclusive and equitable economic growth, sustainable development and the eradication of poverty and hunger’.42 Whilst these conferences and resulting documents lent considerable sup­ port to the concept, it took a separate group to articulate the principles. In conjunction with the Rio+20 conference, the World Congress on Justice, Governance and Law for Environmental Sustainability43 adopted another ­Declaration but one in which the principles were articulated.44 The Declara­ tion provides a list of ‘Principles for the Advancement of Justice, Governance and Law for Environmental Sustainability’: Environmental sustainability can only be achieved in the context of fair, effective and transparent national governance arrangements and rule of law, predicated on: (a) fair, clear and implementable environmental laws; (b) public participation in decision-making, and access to justice and information, in accordance with Principle 10 of the Rio Declaration, including exploring the potential value of borrowing provisions from the Aarhus Convention in this regard; (c) accountability and integrity of institutions and decision-makers, in­ cluding through the active engagement of environmental auditing and enforcement; (d) clear and coordinated mandates and roles; (e) accessible, fair, impartial, timely and responsive dispute resolution mechanisms, including developing specialised expertise in environ­ mental adjudication, and innovative environmental procedures and remedies.45 42 43

44

45

unga, ‘The Future We Want’ (n 41) [76], [252]. The Congress involved a diverse group of stakeholders organised by unep to contribute to the un Conference on Sustainable Development (Rio+20): see World Congress on Justice, Governance and Law for Environmental Sustainability, (iisd) ac­ cessed 29 October 2016. United Nations Environment Programme, ‘Rio+20 Declaration on Justice, Governance and Law for Environmental Sustainability’ (unep, 2012) ac­ cessed 10 August 2016. Ibid Section 2.

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At the international level, therefore, it is recognised that good governance is critical to the objective of making ‘interventions aiming at changes in ­environment-related incentives, knowledge, institutions, decision making, and behaviours’.46 Nevertheless, no definition has been advanced. Confusion has arisen, in part, because governance can be viewed in two ways.47 First, it can be conceived of as comprising categories: mechanisms (binding and in­ formal rules at all scales), institutions (the architecture of individual internal arrangements and systems for interaction between multiple bodies at all lev­ els) and processes (both within and between institutions, laws, polices and actors).48 As a result, governance systems could encompass almost any initia­ tive that aims to oversee the implementation of international environmental law.49 The second way in which good governance can be viewed is through the key elements to achieve it; as with sustainable development and international environmental law a set of principles has emerged, advanced in particular by the Rio+20 Declaration on Justice, Governance and Law for Environmental Sustainability. A clear set of principles can therefore be elucidated from this Declaration and broader governance literature: accountability, transparency, responsive­ ness, efficiency, effectiveness, equity, inclusivity, participation and the rule of law. It can be seen in Figure 3 that there is considerable overlap between prin­ ciples associated with good governance, sustainable development and interna­ tional environmental law. The refined and aligned list of governance principles thus provides valuable guidance for the achievement of environmental goals including sustainable development. 46 47

48

49

Maria Carmen Lemos and Arun Agrawal, ‘Environmental Governance’ (2006) 31 Annual Review of Environmental Resources 297, 298. Some commentators such as Biermann and Pattberg refer to three separate notions: ‘a de­ scription of current transformations of global politics, a political program in the affirma­ tive sense, and a political program in the critical sense’: see F Biermann and P Pattberg, ‘Global Environmental Governance: Taking stock, moving forward’ (2008) 33 Annual Review of Environmental Resources 277, 289. Lemos and Agrawal (n 46) 298; unep (United Nations Environment Programme), ‘Environ­ mental governance’ (unep, 2009) accessed 10 August 2016; United Nations System Task Team, ‘Gover­ nance and development: Thematic Think Piece’ (unstt, 2012) accessed 10 August 2016. See also Young where reference is made to a ‘regime’ in similar terms: Margaret A. Young, Trading Fish, Saving Fish: The Interaction between Regimes in International Law (Cam­ bridge University Press 2011), 19. Oran R. Young, Global Governance: Drawing Insights from the Environmental Experience (mit Press 1997) 27–64.

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Good governance

Sustainable development and international environmental law

Accountability

Polluter Pays Compensation Communication Conservation Integration Integration Integration Prevention Inter and Intra generational equity Participation Cooperation Participation Communication Inter and Intra generational equity Transparency Accountability

Transparency Responsiveness Efficiency Effectiveness Equity Inclusivity Participatory Rule of Law

Figure 3

Governance and sustainable development principles mapped.

The broader scope of governance reflects the recognition that it is not just binding rules that are relevant, but institutions and the processes and ac­ tions they lead. As with sustainability, the concepts of governance and good international environmental governance are underpinned by a core set of principles.50 Although some authors doubt the legitimacy of the concept of in­ ternational environmental governance,51 it is clear that an expanding amount of literature in the marine context refers to governance.52 Therefore, principles are the common thread that runs through both the concepts of sustainability 50

51

52

Oran R. Young, The Effectiveness of International Environmental Regimes: Causal Connections and Behavioural Mechanisms (mit Press 1999); VP Nanda, ‘The “Good Governance” Concept Revisited’ (2006) 603 Annals of the American Academy of Political and Social Science 269. Daniel Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’ (1999) 93(3) The American Journal of International Law 596. See for example, Donald R Rothwell and David L VanderZwaag (eds), Towards Principled Oceans Governance: Australian and Canadian approaches and challenges, (Routledge,

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and governance. None of the legal frameworks considered in this research refer specifically to governance, but there is little doubt that many environmental programs, projects and initiatives have done so. This has led to the emergence of a number of environmental governance ‘theories’, explored below. .

2

Environmental Governance Theories53

Through the above key international conferences and instruments, good gov­ ernance has been endorsed as a concept of relevance to the achievement of en­ vironmental goals. Subsequently, in operationalising good governance a range of different environmental governance theories have emerged; rather than one overarching approach.54 These theories have in many instances evolved from empirical case studies and in that sense reflect good ­environmental ­governance strategies; but there is little doubt that there are intellectual challenges in the governance space as well as practical ones. There are two main reasons why an examination of environmental gover­ nance theories or strategies is important in the context of this research that seeks to advance the conservation and management of sharks. First, their ­organic development has provided a range of success stories and powerful ca­ pacity building lessons that may be transferable to other contexts. It is clear that many environmental and conservation goals have not been achieved and therefore potential solutions drawn from lessons learned must be explored. Secondly, they offer possible solutions to the issue of fragmentation of existing legal frameworks and provide potential opportunities to enhance effectiveness. As identified in Chapter 2 and in the Chapters that follow, tensions between frameworks focused on conservation versus utilisation, regional divisions and differences, and a variety of institution-led initiatives have created a complex landscape that requires harmonisation. The way forward, though, is not clear and again an exploration of alternative theoretical frames may hold value. The theories and strategies considered below do not provide an e­ xhaustive list, but

53 54

2006); Erika J Techera, Marine Environmental Governance: from international law to local practice, (Routledge, 2012). The below discussion is drawn from Erika J Techera and Liam Elphick, ‘A Principled Approach to Environmental Governance Theories’ (2016, unpublished). L Tacconi, ‘Developing environmental governance research: the example of forest cov­ er  change studies’ (2011) 38(2) Environmental Conservation 234; Lemos and Agrawal (n 46), 297.

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are indicative of those that might provide guidance for enhancing the global governance of sharks. The approach taken here has been to divide the environmental governance theories into two categories, although it is well-recognised that this is not the only way in which they could be classified.55 The first category includes en­ vironmental governance theories that are hierarchical, and the second, those that are multi-layered. Hierarchical approaches focus on the importance of top-down global governance and formal interactions between international or regional institutions at higher levels; they tend to be uni- or bi-directional. In contrast, multi-layered theories emphasise cooperative collaborations at multiple levels, across a broader range of actors, but prioritise participation of decentralised low-level actors. They rely heavily on procedures and ­processes that balance different issues at all levels.56 The development of this latter multilayered category follows a global trend towards decentralisation of ­regulation and natural resource governance.57 2.1 Hierarchical Theories Hierarchical environmental governance theories have dominated the interna­ tional law arena largely because they focus on high-level approaches and for­ mal institutional interactions common at this level. Their focus on top-down and rule-based mechanisms, with little or no bottom up elements, is tradition­ al but clearly does not embed key principles of public participation and eq­ uity essential to good governance and sustainable development. Nonetheless, these theories have received strong endorsement. For example, the European Union environmental policy follows this approach,58 although more participa­ tory, cooperative and multi-level approaches have been taken in recent years.59 55 56 57 58

59

For a detailed examination see Techera and Elphick (n 53). Thomas Cottier, Panagiotis Delimatsis, The Prospects of International Trade Regulation: From Fragmentation to Coherence (Cambridge University Press 2011) 34. Julia Black, ‘Critical Reflections on Regulation’ (2002) 27 Australian Journal of Legal Phi­ losophy 1–35; and Lemos and Agrawal (n 46) 302. M Jänicke and H Jörgens, ‘New approaches to environmental governance’ in M Jänicke and H Jörgens H (eds), Environmental Governance in Global Perspective: New Approaches to Ecological and Political Modernisation (Freie Universität Berlin 2006) 167, 201–202; F Yoshida, ‘The Theory of Environment Governance’ in E Fumikazu (ed), Lecture on E­ nvironmental Economics (Hokkaido University Press 2012) 75, 93–98. HA van der Heijden, ‘Multi-level Environmentalism and the European Union: The Case of Trans-European Transport Network’ (2006) 30(1) International Journal of Urban and ­Regional Research 23; E Nadalutti, ‘Does the “European Grouping of Territorial Cooperation” Promote Multi-level Governance within the European Union?’ (2013) 51(4)

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This highlights that there are of course variations within this category. Some research has focused on regime dynamics and institutional engagement, as well as distinguishing between horizontal and vertical interactions60 and their drivers.61 Other commentators focus on institutional interaction at the inter­ national and regional level as being determinative of effective environmen­ tal governance.62 Much of the research on high-level institutional interaction has focused on negative interactions – fragmentation – that hamper success. For example, ‘treaty congestion’ has resulted in inefficiencies and inconsis­ tencies caused by conflation, conflicts, gaps and overlaps.63 This overload is not limited to substantive laws, and includes procedural congestion as well, which in turn negatively affects the achievement of good governance.64 Some scholars draw heavily on the international relations discipline, and apply this to the international environmental law field by considering individual legal ­instruments as ‘institutions’ with relationships between them triggered by four causal mechanisms.65 As will be seen below, this aligns well with the regula­ tory pluralism discourse that interprets regulators as people, institutions, laws and legal frameworks. Subsequent work has extended considerations to broad­ er regime interaction and in doing so draws in a range of instruments, includ­ ing soft law that is so important to the global governance of sharks.66 Other scholars refer to linkage governance, in a more positive context, focusing on Journal of Common Market Studies 756; M Dreyer, M Boström and AM Jönsson, ‘Par­ ticipatory Deliberation, Risk Governance and Management of the Marine Region in the ­European Union’ (2014) 16(4) Journal of Environmental Policy & Planning 497. 60 Oran R. Young, ‘Institutional Linkages in International Society: Polar Perspectives’ (1996) 2(1) Global Governance 1. 61 Young, Effectiveness of International Environmental Regimes (n 7); Oran R. Young, The ­Institutional Dimensionf of Environmental Change: Fit, Inter-play, and Scale (mit Press 2002). 62 S Oberthür and T Gehring, Institutional Interaction in Global Environmental Governance (mit Press 2006). 63 Edith Brown Weiss, ‘International Environmental Law: Contemporary Issues and the Emergence of a New World Order’ (1995) 81 Georgetown Law Journal 675; Don Anton, ‘“Treaty Congestion” in International Environmental Law’ in Shawkat Alam, Jahid Hos­ sain Bhuiyan, Tareq M.R. Chowdhury and Erika J. Techera, (eds), Routledge Handbook of International Environmental Law, (Routledge 2012). 64 Bethany Lukitsch Hicks, ‘Treaty congestion in international environmental law: the need  for greater international coordination’ (1999) 32(5) University of Richmond Law R ­ eview 1643. 65 Oberthür and Gehring (n 62) 19. 66 Margaret A. Young, Regime Interaction in International Law: Facing Fragmentation (­Cambridge University Press 2015).

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the ­development of deliberately crafted governance mechanisms.67 This ap­ proach relies upon formal cooperative arrangements and other institutional connections between multilateral environmental agreements to enhance governance.68 Other theories include nodal governance, emphasising how governing nodes around, for example, technology and resources, affect environmental policy-making.69 The application of this theory can best be seen at the domes­ tic level where multiple linkages across governmental departments are estab­ lished.70 In this sense, it is distinguishable from linkage governance, which entails connections created at the global level. Target or results-oriented gov­ ernance provides that goals, deadlines and monitoring of results are necessary to address deficits in existing environmental governance.71 This theory focuses on a longer time scale, with the delivery on articulated goals being the mea­ sure of success. In this way, it embeds outcomes-based approaches to environ­ mental management adopted in other literature and can be seen to have been ­applied, for example, through target driven approaches taken by the cbd for the declaration of marine protected areas.72 2.2 Multi-layered Approaches There are a number of multi-layered and decentralised environmental gov­ ernance theories premised upon cooperation and collaboration. These theo­ ries clearly demonstrate sustainability and international environmental law ­principles of cooperation and equity. Multilevel governance involves nonhierarchical, looser networks of institutions and a greater range of actors as an alternative to state-centric, more rigid, international regimes.73 Thus multi­ level governance draws upon concepts of decentralised and smart r­ egulation 67

Karen N. Scott, ‘International Environmental Governance: Managing Fragmentation Through Institutional Connection’ (2011) 12 Melbourne Journal of International Law 177, 181–182. 68 Ibid. 69 J Frøestad, S Grimwood, T Herbstein and C Shearing, ‘Policy Design and Nodal Gover­ nance’ (2015) 17(2) Journal of Comparative Policy Analysis: Research and Practice 174, 176. 70 Ibid. 71 Jänicke and Jörgens (n 58) 182. 72 Aichi targets: ‘Aichi Biodiversity Targets’ (cbd) accessed 25 October 2016. 73 Y Papadopoulos, ‘Cooperative forms of governance: problems of democratic account­ ability in complex environments’ (2003) 42 European Journal of Political Research 473; M  Sanwal, ‘Trends in global environmental governance: the emergence of a mu­ tual ­supportiveness approach to achieve sustainable development’ (2004) 4 Global

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discussed below.74 The aim is to achieve cooperative relations between vari­ ous governmental or institutional units, rather than a hierarchy of order.75 ­Scholars argue that rather than centralising responsibility, a network model is preferable whereby a range of non-state actors are involved in the decisionmaking process and effort can be divided between them.76 The un Summit at Rio de Janeiro, under Agenda 21, can be said to have adopt­ ed a multi-layered governance theory through its articulation of strategic envi­ ronmental governance.77 This involves a strategy for sustainable development utilising long-term goals and planning, operational targets, results-oriented governance, environmental integration, cooperative and participatory rela­ tions between actors and self-regulation.78 Jänicke and Jörgens combine this strategic environmental governance, with multilevel governance, target gov­ ernance, cooperative governance and participation of civil actors into one hybrid ‘model’ of environmental governance focusing on flexible, cooperative and collaborative mechanisms down to the community level.79 This hybrid model contrasts with traditional hierarchical, rule-based governance, and fo­ cuses on improved problem-solving capabilities and capacity building, whilst providing a clearer definition of the role of the state in multilevel systems.80 Although complex in itself, this hybrid governance model puts a frame around what is actually occurring in practice in many contexts including shark conser­ vation and management. Multi-level governance is valuable in transboundary contexts where action is needed across borders and jurisdictions rather than by one state alone.81 Transboundary mpas can be particularly useful in protect­ ing species, such as migratory sharks, across their range. The cms Sharks MoU clearly envisages these approaches through its encouragement of cooperative agreements between states. Similarly, collaborative surveillance and enforce­ ment agreements are another example of effective multi-layered governance in action and will be explored further in Chapter 7. These approaches should be distinguished from theories that rely purely on decentralised environmental governance, where ‘capacity building, local ­ nvironmental Politics 16; PM Haas, ‘Addressing the global governance deficit’ (2004) 4 E Global Environmental Politics 1. 74 Black (n 57), 1. 75 Papadopoulos (n 73) 473. 76 Haas (n 73) 7–8. 77 Jänicke and Jörgens (n 58) 176–177. 78 Ibid 176. 79 Ibid. 80 Ibid 194. 81 Nadalutti (n 59).

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knowledge and individual rationality is a lynchpin’.82 Although the focus of this research is international governance, there is little doubt that lower levels of governance, including the national and local levels, are critical in achieving conservation and sustainable management of sharks. In addition, as noted in Chapter 1, and as can be seen in the context of the conservation of whales, community engagement in conservation and citizen science can be powerful drivers of action and therefore governance that encourages community-based action can be useful.83 Karkkainen’s collaborative ecosystem governance is also multi-layered and community-based preferring locally or regionally tai­ lored solutions within broader collaborative efforts, to global mechanisms.84 Another theory in this category is new environmental governance, which also explicitly relies on multi-layered governance as its foundation, but also depends more heavily on cooperation between diverse stakeholders working towards common goals.85 This theory emphasises collaboration, integration, participation, decentralisation, deliberative styles of decision-making and flex­ ibility.86 Noting significant overlap with other collaborative theories, ­Holley and Gunningham argue that the essential characteristic of ‘new environmen­ tal governance’ is a process of consensus, whether forming one agreement or constituting longer-term negotiations.87 It is clear that community-based ap­ proaches take up a considerable proportion of the governance literature and have received much attention, partly perhaps because they draw upon practi­ cal examples of governance in action and involve principles of subsidiarity. Whilst these approaches are not explored in detail because their relevance to international environmental governance is limited, there is little doubt that any governance regime for sharks should provide mechanisms to facilitate lower level interactions. Finally, there are some approaches, which are relevant, although not referred to as theories. One such approach is legal pluralism, seen as i­nfluential upon 82 83 84 85 86

87

Lemos and Agrawal (n 46). van der Heijden (n 59). Ibid 193. Neil Gunningham, ‘Environmental Law, Regulation and Governance: Shifting Architec­ tures’ (2009) 21(2) Journal of Environmental Law 179–212, 203. Cameron Holley and Neil Gunningham, ‘Natural Resources, New Governance and Legal Regulation: When Does Collaboration Work?’ (2011) 24 New Zealand Universities Law ­Review 309, 310; Ekaterina Sofronova, Cameron Holley and Vijaya Nagarajan, ‘Environ­ mental Non-Governmental Organizations and Russian Environmental Governance: ­Accountability, Participation and Collaboration’ (2014) 3(2) Transnational Environmental Law 341. Holley and Gunningham (n 86) 312–313.

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international environmental governance.88 Legal pluralism occurs where mul­ tiple legal systems exist simultaneously and can occur at all levels from global contexts (for example, in the European Union where international and region­ al governance apply) to local situations (where state-based and Indigenous customary laws might both operate). Legal pluralism can be both ­problematic and provide opportunities for improved governance.89 The ‘polycentricity’ of actors and arrangements in environmental ­governance must be recognised and can be leveraged to achieve environmental outcomes.90 This implies a sig­ nificant overlap with the multi-layered governance theories and indeed, Schol­ tens and Bavinck argue that ‘a judicious and coordinated mix of governance approaches’ under a legal pluralist framework is required, e­ specially to resolve problems caused by fragmentation.91 This approach is also ­relevant to the dis­ cussion below regarding regulatory pluralism. 2.3 A Return to Principles The above analysis indicates the range of environmental governance theo­ ries and approaches espoused by different authors and in various contexts. Because of the proliferation, this ‘theory-based’ approach is not particularly helpful and although the above analysis has been separated into two catego­ ries, this is largely artificial as many theories sit at the intersection of the two ­classifications. Alternative typologies could include pure theories (such as linkage governance and multilevel governance) and hybrid approaches (such as economics-based approaches and strategic environmental governance). These could also be distinguished in terms of those that focus on structure (nodal and interactive theories) and those that look at design (Earth system governance). For even the most well-versed international environmental law scholars and practitioners, this is complicated and unlikely to assist law- and policy-makers. Arguably environmental governance theories are merely descriptions or reformulations of key principles of sustainable development, international 88

89 90 91

M Bavinck and J Gupta, ‘Legal pluralism in aquatic regimes: a challenge for governance’ (2014) 11 Current Opinion in Environmental Sustainability 78; J Gupta and M Bavinck, ‘Towards an elaborated theory of legal pluralism and aquatic reserves’ (2014) 11 Current Opinion in Environmental Sustainability 86; J Scholtens and M Bavinck, ‘Lessons for legal pluralism: investigating the challenges of transboundary fisheries governance’ (2014) 11 Current Opinion in Environmental Sustainability 10. S Jentoft and M Bavinck, ‘Interactive governance for sustainable fisheries: dealing with legal pluralism’ (2014) 11 Current Opinion in Environmental Sustainability 71, 71. Ibid 78. Scholtens and Bavinck (n 88) 10–12.

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e­ nvironmental law and good governance and simply emphasise some aspect over others. They are not, therefore, theories in a traditional sense but rather strategies to achieve good governance. It is apparent that each indeed applies similar environmental governance principles. For example, Scott’s linkage theory focuses on formal institutional linkages relying heavily on principles of cooperation and collaboration.92 Falkner’s private environmental governance theory similarly contains a strong focus on cooperation; albeit of an institu­ tional nature.93 Multilevel governance relies on principles of collaboration, cooperation and participation.94 Furthermore, strategic environmental gover­ nance of the kind adopted by the un Summit at Rio de Janeiro in 1992 explic­ itly focuses on the principles of integration, participation and cooperation.95 Equally so, the arguably global target and results-oriented governance theory largely utilises a collaborative and cooperative approach.96 Therefore, as displayed in Figure 4 below, despite differences in approaches and influences, and indeed categorisation as a hierarchical or multi-layered theory, there is considerable cross-over with each borrowing from the same set of good governance principles outlined above: Good governance

Theories and approaches adopting these principles

Accountability

Multilevel governance Strategic environmental governance Linkage governance Multilevel governance Collaborative ecosystem governance Nodal governance Linkage governance Hybrid environmental governance Target and results-oriented governance Nodal governance Linkage governance

Transparency

Responsiveness

92 93 94 95 96

Scott (n 67) 179–182. Robert Falkner, ‘Private Environmental Governance and International Relations: Explor­ ing the Links’ (2003) 3(2) Global Environmental Politics 72. Holley and Gunningham (n 86). Jänicke and Jörgens (n 58) 177. Ibid 182.

Governance and Regulation

Good governance

Theories and approaches adopting these principles

Efficiency

New environmental governance Decentralised environmental governance Hybrid environmental governance Target and results-oriented governance Private environmental governance Linkage governance New environmental governance Hybrid environmental governance Strategic environmental governance Target and results-oriented governance Linkage governance Decentralised environmental governance Strategic environmental governance Collaborative ecosystem governance Linkage governance Legal pluralism approach Multilevel governance New environmental governance Collaborative ecosystem governance Private environmental governance Multilevel governance New environmental governance Risk governance Decentralised environmental governance Collaborative ecosystem governance Hybrid environmental governance Strategic environmental governance Legal pluralist approach

Effectiveness

Equity

Inclusivity

Participatory

Rule of Law

Figure 4

75

An alignment of good environmental governance principles with environmental governance theories and approaches.

The proliferation of these (pseudo) environmental governance theories raises a number of concerns. First, the ever-expanding number of them has com­ plicated the context of environmental governance, which could further ham­ per effective and efficient implementation. There is also significant overlap ­between them and this only serves to confuse those law- and policy-makers

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looking to scholarly work to guide the implementation of environmental policies.97 For example, Sanwal notes the dangers of a global-local dichotomy when responding to environmental issues98 and such a division can clearly be seen in the hierarchical theories. Secondly, focusing attention on governance theories could divert attention away from actually achieving positive environmental outcomes on a practical level. By focusing on which theory is more preferable than another there is a declining recognition that different techniques will only work well in specific contexts. The theories have made the process of policy-making more complex, and failed to provide a disciplined framework for relevant actors. This is likely to be especially felt in developing countries already burdened by procedural congestion.99 This is not to suggest that the governance theories explored above are not valuable as ways of thinking and examples of environmental successes. But, subject to some differences between the two main categories, the vast major­ ity are difficult to distinguish and promote similar outcomes utilising com­ mon foundations. In many cases, they have been extrapolated from examples of successful governance in action, but they are not theories upon which to base future action. As an alternative, a principles-based approach allows rel­ evant actors to choose from a ‘toolbox’ of elements, which, in combination, can be utilised to address the environmental issues in a particular context. This approach has support from scholars, including Sanwal who argues that sustainable development (and by implication the principles of it) must be the central focus of environmental governance.100 In exploring global governance, he opines that mutual supportiveness between decentralised networks of multiple actors should be the focus, rather than institutional hierarchies.101 This is further supported by others who, in the context of marine governance, ­argue  for decentralised and collaborative approaches focused on networks: ‘[n]etwork governance thus replaces the traditional role of governance as public authorities adapt to their new role of governing networks’.102 ­Arguably, 97

For example, it has been noted that there is overlap between the groups of hierarchi­ cal and multi-layered governance theories themselves: TL Meyer, ‘Global Public Goods, Governance Risk, and International Energy’ (2012) 44 Duke Journal of Comparative and International Law 319. 98 Sanwal (n 73) 18–19. 99 Hicks (n 64) 1647. 100 Sanwal (n 73). 101 Ibid 20–21. 102 A Sandtröm, Ö Bodin and B Crona, ‘Network Governance From the Top – The case of ecosystem-based coastal and marine management’ (2015) 55 Marine Policy 57, 57.

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­ rinciples can provide the common elements as the ‘connectors’ in such p networks. 3 Regulation Governance principles and theories are not the only lens through which to ex­ plore issues facing environmental law and solutions for the conservation and utilisation of sharks. Regulation is another area of theoretical and practical research that is relevant in seeking ways forward for the global governance of sharks. The study of regulation emerged before that of good governance with early work in the mid-20th century, largely in the United States where it was as­ sociated with evaluations of government agencies and political economy.103 ­Interest in environmental regulation arose at the same time as the broader en­ vironmental movement when government interventions began to escalate.104 Later scholarship was associated with criminology and political science and most recently regulation has been considered together with governance, albeit as a narrower field.105 As with the concepts of sustainable development and governance explored above, ‘regulation’ has no universal definition, and the word can be used in a variety of ways.106 As Black notes ‘[c]onceptual confusion is indicated by defi­ nitional chaos’107 although broad categories of meaning can be found. First, for example, in its broadest understanding, regulation can refer to any mechanism of social control including a rule, principle or system to direct or govern be­ haviour.108 In this sense, regulation can encompass binding rules, custom, and bottom up approaches such as self-regulation.109 De-centralised approaches 103 For a summary of the history see John Braithwaite, Cary Coglianese and David LeviFaur, ‘Can regulation and governance make a difference?’ (2007) 1 Regulation & Gover­ nance 1–7. 104 Ibid 1. 105 Ibid 3, 4. 106 Baldwin R, Scott C and Hood C, A Reader on Regulation (Oxford University Press 1998). Daintith identifies five different ways in which it can be used: Terence Daintith, ‘Regu­ lation’, in International Encyclopaedia of Comparative Law vol xvii, chapter 10 (1997). Black discusses these different interpretations by academics: Black (n 57) 9 and for a typology see page 12. 107 Black (n 57), 8. 108 Daintith (106). 109 Black (n 57).

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recognise that a range of actors are causally connected to the problem to be addressed and that their interactions are relevant in determining solution pathways.110 The methodology aligns well with community-based governance theories explored above. Secondly, regulation can be used in a more particu­ lar sense to refer to state intervention in the economy, but is not limited to rules.111 Thirdly, regulation can mean a type of law: rules established by govern­ ment along with the systems to monitor and enforce them.112 In this sense, it is top-down, and state-centric and ‘command and control’ direct environ­ mental regulation, seen in the 1970s, is an example.113 Two other meanings are articulated including a way in which government can implement policy,114 and regulation can be used to distinguish between laws passed by parliament and those adopted as subsidiary legislation under delegated authority.115 For the purposes of this research, regulation is being explored in primarily the third sense, involving formal laws, and in doing so it is juxtaposed with planning or management. But when regulation is used as in the first example above, it encompasses legally binding government interventions as well as non-binding soft law instruments and incentivisation approaches, all of which are impli­ cated in the governance of sharks. 3.1 Regulatory Theory As with sustainable development and good governance explored above, key characteristics of ‘good’ regulation have been expressed in the form of principles including proportionality, flexibility, transparency, consistency and account­ ability116 and to these could be added effectiveness to ensure ­outcomes-based regulation and cooperation.117 It is clear that these principles map easily onto those involved in sustainable development, international e­ nvironmental law, and good governance (Figure 5), lending further weight to a principles-based approach. 110 111 112 113 114 115

Ibid 3. Ibid 8. Daintith (n 106). Black (n 57). Daintith (n 106). For example, in Australia the federal parliament has adopted the Environment Protection and Biodiversity Conservation Act, 1999 and this is supported by the Environment Protection and Biodiversity Conservation Regulations, 2000. 116 Better Regulation Taskforce (uk), ‘Principles of Good Regulation’ accessed 29 October 2016. 117 Julia Black, Martyn Hopper and Christa Band, ‘Making a success of Principles-based regu­ lation’ (2007) Law and Financial Markets Review 191–206.

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Good governance

Sustainable development and international environmental law

Regulation

Accountability

Polluter Pays Compensation Communication Conservation Integration Integration

Accountability

Transparency Responsiveness Efficiency Effectiveness Equity Inclusivity Participatory Rule of Law

Figure 5

Integration Prevention Inter and Intra generational equity Participation Cooperation Participation Communication Transparency Accountability

Transparency Effectiveness Flexibility Flexibility Consistency Effectiveness Proportionality Consistency Cooperation Cooperation Accountability Consistency

Principles of governance, sustainable development and regulation.

Two further aspects of regulation are relevant to this research. First, the pro­ cess by which it is achieved, which can be conceived of along a spectrum from non-binding to legally enforceable rules. Referring back to the defini­ tions of regulation, it can be seen that the first included all mechanisms aimed at achieving a positive outcome, including self-regulation. In many cases, including those where government intervention is not immediately justified, self-regulation may be the primary step on the regulatory spectrum. Such an approach could involve industry codes of conduct and voluntary agreements, for example, that have no government enforcement associated with them. This type of regulation has been used effectively in the tourism sector, for exam­ ple, with codes of conduct guiding visitor interactions with wildlife including sharks.118 Further along the spectrum, governments might take a more influ­ ential role and work with industry in developing voluntary measures but still 118 Erika J. Techera and Natalie Klein, ‘Shark-based Eco-tourism: Governance lessons from Australia’ (2013) 39 Marine Policy 21–28.

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not enforce these instruments; this is known as quasi-regulation.119 Potentially greater use could be made of this approach where soft law instruments have not had the aspirational effect intended; with greater top down involvement more might be achieved. Another type of regulation along the spectrum is coregulation where government and industry form a partnership and codes of conduct and voluntary agreements are backed by legislation.120 Again this has been endorsed internationally with the jpoi in particular encouraging publicprivate partnerships. As will be explored in Chapter 7, there is much potential for such partnerships in the area of monitoring and enforcement. Finally, there is direct government regulation, which is mandatory and fully enforced. An example of this are binding fisheries regulations including permitting systems and other legal frameworks explored in Chapter 2. The second relevant area for this research is the different regulatory ap­ proaches.121 Prescriptive rules are the strictest form of regulation whereby methods and limits are set usually through standards. Prescriptive regulation may be inflexible but has the advantage of certainty and predictability. Pollu­ tion standards are a form of such regulation and work well where minimum standards are required. More flexible management-based standards can take the form of performance-based standards and principle-based regulation, for example.122 The former sets outcomes but not the ways in which they might be achieved; they are valuable where benchmarks exist but not where perfor­ mance will need to change over time. Catch limits are an example drawn from fisheries regulation. Principles-based regulation is valuable where no such benchmarks exist but where general objectives rather than outcomes can be set. This type of approach has been adopted by the cbd where in situ and ex situ conservation is encouraged. Much greater utilisation of this approach could be taken in relation to the conservation and management of sharks. Process-based regulation is another approach that is similarly more flexible than prescriptive regulation.123 Risk can be managed through process-based regulation, as is done by the imo in shipping regulation that requires risk identification, controls and mitigation. Targeted regulatory requirements can 119 Australian Government, Australian Public Service Commission, Smarter Policy: choos­ ing policy instruments and working with others to influence behaviour accessed 29 October 2016. 120 Ibid. 121 For a useful summary see Dept of Treasury and Finance (vic), Victorian Guide to Regulation, Toolkit 1: Purposes and Types of Regulation (Dept of Treasury and Finance 2014). 122 Gunningham (n 85) 189. 123 C Coglianese and D Lazar, ‘Management-Based Regulation: Prescribing Private Manage­ ment to Achieve Public Goals’ (2003) 37 Law and Society Review 691.

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then be set where risks vary and levels of regulatory requirements differ. The Montreal Protocol is an example of this type of regulation as it set different requirements for developed and developing countries with a variety of substi­ tutes for ozone depleting substances.124 There is a final category of regulation, which differs from others because it arises organically rather than being led by government: civil or surrogate regulation.125 In this approach, civil society, sometimes facilitated by ngos, acts to influence companies and consumers through direct action or information-based activities. These approaches to regulation each incorporate key principles to varying degrees, as illustrated in Figure 6. Governments may choose to regulate for a variety of reasons including the achievement of social or environmental outcomes as well as economic effi­ ciency. Whilst regulation may be justified in such circumstances, excessive or poor regulation can be detrimental. For example, unwarranted social and en­ vironmental regulation could negatively impact upon economic d­ evelopment Regulatory approaches

Regulatory principles

Prescriptive regulation

Accountability Consistency Transparency Cooperation Flexibility Effectiveness Flexibility Flexibility Transparency Effectiveness Proportionality Accountability Cooperation Transparency

Performance-based standards Principles-based regulation Process-based regulation Targeted regulatory measures Civil regulation

Figure 6

Regulatory approaches mapped to principles.

124 Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 26 ilm 154, entered into force 1 January 1989 (Madrid Protocol). 125 Gunningham (n 85) 197.

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and vice versa. These approaches are considered further in the context of species-specific measures in Chapter 4 where it is also identified that rarely is one approach or tool used alone and instead a regulatory mix is common. There are multiple ways of exploring regulation as there were for gover­ nance. Wright and Head, for example, look at normative (including respon­ sive regulation), descriptive (including smart regulation) and poststructuralist (including nodal governance) approaches.126 International environmental law frameworks demonstrate elements of responsive regulation, mostly clearly through the formal institutions they create. But rarely are states solely re­ sponsible for the entirety of the problem or solutions to address the current demise of sharks – multiple actors at all levels are involved and power and responsibility diffused. The number of actors and mix of self-regulation, soft law aspirational instruments and binding rules demonstrates the diffusion of interests. The potential is there to act responsively rather than in a fragmented and incoherent way. Smart regulation, or regulatory pluralism, is also relevant because it takes into account socio-cultural and economic contexts, as well as recognising the value of a flexible regulatory mix and approaches that in­ corporate principles and processes.127 Thus it is well-aligned with the concept of sustainable development and good governance. This approach is important in the context of shark conservation and management as a number of frame­ works are already in place, with relevant goals determined, and it is enhanced ways and means to achieve them that are lacking. Regulatory pluralism is con­ sidered further below for these reasons. However, poststructuralist regulatory approaches also hold future potential for enhancing the governance of sharks because of their support for governance networks and the involvement of a broad range of actors. Approaches that do not preference the state can be valuable given the involvement, and indeed effectiveness, of shark ngos in garnering public support,128 and working with peak bodies on best practice tourism for example.129 Nodal governance, considered above, falls within the poststructuralist perspective, but tends to operate on a sectoral basis,130 and many points of coincidence can be found with new environmental governance as well.131 126 John S.F. Wright and Brian Head, ‘Reconsidering Regulation and Governance Theory: A Learning Approach’ (2009) 31(2) Law & Policy 192, 197. 127 Ibid 203; Gunningham (n 85) 199–201. 128 See discussion in Chapter 1. 129 As explored in Chapter 5. 130 Wright and Head (n 126) 206. 131 For a summary of new environmental governance in the context of regulation see Gun­ ningham (n 85) 203.

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3.2 Environmental Regulation Regulation was not referred to in the Stockholm Declaration or the Rio Decla­ ration, but there are various references to it in Agenda 21. Relevantly, in Chap­ ter 39, which is focused on international legal instruments and mechanisms, regulation is mentioned in the context of achieving the objective of reviewing and developing international environmental law, through the promotion of international standards.132 Other references include encouraging a review of government regulation to explore whether it facilitates or heeds technology transfer,133 self-regulation in the context of strengthening the role of business and industry,134 and across a number of areas in Chapter 8 on integration of environment and development into decision-making.135 As explored above, environmental regulation covers the full spectrum of ap­ proaches, with early command and control direct regulation from the 1970s and long-standing examples of self-regulation such as the codes of conduct for visitor interactions in marine-based tourism; as well as other regulation across the range of approaches. Nevertheless, despite the significant efforts made by government and some industries, in many cases the results of environmental regulation have been sub-optimal.136 What has been identified is that there is unlikely to be a single approach that will work in all contexts and address all environmental challenges.137 Instead, what is argued for is a principles-based approach along the lines explored above.138 This will necessarily involve a reg­ ulatory mix and a more sophisticated approach and in order to be effective it must involve functional regulatory pluralism. 3.3 Regulatory Pluralism The approaches to environmental regulation explored above have pointed not to the need for one unifying international environmental legal system to replace individual instruments, but rather, greater cooperation and integra­ tion between the frameworks. The examination of governance theories offers some ideas of ways in which this could be achieved including the application of linkage governance between horizontal high level institutions and multilayered governance to connect vertical levels. In the regulatory literature, such 132 133 134 135 136

Agenda 21 (n 7) para 39.3(d). Ibid para 34.18(c). Ibid paras 30.3, 30.26. Ibid paras 8.13–8.26. Neil Gunningham and Peter Grabosky, Smart Regulation: Designing Environmental Policy (Oxford University Press, Oxford 1998). 137 Ibid. 138 Ibid.

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approaches align with smart regulation or regulatory pluralism. Regulatory pluralism acknowledges that in complex contexts one single framework, or a regulator acting alone, may not work and that a broader approach is more likely to achieve key outcomes.139 As Gunningham has noted the central normative argument of Smart Regulation is that, in the major­ ity of circumstances, the use of multiple rather than single policy in­ struments, and a broader range of regulatory actors can and should be used to produce better regulation than single instrument or single party approaches.140 Regulatory pluralism stems from the idea that a heterogeneous mix of regu­ lators is required, rather than a regulatory monopoly, combining formal and informal approaches through bodies with either the same or varying motiva­ tions.141 In this context, a ‘regulator’ need not be a person or entity and may be a law or legal framework, a market or enforcement mechanism.142 ­Emerging in the 1990s, regulatory pluralism has been applied in various settings including environmental regulation.143 The application of regulatory pluralism is par­ ticularly useful in contexts where there are multiple legal frameworks, creating layers of complexity.144 It also uses resources more effectively where there are a multitude of actors, operating across a wide geographical space. Both of these circumstances exist in the context of frameworks for the conservation and util­ isation of sharks. A pluralistic regulatory regime has the potential to overcome the complexity, including fragmentation, and harmonise multiple responses. Regulatory pluralism can provide avenues for regulators to work together to expose weaknesses in laws, processes and the institutions themselves, and respond with combinations of instruments, partnerships or more unconven­ tional measures to address specific, including environmental, issues.145 In this sense, regulatory pluralism involves multiple responsibilities across actors and 139 Peter N Grabosky, ‘Using Non-Governmental Resources to Foster Regulatory Compliance’ (1995) 8(4) Governance: An International Journal of Policy and Administration 529. See also Black (n 57). 140 Gunningham (n 85) 200. 141 Jade Lindley, Somali Piracy: A Criminological Perspective, (Routledge 2016) 220. 142 See Christine Parker, The Pluralization of Regulation, (2008) 9(2) Theoretical Inquiries in Law 349–369, 350, 351. 143 Grabosky (n 139). 144 Margaret A. Young, Trading Fish, Saving Fish: The Interaction between Regimes in International Law (Cambridge University Press 2011) 270. 145 Gunningham (n 85) 201.

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frameworks in almost the same sense as multi-layered governance but involv­ ing a broader array of actors. 4

Governance, Regulation and Sharks

Having explored the historical background to and development of the core areas of governance and regulation, the findings are applied for the key ob­ ject of this research, enhancing the global governance of sharks. In doing so governance and regulation are seen as approaches to be utilised by actors and frameworks, rather than the product of them.146 Regardless of the frame of reference, the critical goal in a pluralistic context is to ensure inclusivity and collaboration and also that instruments, actors and interactions are mutually supportive rather than in conflict. 4.1 Foundations The above analysis has demonstrated that the principles underlying sustain­ able development and international environmental law align well with those at the core of good governance and regulation. What then can be concluded from this? First, the analysis results in a set of non-negotiable principles to achieve both good governance and sustainable development. This in itself is an achievement in the context of the concepts that have no universal mean­ ings and are therefore in need of clarity. Secondly, the findings are important going forward because a set of principles can play a harmonising role and provide a way in which to link institutions and laws within and between the legal frameworks with diverse objects and values underpinning them – some of which are in tension. A set of principles can play a unifying role across these instruments particularly in circumstances where these principles can be found throughout the international environmental and natural resources law frameworks explored in Chapter 2. Principles can also form common threads through ­different levels of governance in a multi-layered system. 4.2 Achieving Goals Having identified the key principles, theories and approaches relevant to the conservation and management of sharks, the question can be asked as to how they can be applied to improve outcomes? A principles-based approach 146 Black (n 57) referring to R. Rhodes, Understanding Governance (Buckingham 1997) and John Braithwaite and Peter Drahos, Global Business Regulation (Oxford University Press 2000).

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a­ llows for the utilisation of principles to articulate outcomes. Given that it is the goals of shark conservation and management that have not been achieved, the justification for an approach focused upon outcomes appears clear. A further advantage of a principles-based, as opposed to a purely rules-based approach, is that it allows for broader goals rather than detailed rules to be developed, which can facilitate agility to respond to changes and future prob­ lems. Of course there is a fine balance between overly prescriptive rules, and too generalised principles that lack certainty; and this is a matter that must be addressed. A principles-based approach, though, is valuable where there are multiple actors involved in governance frameworks with different resources and constraints. In the context of improving the global governance of sharks, it is clear that the multiple actors include developed and developing states, fishers and conservationists, international and local institutions. In such cir­ cumstances a base set of principles is more easily applied in varied contexts than detailed rules and being outcomes oriented can facilitate compliance if this is considered as a factor in achieving those outcomes. 5 Conclusion This Chapter has demonstrated that in order to enhance the conservation and management of sharks, the frame of thinking must expand. As Gunningham has noted ‘law is no longer centre stage but merely one instrument among oth­ ers in the environmental regulator’s toolkit’; and, as he predicted, regulation has given way to ‘the broader concept of environmental governance’.147 The three prongs of governance – processes, rules, institutions – provide a more appropriate and practical lens through which to seek solutions to the barri­ ers preventing effective conservation and management of sharks. Contempo­ rary regulation has expanded from consideration of only state-centric binding rules to broader and less formal responses. Similarly, exploring conservation or utilisation issues in isolation is not appropriate. Sustainable development demands that environmental, economic and socio-cultural considerations are integrated. For all of these reasons, much more sophisticated approaches are needed to enhance the global governance of sharks, This Chapter has highlighted not only the value of expanding the scope of thinking from law to governance, but also that laws associated with good en­ vironmental governance should be principles- rather than rule-based. Such an approach provides clear guidance to law- and policy-makers and exposes some 147 Gunningham (n 85) 179.

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of the reasons for failure of current legal frameworks. Rather than focusing on the differences between legal frameworks for conservation and utilisation of sharks, the principles underpinning those approaches can provide common threads. A multi-layered approach is clearly needed because legal frameworks are found at all scales and levels. Processes are relatively weak in terms of com­ pliance and enforcement and governance theory can also assist in this area. Approaches to good environmental governance such as linkage governance and regime interaction can be applied and aligned with regulatory pluralism to overcome some of the fragmentation and provide a more coherent regime for the conservation and management of sharks. Principles and approaches to good governance and regulation can be used to advance shark conservation and management. Before doing so it is neces­ sary to fully explore the legal frameworks, tools and mechanisms, governance arrangements and regulatory measures. Chapter 2 has set the scene and ex­ plained the existing legal landscape. Arguably, the appropriate laws are already in place, and rather than replace or refine them, it is just necessary to make them work more effectively. The two Chapters that follow explore speciesbased and space-based measures as two categories of available tools, before in­ stitutional measures are explored in Chapter 6. These three Chapters provide detailed analysis to explore whether the tools themselves, or the way they have been employed, are hampering effectiveness. Approaches to good environ­ mental governance and regulatory pluralism can then be applied to identify ways forward.

chapter 4

Species-based Measures The preceding Chapters have explored the foundations of shark conservation and management and made the case for a more principled approach. Principles form part of the legal norms that make up a regulatory framework and provide more general and high level guidance than detailed regulations. As noted in Chapter 1 it is clear that once the foundational principles and approaches are laid down, more specific rules are needed in any comprehensive legal regime. Species-based measures are one tool that has been used. Such measures principally rely on the concept of sustainability,1 and are found at all levels of governance and included in law and policy to address a range of environmental, conservation and utilisation challenges. Chapter 2 clearly demonstrates that species-based mechanisms are part of the regulatory mix (along with spatial measures and institutional tools) that is currently employed to conserve and manage sharks. The key challenge for the future will be identifying ways in which these mechanisms can be utilised alone or with other tools to be more effective and enhance the global governance of sharks. This chapter explores species-based tools that are utilised principally in environmental law and fisheries regulation. The development of such tools in the two regulatory contexts is examined and an analysis undertaken in relation to their application for shark conservation and management. Thereafter, the strengths and weaknesses of how these measures have been utilised is considered and ways identified to provide greater synergies. The final sections of the chapter analyse the gaps and challenges currently facing species-based conservation and provide some recommendations for the way forward. 1

Species-based Approaches

As noted in Chapter 1, humans have consistently impacted on the environment over a considerable period of time, but in recent decades scientific research has indicated that escalating damage, including to flora and fauna, may well

1 Max Abensperg-Traun, ‘cites, Sustainable Use of Wild Species and Incentive-driven Conservation in Developing Countries, with an Emphasis on Southern Africa’ (2009) 142 Biological Conservation 948–963.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004345515_005

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result in mass extinctions.2 It is clear that some anthropogenic effects can be seen quite quickly. For example, hunting or fishing, if not sustainably managed, result in visible and measurable declines in species’ numbers; marine species that have become endangered due to over-harvesting, and in some cases pushed to the brink of extinction, include many species of whales and seals.3 In other cases, human behaviour has resulted in environmental degradation, such as pollution and more recently climate change, which affects species’ habitats and food webs. For many years, such impacts were not fully appreciated and it was thought that marine living resources were inexhaustible. Over time, however, there has been a realisation that without action to ensure conservation and sustainable utilisation, irreversible damage may be done.4 Species-based approaches are one such way in which these goals can be achieved. 1.1 Background There is no clear point in time at which it was realised that interventions were needed to conserve and manage wildlife. Such approaches are certainly not new and many Indigenous and traditional peoples adopted customs and practices that directly or indirectly protected the environment and conserved natural resources.5 Although it is clear that some of these approaches continue today, it has only been in the last century that more widespread efforts have been made to stem uncontrolled exploitation of wildlife as well as damage to habitats and ecosystems. Some of the first efforts to protect and manage wildlife involved speciesbased measures. These included the earliest laws that specifically sought to protect species, but often only for the purpose of providing sufficient numbers for hunting.6 During the early twentieth century, environmental concern s­ tarted to grow and included the need to conserve and manage species for their intrinsic value. Action began to be taken following increasing scientific research 2 Anthony D. Barnosky, Nicholas Matzke, Susumu Tomiya, Guinevere O.U. Wogan, Brian Swartz, Tiago B. Quental, Charles Marshall, Jenny L. McGuire, Emily L. Lindsey, Kaitlin C. ­Maguire, Ben Mersey and Elizabeth A. Ferrer, ‘Has the Earth’s sixth mass extinction already arrived?’ (2011) 471 Nature 51–57. 3 For an historical analysis of a number of such instances see Callum Roberts, An Unnatural History of our Seas (Island Press 2010). 4 See generally, Max Nicholson, The Environmental Revolution (Hodder and Stoughton 1970). 5 Darrell Posey (ed), Cultural and Spiritual Values of Biodiversity (unep/itdg Publishing 1999). 6 One of the first in the world was the 1534 Law to Avoid Destruction of Wilde-fowle – Henry viii.

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and the emergence of new disciplines such as ecology.7 Initial efforts, including international protections, emerged in the first half of the 20th century.8 However, it was not until the environmental movement in the 1970s that significant developments were seen.9 Since then, there has been a proliferation of legal measures to protect wildlife at the international, regional, national and local levels.10 1.2 The Emergence of Law and Policy The legal frameworks that have emerged are varied in nature and scope, although a significant number include species-based measures. As will be seen below, the first laws to be developed were reactionary and often focused on a single species.11 Over time, law became more prospective with frameworks being adopted that applied to ranges of species or to a particular group of animals or plants.12 Efforts were also made to address drivers of species’ decline, such as trade, or specific issues including threatened species. Biodiversity law and policy has emerged most recently, following endorsement of approaches such as ecosystem-based management and understanding of the interconnectedness of species with each other and their surrounding environment. More sophisticated legislation followed, commonly requiring not only that the utilisation of particular species be regulated but also that critical habitats be protected, the environmental impact of activities be assessed, threatening processes be managed, and species at risk be identified with special measures put in place for their conservation.13 7 8

9 10

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12 13

John D. Black, The Management and Conservation of Biological Resources (FA Davis Company 1968) – Chapter 6 Basic Ecology. For example, the International Convention for the Regulation of Whaling, (Washington, 2 December 1946), 161 unts 72, entered into force 10 November 1948 (icrw); this was initially focused on conserving species for the maintenance of the whaling industry. Nicholson (n 4). For an analysis of the development of us law and policy see Lawrence J. MacDonnell and Sarah F. Bates, The Evolution of Natural Resources Law and Policy (American Bar Association 2009). For a discussion of the evolution of international environmental law and species conservation see David Hunter, James Salzman, Durwood Zaelke, International Environmental Law and Policy (4th edn, Foundation Press 2010) – Chapter 12 Wildlife and Biodiversity. See, e.g., the International Convention for the Protection of Birds (Paris, 18 October 1950), 638 unts 185, entered into force 17 January 1963 and the Agreement on the Conservation of Polar Bears (Oslo, 15 November 1973), 13 ilm 13 (1974), entered into force 26 May 1976. Examples include marine mammal legislation, forest laws and the protection of migratory species. See the discussion of the history of spatial measures in Chapter 5.

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Despite a multitude of legal frameworks, there are only a limited number of tools that have emerged specifically to protect species recognised as needing attention. As will be explored below, these tools include the listing of species in need of special protection and the provision of rules to ensure their conservation, as well as the licensing of activities involving utilisation of species or where activities might have a significant impact upon species. At the international level, laws focus on species most at risk from over-­ harvesting (such as whales), those found in relatively few locations and in need of special conservation (for example, Antarctic seals and polar bears), and migratory species (which cross multiple jurisdictions). In addition, there are the treaties that address the drivers or activity perceived to be the cause of the problem; for example, the control of trade in endangered species and fisheries management. In relation to other activities that might impact on species but which are not involved in consumptive utilisation, in some cases there are relevant treaties (for example in relation to shipping) but in other areas there are no international instruments that regulate (as is the case with tourism for example). Nor is there a treaty that mandates environmental impact assessment to be undertaken.14 At the domestic level, initial approaches have focused on prohibitions on possession or restrictions on the taking of particular species. These approaches have been translated into wildlife conservation statutes and endangered species legislation, with subsequent endorsement of ecosystem-based approaches through biodiversity laws.15 In relation to specific marine issues, fisheries regulation has developed as a separate body of law and most jurisdictions in the world include some legislation in this regard, which provides a licensing system and other measures to regulate harvesting, as well as identification of protected fish and other measures such as aquatic reserves.16 Whilst wildlife 14

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16

Although there are regional conventions such as the unece Convention on Environmental Impact Assessment in a Transboundary Context, 26 February 1991, 1989 unts 309, entered into force 10 September 1997. Furthermore, in Pulp Mills, the International Court of Justice (icj) confirmed that the requirement for transboundary environmental impact assessment is part of customary international law: Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, icj Reports 2010, (April 20) para 204. Domestic biodiversity laws (e.g., Environment Protection and Biodiversity Conservation Act 1999 (Cth) (Australia); Biological Diversity Act, 2002 (India); Basic Act on Biodiversity Act No. 58 of 2008 (Japan) and much of which was triggered by international treaties such as the Convention on Biological Diversity, 5 June 1992, 1760 unts 79, entered into force 29 December 1993 (cbd). See, for example, Fish and Wildlife Act 1980, snb 1980 (Canada); Fisheries Law of the People’s Republic of China (2004 Revision) (1986); Magnuson-Stevens Fishery ­Conservation

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conservation laws have tended to utilise the approach of listing of species, often in a tiered system, the latter uses licensing; although a blend of tools is common. It is clear that other activities can impact on species and those industries tend to use a combination of environmental impact assessment and permitting systems. 1.3 Defining Species-based Approaches The key goal of species-based measures is to minimise net impacts on species; in other words, to achieve sustainable conservation and management. The ­sections below provide an overview of the species-based legal tools that have been utilised to this end, and the international legal frameworks in which they are found. In general, it will be seen that fauna has tended to receive more attention than flora17 and, because of the very different jurisdictional and property right issues, the species in the oceans have been treated differently to terrestrial wildlife. As regards sharks, species-based tools exist that could protect a multitude of species, but the preference for listing and fisheries based approaches have focused on a relatively small number of shark species with the majority not being identified or individually managed at the international level. As noted above, species-based mechanisms fall into two broad categories: those that focus on the listing of species and those that regulate activities. Within each category there are different ways in which species can be conserved and managed. The listing of identified species for conservation and/ or management purposes allows for their prioritisation and thereafter specific rules to provide for their protection. These rules can include, for example, bans on taking, possession and trade. Identification of a priority species also allows for better control of activities that affect them, and temporal and area restrictions. A different approach is to identify specific activities and thereafter create a licensing or permitting system for regulation. This allows for control of activities that might impact upon specific species, such as fishing, tourism, and shipping. Fishing is in a special position, vis-à-vis other ocean activities, as it specifically focuses on consumptive utilisation of species. Nonetheless, many conditions placed on licensees are similar and include limits on licence numbers or species-interactions to directly manage impacts, as well as space-based measures, temporal restrictions, and the use of certain methods, gear and

17

and Management Act of 1976, 16 usc §§ 1801–1891(d) (2007) (United States); Fisheries Law (22/2013 of 1 November) (Mozambique). Plants and animals are generally protected together but more species of fauna tend to be listed.

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equipment. It is clear that less direct measures, for example the declaration of protected areas to manage wildlife habitats, are an important component and these are considered in Chapter 5. 1.4 Substance of Species-based Approaches Exploring the detail of the particular tools themselves, and how they have been utilised, it is clear that both prioritisation of species and control and management of activities have been widely adopted and are often used in tandem. The first tool employed to protect wildlife has been the categorisation of species, and prioritisation of conservation efforts based upon risk and status through listing processes. Tailored restrictions can include prohibitions or quantitative limits on the taking or possession of endangered species, whereas reduced constraints may be in place for species less at risk (such as not harming or harassing them, or permitting catch and release programs). The other significant legal tool is licensing, which is common in natural resource management for activities that utilise species that might potentially cause harm depending upon the scope and scale. For the purposes of this Chapter, fishing is the most critical activity that continues to have a negative impact on species. Legal measures include mandatory licences attached to which conditions may apply, such as fisheries quotas, minimum fish size and bag limits, and gear and equipment regulations.18 Marine-based eco-tourism is another activity that may impact upon species directly and indirectly through, for example, altering species ranges and feeding patterns.19 Listing and licensing legal frameworks involve the establishment of governance arrangements including processes, rules and institutions.20 Most listing processes included in legal frameworks follow a similar pattern. A specific plant or animal is identified as being at risk based on scientific data, it is nominated for listing and assessed by an expert panel, and then a decision is made to list 18 P.A. Neher, Ragnar Arnason, Nina Mollett (eds), Rights Based Fishing (Springer Science+Business Media 2012); see also Warwick Gullett, Fisheries Law in Australia (LexisNexis Butterworths 2008). 19 Neil Hammerschlag, Austin J. Gallagher, Julia Wester, Jiangang Luo and Jerald S. Ault, ‘Don’t bite the hand that feeds: assessing ecological impacts of provisioning ecotourism on an apex marine predator’ (2012) 26(3) Functional Ecology 567–576; and Charlie Huveneers, Paul J. Rogers, Crystal Beckmann, Jayson M. Semmens, Barry D. Bruce and Laurent Seuront ‘The effects of cage-diving activities on the fine-scale swimming behaviour and space use of white sharks’ (2013) 160(11) Marine Biology 2863–2875. 20 See unep, Environmental Governance, (unep 2009) accessed 28 September 2016. Chapter 3 explores good environmental governance in greater detail.

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or not. Rules are provided to protect listed species and action plans (including recovery plans) are made. In some cases, the law provides for a hierarchical level of listing with the most vulnerable species given the greatest level of protection. Licensing also requires a governance regime, with specific processes, a legal framework, and decision-makers to apply rules. Decision-makers are required to refer to scientific information as to the relative impact of certain activities, usually through formal environmental impact assessment or otherwise in line with the precautionary approach and ecosystem-based management. Thereafter, conditions are applied in relation to any permits granted. In addition, technical measures are utilised in fisheries regulation to control gear and equipment such as the use of certain lines, hooks and nets, fishing methods such as trawling or dynamiting, and aggregation devices, as well as prescribing equipment such as turtle excluder devices.21 Both licensing of activities that might impact upon species and listing for conservation purposes require an administrative structure. There must be a nominated decision-maker who determines the licensing or listing outcome: the relevant government agency at the domestic level,22 or treaty body at the international level.23 In most cases, whether at the national or global level, a scientific advisory body makes recommendations.24 Again there are differ­ ences of approach with some such bodies determining species status (although not whether it is listed), whilst others are advisory only with recommendations being considered by the decision-maker.25 Similarly, in the context of licensing of activities, scientific information regarding impact is provided by an independent body such as an environmental protection agency.26 As will be clear from the exploration of legal frameworks set out below, it is often the case that listing and licensing mechanisms are used together in 21

22 23 24

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‘Chapter 2: The use of technical measures in responsible fisheries: regulation of fishing gear’, (fao) accessed 25 October 2016. For example, under the Endangered Species Act of 1973, 16 usc §§ 1531–1544 the us Federal Minister makes the decision after considering relevant scientific information. For example, the Conference of the Parties of cites. Threatened Species Scientific Committee (Australia) which is advisory to the Federal Minister, Committee on the Status of Endangered Wildlife in Canada which is also an independent assessment body, and the cites Animals Committee, and Plants Committee. In Canada, under the Species at Risk Act (s.c. 2002, c. 29) (Canada), the independent advisory body determines species status. Under us law a member of the federal agency makes such determinations. See below for a further consideration of this issue. For example, the Environmental Protection Agency (usa), Environmental Protection Authority (wa, Australia).

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an effort to ensure sustainable conservation and management. The listing of a species provides an opportunity for enhanced protection and may trigger licensing requirements. Therefore, these two tools are not used separately but are combined for maximum effect. 1.5 Inter-disciplinarity A key component of the above processes is the scientific information that is relied upon, and in this sense species-based measures embed ­inter-disciplinarity. Of most significance is the biological and ecological information regarding species and their conservation status. It is clear, though, that science is not the only relevant discipline and economics, for example, is also critical, as well as social science, as noted in Chapter 1.27 At the international level, it is the International Union for Conservation of Nature and Natural Resources (iucn) that is best recognised for providing data on the conservation status of species. The iucn has permanent observer status at the United Nations28 and is specifically included as an advisory body under treaties such as the World Heritage Convention29 and has joint programs with others such as the Convention on Biological Diversity (cbd).30 The status of fisheries collectively is assessed by the Food and Agriculture Organisation (fao) and reported annually through its flagship publication such the State of World Fisheries and Aquaculture.31 Other relevant scientific data includes animal biology such as reproductive rates and age of sexual maturity, which 27

Lee Anderson, ‘The Application of Basic Economic Principles to Real-World Fisheries Management and Regulation’ (2015) 30.3 Marine Resource Economics 235–249; Quentin SW Fong and James L Anderson, ‘International shark fin markets and shark management: an integrated market preference-cohort analysis of the blacktip shark (Carcharhinus limbatus) (2002) 40 Ecological Economics 117–130; see also Colin A. Simpfendorfer, Michelle R. Heupel, William T. White and Nicholas K. Dulvy ‘The importance of research and public opinion to conservation management of sharks and rays: a synthesis’ (2011) 62 Marine and Freshwater Research 518–527. One author has argued for a new social science: Peter J. Jacques, ‘The social oceanography of top oceanic predators and the decline of sharks: A call for a new field’, (2010) 86 Progress in Oceanography 192–203. 28 ‘un Permanent Observer Mission’ (iucn) accessed 21 October 2016. 29 World Heritage Convention, ‘Advisory Bodies’ (unesco) accessed 21 October 2016. 30 See for example, the cbd and iucn collaborative work on marine mammal protected areas: accessed 21 October 2016. 31 fao, ‘State of the World’s Fisheries and Aquaculture’, accessed 28 October 2016.

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inform the setting of the total allowable catch of a species in order to ensure sustainable utilisation. In addition, ecological information about breeding and feeding patterns and habitats is vital, for example, in licensing tourism activities, setting gear and equipment restrictions and designating protected areas.32 The iucn Red List of Threatened Species33 has been providing critical information for over 50 years and is globally regarded as the premier authority on species status. The iucn is a not-for-profit organisation that includes over 1,200 members and 11,000 volunteer experts across 160 countries.34 Experts are associated with six Commission areas that assess and provide advice on various scientific and social science conservation issues.35 The iucn Global Species Programme, working with the iucn Species Survival Commission and external partners, assesses the conservation status of species on a global scale. The iucn Red List applies nine classifications to species at varying levels of extinction risk, including three threatened species categories (critically endangered, endangered and vulnerable).36 The iucn Shark Specialist Group provides critical information regarding sharks and has produced a global analysis of the conservation status of over 1000 shark species with data incorporated into the iucn Red List.37 The fao has developed (in partnership with others) a number of relevant identification and other tools including FAOFishFinder

32

At the domestic level government fisheries agencies and research bodies provide such information. The fao is also involved in data collection and dissemination at the global level. 33 iucn Red List, ‘Introduction’ (iucn) accessed 21 October 2016. 34 iucn, ‘About iucn’ (iucn) accessed 21 October 2016. 35 iucn, ‘Commissions’ (iucn) accessed 21 October 2016. 36 iucn Red List, ‘Categories and Criteria’ (iucn) accessed 21 October 2016. 37 ‘iucn Red List’ (iucn) accessed 21 October 2016; iucn Shark Specialist Group, Global Conservation Status of Sharks and Rays, accessed 21 October 2016; and Nicholas K. Dulvy, Sarah L. Fowler, John A. Musick, Rachel D. Cavanagh, Peter M. Kyne, Lucy R. Harrison, John K. Carlson, Lindsay N.K. Davidson, Sonja V. Fordham, Malcolm P. Francis, Caroline M. Pollock, Colin A. Simpfendorfer, George H. Burgess, Kent E. Carpenter, Leonard J.V. Compagno, David A. Ebert, Claudine Gibson, Michelle R. ­Heupel, Suzanne R. Livingstone, Jonnell C. Sanciangco, John D. Stevens, Sarah Valenti and William T. White ‘Extinction risk and conservation of the world’s sharks and rays’ (2014) 3 eLIFE accessed 21 October 2016.

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and iSharkFin, which embed key scientific data to build capacity to ensure correct identification and reporting of catches.38 2

Legal Frameworks for Protection of Species

2.1 Historical Developments There are several early instances of species based treaties. Two examples are the International Convention on the Regulation of Whaling, which concerns all species of whale,39 and the International Convention on the Protection of Birds.40 One of the first conventions potentially applying to all species of flora and fauna is the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere.41 It utilises listing to identify species requiring special urgency and having importance in their protection, and calls for the establishment of national parks and reserves, as well as the adoption of measures to control import and export of protected flora and fauna. This treaty was unusual for its time in terms of the breadth of its scope, and more narrow single-species instruments continued to be adopted.42 As the environmental movement evolved, other treaties were adopted including the Convention on Wetlands of International Importance, Convention on International Trade in Endangered Species (cites), and the Convention on the Conservation of Migratory Species (cms). These treaties all utilise listing mechanisms, with cites and cms including a tiered system. The Rio Declaration specifically contained a principle focusing on the need to ‘conserve, protect and restore the health and integrity of the Earth’s ecosystem’ that clearly includes the need to conserve and manage species of flora and fauna.43 Agenda 21 also places considerable emphasis on conservation habitats and ecosystems as well as management of certain activities.44 Chapter 17.1 e­ stablishes two new 38

39 40 41 42 43 44

fao, ‘International Plan of Action for Conservation and Management of Sharks – Shark Identification Tools’ (fao) accessed 28 October 2016. icrw (n 8). International Convention for the Protection of Birds (n 11). Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, 12 October 1940, 161 unts 193 entered into force 30 April 1942). For example, the Agreement on the Conservation of Polar Bears (n 11). unga, Rio Declaration on Environment and Development, un Doc. A/CONF.151/26 (Vol. 1), 31 ilm 874 (1992), Principle 7. Report of the United Nations Conference on Environment and Development, gaor, 46th Session, Agenda Item 21, un Doc. A/CONF.151/26 (1992), Section 2, Chapters 9–22; ­Chapter 17 focuses specifically on marine environments.

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program areas on ‘sustainable use and conservation of marine living resources’ and the sub-sections that follow create agenda and management activities to support both conservation and utilisation. The later cbd (1992) does not list species, nor licence activities, but does encourage states to implement in situ conservation measures to manage biological resources to ensure conservation and sustainable use, protect ecosystems, natural habitats and viable populations of species, establish protected areas, and develop legislation for the protection of threatened species.45 These provisions support tools such as listing and licensing. 2.2 International Environmental Laws A range of international environmental laws utilise listing as a tool for prioritising conservation. It is also clear that some fisheries regulation frameworks also use listing to identify species at risk and in need of protection from harvest.46 The focus here, though, is upon conservation treaties. Of most importance in terms of species-based conservation are cites and cms. As set out in Chapter 2, cites creates a mechanism to control or prohibit international trade in threatened or endangered species. Although cites does not refer specifically to sustainability, it is clear that this concept underpins the speciesbased approaches taken. References are made to not endangering species’ further survival, avoiding utilisation incompatible with survival, preventing and restricting exploitation and bringing species under effective control.47 The framework created by cites involves the listing of species on one of three appendices and can potentially regulate the trade in all species of flora and fauna.48 As discussed in Chapter 2, the highest level of protection is afforded to species threatened with extinction that are listed on Appendix i. Such listing prohibits international trade in these species (including parts and derivatives) for primarily commercial purposes, subject to only very limited exceptions.49 For other trade, export and import permits are needed from each country. For ­species listed on Appendix ii, export permits are required to avoid utilisation 45 46 47 48 49

cbd (n 15) art 8. For example, unclos lists highly migratory species in Annex i for the purposes of identifying species to which Article 64 applies. Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 unts 243 (1973), entered into force 1 July 1975, art ii (cites). See Chapter 2. Such circumstances are where certification is obtained from a state ‘Scientific Authority’ that any export will not be detrimental to the survival of the species, the species was lawfully obtained, is transported so as to minimize risk of damage or injury and an import permit has been obtained from the other country.

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that may be incompatible to long-term survival of the listed species. In this sense, Appendix ii requirements involve both a listing and licensing mechanism. Both Appendices i and ii require species to be nominated for inclusion, an assessment according to a set of biological and trade criteria, and the support of a majority of state parties for them to be listed. Individual states can unilaterally list a species on Appendix iii, where they have concern about conservation status, and require international assistance for its conservation. For these species, the exporting country must issue a permit. The work of cites is supported by the Animals and Plants Committees, which provide information, advice and reviews regarding species’ status.50 Listing can be contentious where data regarding species is incomplete or unreliable, as is the case with many shark species. Even where such data is available, listing does not always follow scientific advice and evidence, as will be explored below. Furthermore, scientific information is also relevant at the domestic level, for example, where export certificates are needed for Appendix ii listed species. Scientific authorities must certify that export will not be detrimental to a species or population. This is particularly difficult for highly migratory animals such as great white, basking and whale sharks as well as hammerheads and oceanic white tip sharks; all listed on this Appendix. The listings of shark species under cites has been considered in Chapter 2 and by a range of commentators who recognise the value of the treaty in conserving and managing sharks subject to international trade although not in isolation.51 A similar approach involving a two-tiered listing system is followed under cms, which covers terrestrial, marine or airborne species. Migratory species endangered throughout all or a significant proportion of their range may be listed on Appendix i. For these species, states controlling any part of the range are prohibited from taking the species.52 A listing under Appendix ii involves lower levels of protection and requires range states to enter into agreements

50 See cites, ‘The Structure of cites’ (cites) accessed 25 October 2016. 51 For example, Erika J Techera and Natalie Klein (eds), Sharks: Conservation, Governance and Management (Earthscan 2014); Solène Guggisberg, The Use of cites for Commercially-­ exploited Fish Species: A Solution to Overexploitation and Illegal, Unreported and Unregulated Fishing? (Springer 2015); Julie B Martin, ‘The Price of Fame: cites Regulation and Efforts Towards International Protection of the Great White Shark’ (2007) 39 George Washington International Law Review 199; and Amanda C J Vincent, Yvonne J Sadovy de Mitcheson, Sarah L Fowler & Susan Lieberman, ‘The role of cites in the conservation of marine fishes subject to international trade’ (2014) 15 Fish and Fisheries 563–592. 52 In relation to marine species, ‘range states’ include states that have vessels registered to them that take migratory species on the high seas.

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with each other for the benefit of the species. Listings of species require nominations and significant state party support. cms is supported by a scientific body being the Scientific Council.53 Again, how these measures have been employed for the benefit of sharks has been examined in Chapter 2. Other commentators note the significance of the cms regime, particularly the provisions that allow for subsidiary instruments with respect to discrete listed species.54 The cbd cannot truly be considered a species based treaty but it does seek to balance nature conservation and its utilisation through its goals of conservation of biological diversity, sustainable use of its components and the fair and equitable sharing of the benefits. As noted above, it calls for in situ as well as ex situ conservation of biological diversity, including regulations for the use of resources, the establishment of protected areas and legislation for the protection of threatened species.55 The treaty includes contemporary principles and adopts ecosystem-based approaches, and integrated and adaptive management techniques. Its provisions, however, are broad and in many respects aspirational, with treaty requirements for states to take action as far as ‘possible and appropriate’. Nevertheless, the cbd has catalysed action, triggered the adoption of biodiversity laws in many states and also set important targets.56 2.3 Fisheries Regulation Licensing and permitting tools are utilised in fisheries regulation as well as for activities such as tourism. There is no single instrument at the international level that regulates fishing; rather the law of the sea and regional fisheries organisations provide a range of legal instruments that make up international fisheries regulation. Although the first global efforts to regulate fishing date to the 19th century, and domestic legislation was adopted around the same time, much of the law and many of the tools that developed did so independently.57 Although the un Convention on the Law of the Sea (unclos) was adopted in 1982, several of the Regional Fisheries Management Organisations (rfmo) predate that treaty: for example, the North East Atlantic Fisheries Convention 53

cms, ‘Scientific Council’ (cms) accessed 25 October 2016. 54 Arie Trouwborst, ‘Global large carnivore conservation and international law’ (2015) 24(7) Biodiversity & Conservation 1567. 55 cbd (n 15) arts 8–9. 56 See cbd, ‘Aichi Biodiversity Targets’ accessed 25 October 2016> accessed 25 October 2015; discussed further in Chapter 5 as well as the expansion of marine protected areas that prohibit shark fishing. 57 For a summary of the history of international law see Mark Zacharias, Marine Policy (Earthscan 2014) 190–191.

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was adopted in 1959. Domestic legislation developed in tandem with licencing implemented to engage in commercial fishing, in national waters and beyond. For the relevant stock and area, fisheries management then involves estimating the amount of fish that can be caught (Total Allowable Catch (tac)) and the subsequent setting of catch limits that can be trip or bag limits, Individual Fishing Quotas or Individual Vessel Quotas.58 A range of input and output controls are applied. Input controls include limiting the number of licenced fishers and vessels, controlling the time and place where fishing occurs, as well as restricting gear and equipment,59 and the mandating of other equipment (such as Turtle Excluder Devices). Output controls include catch limits and quotas referred to above. If the tac for any given stock is accurate then management can be sustainable but there are inherent practical difficulties where the fish are mobile, multiple actors are engaged in fishing and data is often of poor quality.60 A further limitation of this system is that it focuses largely on target species and incidental catch, and yet significant damage is done to non-target species captured as bycatch and discarded at sea. It is also clear that this has an impact on sharks, as discussed in Chapter 1. Nevertheless, these approaches and tools have received widespread endorsement in jurisdictions around the world. This traditional form of fisheries management involves a species-based approach because the tac is calculated in relation to individual stocks of species (although sometimes combined stocks are assessed if they are harvested together). As principles such as ecosystem-based management, precaution and prevention have become well-accepted, attention has turned to ecosystem approaches to fisheries in an effort to achieve sustainable management.61 The detailed permitting provisions are not repeated at the international level as there is no overarching global licensing body, but international fisheries management utilises a range of common input and output controls with a law of the sea framework. The key treaty is unclos, which sets out maritime zones and the jurisdictional framework for management of ocean areas as 58 59

60

61

Ibid 178. Gear types can be divided into trolling, drift gillnets, harpoon, pelagic longline, cable longline, coastal purse seine, large purse seine, bottom trawl, midwater trawl, recreational, dynamite and poison: see ibid 177. However, an analysis of the eu Common Fisheries Policy and implementation of a tac system has not been successful: Sebastian Villasante, Marıado Carme Garcıa-Negro, Fernando Gonzalez-Laxe and Gonzalo Rodrıguez Rodrıguez, Overfishing and the Common Fisheries Policy: (un)successful results from tac regulation? (2011) 12 Fish and Fisheries 34–50. Zacharias (n 57) 186.

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e­ xplored in Chapter 2. Essentially, coastal states have sovereignty over fisheries up to 12 nautical miles and sovereign rights to conserve, manage and exploit the living resources up to 200 nautical miles (the Exclusive Economic Zone (eez)). Within the eez, coastal states determine the tac and set a maximum sustainable yield (msy) with the object of promoting ‘optimum utilization’ of fisheries.62 In light of ecosystem-based fisheries management approaches, some commentators refer to the failure of msy leading to the adoption of the alternative Optimum Sustainable Yield (osy) but as that term has not been adopted in international law it lacks clarity and widespread support.63 Beyond 200 nautical miles are the high seas and unclos calls upon states to cooperate by exercising authority over vessels that are flagged to them and through international institutions such as the rfmos. The 1995 Fish Stocks Agreement expands upon this with regard to the fishing of straddling stocks and highly migratory species. Some rfmos are focused on single or groups of species,64 but most relate to geographic areas.65 These rfmos may adopt conservation and management measures and other rules that restrict gear and equipment, fishing methods and effort, for example, and set targets and catch levels.66 Similarly to domestic fisheries regulation, the rfmos are focused on commercial exploitation and the management measures that have been adopted are for the purpose of sustainable management of an ongoing industry rather than conservation more broadly. In response to the 2007 unga Resolution calling for rfmos to better regulate shark fisheries and take action to reduce bycatch,67 a number have responded; further details of the particular measures adopted in relation to sharks are set out in Chapter 6. In summary, however, species-based measures that have been adopted by rfmos in relation to specific sharks include finning restrictions established by most rfmos,68 as well as specific restrictions on targeting certain species, measures 62 63 64

65 66 67 68

United Nations Convention on the Law of the Sea, 10 December 1982, 1833 unts 3, 21 ilm 1261 (1982), entered into force 16 November 1994, art 62. See discussion in Zacharias (n 57) 179. For example, the International Commission for the Conservation of Atlantic Tunas, InterAmerican Tropical Tuna Commission, Indian Ocean Tuna Commission and the Convention on the Conservation of Southern Blue Fin Tuna. See Chapter 2 for further details. See, e.g., iotc, ‘Conservation and Management Measures’ accessed 25 October 2016. un General Assembly, Resolution 62/177 (2007). Humane Society International, ‘National laws, multi-lateral agreements, regional and global regulations on shark protection and shark finning’ (hsi) last accessed 21 October 2016.

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to reduce incidental catch and bycatch, gear measures, catch data and report requirements.69 In addressing issues such as over-fishing and bycatch, the fao has taken a lead role in developing mostly soft law instruments such as the Code of Conduct for Responsible Fisheries, and a number of International Plans of Action. These documents both take an integrated approach that seeks to close the gap between utilisation and conservation. The role of the fao is discussed further in Chapter 6, and shark-specific instruments were considered in Chapter 2. 2.4 Other Activities Impacting Species: Marine Eco-tourism There are a range of ocean activities, including shipping, energy generation and non-living resource extraction, that can and do impact upon marine species. As noted above, fishing is unique in that it directly involves the consumptive utilisation of marine species. Tourism is another activity that exploits marine species but it does so non-consumptively. Tourism provides a distinct opportunity for economic development (a significant element of sustainable development) but without the harvesting of marine living resources. Much attention has been paid to this sector, particularly by developing countries that have included it in national agenda focused on the Blue Economy.70 Marine-based eco-tourism can provide experiential and educational opportunities for participants, and in some cases it can be combined with research tourism to gather valuable data.71 Nevertheless, evidence indicates that if mismanaged or poorly regulated, tourism can have negative impacts on species such as sharks.72 The un World Tourism Organisation is the key international 69

70

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cites, ‘Regional Fisheries Management Organization Measures for Shark Conservation and Management’ (cites) accessed 28 October 2016. For example, the Maldives: Permanent Mission of the Republic of Maldives to the United Nations, ‘Statement by the Maldives at the High Level Event organised by Norway “Sustainable Oceans and the Blue Economy” – 22 September 2016’, accessed 28 October 2016. See for example, the Great Fiji Shark Count, referred to in Christine A Ward-Paige, ‘The role of the tourism industry’ in Erika J Techera and Natalie Klein (eds) Sharks: Conservation, Governance and Management (Earthscan 2014). Angela L. Quiros, ‘Tourist compliance to a Code of Conduct and the resulting effects on whale shark (Rhincodon typus) behavior in Donsol, Philippines’ (2007) 84 Fisheries ­Research 102–108.

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institution in this regard but has not established any treaty regime that might set standards, provide guidance or build capacity for best practice marinebased tourism. Other international actors include the Global Sustainable Tourism Council,73 and the World Travel and Tourism Council,74 which are peak industry bodies and The International Ecotourism Association,75 a global ngo and the world’s oldest and largest international ecotourism association; only the last of these has produced specific marine eco-tourism guidelines.76 Some early instruments were adopted, such as the Manila Declaration on Tourism (1980), Hague Declaration on Tourism (1989) and Manila Declaration on the Social Impacts of Tourism (1997) but no other global agreement has emerged to provide guidance on eco-tourism.77 Instead, such enterprises have arisen in different national contexts with piecemeal sharing of expertise and experience, as well as development of law and governance. Essentially, regulation is achieved through licensing arrangements with conditions being applied to regulate activities in a similar way to fishing: controlling licence numbers of vessels and operators, areas and times of operation, gear and equipment together with conditions around what participants’ (end users) activities and interactions, most commonly through codes of conduct.78 In jurisdictions such as Australia, with a long history of shark-based tourism, the licensing of operators has been combined with codes of conduct for tourism operators as well as visitor participants, which is arguably best practice.79 Although soft law and not initially legally binding, codes of conduct could be incorporated into licensing conditions over time. Although no global treaty 73 74 75 76

77

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79

‘Welcome to the Global Sustainable Tourism Council’ (Global Sustainable Tourism Council) accessed 28 October 2016. ‘The World Travel & Tourism Council’ (World Travel and Tourism Council) accessed 28 October 2016. ‘The International Ecotourism Society’(The International Ecotourism Society) accessed 28 October 2016. Elizabeth Halpenny, ‘Marine Ecotourism: An Update on Private Sector Best Practice and Guideline Implementation’ last accessed 21 October 2016. See Erika J. Techera and Natalie Klein ‘Regulatory Tools for Shark Conservation and Management: Improving Legal Governance and Harnessing Eco-tourism’ in O P Jenkins (Ed), Advances in Zoology Research. Volume 3 (Nova 2012). Other civil society documents include the Charter for Sustainable Tourism adopted by the participants at the World Sustainable Conference on Tourism in 1995: Charter for Sustainable Tourism last accessed 21 October 2016. See John Dobson, ‘Sharks, Wildlife Tourism, and State Regulation’ (2006) 3(1) Tourism in Marine Environments 15–23; and Erika J. Techera and Natalie Klein, ‘Shark-based Ecotourism: Governance lessons from Australia’ (2013) 39 Marine Policy 21–28. Techera and Klein (n 78).

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exists, some efforts have been made to build capacity for shark-based tourism. For example, several ngos have funded research to prepare best practice guidelines for shark-based tourism.80 In time these may well be adopted by an international institution or annexed to a tourism treaty. Shark-based tourism is considered further in Chapter 5 in the context of marine protected areas. 3

Shark Specific Measures

A number of species-based measures have been taken to protect sharks. These include bans on harvesting, including finning prohibitions, as well as other measures across the supply chain. These approaches are explored below. 3.1 Fishing and Finning Bans One of the most significant developments in the last decade has been the adoption of laws focused on prohibiting finning of sharks. As discussed in Chapter 1, live finning is an abhorrent practice in which the fin is removed whilst the shark is alive and the carcass returned to the ocean to drown or be eaten by other species. This practice not only raises sustainability issues but also animal welfare concerns. But any form of fishing that permits shark fins to be harvested and the body discarded (even if the shark was dead) is unsustainable. Significant efforts have been made to address this issue including rfmo restrictions on the ratio of fins-to-carcasses,81 and national legislation to outlaw finning. The key issue will be monitoring and enforcement and the Port State Measures Agreement should provide new opportunities in this regard.82 Despite the lack of a global ban, and in addition to the rfmo measures, many nations have overwhelmingly sought to outlaw this practice. In a study conducted by Humane Society International, it was revealed that over 42 nations have adopted domestic restrictions on finning.83 For example, some states such as Malaysia ban shark finning,84 Nigeria prohibits the dumping of 80

81 82 83 84

See the multi-ngo project: ‘Best Practices on Sustainable Shark and Ray Tourism – A practical guide to best practise’ accessed 28 October 2016. The product of this project will be a ‘Best Practice Guide for Shark and Ray Tourism’. See Chapter 6. Considered further in Chapter 7. An analysis of specific shark regulations has been prepared by Humane Society International (n 68). Under the Fisheries Act 1985 (Act 317) (Malaysia).

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shark carcasses at sea,85 and most of the states included in the study require sharks to be landed with fins naturally attached.86 Another way in which shark specific concerns have sought to be addressed is by prohibiting shark fishing. Over 22 countries ban fishing in some of their waters and, as set out in Chapter 5, over a dozen states have declared shark sanctuaries and outlawed shark fishing in their territorial seas and eezs.87 3.2 Gear and Equipment A further issue is that of gear and equipment, some of which is known to result in shark bycatch. For example, purse seine nets may result in a range of nontarget species being caught, including sharks as well as rays and turtles.88 In particular, the use of fish aggregation devices in tuna fisheries results in shark and marine mammal bycatch.89 There is little doubt that improvements in the use of fishing gear and changes in fishing methods can reduce bycatch and this demonstrates the need for further research relating to fisheries technology and certain rfmos have taken action in this respect.90 Regulatory responses have involved complete prohibitions on particularly damaging practices such as dynamiting of reefs, and strong calls for permanent moratoria on other­

85

86 87 88

89 90

For example, Sea Fisheries Decree No.71 of 1992 (Nigeria) revising the Sea Fisheries Act [Cap 404] 1971. For a discussion of the legislation see FM Nwosu, EO Ita and UI Enin, ‘Fisheries management in Nigeria: A case study of the marine fisheries policy’ (2011) 1(3) International Research Journal of Agricultural Science and Soil Science, 70–76. Humane Society International (n 68). Ibid; ‘Shark Sanctuary’ (MPAtlas), last accessed 21 October 2016. Tim K. Davies, Chris C. Mees, E.J. Milner-Gulland, ‘The past, present and future use of drifting fish aggregating devices (fads) in the Indian Ocean’ (2014) 45 Marine Policy 163– 170; afma, Purse seine, accessed 28 October 2016. ‘Fish Aggregation Devices (fads)’ (The Shark Trust) accessed 29 October 2016. For example, the Inter-American Tropical Tuna Commission has called for research in this areas: ‘Resolution on the Conservation of Sharks Caught in Association with Fisheries in the Eastern Pacific Ocean’ (Resolution C-05-03, 2005) (iattc) accessed 28 October 2016; the Western Central Pacific Fishery Commission Scientific Committee has a Fishing Technology Specialist Working Group exploring ‘innovative fishing methods and technology to minimise bycatch levels and increase effective targeting’: Scientific Committee, ‘Terms of Reference for the Specialist Working Groups’ (wcpfc, 5 October 2009) accessed 22 October 2016.

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contentious methods including bottom trawling.91 However, calls for an international ban have not been heeded despite a un General Assembly Resolution in 2006 and a European Union attempt in 2013.92 Another relevant dimension is the consumer and it is clear that there is growing pressure for more sustainable fishing methods, perhaps best illus­ trated in relation to the canned tuna market.93 Although not directly involving sharks, it is apparent that if demand continues to grow for pole and line caught tuna and Marine Stewardship Council certified products more generally, less sharks are likely to be caught as bycatch. In this way, consumer-based initiatives (discussed below) can complement fisheries regulation.94 3.3 Supply Chain Much of the national legislation that bans finning or fishing for sharks, also prohibits the possession and/or sale of shark fins.95 For example, Guam, Commonwealth of the Northern Mariana Islands and many us states ban the possession, sale or trade of shark fins.96 This is significant because not only will the fisher be incriminated but so too will later people or entities in the supply chain. The finning laws in particular could also capture end-user consumers. Several studies have been undertaken in shark fin markets in Hong Kong that provide scientific evidence of the species of shark from which the fin came.97 91

Bottom trawling is banned in a number of jurisdictions: ‘Impacts of Bottom Trawling on Fisheries, Tourism, and the Marine Environment’ (Oceana) accessed 28 October 2016. 92 For a useful paper on the issue see Tse-Lynn Loh and Zeehan Jaafar, ‘Turning the tide on bottom trawling’ (2015) 25(4) Aquatic Conservation: Marine and Freshwater Ecosystems 581–583. 93 Marine Stewardship Council, accessed 24 October 2016; Davies and others (n 86). 94 Daniel Pauly, Villy Christensen, Sylvie Guénette, Tony J. Pitcher, U. Rashid Sumaila, Carl J. Walters, R. Watson and Dirk Zeller, ‘Towards sustainability in world fisheries’ (2002) 418 Nature 689–695. 95 Humane Society International (n 68). 96 Ibid. 97 Shelley C. Clarke, Jennifer E. Magnussen, Debra L. Abercrombie, Murdoch K. Mcallister and Mahmood S. Shivji, ‘Identification of Shark Species Composition and Proportion in the Hong Kong Shark Fin Market Based on Molecular Genetics and Trade Records’ (2006) 20(1) Conservation Biology 201. Identification can even be undertaken after the fins are partially processed: Andrew T. Fields, Debra L. Abercrombie, Rowena Eng, Kevin Feldheim, and Demian D. Chapman ‘A Novel Mini-dna Barcoding Assay to Identify Processed Fins from Internationally Protected Shark Species’, PLoS ONE (3 February 2015) accessed 21 October 2016.

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Some rfmos have also utilised market-based measures such as catch documentation schemes, that allow for the certification that fish have been l­egally harvested in accordance with regulations, as well as other measures such as traceability requirements.98 In addition, there are ngo-led global certification regimes such as the Marine Stewardship Council that set standards for sustainable fishing and eco-labels for producers that meet these standards.99 These are important in terms of demonstrating that a protected shark had been taken, but will not assist in determining whether the fin was removed whilst the fish was alive, nor whether it was taken in restricted waters. Monitoring is considered further in Chapter 7, and the development of new technologies offers some opportunities for enhanced remote sensing, and this will be critical in determining where fish have been caught. In order to address the market for shark fins, it will be necessary to better manage the entire supply chain, and do so more holistically. Although cites attempts to control and manage trade, other supply chain mechanisms are relevant. The market for shark fins is driven by consumer demand to the extent that shark fin is now ‘one of the most valuable food items in the world’.100 Therefore, shark products and fisheries management are inherently linked and species-based control and conservation measures must take into account consumer demand.101 Changing attitudes towards sharks can lead to declines in consumer demand for shark products and increases in interest in non-­ consumptive markets such as shark-based tourism. Identifying levers that can be used to shift demand will therefore be critical in breaking the supply chain, and as outlined in Chapter 1, inter- and multi-disciplinary research is needed. 4

Gaps and Challenges

The above review indicates gaps and challenges involving institutional structures, processes and the laws themselves. There is, for example, no global endangered species treaty that could play an important standard-setting role, provide a forum for discussion and assist in building legal and technical capacity where needed. Nonetheless, cites has been widely ratified and its ­requirements for a national management authority and scientific bodies to 98 99 100 101

These are discussed further in Chapter 7. Marine Stewardship Council (n 90). Fong (n 27) 118. Ibid 119.

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authorise imports and exports have been implemented in many countries; in the process, capacity has been built for domestic protections. There have been, however, calls for this gap to be closed with suggestions including an expansion of the scope of the World Heritage Convention to include listed ‘world heritage species’.102 At the domestic level, states such as Australia have implemented cites, cms and the cbd in one piece of legislation, thus providing a certain level of harmonisation.103 It is clear from Chapter 2 that the lack of an overarching regime has not benefited sharks. There are over 1000 species of sharks and yet only a very small proportion are listed under cites and the cms.104 Of the rfmo conservation management measures, in most cases each institution only provides restrictions for a handful of shark species.105 This means that the vast majority of sharks are unregulated. The conservation of sharks on the high seas is problematic. At present, the cms covers migratory species and rfmos include conservation management measures. No treaty, however, currently provides a mechanism for biodiversity beyond national jurisdiction, although there has been a great deal of activity in this area including a current project to create such a legal framework.106 Other gaps and challenges surround emerging industries that may involve potentially damaging activities. Key principles of environmental law and sustainability, considered in Chapter 3, such as precaution, prevention and the need for environmental impact assessment, should operate to protect species from the most damaging activities. However, many alternative operations that are often considered beneficial, could have an impact. The principal sector is eco-tourism. As noted above, there is no global tourism treaty that would facilitate best practice non-consumptive utilisation of wildlife. Given that this industry is often promoted as an alternative to consumptive utilisation

102 Chris Wold, ‘World Heritage Species: A New Legal Approach to Conservation’ (2008) 20 Georgetown International Environmental Law Review 337–396. 103 Environment Protection and Biodiversity Act 1999 (Cth) (Australia). 104 See discussion in Chapter 2. 105 Discussed further in Chapter 6. 106 United Nations, Ad Hoc Informal Open-ended Working Group to study issues related to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (bbnj Working Group). See also R Warner, ‘Conserving marine biodiversity in the global marine commons: co-evolution and interaction with the Law of the Sea’ (2014) 1(6) Frontiers in Marine Science 1–23.

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of ­wildlife, a global instrument would be beneficial.107 A considerable body of work has been undertaken that analyses the impacts and advantages of shark-based tourism. Impacts include altered feeding patterns, changes in movements and range as well as distress caused by visitor interactions. Legal responses have been varied both in terms of regulation and enforceability. For example, some states include a permitting system for shark-based tourism enterprises.108 These laws regulate the commercial entity profiting from the activities and include conditions such as days of operation, distances from vessels to animals, ways in which sharks can be fed or baited. Without any global vehicle through which to share best practice, these laws have been developed at the national level with little consistency. Rules around visitor interactions have tended to take the form of non-binding codes of conduct.109 Again there has been no easy way in which approaches can be shared. Without a coherent approach, it is difficult for new scientific information to be easily embedded in laws and codes of conduct. Eco-tourism is thus another area identified as potentially in need of regulation. This leads to the challenges of inter-disciplinarity as outlined in ­Chapter 1.110 Broadly, there are general concerns regarding the disjuncture between science and law. Scientific knowledge is emerging at a rapid rate and legal frameworks and processes are ill-equipped to embed new information regarding species, critical habitats, and the impact of activities. The translation of new data has been patchy despite concepts such as ‘science-based’ approaches and ‘ecosystem-­based management’ becoming widespread.111 In addition, there is no doubt that there are many data gaps and law has dealt with these through

107 Resources such as the online International Wildlife Law, and The International Ecotourism Society, Certification and Standards and the un World Tourism Organisation do provide some assistance. 108 Techera and Klein (n 78); Ryan Johnson and Alison Kock, ‘South Africa’s White Shark cage-diving industry – is their cause for concern?’ accessed 28 October 2016. 109 See for example, Secretaría de Medio Ambiente y Recursos Naturales (semarnat) and Comisión Nacional de Áreas Naturales Protegidas (conanp), ‘Code of Conduct for Great White Shark Cage Diving in the Guadalupe Island Biosphere Reserve’ < http://sustain ablesharkdiving.com/wp-content/uploads/2015/11/Code-of-Conduct-for-Great-White -Shark-RBIG.pdf> accessed 28 October 2016; ‘Basking Shark Project’ (The Shark Trust) accessed 28 October 2016. See also Techera and Klein (n 78). 110 Eric Biber, ‘Which Science – Whose Science – How Scientific Disciplines Can Shape Environmental Law’, (2012) 79 University of Chicago Law Review 471–552. 111 Discussed further in Chapter 3.

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concepts such as the precautionary principle.112 Scientific committees utilised in the international law framework referred to above is an attempt to ensure scientific knowledge is embedded, but this will only work if their recommendations are followed. In most legal frameworks, such opinions must be ‘considered’ or taken ‘into account’, but it is rarely the case that decision-makers are required to follow such advice. Similarly, scientific considerations are not usually the only ones to be taken into account. In essence, this comes down to the incentives for conservation being greater than those for utilisation. One example of these tensions was seen in the attempts to list shark species under cites in 2010 where political interests aligned more strongly with perceived trade benefits and denied the listing of shark species on Appendix ii despite scientific evidence supporting such a move.113 Exploration of this issue, and in particular as it relates to rfmos, is considered in further detail in Chapter 6. A further concern is flexibility and the ability to change rapidly when new information becomes available. This is regardless of whether the issue under consideration is licensing of a new activity, the use of new equipment in a permitted activity, the emergence of new scientific information that requires changes to protected areas, licensing or listing of new species. Law is not inherently agile and as new data emerges, and species ranges change due to environmental factors such as climate change, it may be necessary to respond swiftly. cites is a good example of international law where species have moved from Appendix i to Appendix ii and back again when necessary. At the domestic level processes such as regular meetings to consider new or changes to listings, and regular review periods are more commonplace but not consistent. Another challenge is the interaction between different laws. There is fragmentation in many jurisdictions between conservation and utilisation laws; the former focusing on conservation, and the latter on fishing regulations that support utilisation. This pattern of fragmentation has occurred at the international level with a division between cites and cms on the one hand, and the rfmos and fisheries regulation on the other.114 Fragmentation has tended to 112 See discussion in Chapter 2. 113 See for example, Humane Society International, ‘cites conference wraps up in Doha – sharks lose out to politics’ (hsi) accessed 28 October 2016; ‘Summary Of The Fifteenth Conference Of The Parties To The Convention On International Trade In Endangered Species Of Wild Fauna And Flora’ (iisd) accessed 28 October 2016. These issues were also considered in Chapter 2. 114 This has resulted in the failure to advance the conservation of some species: see for example, Erika J. Techera and Natalie Klein, ‘Fragmented Governance: Reconciling legal strategies for shark conservation and management’ (2011) 35(1) Marine Policy 73–78.

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work against those species whose conservation status is not yet dire, but which suffer cumulative impacts of habitat loss, pollution, climate change. Invasive species, and exploitation by tourism, can also have negative effects that can impact upon an already burdened species. Rather than purely species-based mechanisms, it has been shown that ecosystem-based approaches are more effective, but developing holistic legal frameworks remains a challenge. This requires a combination of different legal tools including listing, licensing, spatial and institutional measures.115 Concepts such as bioregional planning and connectivity conservation are critical and best practice regulatory models that adopt these concepts, must be designed and shared. Again a global vehicle for this is needed. Compliance and enforcement remain challenges for environmental law and species-based conservation in particular. Compliance may be advanced with better education, in terms of science as well as the law, and a greater understanding of what drives non-compliance which may be gained through social science research.116 Tourism activities have an important role to play in raising awareness and educating participants at the local level. Enhanced monitoring is critical to enforcement and technology could play a much greater role. Technology has tended to work against marine species, as more sophisticated technology (such as aggregation devices and satellite tracking) has facilitated more efficient fishing. Remote sensing and satellite technology could, however, assist to identify perpetrators of fisheries crimes and breaches of regulations including area restrictions and harvesting methods as well as catch limits. These issues are explored further in Chapter 7. 5 Conclusion The above analysis demonstrates the evolution of species-based measures for the conservation of marine living resources including sharks. It is evident that whilst significant advances have been made, critical goals have not been achieved. Broadly, current reports indicate that we are entering into 115 Boris Worm, Ray Hilborn, Julia K. Baum, Trevor A. Branch, Jeremy S. Collie, Christopher Costello, Michael J. Fogarty, Elizabeth A. Fulton, Jeffrey A. Hutchings, Simon Jennings, Olaf P. Jensen, Heike K. Lotze, Pamela M. Mace, Tim R. McClanahan, Coilin Minto, Stephen R. Palumbi, Ana M. Parma, Daniel Ricard, Andrew A. Rosenberg, Reg Watson and Dirk Zeller, ‘Rebuilding global fisheries’, (2009) 325(5940) Science 578. 116 Michael J. Novacek, ‘Engaging the public in biodiversity issues’, (2008) 105(1) Proceedings of the American Academy of Science (pnas) 11571–11578.

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an extinction phase and facing a biodiversity crisis117 and for sharks, numbers continue to decline.118 The above analysis illustrates the extent to which species-based measures have been utilised and the Chapter that follows explores spatial measures that in many contexts are employed in tandem. 117 Duan Biggs, Reinette (Oonsie) Biggs, Vasilis Dakos, Robert J. Scholes and Michael Schoon, ‘Are we entering an era of concatenated global crises?’ (2011) 16(2) Ecology and Society 27–37. 118 Jessica Meeuwig, Laurie Laurenson and Shanta Barley, ‘Relax, shark numbers aren’t booming, but more research can make us safer’ The Conversation (8 February 2016) accessed 28 October 2016.

chapter 5

Spatial and Area Measures The preceding Chapter explored species-based tools in both environmental law and fisheries regulation. Another important group of tools for wildlife conservation and management, including sharks, are spatial or area-based measures. Spatial measures apply to specific protected areas where particular rules and requirements relating to activities in the area are applied to achieve conservation or other management goals within the area. The concept of setting aside key ocean areas for special management is of ancient origin, but it has only been over the last fifty years that area-based measures have emerged as a critical tool for the protection of marine species, habitats and ecosystems. Continuing declines in marine biodiversity and ocean health have led to further developments including the setting of quantitative targets and qualitative goals to achieve networked areas and more holistic protection of ocean environments. These spatial measures are known by different names including marine protected areas, aquatic or fishery reserves, marine monuments, sanctuaries and, in the specific context of sharks, shark parks. They also vary in scale, being declared for a diverse range of purposes and permitted activities. Some marine areas have high levels of protection, and exclude any taking of marine species and may even prohibit access without a permit, whilst others allow fishing, tourism or other activities within an administrative permit-based framework. Increasingly, marine areas are being declared with multiple zones within them allowing for different activities in various parts of the area. To date, with relatively few exceptions and in keeping with the framework provided by the United Nations Convention on the Law of the Sea (unclos),1 such areas have only been declared in the territorial seas or Exclusive Economic Zones (eez) of coastal states. This leaves large ocean areas in the high seas, free of spatial measures, although not species-based measures as was discussed in Chapter 4. Several common issues arise in relation to spatial measures. First, there is often tension between different stakeholders, conservationists and fishers in particular, who each advocate for their own interests. In this sense, area-based measures suffer from the same conflict as exists more broadly between conservation and utilisation of marine areas and resources. Secondly, monitoring and 1 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 unts 3, 21 ilm 1261 (1982), entered into force 16 November 1994 (unclos).

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enforcement, a perennial problem in environmental law, is particularly challenging in ocean environments. In large part, the ‘success’ of any given spatial measure will depend upon the ability to overcome these two hurdles. A further challenge is the ocean environment itself, which, unlike territorial areas, is three dimensional, without barriers and populated by many highly mobile species of which sharks are some. Recent developments to address these issues, as well as tensions between different stakeholders, has seen more sophisticated measures that regulate the entire range of activities within a given area and provide for zones at different depths. These advances have culminated in the emergence of marine spatial planning initiatives and efforts to overcome gaps in areas beyond national jurisdiction. Spatial measures, and these recent developments in particular, are critical in the context of shark conservation and management where non-consumptive tourism-based livelihoods are being advocated as an alternative to fishing. This Chapter will explore the different applications of spatial measures and the international law that supports them as well as the ways in which they have been implemented for the benefit of sharks. The Chapter concludes with an exploration of how spatial measures might be enhanced and better utilised to overcome gaps and address the challenges facing sharks. 1

Exploring Area-based Measures

1.1 Background Humans have probably impacted on ocean environments from the earliest of times but whilst populations were low the effects were negligible. Over time, expanding resource exploitation and growing populations dependent on the oceans for food and livelihoods began to have consequences. Today it is widely acknowledged that ocean environments and marine living resources face a broad range of anthropogenic threats from industries such as fishing, resource extraction and transportation, as well as pollution from waste disposal, shipping and agricultural runoff, and the introduction of invasive species; and in coastal areas, even recreational use of our oceans is starting to have an effect.2 As these impacts on species became evident, efforts were made to conserve wildlife, some as early as the 13th century.3 Although, as noted in Chapter 4, 2 un, The First Global Integrated Marine Assessment (un 2016) – Chapter 54 – Overall assessment of human impact on the oceans. 3 Curt Meine, ‘Conservation Movement, Historical’ (2001) 1 Encyclopaedia of Biodiversity 883–896.

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s­ pecies were often the first to be protected, the idea of setting aside specific zones for protection or preservation of wildlife were also adopted. In some countries, specific areas were considered sacred and protected under traditional customary laws,4 and in other contexts, such as feudal Europe, royal protection was used for deer preserves and game reserves.5 Although it is generally accepted that in western contexts fisheries regulations preceded the declaration of protected ocean areas, spatial measures were extended to the seas, perhaps as a response to beliefs that fisheries management was failing worldwide.6 Early measures to control activities in the oceans and protect critical marine habitats included, for instance, traditional marine governance regimes in the Pacific where fishing was not permitted, taboo areas and other restrictions including seasonal fishing bans in certain habitats.7 Often these early conservation efforts focused on observable sites of fidelity such as breeding or nursery grounds utilised at specific times of the year. Such information had previously been used by hunters to enhance exploitation activities,8 but as species numbers declined this knowledge was used to protect areas. Some of the earliest species-based treaties, outlined in Chapter 4, included measures for habitat protect. A key example is the International Convention on the Regulation of Whaling, which provides that the Commission can adopt ‘regulations with respect to the conservation and utilization of whale resources, fixing … open and closed waters, including the designation of sanctuary areas’.9 A further example is the Polar Bear Agreement, which in Article ii refers specifically to habitats: Each Contracting Party shall take appropriate action to protect the ecosystems of which polar bears are a part, with special attention to habitat components such as denning and feeding sites and migration patterns, and shall manage polar bear populations in accordance with sound 4 Bas Verschuuren, Robert G. Wild, Jeffrey McNeely and Gonzalo Oviedo, (Eds) Sacred Natural Sites: Conserving Nature and Culture (Earthscan 2010). 5 Meine (n 3) 885. 6 R Kearney, CD Buxton and G Farebrother, ‘Australia’s no-take marine protected areas: Appropriate conservation or inappropriate management of fishing?’ (2012) 36 Marine Policy 1064. 7 R E Johannes ‘Traditional Marine Conservation Methods in Oceania and Their Demise’ (1978) 9 Annual Review of Ecology and Systematics 349. 8 For an excellent exploration of the origins and history see Callum Roberts, An Unnatural History of our Seas (Island Press 2010). 9 International Convention for the Regulation of Whaling, (Washington, 2 December 1946), 161 unts 72, entered into force 10 November 1948 (icrw), article v(1)(c).

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c­onservation practices based on the best available scientific data.10 ­(Emphasis added) As the above quotation indicates, this instrument also contained references to ecosystems and science-based evidence. Both of these factors, considered in Chapter 3, were novel at the time. As marine scientific research emerged about the interconnectedness of species and their environments, ecosystembased management approaches were adopted in relation to marine areas too. It is clear that not only must critical habitats be protected but also activities controlled that might damage those environments: such as marine pollution and destruction through fishing methods, such as dynamiting and bottom trawling. Most recently, the anticipated effects of climate change have been explored, not only in terms of temperature rise causing acidification, which can damage immobile species such as coral, but also increased weather events that can impact upon marine environments. 1.2 The Value of Spatial Measures There are a number reasons why spatial measures are appropriate. First and foremost, they can provide protections for specific sites of fidelity, either seasonal or permanent. For example, breeding grounds, nursery areas and juvenile playgrounds are all places where species have low resistance to capture and where they may require special protection. As noted in Chapter 1, shark scientific research has tended to lag behind that of marine mammals in particular and therefore it is relatively recently that these sites have been identified for sharks. Nevertheless, as that information emerges, consideration of habitat-based conservation measures becomes critical.11 In addition, there are natural sites of fidelity where some species live all year, or visit periodically, such as coral reefs and feeding areas. These may be areas where fishing is restricted for multiple reasons, including the protection of the reef-based ecosystem itself. As will be explored below, it is often these sites where marine-based tourism activities have been established and the declaration of a protected area serves several purposes including providing for the establishment of visitor activities. In other cases, large ocean areas have been set aside sometimes including the whole of a state’s eez. It is unusual for such areas to prohibit all activities, 10 11

Agreement on the Conservation of Polar Bears (Oslo, 15 November 1973), 13 ilm 13 (1974), entered into force 26 May 1976. Erich Hoyt, ‘The role of marine protected areas and sanctuaries’ in Erika J Techera and Natalie Klein (eds), Sharks: Conservation, Governance and Management (Routledge 2014).

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but they may, for example, ban commercial fishing or the use of certain fishing gear. In some cases, these larger areas are zoned to allow for different activities within them and by doing so a state can control areas for commercial exploitation of living and non-living resources as well as conservation areas. 1.3 Defining Protected Ocean Areas There is no universal definition of spatial measures, nor any agreed taxonomy in relation to the various terms used. At its simplest, a marine spatial measure involves an area of the ocean being declared for specific purposes. The purposes can vary from conservation to fisheries management, as well as safety around offshore infrastructure, or preservation of underwater cultural heritage. The greatest clarity in nomenclature is around the term marine protected area (mpa), which is broadly conceived of as a declared maritime zone with specific rules regarding its use with the primary purpose being conservation. Whilst the focus of mpas is conservation, aquatic reserves are often focused on sustainably managing stocks of harvested fish species, and marine monuments protected for other specific purposes. Although in some cases fisheries or aquatic reserves provide for the protection of critical habitats, biodiversity and conservation, this does not usually extend to broader issues such as recreational uses and tourism. Marine parks and sanctuaries have no global definition. The lack of any common definitions has meant that ‘marine protected area’ is sometimes used interchangeably with ‘marine reserve’, ‘marine park’ and ‘marine sanctuary’; and in other cases is used to distinguish between these phrases. The situation is made particularly complex as the word ‘sanctuary’ is sometimes used to refer to a ‘no-take’ zone within an mpa, and in other cases used in the context of ‘shark sanctuaries’ to mean large ocean areas where shark fishing is prohibited.12 Therefore it is critical to explore the legal basis upon which the protected area has been declared and the overarching goals. In this way, it can be seen that the differences often come down to different permitted uses of the areas in question. Utilisation of protected areas can exist along a spectrum from a complete no take or no access zone, to other areas where commercial extractive industries are prohibited but recreational activities are allowed. In other cases, areas include multiple zones for different uses such as commercial fishing and/or resource extraction, traditional/Indigenous use, diving and tourism, and other recreation including boating and recreational fishing. As noted above, spatial measures can range from small, discrete sites 12

These categories are discussed further below.

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to large ocean areas with complex governance regimes; with size and scale not appearing to affect the use of one term or another. Although there is no marine spatial measure treaty in which the various terms are defined, the greatest clarity has been provided by the International Union for the Conservation of Nature and Natural Resources (iucn). Widespread support has been given for the definitions of protected areas it has provided and as well as the classifications it has established. The iucn defines a protected area as: a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values.13 Such areas are classified into six categories, one of which is an mpa.14 In the Convention on Biological Diversity (cbd), a protected area is similarly defined: means a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives.15 In Decision VII/5, the cbd Conference of the Parties defined an mpa as: any defined area within or adjacent to the marine environment, together with its overlying waters and associated flora, fauna and historical and cultural features, which has been reserved by legislation or other effective means, including custom, with the effect that its marine and/or coastal biodiversity enjoys a higher level of protection than its surroundings.16 These definitions can include a wide array of spatial measures with the key issue being that the area has been designated with conservation as a primary 13

14 15 16

Jon Day and others, ‘Guidelines for applying the iucn Protected Area Management Categories to Marine Protected Areas’ (iucn 2010) accessed 21 October 2016. Ibid 9–10. Convention on Biological Diversity, 5 June 1992, 1760 unts 79, entered into force 29 December 1993 (cbd), art 2. cbd, ‘cop 7 Decision VII/5’ accessed 28 October 2016.

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goal. As noted above, it is clear that other areas may have an incidental conservation benefit. Day and others identify these as including: • Fishery management areas with no wider stated conservation aims, • Community areas managed primarily for sustainable extraction of marine products, • Marine and coastal management systems managed primarily for tourism, which also include areas of conservation interest, • Wind farms and oil platforms that incidentally help to build up biodiversity, • Marine and coastal areas set aside for other purposes but which also have conservation benefit: military training areas or their buffer areas … disaster   …; communications cable or pipeline protection areas; shipping lanes, • Large areas … where certain species are protected by law across the entire region.17 Although not legally binding, the iucn definitions and classifications have been globally endorsed and therefore mpa is the terminology preferred, where appropriate, in order to provide consistency. Nonetheless, the iucn approach has been criticised as focusing too heavily on the purposes for which the mpa was declared rather than protections provided.18 Although recognising the value of the iucn definitions and categories, it appears to be generally agreed that by themselves they are insufficient to assess the quality of conservation within an mpa.19 Costa and others point to the recent declaration of large mpas ostensibly for conservation purposes but often in remote areas, with no appropriate management plans and in which a number of extractive activities are permitted, as illustrating the problem. They suggest as an alternative that a regulation-based classification system is preferable with a focus on potential impacts of permitted activities and the rules that control and manage them.20 17 18

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Day and others (n 13) 10. See also Jorge A. Angulo-Valdés and Bruce G. Hatcher, ‘A new typology of benefits derived from marine protected areas’ (2010) 34 Marine Policy 63. Bárbara Horta e Costa, Joachim Claud, Gustavo Franco, Karim Erzini, Anthony Caro and Emanuel J. Gonçalves, ‘A regulation-based classification system for Marine Protected Areas (mpas) (2016) 72 Marine Policy 192–198. Sophie Marinesque, David M Kaplan and Lynda D Rodwell ‘Global implementation of marine protected areas: Is the developing world being left behind’ (2012) 36 Marine Policy 727. Costa and others (n 18) 197. See also Celia Ojeda-Martinez and others, ‘A conceptual framework for the integral management of marine protected areas’ (2009) 52 Ocean &

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This discourse makes it clear that the critical issue is precisely what protections an mpa provides versus its articulated purposes. 1.4 The Substance of Protected Areas Although mpas have become ‘one of the most widely used tools for marine conservation’,21 they are not uncontroversial as a management tool. They have often been met with community opposition.22 They also remain controversial within the fishing industry, in terms of their meaning, value and effectiveness, which demonstrates the necessity for further research in this field, particularly in the social sciences. For example, it has been said that mpas are an ‘unjustified transposition of terrestrial paradigms into marine environments’ given ‘highly interconnected, volatile and mobile aquatic ecosystems’.23 As an alternative, it is argued that fisheries regulation could serve an equal purpose, but this fails to recognise that mpas protect not only fish but entire ecosystems. mpas can conserve and manage harvested fish and marine life, as well as nonliving natural structures and ‘often have a potentially larger positive non-use value than use (market) value’ because they protect ecosystem resources which in turn provide goods and services that contribute to ‘ecological and societal wellbeing’.24 In this way, mpas have been recognised as ‘linked to the most advanced concepts of environmental policy, such as sustainable development, precautionary approach, integrated coastal zone management, marine spatial planning, ecosystem approach and transboundary cooperation’.25

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Coastal Management 89, regarding the need for a conceptual framework to simplify mpa management. Mark Spalding and Lynne Zeitlin Hale, ‘Marine protected areas: past, present and future – a global perspective’, in James Fitzsimons and Geoff Wescott (eds), Big, Bold and Blue: lessons from Australia’s marine protected areas (csiro Publishing 2016), 9. National Research Council (us), Marine Protected Areas: Tools for Sustaining Ocean Ecosystem, (National Academies Press 2001) 11. Kearney, Buxton and Farebrother (n 6) 1067. H. Glenn, P. Wattage, S. Mardle, T. Van Rensburg, A. Grehan and N. Foley, ‘Marine protected areas – substantiating their worth’ (2010) 34 Marine Policy 421, 422. Glenn and others point to some of the difficulties faced by advocates of mpas as a holistic marine management tool, because calculations of economic values have largely been limited to harvested species and the value of non-use benefits has been poorly quantified. Tullio Scovazzi, ‘The Conservation and Sustainable Use of Marine Biodiversity, including Genetic Resources, in Areas Beyond National Jurisdiction: A Legal Perspective’ (Presented in the Discussion Panel during the 12th meeting of the un open-ended informal consultative process on Oceans and the Law of the Sea, 20–24 June 2011) accessed 1 September 2016, 14–15.

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Thus mpas conserve both habitats and biodiversity within them and therefore help maintain ecosystems including fish as part of a marine food web as well as human communities that depend upon them.26 Habitat protection directly supports the biodiversity that live in and around the mpa, which in turn provides ecosystem benefits contributing to water quality and overall ocean health. In addition, protecting these habitats can also support non-­ consumptive exploitative industries such as tourism.27 Demonstrated benefits include improved fish productivity, provision of recreational values as well as providing some security against future, as yet unknown, threats. Scientific research has shown such results can be achieved in no take zones,28 as well as multiple-use mpas.29 It is clear, however, that species of fish such as sharks are highly mobile and although protected within the mpa, with potential spillover effects from enhanced recruitment, may not be protected outside that area where fisheries regulation may apply. This is a further justification for a regulatory pluralism approach that integrates conservation and fisheries management. Legal frameworks must incorporate the purposes for which a marine area is declared, how sites are selected and on what advice, as well as the goals and objectives for different levels of protection. The processes for declaration and preparation of the management plan are critical including the participation of experts, users and the public. As mpas have the potential to be ecosystembased tools, avenues for current and emerging scientific information to be embedded in mpa design and management must be provided. For example, scientific research has shown that individual mpas, unless extremely large (where they may become difficult to manage and monitor) may not achieve articulated goals. Given most marine species are mobile, some highly migratory, networks of mpas are needed across a bio-region. Other issues include the composition of advisory bodies and the authority given to them as well as initiatives for monitoring, compliance and enforcement. The range of permitted uses and the process for approval is a key aspect of any mpa. Contemporary analyses of mpas indicate that uses within zones can be grouped into five 26

27 28

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Marine Parks Authority, A review of benefits of marine protected areas and related zoning considerations (mpa, 2008) accessed 1 August 2016. Graeme Kelleher, Guidelines for marine protected areas (iucn 1999). Sarah E Lester, Benjamin S. Halpern, Kirsten Grorud-Colvert, Jane Lubchenco, Benjamin I. Ruttenberg, Steven D. Gaines, Satie Airamé and Robert R. Warner, ‘Biological effects within no-take marine reserves: a global synthesis’ (2009) 384 Marine Ecology Progress Series 33. Marine Parks Authority (n 26).

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categories: ‘commercial fisheries, recreational fisheries, aquaculture, bottom exploitation and non-extractive uses’.30 How uses are determined, what permitting system is utilised, what advice is sought in determining the zones and permit conditions, policing, enforcement, review and reporting are all issues that must be covered in the legal framework. Although legislation providing for the declaration of mpas exists in almost all countries, there is little uniformity in approach. In Australia, for example, different legislation exists in each state, which affects coherency and effectiveness.31 Although there is no international instrument focused purely on protected areas, on land or in the sea, the cbd has taken a leading role in this area, as will be explored below. Many sharks are highly mobile and travel between different maritime zones, therefore a more uniform approach is likely to benefit their conservation and management. Later Chapters will examine an institutional approach with a body that can share information and expertise, establish standards (including definitions and key criteria for mpa management) and build capacity. These are all steps that could provide greater coherency and clarity in this area. The focus of this Chapter is the international laws that provide for mpas and how they have been utilised for shark conservation and management. 2

Spatial Measures in International Law

2.1 International Treaties Although there is no single international instrument focusing on mpas, a number of treaties do create opportunities for the establishment of marine areas for conservation purposes. In addition to the earlier examples, there are other species specific international agreements that recognised the need to protect species relevant habitats including breeding, feeding, nursery and hunting grounds as well as hibernation areas. For example, the Convention for the Conservation of Antarctic Seals provides in Article 3 that: Contracting Parties may … adopt other measures with respect to the conservation … of seal resources … (d) open and closed areas, including the

30 31

Costa and others (n 18) 193. Erika J Techera, ‘A review of Marine Protected Area legislation in Australia’ in James Fitzsimons and Geoff Wescott (eds) Big, Bold and Blue: lessons from Australia’s marine protected areas (csiro Publishing 2016).

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designation of reserves, (e) the designation of special areas where there shall be no disturbance of seals.32 As thinking progressed beyond single species and sectors, broader provisions were adopted in new treaties. The Convention on Migratory Species (cms) is aimed at preventing migratory species from becoming endangered by taking action including protecting their habitats. Article iii (4)(a) requires states to endeavour ‘to conserve and … restore those habitats of the species which are of importance in removing the species from danger of extinction’. Range states33 for migratory species are encouraged to enter into agreements to restore the species utilising tools including conservation and restoration of habitats and networks of habitats.34 Under the cms Memorandum of Understanding on the Conservation of Migratory Sharks (Sharks MoU), explored in Chapter 2, range states agree to adopt conservation plans for listed species including ‘conservation areas, sanctuaries or temporary exclusion zones along migration corridors and in areas of critical habitat, including those on the high seas in cooperation with relevant rfmos and rscaps where appropriate, or take other measures to remove threats to such areas’,35 ‘[d]evelop, implement and assess spatial and/or seasonal closures of fishing areas to reduce incidental capture of sharks, particularly to protect nursery grounds as well as aggregation areas for mating and pupping’,36 ‘[d]evelop incentives for adequate protection of areas of critical habitats inside and outside protected areas’,37 and ‘[c]ooperate, where possible, in the establishment of transboundary marine protected areas using ecological rather than political boundaries’.38 The Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention) was the first international instrument 32 33

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36 37 38

Convention on the Conservation of Antarctic Seals 1 June 1972, 1080 unts 175, entered into force 11 March 1978, art 3. Range states are those that exercise jurisdiction of any part of a migratory species range as well as states that have vessels registered to them that take migratory species on the high seas. Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, 1651 unts 333, 19 ilm 15 (1980), entered into force 1 November 1983 (cms), art v (5). cms, ‘Memorandum of Understanding on the Conservation of Migratory Sharks’ (Manila, 12 February 2010) accessed 20 October 2016 (Sharks MoU), Annex 3, Section 9.1. Ibid Annex 3, Section 9.3. Ibid Annex 3, Section 11.1. Ibid Annex 3, Section 14.5.

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to focus specifically on habitats. Article 1 defines a wetland as ‘including ­areas of marine water the depth of which at low tide does not exceed six metres’. Article 4 requires states to ‘promote the conservation of wetlands … by establishing nature reserves’ and, if wetland boundaries are changed, requires the establishment of ‘additional nature reserves for waterfowl and for the protection  … of an adequate portion of the original habitat’. Significantly, each state party is required to nominate at least one wetland of international importance,39 and a number of marine areas are listed Ramsar sites.40 Several sites have been listed that provide critical habitats for sharks, including Guangdong Nanpeng Archipelago Wetlands in which whale and basking sharks are found,41 and the Pitt Water Orielton Lagoon in Australia, which is an important nursery for gummy and school sharks.42 The World Heritage Convention is also a treaty focusing on spaces and sites. It encourages the identification, protection and preservation of natural and cultural heritage of outstanding value to all peoples. The Convention provides for the listing of sites including natural marine areas with ‘outstanding universal value’. Importantly, a state identifies and nominates a site for inclusion on the World Heritage List,43 but it is the World Heritage Committee that makes the listing decision.44 Once listed, a state has obligations to protect, conserve, present and transmit to future generations the cultural and natural heritage associated with that site.45 Some well-known mpas are World Heritage sites, including Australia’s Great Barrier Reef, and Ecuador’s Galapagos Islands.46 Shark Bay in Western Australia is listed for its ‘superlative natural phenomena’ largely due to the presence of stromatolites, as well as being a refuge for 39 40

41 42 43 44 45 46

Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971, 996 unts 245, entered into force 21 December 1975, art 2. ‘The List of Wetlands of International Importance’ (Ramsar, 26 September 2016) accessed 21 October 2016. ‘Three new Ramsar sites for China’ (Ramsar, 4 February 2016) accessed 21 October 2016. ‘Pitt Water Orielton Lagoon Ramsar Site’ (Sorell Council) accessed 21 October 2016. Convention for the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 unts 151, entered into force 17 December 1975, art 3. Ibid art 11. Ibid art 4. ‘World Heritage List’ (unesco) accessed 25 October 2016.

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endangered species, including sharks.47 Similarly, the Rock Islands Southern Lagoon in Palau is listed for its exceptionally high biological and marine habitat diversity including being home to at least 13 species of sharks and rays.48 Interestingly, it has been suggested that this treaty regime could be extended to ‘World Heritage Species’ for animals not adequately protected under other multilateral environmental agreements; or alternatively the benefits of World Heritage listing combined with habitat protection obligations and species listing under the cms, for example.49 As noted in Chapter 2, unclos is the most significant instrument in terms of oceans governance. unclos establishes a number of maritime zones, and includes some provisions for spatial measures but not specifically mpas. ­u nclos provides no specific obligations to establish mpas or conserve areas within the territorial sea. In relation to the eez, unclos grants coastal states sovereign rights to conserve and manage natural resources within that zone50 and jurisdiction to protect and preserve the marine environment.51 These provisions would appear to justify the declaration of mpas in the eez. In relation to all zones, and importantly including the high seas, unclos creates general duties to protect and preserve the marine environment.52 Most of the general duties relate to pollution but there is also a distinct obligation to take measures ‘necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’.53 Although this provision would appear to authorise the declaration of protected marine areas, it has been said that these general obligations alone do not create the jurisdiction to create and enforce mpas.54 In addition, Article 211 refers to pollution measures, and provides for protection of areas on the same basis as those applicable to marpol ‘Special Areas’ (discussed further below), including additional laws for discharge measures or navigational practices in those areas.55 47 48 49 50 51 52 53 54 55

‘Shark Bay, Western Australia’ (unesco) accessed 25 October 2016. ‘Rock Islands Southern Lagoon’ (unesco) accessed 25 October 2016. Chris Wold, ‘World Heritage Species: A New Legal Approach to Conservation’ (2008) 20 Georgetown International Environmental Law Review 337. unclos (n 1) art 56(1). Ibid art 56(1)(b)(iii). Ibid arts 192–196. Ibid art 194(5). Rainer Lagoni, ‘Marine Protected Areas in the eez’ in Andree Kirchner (ed) International Marine Environmental Law (Kluwer Law International 2003). unclos (n 1) arts 211(6)(a), (c).

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The only other relevant provisions under unclos are those that provide for safety zones of up to 500m around infrastructure such as artificial islands and installations to ensure the safety of those structures and navigation.56 Although these do not have the primary goal of conservation of the marine environment and resources, it has been proven that artificial reefs do form around this infrastructure and therefore these safety zones can play an important role as ecosystems develop around them.57 Other relevant international law is found in the International Convention for the Prevention of Pollution from Ships (as modified by the Protocol of 1978) (marpol).58 marpol provides for the establishment of ‘Special Areas’ where particularly strict standards are applied to discharges from ships. Special Areas may include the high seas and in some cases encompass whole seas. A ‘Special Area’ is defined as a sea area where for recognized technical reasons in relation to its oceanographical and ecological conditions and the particular character of its traffic, the adoption of special mandatory methods for the prevention of sea pollution by oil, noxious liquid substances, or garbage, as applicable is required. (Guidelines, Annex 1, (10)) Three criteria must be met: oceanographic conditions, ecological conditions, and vessel traffic characteristics. But for an area to be recognized as a Particularly Sensitive Sea Area (pssa), it only needs to satisfy one of the following criteria: ecological, scientific, or socio-economic. Special Areas are listed under the various headings of oil, sewage, noxious liquid substances, garbage or air pollution. pssas protect against all impacts of shipping because ‘[s]hipping activity can constitute an environmental hazard to the marine environment in general and consequently even more so to environmentally and/or ecologically sensitive areas’.59 A ‘pssa’ is defined as

56 57

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Ibid art 60. H Pickering, D Whitmarsh and A Jensen, ‘Artificial reefs as a tool to aid rehabilitation of coastal ecosystems: investigating the potential’ (1998) 37(8–12) Marine Pollution Bulletin 505. International Convention for the Prevention of Pollution from Ships, 2 November 1973, 12 ilm 1319, as modified by the Protocol of 1978 to the 1973 Convention, 1341 unts 3, 17 ilm 546, entered into force 2 October 1983 (marpol 73/78). imo, Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, 1 December 2005, Resolution A.982(24) (Revised Guidelines), Annex, 2.

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an area that needs special protection … because of its significance for recognized ecological, socio-economic or scientific reasons and which may be vulnerable to damage by international shipping activities.60 Coastal states can propose a pssa be established, but they are designated by the International Maritime Organisation (imo).61 The criteria for the identification of a pssa include ecological, social, cultural, scientific, educational and historic reasons. Ecological criteria include uniqueness, critical habitat, dependency, representativeness, diversity, productivity, spawning/breeding grounds, naturalness, integrity, fragility or bio-geographic importance.62 The pssa guidelines are not confined to the territorial sea and eez and can extend beyond these limits thus providing a possible avenue for high seas protected areas.63 The designation of a pssa is accompanied by tailored ‘associated protective measures’ such as ships’ routeing measures, speed, discharge or anchoring restrictions or operational criteria and prohibited activities.64 pssas are not legally binding in their own right, and the associated protective measures must have a legal basis within another international instrument (such as ­m arpol itself or unclos, for example) and be approved and adopted by the imo. Existing pssas include the Great Barrier Reef (Australia),65 Galapagos Islands (Ecuador),66 and Papahānaumokuākea (United States)67 all of which are habitats for sharks; several of these areas are subject to a number of other designations and legal protections.68 60 61 62 63 64 65

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Ibid, 1.2. Ibid, 3. Ibid, 4.4.1–4.4.11. Hélène Lefebvre-Chalain, ‘Fifteen Years of Particularly Sensitive Sea Ares: A concept in Development’ (2007) 13 Ocean and Coastal Law Journal 47. Revised Guidelines (n 59) Annex, 7.5.2. Submission by Australia, ‘Identification and Protection of Special Areas and Particularly Sensitive Sea Areas: Extension of the Great Barrier Reef and Torres Strait pssa to include the south west part of the Coral Sea’ (imo, 6 February 2015) accessed 25 October 2016. Judith Denkinger and Luis Vinueza (ed) The Galapagos Marine Reserve: A Dynamic SocialEcological System (Springer 2014). Submission by the United States, ‘Identification and Protection of Special Areas and Particularly Sensitive Sea Areas: Designation of the Papahānaumokuākea Marine National Monument as a Particularly Sensitive Sea Area’ (imo, 5 April 2007) accessed 25 October 2016. But see the failure to list Colombia’s Malpelo Island as a pssa despite identified risks to sharks, and the subsequent listing as an Area to be Avoided (atba): James Kraska and Raul Pedrozo, International Maritime Security Law (Brill 2013) 127–130.

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As noted above, the cbd has progressed the establishment of mpas by encouraging in situ conservation and requiring Parties as far as possible and appropriate to (a) Establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity; (b) Develop, where necessary, guidelines for the selection, establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity; (c) Regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use; … (e) Promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas;69 Parties are required to ‘implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea’.70 Significantly, the cbd applies to processes and activities under the jurisdiction or control of each Contracting Party within or beyond national jurisdiction thereby providing another avenue for development of high seas mpas.71 Developments since then have included the Jakarta Mandate on Marine and Coastal Biological Diversity (1995 and updated in 200472), which recommended legal and customary frameworks for mpas as well as integrated networks of areas. This approach was globally endorsed at the World Summit on Sustainable Development in 2002 where commitments were made to creating representative networks of mpas by 2012.73 At the iucn 5th World Parks Congress in 2003, it was agreed to protect 20–30% of each marine habitat by 2012.74 A target-based approach was also adopted by the cbd in 2005, which 69 70 71 72

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cbd (n 15) art 8. Ibid art 22(2). Ibid art 4(b). cbd cop 7 Decision VII/5 recommended the designation of mpas with different levels of protection including some no-take zones, and in areas beyond national jurisdiction: cbd ‘cop 7 Decision VII/5’ (n 16) 4. wssd, Johannesburg Plan of Implementation of the World Summit on Sustainable Development (un, 2002) accessed 9 September 2016, [32]. Marinesque and others (n 19).

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set a goal of 10% mpa coverage of marine and coastal ecoregions by 2012.75 United Nations General Assembly Resolution 65/37 further reinforced the importance of conserving and managing vulnerable marine ecosystems and establishing mpas through a global network of mpas.76 It is also the cbd Secretariat that has led the establishment of targets and quantitative goals. In 2004, a program of work on protected areas was adopted with a Working Group on Protected Areas with a mandate to explore options for mpas including in areas beyond the limits of national jurisdiction. The cbd also adopted a Programme of Work on Marine and Coastal Biodiversity in 2004, which noted that mpas are essential for the conservation and sustainable use of marine biodiversity. In addition, it was also agreed that a national framework of mpas should include a range of levels of protection, encompassing both areas that allow sustainable uses and ‘no-take’ areas.77 More recently in 2008, the cbd Conference of the Parties Decision IX/29 adopted criteria for ‘ecologically or biologically significant areas’ (ebsa) based upon uniqueness, special importance, status, vulnerability, productivity, diversity and naturalness.78 The later adoption of the Strategic Plan for Biodiversity 2011–2020 includes the Aichi Targets including Target 11: By 2020, at least 17 per cent of terrestrial and inland water, and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes. These initiatives have led to the declaration of a number of mpas, including those for sharks outlined in the sections that follow.

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The 10% cbd mpa target was later extended to 2020 at the 10th Conference of the Parties. See Aichi Target 11: Convention on Biological Diversity, ‘Aichi Biodiversity Targets’ accessed 21 October 2016. United Nations General Assembly, Resolution adopted by the General Assembly on 7 December 2010, Oceans and the law of the sea (A/Res/65/37). cbd ‘cop 7 Decision VII/5’ (n 16). cbd, ‘cop 9 Decision IX/29’ accessed 28 October 2016.

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2.2 Regional Agreements In addition to the global instruments examined above, a number of regional treaties are relevant because they are often the only multilateral instruments specifically governing parts of the high seas. The Antarctic Treaty provides for the use of the Antarctic only for peaceful purposes, scientific investigation and exchange of information between states.79 In 1964, an additional instrument was adopted, the Agreed Measures for the Conservation of Antarctic Fauna and Flora, which allowed for ‘specially protected areas’.80 This category was replaced in 1991 by Annex v to the Protocol on Environmental Protection to the Antarctic Treaty (Environment Protocol) which provides for the designation of ‘Antarctic Specially Protected Areas’ (aspa) and ‘Antarctic Specially Managed Areas’ (asma).81 aspa can include any marine area designated to protect, inter alia, environmental and wilderness values.82 Such areas can require protection to ensure they are kept isolated from human activity, are representative of specific ecosystems, or of particular scientific interest, for example.83 This would be valuable for shark conservation if a particular area was an important site for them. An asma is an area to be managed because of particular activities being conducted within it and which may pose risks of ‘mutual interference or cumulative environmental impacts’.84 Therefore, it is unlikely this provision could be utilised for shark conservation unless a specific activity was proposed for a site of fidelity for sharks. It does not appear that any aspa have been declared specifically to protect sharks.85 The Convention on the Conservation of Antarctic Marine Living Resources (ccamlr) is another regional treaty that allows for the regulation of specific areas for conservation purposes.86 Article ix provides for conservation measures, including ‘designation of the opening and closing of areas, regions or 79 80 81 82 83 84 85

86

The Antarctic Treaty, 1 December 1959, 402 unts 71, entered into force 23 June 1961. Agreed Measures for the Conservation of Antarctic Fauna and Flora, 13 June 1964,17 ust 992, entered into force 1 November 1982. Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, 30 ilm 1461, entered into force 14 January 1998 (Madrid Protocol). Ibid art 3(1). Ibid art 3(2). Ibid art 4(2). For a database of all Antarctic Treaty mpas see Secretariat of the Antarctic Treaty, ‘Antarctic Protected Areas Database’ (ats) accessed 20 October 2016. Convention on the Conservation of Antarctic Marine Living Resources, 20 May 1980, 19 ilm 841, entered into force 7 April 1982 (ccamlr).

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sub-regions for purposes of scientific study or conservation, including special areas for protection and scientific study’.87 In 2011, ccamlr adopted a ‘General framework for the establishment of ccamlr Marine Protected Areas’ with key criteria for the establishment of mpas including objectives, utilisation of best scientific evidence and conservation measures.88 In 2009, ccamlr established the South Orkney Islands southern shelf mpa, the world’s first high-seas mpa.89 Although these provisions have not been used to benefit sharks specifically, there is a potential to do so. ccamlr is a Regional Fisheries Management Organisation (rfmo) and other similar organisations also implement spatial measures. For example, the North East Atlantic Fishery Commission (neafc) has closed some areas to bottom trawling and the South Eastern Atlantic Fishery Organisation has closed 10 vulnerable marine areas to protect benthic environments.90 However, these provisions are more like fishery reserves as their focus is to rebuild stocks for the maintenance of the fishing industry rather than conservation. Therefore, they do not meet the iucn definition of an mpa and recent analysis has confirmed that they do not provide an adequate management framework for the high seas.91 In addition to the rfmos are the Regional Seas Conventions adopted under the auspices of the United Nations Environment Programme and largely focused on pollution prevention. One such agreement is the Convention for the Protection of the Marine Environment of the North-East Atlantic (ospar).92 Annex v to the Convention extends the requirement for parties to cooperate to cover all human activities that might adversely affect the marine ­environment 87 88

Ibid art ix (2)(g). ccamlr, ‘General Framework for the Establishment of ccamlr Marine Protected Areas’, Conservation Measure 91-04 (2011) accessed 28 October 2016. 89 ‘Marine Protected Areas’ (ccamlr) accessed 28 October 2016. In October 2016 the ccamlr Commission adopted a proposal by New Zealand and the us to create a 1.55 million km2 mpa in the Ross Sea, to come into effect in December 2017: ‘ccamlr to create world’s largest Marine Protected Area’ (ccamlr) accessed 29 October 2016. 90 ‘Marine Protected Areas in the High Seas’ (fao) accessed 26 October 2016. 91 Sarika Cullis-Suzuki and Daniel Pauly, ‘Failing the high seas: A global evaluation of regional fisheries management organizations’ (2010) 34 Marine Policy 1036–1042. 92 Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, 32 ilm 1068, entered into force 25 March 1998.

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of the North-East Atlantic. In 2003, the ospar Commission adopted an agreement to create an ‘ecologically coherent’ network of well-managed mpas by 2010.93 By 31 December 2010, the ospar Network of mpas comprised a total of 181 sites, including 175 mpas situated within national waters of Contracting Parties and six mpas on the high seas.94 Furthermore, ospar has worked with other bodies such as neafc to achieve greater mpa outcomes than it could have achieved within its own limited mandate.95 The cms Secretariat, as noted in the Sharks MoU, has recognised the importance of Regional Seas Conventions and adopted a strategy for cooperation with them as well as rfmos.96 Specific reference, however, is only made to conservation management measures and not protected marine areas.97 In the Pacific, the Coral Triangle Initiative (cti) covers a large area of high marine biodiversity across the seas of Indonesia, Malaysia, the Philippines, Timor Leste, Papua New Guinea and the Solomon Islands.98 A stated goal of the cti is to scale up existing mpas to place 20% of each major habitat under protected status by 2020 to ‘form a connected, resilient and sustainably financed’ mpa system.99 The cti could therefore be valuable in protecting sharks given the range of species found in the area covered and the acknowledged goal set out in the Action Plan to improve the conservation status of sharks.100 Other examples of regional agreements involving special mpa arrangements are the 93

ospar Recommendation 2003/3; Record of the Joint Ministerial Meeting of Helsinki & ospar Commissions 2003; B.C. O’Leary, R.L. Brown, D.E. Johnson, H. von Nordheim, J. Ardron, T. Packeiser and C.M. Roberts, ‘The first network of marine protected areas (mpas) in the high seas: The process, the challenges and where next’, (2012) 36(3) Marine Policy 598, 599. 94 ‘2010 Status Report on the ospar Network of Marine Protected Areas’ (ospar Commission) accessed 1 September 2016, 4. 95 ‘Memorandum of Understanding between the North East Atlantic Fisheries Commission (neafc) and the ospar Commission’ (neafc-ospar MoU) accessed 1 September 2016. 96 Sharks MoU (n 35). 97 Ibid para 6. 98 Pedro Fidelman and Julia A. Ekstrom, ‘Mapping seascapes of international environmental arrangements in the Coral Triangle’ (2012) 36 Marine Policy 993–1004. 99 ‘Collaboration: Marine Protected Areas’ (Coral Triangle Initiative) accessed 28 October 2016. 100 See ‘cti Regional Plan of Action’ (Coral Triangle Initiative) accessed 28 October 2016, Goal 5 in particular.

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Helsinki Commission’s Baltic Sea Protected Areas (bspas),101 and 1995 Protocol to the 1976 Barcelona Convention: Specially Protected Areas of Mediterranean Importance (spamis).102 These instruments could be utilised to protect sharks but these species are not currently a focus. In summary, international law provides a range of means by which states can designate particular habitats (such as wetlands), areas with specific values (outstanding universal value, particular sensitivity) and spaces requiring protection against certain impacts (such as shipping). These tools add to the species-based measures considered in the previous Chapter. More recently, international law frameworks have set targets for the protection of significant percentages of the ocean (Aichi Targets) and although these may not be achieved within specified time frames, they have catalysed state action, as discussed below. In addition, it is clear that certain other areas or zones declared for various purposes may have the effect of conservation without that being their stated objective. The combination of unclos and the cbd, as well as other treaties where relevant, allows coastal states to establish mpas in their territorial sea and eez as well as on the high seas in limited contexts. This framework has led to the declaration of areas specifically for the conservation of sharks, and others where sharks may indirectly benefit from the declarations. 3

Implementation of Spatial Measures

A considerable number of protected areas have been established in the territorial sea of coastal states and across eezs. Some of these have been in response to the targets set by the cbd and other organisations. Nevertheless, it is clear that protected ocean areas (either formally declared or conserved by local and traditional peoples) preceded international law initiatives. What is evident is that greater percentages of the ocean are increasingly being set aside for conservation and fisheries management, although levels of protection, size of such spaces and effectiveness vary.103 101 ‘Guidelines for Designating Marine and Coastal Baltic Sea Protected Areas (bspa) and Proposed Protection Categories, Helsinki-Commission’, 16th Meeting, Helsinki 14–17 March 1995, Helcom 16/17. 102 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean, 10 June 1995, un Doc unep(oca)med IG6/7, entered into force 12 December 1999, art 8. 103 See ‘Tracking Promises’ (MPAtlas), accessed 28 October 2016, indicating the increase in areas under protection should current proposals proceed.

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It is clear that protected areas have a role to play in shark conservation and management.104 As noted above, there is no globally endorsed nomenclature for such areas, although mpa terminology has been widely accepted. In the context of specific protections for sharks, terms such as ‘shark parks’, shark sanctuaries and shark mpas have been used, with little clear guidance on differences between them. Some areas have been protected for multiple reasons including the conservation of broad ecosystems and habitats that may benefit sharks. In some cases, areas have been designated specifically to assist the conservation of sharks and in others, specific species-based tools have been applied such as bans on commercial fishing for sharks. An overview of the different types and coverage is given below. 3.1 Shark-focused mpas These protected areas range in size and purpose but tend to be inshore areas, often focused on sites of fidelity where specific species of sharks are in need of special protection. As such, the areas are usually designated under marine parks or conservation legislation. In some cases, these places have been utilised for tourism including in Australia, South Africa and several island states. One such area is the Shark Reef Marine Reserve in Fiji, an ecotourism project combining protection of a small reef patch and its fauna with a participatory business approach designed to preserve the livelihoods of local communities.105 The Reserve is an illustration of a sustainable and profitable, bottom-up initiative involving all relevant stakeholders. In Australia, some mpas have been designated for broader goals of protecting different marine species, but also with a strong focus on marine-based tourism (involving sharks and other species).106 Importantly, these area protections are combined with detailed licensing provisions that set out operational conditions for tour operators and Codes of Conduct for visitor interactions. In relation to two Australian sites, great white and whale sharks are the species involved, both of which are highly migratory and protections in one jurisdiction and/or during seasonal visits will be insufficient to ensure the sustainability of the species. Research has shown, however, that even for mobile and wide ranging species, mpas do ‘have conservation benefits for shark populations

104 Hoyt (n 11) 276, 277. 105 Juerg M. Brunnschweiler, ‘The Shark Reef Marine Reserve: a marine tourism project in Fiji involving local communities’ (2010) 18(1) Journal of Sustainable Tourism 29. 106 Erika J. Techera & Natalie Klein, ‘Shark-based Eco-tourism: Governance lessons from Australia’ (2013) 39 Marine Policy 21–28.

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by providing protection across different species and life stages’.107 For species with small ranges, protections within a single country may be effective. For example, drawing upon another Australian site, a network of mpas has been designated to manage human interactions with a critically endangered population of sharks.108 The approach taken has been holistic with the establishment of a network spread across six mpa systems, which raises jurisdictional issues, but has allowed for the re-establishment of an aggregation of juvenile and sub-adult sharks. In other circumstances, where the ranges are great, such measures may be less effective. 3.2 Sanctuaries As noted above, one of the first international instruments to refer to sanctuaries was the International Convention on the Regulation of Whaling. Although no international instrument currently refers to shark sanctuaries, a number of protected areas have been designated with this title. The MPAtlas lists 24 such shark sanctuaries109 including the 14 listed by Pew Charitable Trusts.110 This terminology, although lacking precise definition, has generally been utilised for large areas where shark fishing has been prohibited, some covering whole eezs. For example, the Cayman Islands, Sint Maarten, Palau, Tokelau, New Caledonia, Marshall Island, Maldives, Honduras, British Virgin Islands, Federated States of Micronesia, have completely closed their eezs to shark fishing and in addition the Yarari Shark Sanctuary covers the eezs of Bonaire and Saba.111 More limited ocean areas have been protected in other countries: the Venezuelan Shark Sanctuary surrounds the Los Roques archipelago, the Antongil Bay Shark Sanctuary in Madagascar is protected via Locally Managed Marine Areas, the Raja Ampat Shark Sanctuary covers an important district in Indonesia, the French Polynesia Sanctuary includes the waters surrounding 107 Danielle M. Knip, Michelle R. Heupel and Colin A. Simpfendorfer, ‘Evaluating marine protected areas for the conservation of tropical coastal sharks’ (2012) 148 Biological Conservation 200. 108 Tim P. Lynch, Robert Harcourt, Graham Edgar and Neville Barrett, ‘Conservation of the Critically Endangered Eastern Australian Population of the Grey Nurse Shark (Carcharias Taurus) Through Cross-Jurisdictional Management of a Network of Marine-Protected Areas (2013) 52 Environmental Management 1341. 109 ‘Shark Sanctuary’ (MPAtlas) last accessed 21 October 2016. 110 ‘Shark Sanctuaries Around the World’ (The Pew Charitable Trusts) accessed 21 October 2016. See also Hoyt (n 11) in which 20 areas are explored. 111 MPAtlas (n 109).

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100 islands, the Egypt Red Sea Sanctuary covers the territorial sea to 12 nautical miles and the Guam and Northern Mariana Islands and American Samoa ban fishing and possession of sharks in waters extending to 3 nautical miles from the coast.112 In Israel, all sharks are protected from fishing and finning effectively creating a sanctuary113 and the Semporna Shark Sanctuary in Malaysia Borneo is still being campaigned for.114 These sanctuaries are essentially aquatic reserves with protections under fisheries regulation rather than mpas. For example, the Bahamas National Shark Sanctuary prohibits shark fishing and trade in products in national waters, legislated for under the Fisheries Resources (Jurisdiction and Conservation) Act.115 Similar shark sanctuaries, where fishing for sharks is banned, as are landings and sale of shark products, exist in many other countries: Brunei Shark Sanctuary and Congo Brazzaville Shark Sanctuary, for example.116 The Cook Islands Shark Sanctuary covers the entire eez and bans commercial fishing for sharks and also gear and equipment that targets sharks.117 In many of the countries and territories referred to above, marine-based tourism is a significant contributor to the national economy. The value of the sanctuaries is not limited to national waters. Some of the above areas are adjacent to one another and therefore form networks of marine areas that protect sharks.118 Significantly, no areas beyond national jurisdiction have been listed specifically for the protection of sharks. 4

Challenges and Opportunities

4.1 Gaps and Challenges One of the most evident gaps in relation to the global application of spatial measures is the lack of an overarching framework to manage all types of protected marine areas. The above sections demonstrate the wealth of provisions available in different treaties and instruments. In some respects, this allows 112 Ibid. 113 Hoyt (n 11) 272. 114 MPAtlas (n 109). 115 The amendment in relation to sharks was enacted in 2011: Fisheries Resources (Jurisdiction and Conservation) Amendment Regulations 2011 (Bahamas). 116 MPAtlas (n 109). 117 ‘Cook Islands Shark Sanctuary Project’ (Pacific Islands Conservation Initiative) accessed 28 October 2016. The relevant legislation is the Marine Resources Act 2005. 118 The Pew Charitable Trusts (n 110).

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for specific marine areas to be designated for particular species and concerns. However, the lack of a comprehensive regime guiding the declaration of protected areas across all maritime zones is hampering the conservation of sharks. The cbd has gone some way to filling the gap in relation to mpas by providing high level encouragement for in situ conservation as well as setting quantitative targets and goals for protection. However, the cbd has no specific focus on sharks and no particular mandate for establishing high seas mpas. The cms and cites do have agenda for shark conservation and management, as explored in Chapter 2, but their programs are not well-integrated with cbd activities. Whilst this might not be a particular problem for industrialised states with significant resources to devote to each treaty regime, for developing countries this can be a regulatory challenge. Even in developed states, treaty congestion and fragmentation between frameworks can hamper effectiveness, as explored in Chapter 3. A critical goal for the future will be to move from a situation of dysfunctional regulatory pluralism to one where international legal frameworks operate as a cohesive and comprehensive regime. Efforts to address these issues broadly will be explored in Chapter 8. However, recommendations in relation to spatial measures alone are explored below. The lack of a focused institution with the mandate to advance mpa governance has meant that there are few global forums for discussion and exchange of ideas and experiences between states that have had positive mpa outcomes. An institution-led approach could result in the development of a comprehensive clearinghouse of materials. Although the fao does provide a database of mpa legislation,119 there is no analysis that could potentially lead to the development of model laws. This will also be relevant for transboundary mpas where legal approaches may differ between each state. A consistent approach to legislation would better enable cross border areas to be protected in the same or similar ways creating clarity and assisting compliance and enforcement. A critical first step would see the mapping of existing areas and the laws that support them. The MPAtlas project provides a valuable analysis of global mpas, and the strength of their protection measures, but not the legislation supporting them. A memorandum of understanding between the cbd, the fao’s legal office (faolex) and MPAtlas could advance this. Similarly the lack of a global tourism treaty has led to the development of marine-based tourism activities in protected areas, and administrative and regulatory frameworks, at the local and provincial level. Some of these activities are longstanding and research indicates that they can provide a s­ ustainable 119 ‘Legal Office faolex’ (fao) accessed 28 October 2016.

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alternative to fishing and provide net conservation benefits.120 Nevertheless, some practices can alter behaviours of marine species including sharks and ongoing monitoring of impacts is important.121 Although the un World Tourism Organisation has a mandate to promote ‘responsible, sustainable and universally accessible tourism’122 it has not established global standards or a clearinghouse mechanism, for example, to assist in scaling up marine-based tourism activities and sharing successful legal frameworks.123 Such an agenda would not only involve sharing legal and administrative models but also social science expertise about visitors, commercial knowledge about successful enterprises, and the scientific data on impacts on species. This raises the issue of multi-disciplinarity and ensuring that new and emerging scientific information, as well as that from other fields, is embedded in law and policy. Whilst many legislative frameworks require the establishment of an advisory body and/or the consideration of expert information, this is not consistent either in the spread of disciplinary expertise required nor the extent of the consideration that must be given to it. A further gap relates to areas beyond national jurisdiction (abnj), including the water column and protection of the ocean floor. Recent developments at the international level have seen the adoption of a un General Assembly Resolution 68/70 leading to the establishment of a Working Group to explore 120 For example, see Juerg M. Brunnschweiler, ‘The Shark Reef Marine Reserve: a marine tourism project in Fiji involving local communities’ (2010) 18(1) Journal of Sustainable Tourism 29; and Austin J. Gallagher, Gabriel M.S. Vianna, Yannis P. Papastamatiou, Catherine Macdonald, Tristan L. Guttridge and Neil Hammerschlag, ‘Biological effects, conservation potential, and research priorities of shark diving tourism’ (2015) 184 Biological Conservation, 365–379. 121 For example, in relation to changes in movement patterns see Charlie Huveneers, Paul J. Rogers, Crystal Beckmann, Jayson M. Semmens, Barry D. Bruce and Laurent Seuront, ‘The effects of cage-diving activities on the fine-scale swimming behaviour and space use of white sharks’ (2013) 160(11) Marine Biology 2863–2875. For the effects of feeding and baiting see Neil Hammerschlag, Austin J. Gallagher, Julia Wester, Jiangang Luo and Jerald S. Ault, ‘Don’t bite the hand that feeds: assessing ecological impacts of provisioning ecotourism on an apex marine predator’ (2012) 26(3) Functional Ecology 567–576; and Richard Fitzpatrick, Kátya G. Abrantes, Jamie Seymour and Adam Barnett, ‘Variation in depth of whitetip reef sharks: does provisioning ecotourism change their behaviour?’ (2011) 30(3) Coral Reefs 569–577. 122 World Tourism Organisation (unwto) accessed 28 October 2016. 123 Although the link between tourism and achieving key Sustainable Development Goals has been acknowledged: see ‘Tourism and the Sustainable Development Goals’ (unwto) accessed 28 October 2016.

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the scope, parameters and feasibility of a new instrument under unclos.124 In 2016, the Preparatory Committee met to discuss a draft text for a legally binding protocol under unclos on the conservation and sustainable use of marine biodiversity in abnj, which is to include area-based management tools, including mpas.125 It is therefore likely that a new instrument will emerge soon, which will provide a stronger framework for mpas on the high seas but it remains to be seen how effective this will be. A common criticism of mpas, including shark parks, is that they are paper parks only and without strong monitoring and enforcement, they cannot achieve conservation goals. This problem raises a further issue of interaction between different disciplines. Greater engagement by international law with technology, and remote sensing technology in particular, is needed to address the challenges of surveilling large ocean areas. As seen above, many of the large mpas declared as shark sanctuaries are in developing countries with few or no patrol vessels. There are undoubted opportunities for greater cooperation between states and for the utilisation of autonomous vehicles and remote sensing technology. 4.2 Synergies and Solutions Whilst a new abnj Protocol will go some way to filling the gap to provide global coverage across territorial seas, eezs and the high seas, it will not address concerns that the transfer of a two dimensional spatial tool to the three dimensional ocean environment is inadequate. Recent developments, in the context of marine spatial planning, aim to remove sectoral divisions between industries and to provide greater three-dimensional coverage. If genuine marine spatial planning were implemented then a state’s entire eez could be declared to be a multi-zone mpa with different rules and restrictions in each sub-area.126 The issue of three-dimensional planning in high seas areas, with the added 124 un General Assembly, Resolution 68/70, (2013). 125 ‘1st Session of the Preparatory Committee Established by the un General Assembly Resolution 69/292 “Development of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction” – Summary Highlights of Meeting’ (iisd) accessed 28 October 2016. 126 See Erik Olsen, David Fluharty, Alf Håkon Hoel, Kristian Hostens, Frank Maes, and Ellen Pecceu, ‘Integration at the Round Table: Marine Spatial Planning in Multi-Stakeholder Settings’ (2014) 9(1) PLoS One e109964, which explores Belgian marine spatial planning that covers the entire eez. See also comments in Kearney, Buxton and Farebrother (n 5) where it is stated that given Australian mpas continue to be dominated by fishing, and

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complexity of a multi-instrument regulatory landscape, received attention in the context of the ospar-neafc Memorandum of Understanding,127 which is a possible model for the way forward. Again in the absence of a global champion or institution to establish standards, provide a forum for discussion and assist capacity building through sharing of such experiences, it will be difficult for this approach to be scaled up. A further challenge of protected areas in the ocean, although it can also apply on land, is the need to provide biodiversity corridors in a post climate change world. This issue has been addressed through approaches to establish networks of mpas. However, the nature of law is that it requires certainty and no international law treaties or regional agreements currently provide for mobile mpas. This will be a particular challenge as species’ ranges are likely to shift in response to climate change: either directly as sea temperatures rise or indirectly as the ecosystems upon which they depend die out. This specific issue is likely to be critical for sharks that are highly mobile, some of which migrate across large ocean areas. It is these species that may need a shift in their migratory corridors in the future. Similarly, as climate change affects inshore areas, feeding areas, breeding and nursery grounds may alter and law must find a response to this challenge. This situation illuminates the need for multi-disciplinary engagement in designing adaptive laws that are able to address prospective issues likely to impact upon sharks. 5 Conclusion This Chapter has analysed the international laws that utilise spatial measures to conserve marine species including sharks. The analysis has demonstrated that there are a wealth of different legal provisions that can be utilised to establish mpas in territorial seas and eezs. Few of these provisions address high seas areas or provide comprehensive frameworks for marine spatial planning. Nevertheless, there have been recent developments in this regard. Marine spatial planning can bring together not only area-based measures but species-based tools as well. However, in order to be effective, an institution must ‘champion’ collaborative and cooperative efforts across legal instruments and frameworks, as well as building capacity to implement them.

the whole of Australia’s eez is covered by fisheries regulations, the entire eez could be declared an mpa. 127 neafc-ospar MoU (n 95).

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The Chapter that follows explores the institutions as actors and stakeholders in the conservation and management of sharks. This analysis highlights the fragmentation across legal frameworks, which is duplicated at the institutional level. In order to move forward, ways must be identified to make these frameworks operate more cohesively and that includes the institutions that are part of them.

chapter 6

Institutions: Key Roles and Structural Issues International institutions have been focal points for organising and coordinating state action across a range of natural resource and environmental areas including shark conservation and management. Institutions can take different forms – multilateral or regional; issue-specific or general. Of central interest for shark conservation and management are the institutions that have specific fisheries or environmental purposes and that are established with the aim of global membership or may be limited to specific regions. These institutions, as a physical manifestation of a process of international organisation,1 provide a means for states and other stakeholders to develop new laws and standards to manage shared issues of concern, as well as providing the impetus for collecting­and sharing data and other information to inform those laws and standards. They provide an important role in building capacity where there are differences in development or technical, financial or legal resources. Institutions facilitate good governance through the provision of loci to develop principles and establish processes to review performance and achieve the stated goals of that institution. There are many valuable functions performed by international institutions. Bennett has noted that they afford a way for states to cooperate in areas where that cooperation advantages all, or a large number of, states.2 The existence of the institution facilitates varied channels of communication, creating accessibility when needed.3 Moreover, institutions provide not only a place for decision-making but also the ‘administrative machinery for translating the decisions into action’.4 Yet disincentives may also exist, where national imperatives still prevail over the shared international interest or interaction among particular members is too fraught because of other externalities. There is ­usually a financial cost for involvement and if the institution is not seen as 1 The terms international institution and international organisation are frequently used interchangeably. This Chapter acknowledges that ‘international organisation’ can be a broader process and thereby encompass informal groupings and alliances, but predominantly focuses on international institutions, the formal bodies created as a manifestation of the broader process. 2 A. LeRoy Bennett, International Organizations: Principles and Issues (5th edn, Prentice Hall College Div, 1991) 3. 3 Ibid. 4 Ibid.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004345515_007

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providing value or achieving the aims for which it was established, there is little inducement for states to start or to continue their support. The relevance of international institutions to shark conservation and management is evident when the central drivers for international organisation are recalled. Such organisation occurs when a sufficient number of states have recognised a shared issue and were prepared to do something about that issue through multilateral cooperation. That need might arise because of technological, social, anthropogenic, economic, political changes that produce new demands, opportunities and challenges. While there are undoubtedly factors conducive to the use of international organisation to address challenges facing shark conservation and management, there are important questions to resolve as to what this form of international organisation should look like. As an initial matter, this Chapter addresses the law relating to international organisation. It is important to understand this body of law to have a proper appreciation of the uses of institutional mechanisms. Also set out as an introductory matter are the main activities that occur within international environmental institutions, such as law-making and standard setting; stakeholder participation; information sharing; implementation; and compliance and dispute settlement. These activities reflect central tenets of environmental governance by enabling transparency, accountability, participation and stakeholder engagement. From this understanding, the Chapter then addresses what institutions already exist and address shark conservation and management, directly or indirectly. To what extent do these existing institutions provide the key functions needed for shark conservation and management? There have been suggestions that sharks need their own dedicated international institutions, as has been established for other marine species, such as whales and tuna.5 Such proposals prompt the question as to what lessons can be learned from institutions like the International Whaling Commission. This experience is considered in relation to the possibility of an international institution focused on sharks. Yet there is also a need to question how well these existing institutions are working, both in their own right and in relation to their interoperability. Is there sufficient coordination and cohesion when there is an overlap in the issues being addressed among different institutions? Various of the institutions have recognised the need to cooperate already and to share information, and memoranda of understanding have been concluded to this effect. There 5 See, e.g., Ingrid M. Gronstal Anderson, ‘Jaws of Life: Developing International Shark Finning Regulations Through Lessons Learned from the International Whaling Commission’ (2011) 20 Transnational Law and Contemporary Problems 511.

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r­ emain problems of fragmentation in the rules and standards being developed and overlap in reporting requirements and different standards in data and information gathering and sharing. These systemic issues must be resolved, and ideally streamlined, to support good governance and to realise improved performance in shark conservation and management. While a variety of weaknesses may be identified in the operation and achievements of these institutions, they are important stakeholders because the majority of states that harvest sharks participate in these institutions, although membership across them is not uniform. That participation is undoubtedly moderated to align with a state’s national interests but it is also the case that a state’s behaviour and attitudes are influenced by the activities and decisions of the institutions. 1

Background to the Law of International Organisations

As mentioned at the outset of this Chapter, an international institution is typically the concrete expression of a broader form of international organisation. In its broader setting, international organisation can encompass many different forms of cooperation between states and other actors in the international system that have varied degrees of formalities associated with those arrangements. International organisation can encapsulate ways that states coalesce around certain issue areas and devise means of ensuring effective cooperation and coordination in the regulation of those issues. International institutions are the manifestation of this motivation; the tangible product of international organisation. Most commonly, international institutions have three key characteristics: (1) they are founded on the basis of an international agreement, usually a treaty; (2) there is at least one organ ‘with a will of its own’; and (3) they are established and operate under international law.6 Intergovernmental organisations7 typically reflect all of these characteristics. Each international institution is usually recognised as having legal personality, as one of the indispensable ‘requirements of international life’.8 As an independent entity, an international organisation may take the actions envisaged in its very creation. These functions are normally spelled out in the constituent instrument; most typically the treaty establishing the institution will include 6 Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity within Diversity (5th edn, Martinus Nijhoff Publishers 2011) 37. 7 Intergovernmental organisations are those that have states as members. 8 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, (1949) icj Rep. 1949 (April 11), 8.

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a list of principles and objectives for the institution, as well as dealing with a range of structural issues. Questions nonetheless arise as to how far the international organisation may stray from the functions that are explicitly set out in that treaty, and on what authority it may do so.9 These issues have arisen for Regional Fisheries Management Organisations (rfmos) that are intended to address tuna fishing and whether they have authority to extend their mandate to sharks.10 The accepted position under international law is that the rights and duties of an international organisation ‘depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’.11 In terms of what powers may be implied, it is only those considered essential for the performance of the organisation’s duties.12 While there has been ready recognition of the rights of international organisations, establishing legal responsibility has been more controversial. As the organisations typically establish decision-making processes and sub-organs for adopting these decisions, there is a means to identify whether an organisation has been acting consistently with its stated aims and objectives. Nonetheless, questions arise as to whether the organisation itself is responsible for its actions, or whether the individual member states are instead responsible, especially if the member state was not represented in the particular decisionmaking organ. This prompts a query, for example, as to whether an rfmo could be found internationally responsible and required to make reparations if there was scope to determine that the rfmo was not properly conserving and managing particular shark species. It must also be asked what responsibility is owed by the organisation to member states on the one hand and to third parties (state and non-state) on the other. Yet even if it may be shown that an international organisation has failed to act consistently with its purposes,

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One theory is that international organisations may only do those activities for which they are empowered (the theory of attribution). Another is that certain powers must be implied so that the constituent instruments of the international organisation are given their fullest effect. This theory of implied powers permits a broad interpretation of an organisation’s mandate, and it must be considered what limitations still exist under this theory in assessing the lawfulness of an international organisation’s conduct; see Jan Klabbers, An Introduction to International Institutional Law (2nd edn, Cambridge University Press 2009) 55–69. Stijn van Osch, ‘Save our Sharks: Using International Fisheries Law within Regional Fisheries Management Organizations to Improve Shark Conservation’ (2012) 33 Michigan Journal of International Law 383, 411. Reparations for Injuries Suffered in the Service of the United Nations (n 7) 10. Ibid 12.

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there are extremely limited avenues for seeking recourse, particularly by nonstate actors who may share an interest in the issue being addressed. From an institutional and structural perspective, the successful operation of an international organisation may be dependent on what bodies are established to facilitate the running of the organisation and to make decisions about the activities of the organisation. Most typically, an organisation will have a plenary body on which all members are represented equally and which takes the key decisions of the organisation.13 A secretariat, usually led by a secretarygeneral, will carry out the day-to-day administration of the organisation’s activities and prepare and support member meetings. An executive body may be established to set key policy objectives, or – alternatively or in addition – there will be a series of committees with specific mandates established to support the work of the organisation and are usually managed with representatives from a discrete number of member states. In fisheries organisations, there are usually scientific panels or committees established to provide information to underpin decisions of the organisation in allocating fish catch or in setting quotas or other conditions on fishing activities.14 Within the context of international environmental law, there are global organisations with wide mandates to address environmental issues, such as the un Environmental Programme (unep) and the Commission on Sustainable Development. International environmental law is also notable for the treaty arrangements or bodies that are established in relation to specific issue areas. These bodies often have a structure that is quite elaborate and are commonly organised through a Conference or Meeting of the Parties, and may be assisted by a technical or scientific body and a secretariat.15 The Conference of the Parties typically has the mandate to review and promote the effective 13

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This structure is more common in the specialised agencies of the un, such as the fao, but is not seen in the un itself where the General Assembly has recommendatory powers whereas the 15-member Security Council may take decisions binding on all member states in the interests of international peace and security. See un Charter, art 25. For example, the Western Central Pacific Fishery Commission has a Scientific Committee with its own Specialist Working Groups focusing on biology, ecosystem & bycatch, fishing technology, methods, statistics, and stock assessment: wcpfc, Scientific Committee, Terms of Reference for the Specialist Working Groups (5 October 2009) accessed 22 October 2016. For example, the Secretariat of the Convention on Biological Diversity has a number of sub-groups supported by Divisions including Technical Support for Implementation, Science, Assessment & Monitoring, Mainstreaming, Partnerships & Outreach, Biosafety Protocol, Nagoya Protocol, and Resource Management & Conference Support: cbd, scbd Structure, accessed 22 October 2016,

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i­mplementation of the relevant treaty through a range of activities. These will be discussed further below in relation to the Convention on the International Trade in Endangered Species (cites) and the Convention on Migratory ­Species (cms). The extent of infrastructure established for an international organisation, and its concomitant ability to meet the purposes of the organisation, may well depend on how generously the organisation is financed. Member states will typically pay an annual membership fee that will support the administrative working of the organisation. The financing of the organisation may be used as a political tool in that a state may refuse to pay its membership fees if it disagrees with the actions of the organisation,16 or a state may pay the membership fees of other states as an inducement for that state to align with the position of the paying state in decisions of the organisation.17 The ability of an organisation to fulfil its objectives and ensure the effectiveness of its activities may ultimately depend largely on the extent of its funding. Also critical to the structure and functioning of international institutions is its membership. For an organisation to be successful, the states with interests in the issue to be addressed by the organisation should be involved in the cooperative processes of that organisation. A central difficulty for rfmos has been that vessels flagged to non-member states have continued to fish species that are otherwise regulated by that rfmo. In that situation, the rfmo has sought to engage the relevant state to become a member of the organisation or has created a special category of ‘cooperating non-member’ so that the state will still subscribe to the important restrictions on fishing practices even if it is not fully engaged in all decisions and processes nor necessarily fully bound by all requirements of the organisation.18

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and cbd, Divisions, accessed 22 October 2016. A well-known example of this occurring within the un is when France and other states refused to pay their un membership due to their opposition to un involvement in peacekeeping operations. This incident resulted in an Advisory Opinion of the International Court of Justice confirming the authority of the un to undertake such activities and the obligations of states to pay their membership, see Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, icj Rep. 1962 (July 20) 151. This allegation has been made against Japan in relation to its dealings in the International Whaling Commission, see Matthew Carney, ‘The Whale Wars’ Four Corners (18 July 2005) accessed 15 September 2016. The precise membership conditions are decided by each organisation, see Western and Central Pacific Fisheries Commission, ‘Conservation and Management Measure 2009–11’, Sixth Regular Session (Papeete, Tahiti, French Polynesia, 7–11 December 2009)

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In the fisheries context, organisations have also resolved the unique position of Taiwan, which is not formally recognised as a state but has a large number of fishing vessels registered under its name. As membership of rfmos is typically limited to states, Taiwan has been engaged on the basis of its recognition as a ‘fishing entity’.19 Taiwan’s participation is critical for shark conservation and management because of its high engagement in harvesting, consuming, trading and processing sharks, especially shark fins.20 Formal membership of international organisations is usually limited to states on the basis that these organisations are constituted by treaty and states have treaty-making powers unlike other actors in the international system.21 However, limiting formal membership to states has been identified as problematic because it reduces the involvement of other important voices in addressing the issues of the organisation.22 This participation of other stakeholders may be redressed to some extent by the creation of sub-organs, committees or panels on which these stakeholders might be represented. The key example in the conservation and fisheries context is the scientific panels, particularly those involved in decisions as to species listing or conservation management measures discussed in Chapter 4. Non-governmental organisations (ngos) may also be involved in discussions at meetings of the organisation but will not usually have voting rights in the adoption of any resolutions or recommendations. For example, ngos have been included as ‘cooperating partners’ in relation to the cms Memorandum of Understanding on Sharks (Sharks MoU), with responsibilities that include promoting the instrument, sharing i­nformation

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accessed 15 September 2016. See Andrew Serdy, ‘Bringing Taiwan into the International Fisheries Fold: The Legal Personality of a Fishing Entity’ (2005) 75 British Year Book of International Law 183. fao, ‘State of the Global Market for Shark Products’ accessed 15 September 2016, 46. International organisations, by dint of their recognised legal personality, have treatymaking powers and it is on this basis that organisations like the European Union (eu) have signed on to different fisheries-related treaties. This position was anticipated in unclos in Annex ix and the eu is a party to unclos on this basis. Vale has commented on the difficulties of these marginalised groups in influencing the work of the un, see Peter Vale, ‘Engaging the World’s Marginalized and Promoting Global Change: Challenges for the United Nations at Fifty’ (1995) 36 Harvard J. Int’l L. 283; Charlesworth, Chinkin and Wright first highlighted the lack of female voices in the institutional composition of international organisations and consequences of such silence; see also Hilary Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613, 621–625.

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and expertise, and developing projects and joint activities.23 States have occasionally sought to block the involvement of some ngos, even at the expense of transparency in decision-making.24 Nonetheless, organisations such as the International Union for the Conservation of Nature (iucn), are recognised as providing valuable scientific information and data. These dimensions and institutional structures then frame the key activities of international organisations: law-making, standard setting, stakeholder engagement, data collection and analysis, facilitating implementation, monitoring compliance, enforcement and dispute settlement. These activities are all to be undertaken consistently with the purposes of the organisation and may vary depending on those purposes, as well as the structure, financing and membership of the organisation. The activities that are most relevant for international environmental organisations are examined in the next section. 2

Key Roles for International Environmental Institutions

The important role of international organisations in environmental governance was recognised in Principle 25 of the Stockholm Declaration, which provided: ‘States shall ensure that international organisations play a co-­ ordinated, efficient and dynamic role for the protection and improvement of the environment’.25 The idea of global partnership to ensure sustainability has been emphasized in the Rio Declaration,26 as well as Agenda 21,27 and in 23 See cms, ‘Cooperating Partners’ accessed 12 October 2016. The Cooperating Partners as of October, 2016 were: Humane Society International Australia (hsi Australia); Humane Society International usa (hsi usa); International Fund for Animal Welfare (ifaw); Manta Trust; Project Aware; Shark Advocates International; Shark Trust; Wildlife Conservation Society (wcs). 24 A notable example in this regard is the blocking of Sea Shepherd from meetings of the International Whaling Commission, see Sea Shepherd, ‘Sea Shepherd Celebrates 25th Anniversary of Being Banned from the International Whaling Commission Meetings’ accessed 15 September 2016. 25 Declaration of the United Nations Conference on the Human Environment, un Doc. A/ Conf.48/14/Rev.1, (1973), 11 ilm 1416 (1972), Principle 25. 26 Rio Declaration on Environment and Development, un Doc. A/CONF.151/26 (Vol. 1), 31 ilm 874 (1992), Principle 7. 27 Report of the United Nations Conference on Environment and Development, gaor, 46th Session, Agenda Item 21, un Doc. A/CONF.151/26 (1992), Preamble.

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­diverse multilateral and regional treaties and environmental organisations.28 As described by Kiss and Shelton, international environmental organisations have various functions: research, exchange of information, regulatory functions, supervising implementation, and management of natural resources.29 These tasks are undertaken to varying extents by the different bodies concerned with environmental issues. 2.1 Law-making and Standard Setting International institutions provide a forum for states to discuss matters of mutual concern and to reach agreement on those issues. Those agreements may take the form of formal treaties, which are subject to signature and ratification by the states concerned. The fao has provided this function in developing the texts of treaties in the regulation of fisheries activities. A recent example of relevance in this regard is the Port State Measures Agreement, which allows port states to monitor and seek compliance with fisheries regulations on the high seas as well as within areas of national jurisdiction.30 unep, as the leading global organisation addressing the environment, similarly serves as an important forum for developing international and national environmental instruments beyond serving as a host to the Convention on Biological Diversity (cbd), cms and cites Secretariats. Obtaining consent of the members is usually vital for the adoption of new laws or standards. The constituent instrument may identify the voting requirements, or mandate consensus to be achieved for the adoption of certain decisions. Members may be given the option of putting in reservations or objections to certain decisions so that they are not bound by the decision, and may also have the option to remove that reservation or objection in due course when ready to adhere to the particular requirements. Allowing for such flexibility may provide the institution with the means of progressing particular issues even if all members are not willing to agree to the requirement, but it does run the risk of undermining particular standards or rules that are being adopted to address specific needs or concerns. There are a variety of documents that may be adopted by an international organisation as part of its regulatory functions that have some legal weight, even if the member states are not willing to accept the formalities and ­requirements 28 29 30

Ben Boer, Ross Ramsay and Donald R Rothwell, International Environmental Law in the Asia Pacific (Kluwer Law International 1998) 24. Alexandre Kiss and Dinah Shelton, International Environmental Law (3rd edn, Transnational Publishers New York 2004) 103–105. Discussed further in Chapter 7.

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that are engaged with the conclusion, adoption and implementation of treaties. In particular, various instruments adopted by international organisations may be relevant as soft law (that is, indicative of what state behaviour should be and what direction the law is likely to head on the issue). The fao has again been a key source of this type of standard setting in fisheries conservation and management, and most relevantly for sharks, in the adoption of the International Plan of Action for Sharks (ipoa Sharks). The cbd Secretariat and Conference of Parties have also overseen the development of important guidelines and targets, including the Aichi Biodiversity Targets.31 For standard-setting, it is therefore the case that agreements reached within international institutions on specific issues may not have treaty status but may be guidelines, resolutions, declarations, directives, plans of actions, et cetera. The decisions of rfmos are typically framed as resolutions, which are binding on the member states, or as recommendations, which are not formally binding but intended to encourage a particular pattern of conduct among the concerned states. As will be discussed further below, rfmos have adopted both resolutions and recommendations in the context of shark conservation and management in prohibiting harvesting, regulating finning and establishing requirements or preferences around gear and equipment as well as data collection. For the key environmental treaties, the Conference of the Parties can make decisions to provide additional guidance adding to the treaty framework. Under cites, for example, the Conference of the Parties may adopt resolutions or decisions, with the former being of a more permanent nature than the latter.32 For institutions to be able to adopt recommendations or resolutions, which can then be updated, reviewed or abandoned at annual meetings, provides certain agility in being able to respond to pressing needs. By allowing for a range of law-making techniques, there is also the opportunity for greater detail to be provided as a means of elaborating on more general obligations that are included in treaties. This activity has the purpose of augmenting our understanding of the interpretation and application of international obligations, as well as providing a basis for the development of new rules and standards. Once a principle or norm is established within an international institution, the potential exists for that norm to be incorporated into national policy and law, as well as taken into account in other global standard-setting exercises and potentially within international judicial decision-making.33 31 32 33

Discussed in Chapters 2 and 5. For a useful summary see cites Resolutions, accessed 22 October 2016. van Osch, (n 10) 397.

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2.2 Stakeholder Participation All relevant actors should have a voice within an international environmental organisation, but the strength of that voice will vary depending on the nature of the organisation and its structure. To engage with all relevant stakeholders – not just the states concerned, but also non-government actors or community representatives, as well as experts who can enhance understanding of the issues being addressed in the organisation – allows for better fulfilment of key tenets of environmental governance. In particular, greater participation of all relevant stakeholders is most likely to improve transparency. Greater transparency as to how an organisation is operating and in the decisions it takes, and the bases of those decisions, enhances the legitimacy of the organisation. That legitimacy affirms the authority of the organisation in its decisions and actions taken to fulfil its mandate. The extent of participation of those stakeholders inevitably varies in different organisations. Some non-state actors will be able to participate in discussions, put forward proposals and seek to influence decision-making. In intergovernmental organisations, these actors would not normally have voting rights but this power would rest with the member states. Non-state actors may also serve on different committees to provide scientific or other technical advice that could be used in the development of policies or as a basis for subsequent decisions on actions or standard setting. There may also be an opportunity for non-state actors to contribute to efforts at monitoring and compliance. Valid questions may be raised as to whether individual constituents are able to influence the conduct of a member state within an international organisation, or impact directly the decisions of an international organisation. Commentators have remarked on the inability of some marginalised groups in society, or groups lacking in representation in the elites of the member states, to influence the action of international organisations.34 The types of non-state actors that have access to international organisations or to national decisionmakers who participate in the work of those organisations might reflect their level of power or wealth, or their standing in their field of expertise. Successful environmental governance will require broad engagement of stakeholders, including fishers, eco-tourism operators, scientists, lawyers, policy-makers and conservationists. Among the stakeholders who contribute to efforts to better conserve and manage sharks are different ngos. These ngos may include organisations that have primarily a general advocacy role (eg Humane Society International), or are more based as scientific organisations (eg Shark Specialist Group 34

Vale (n 22).

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within the iucn) or have educational or research purposes (eg Foundation for ­International Environmental Law and Development). Some larger ngos will combine all three functions in their work (eg Pew Trust, traffic). ngos will vary in their constituency (national, regional or international), their levels of funding and degree of organisation, the scope and focus of their activities, and their abilities in exercising pressure. 2.3 Collection of Information International organisations can perform critical functions as a repository for information relating to the subject matter of the organisation. Often the treaty establishing the organisation will anticipate that the members will provide reports to the institution on their adherence to the requirements of the organisation. This information provides a means to determine how well or effectively a particular treaty is operating. Where those reports are made public, this source of information improves transparency and allows for other actors to engage on improving any identified shortcomings or to pressure the member to take steps to rectify any issues. In the fisheries context, it has been vital to collect data about the status of fish stocks. The organisation may rely on government scientists or an independent group of scientists for the provision of expert advice. Scientific data provides a fundamental source of information for decision-making among the members of fisheries organisations. This process is readily seen in the context of rfmos, and also in the operation of environmental treaties such as cites and the cms. Information may also be drawn from inspection processes, either undertaken on-board fisheries vessels or when they are in port. Also important in the collection of data, is the sharing of that data as necessary with relevant national agencies of the member states, or potentially with other international or regional institutions that have a shared interest in the information. If an institution makes all information and data compiled readily accessible, formal channels of information sharing may not be essential. However, creating an expectation that data should be shared on a regular and formal basis among interested stakeholders would enhance efforts at cooperation. Mechanisms may also be provided, or needed, within international institutions to collect information from non-state actors, including conservation groups that have undertaken their own studies and analyses of issues relating to the work of the organisation. These issues are not limited to catch information, and in particular lack of cooperation in sharing vessel monitoring system data remains a concern. This matter is explored further below and in Chapter 7.

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2.4 Monitoring, Compliance and Dispute Settlement The existence of an international institution allows for accountability among the members, as there is a form of collective review of and supervision over the actions of each member relating to its rights and responsibilities within that organisation. The existence of an institution allows for the variety of obligations, standards and practices adopted to be monitored as part of the institution’s supervisory functions. In this regard, Birnie and Boyle have noted: Regulation and supervision by international institutions has been identified as part of a general trend away from the solution of problems by strictly judicial means and towards the resolution of conflicts through an equitable balancing of interests and ad hoc political compromise.35 This approach is further facilitated within international environmental law where multilateral treaties have established non-compliance procedures to address concerns about adherence to treaty obligations without having to undertake formal, third party dispute settlement procedures. Sometimes a distinction is made between non-compliance and non-implementation whereby the latter refers to a broad failure to take effective action to meet the objectives of a treaty and the former is then a narrower situation of a state not adhering to its commitments.36 The compliance procedures may be a blend of negotiation and conciliation (without involving an external third-party), and lead to a mutually satisfying outcome without a binding decision on legal responsibility. A result of the compliance procedures may be the provision of assistance or other inducements to encourage future compliance, or may extend to more compelling forms of persuasion such as the withholding of funds or suspension of certain treaty privileges. An organisation may essentially provide a compliance function even if a formal non-compliance procedure is not built in to the treaty regime or the operation of the organisation. As mentioned, the ongoing law-making function provides flexibility to review member action and decide if particular standards are being met and to create reporting requirements as a form of monitoring adherence to those standards. The very act of reporting may provide sufficient motivation to ensure that actions are consistent with the standards set by the organisation. Alternatively, an inability to meet the standards being set may 35 36

Patricia Birnie and Alan Boyle, International Law and the Environment (2nd edn, Oxford University Press 2002), 202. Ibid 207.

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provide an opportunity for a member to seek assistance from the organisation for capacity building purposes. Dispute settlement within an international environmental organisation is usually undertaken in the context of negotiations, consultation and, if necessary, mediation within the regular meetings of the organisation. Disputes may well be identified and resolved within the organisation on a political or economic basis without resort to formal, legal proceedings. The constituent instrument may include a dispute settlement clause. Alternatively, depending on the availability of jurisdiction, a state may seek to resolve a dispute under ­u nclos (for marine environmental disputes) or before the International Court of Justice. This outlet may be necessary if the organisation has failed or is unable to resolve differences between the members. A clear example in this regard was Australia’s recent case at the International Court of Justice challenging Japan’s scientific whaling program in Antarctic after an impasse was reached within the International Whaling Commission.37 3

unep, fao and Treaty Organisations

These different roles for organisations within international environmental law – law-making and standard setting, stakeholder participation, ­information collection, implementation, monitoring, compliance and dispute settlement – have been brought to bear in relation to the organisations that address shark conservation and management, albeit not often with a primary focus on sharks. The four main organisations to consider in this regard are unep, the fao, and the institutional structures available under cites and the cms and its Sharks MoU. 3.1 unep unep is an agency of the United Nations system and hence not a completely independent intergovernmental institution. It has primary responsibility for global environmental matters and an identified priority area and sub-­programme focused on enhancing environmental governance at all levels in order to achieve sustainable development.38 unep thus plays a critical role in developing and supporting many international environmental initiatives, 37 38

Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, icj Rep. 2014 (March 31). unep, Environmental Governance, accessed 22 October 2016.

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including the work of different institutions established under multilateral environmental treaties such as the cbd, the cms and cites. It is important for the over-arching structure it provides to the secretariats of these sorts of multilateral environmental agreements as well as the regional seas conventions. unep works through regional, sub-regional and country offices, as well as bureaucratic divisions that have responsibility for issue areas such as environmental law and conventions, early warning and assessment, and environmental policy implementation. unep has a Committee of Permanent Representatives, overseen by a five-member bureau, that prepares for the un Environment Assembly governing body. Notably, this Committee prepares decisions to be adopted by the un Environmental Assembly and oversees the implementation of those decisions. unep performs the variety of functions identified as relevant for international environmental organisations discussed in the previous section, including standard setting through facilitation the negotiation and adoption of international treaties. The structures established under each of these agreements have responsibility for information collection and allow for stakeholder participation and undertaking monitoring, reporting and enforcement activities. unep in its own right undertakes comparable activities. Of particular relevance for sharks has been unep’s support of marine spatial planning. For example, in a resolution on Oceans and Seas adopted at the second Environment Assembly, the Assembly requested unep to provide requested technical advice on the designation, establishment and active management of marine protected areas and on the application of other spatial management measures in cooperation with other organisations.39 unep has also had a relevant role through the regional seas conventions. Although these are primarily focused on addressing marine pollution, increasingly the networks of marine protected areas that they have established contribute to the conservation of marine living resources and collaborative marine spatial planning initiatives with rfmos.40 The Ecosystem Management platform of unep provides important tools for developing holistic and adaptive management approaches to ecosystems, including a World Database on Protected Areas and a forum for providing a community of practice on National Biodiversity ­Strategies and

39 40

unep Environment Assembly Resolution 2/10, ‘Oceans and Seas’, 4 August 2016, para 7. See for example the Memorandum of Understanding between the North East Atlantic Fisheries Commission (neafc) and the ospar Commission accessed 1 September 2016. This is discussed in Chapter 5.

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Action Plans.41 In addition, unep has played a critical role through its biodiversity assessment arm – the World Conservation Monitoring Centre.42 unep has not focused on sharks specifically in its own work, but provides support to shark conservation and management through its assistance to the treaty organisations that are concerned specifically with sharks and are discussed further below. 3.2 fao The fao is a specialised agency of the un established in 1945. Each of the specialised agencies has a similar institutional set up with a plenary assembly as the policy-making organ, a smaller executive council that carries out the programs and policies agreed in the assembly, and a secretariat headed by a secretary general to support or carry out the work of the organisation. Unlike the un, it is the assembly where every member state is represented and has one vote that has the prime responsibility for the actions of the agency, rather than the smaller executive council. The specialised agencies do not usually make decisions that are binding on the member states but instead draft treaties that member states may then sign or adopt as binding international obligations. The function of the fao is to assist member states in the utilisation of their agriculture, including fisheries, by providing information and recommending research and concerted action with respect to, inter alia, the conservation of natural resources.43 It is also empowered to provide technical assistance to governments.44 The fao collects fisheries data, monitors fisheries stocks and publishes information such as the State of the World Fisheries and Aquaculture.45 The fao Conference established the Committee on Fisheries (cofi) in 1965. cofi currently has 132 members and membership is open to both fao members and non-members. However, the latter will be admitted as an observer to the Committee. Membership is also open to ngos without the right to vote. The function of cofi as ‘the only global inter-governmental forum on fisheries issues’, is to review work programs, conduct periodic general review of international fisheries problems and examine possible solutions ‘with a view 41 See unep, ‘Ecosystem Management’ accessed 20 October 2016. 42 unep, World Conservation Monitoring Centre, accessed 22 October 2016. 43 Constitution of the United Nations Food and Agriculture Organization, 16 October 1945, cts 1945/32, 40 ajil Supp. 76, entered into force 16 October 1945, arts i(1)–(2). 44 Ibid art i(3). 45 fao: Fisheries and Aquaculture Department, ‘The State of World Fisheries and Aquaculture’ accessed 12 October 2016.

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to concerned action by nations, by fao, by inter-governmental bodies and the civil society’.46 cofi may establish sub-committees on certain specific issues. In this regard, cofi established the Sub-Committee on Fish Trade in 1985 and the Sub-Committee on Aquaculture in 2001. In relation to information sharing, the fao established a Fisheries Global Information System (figis) in 1999. figis allows for a global flow of information about fishery statistics, fishery resources and stock status and trends, and is also intended to provide methodological and operational tools to assist with the production of fishery statistical data at a grassroots level.47 By way of further example, data is also provided through the Fisheries and Resources Monitoring System (firms), which provides access to information about the global monitoring and management of fish resources.48 To the extent information is available, searches can be made via firms to check the status and exploitation trends of 14 different shark species. The fao additionally promotes GISFish, which refers to Geographic Information Systems (gis), Remote Sensing and Mapping as applied to fisheries and aquaculture and entails the use of spatial analytical tools and geo-referenced information to analyse data and assist with fisheries management.49 As discussed in Chapter 4, the fao has developed particular tools for member states to facilitate identification of sharks generally or shark fins particularly, as well as a database on conservation and management measures for sharks.50 International standard setting is also an important role of the fao. As discussed in Chapter 2, the fao has overseen the development of International Plans of Action, as well as providing a forum for the negotiation of treaties, such as the Port State Measures Agreement. The fao has performed important functions in relation to data collection (as mentioned above) and has also undertaken extensive reporting on the status of sharks, including on the status of trade in shark meat and fins. The ipoa Sharks provides the fao with an 46 47

48 49

50

fao, ‘Committee on Fisheries (cofi)’ accessed 15 September 2016. fao, ‘About figis’ accessed 15 September 2016. There is also a Coordinated Working Party on Fishery Statistics, which is discussed further below. fao: Fisheries and Aquaculture Department, ‘Fisheries and Resources Monitoring System (firms)’ accessed 20 October 2016. See further fao, ‘Global Gateway to Geographic Information Systems (gis), Remote Sensing and Mapping as applied to Fisheries and Aquaculture’ accessed 20 October 2016. fao, ‘International Plan of Action for Conservation and Management of Sharks’ accessed 24 October 2016.

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important platform to pursue its implementation with member states. As will be discussed below, the fao has sought to coordinate its activities with a range of issue-specific and regional organisations. Both in coordination with these institutions and on its own accord, the fao has undertaken capacity building activities and provided technical assistance to states to improve their fishery management and monitoring efforts, which has included sharks but is not always specific to sharks. Ultimately, these endeavours are critical in ensuring the implementation of international standards as well as fostering best practice that may serve as examples in other areas. Its global reach provides it with an excellent opportunity to further its objectives and engage with member states, to the extent those member states are willing and able. 3.3 cites Under cites, the Conference of the Parties is the key decision-making body upon which all state parties are represented. It meets every two to three years and reviews progress on the implementation of the treaty and its restrictions on the trade in endangered species. There is a Standing Committee, which is the key policy-making body and has representatives of the six major geographical regions (Africa, Asia, Europe, North America, Central and South America and the Caribbean, and Oceania), with the number of representatives weighted according to the number of Parties within the region.51 A Plant Committee and an Animals Committee then assist through the provision of expert scientific advice, as well as undertaking reviews of species and recommending remedial action where necessary.52 cites anticipated that the Executive Director of unep would establish a Secretariat, which is assisted by diverse intergovernmental, non-governmental and national bodies and organisations that are technically qualified in the conservation and management of wild fauna and flora. The functions of the Secretariat are set out in Article xii(2) of cites and include: (a) to arrange for and service meetings of the Parties; (b) to perform the functions entrusted to it under the provisions of Articles xv and xvi of the present Convention; (c) to undertake scientific and technical studies in accordance with programmes authorized by the Conference of the Parties as will contribute 51 52

cites, Resolution Conf. 11.1 (Rev. CoP16), Annex 1; see further cites, ‘Standing Committee’ accessed 15 September 2016. cites, ‘Animals and Plants Committees’ accessed 15 September 2016.

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to the implementation of the present Convention, including studies concerning standards for appropriate preparation and shipment of living specimens and the means of identifying specimens; to study the reports of Parties and to request from Parties such further information with respect thereto as it deems necessary to ensure implementation of the present Convention; to invite the attention of the Parties to any matter pertaining to the aims of the present Convention; to publish periodically and distribute to the Parties current editions of Appendices i, ii and iii together with any information which will facilitate identification of specimens of species included in those Appendices; to prepare annual reports to the Parties on its work and on the implementation of the present Convention and such other reports as meetings of the Parties may request; to make recommendations for the implementation of the aims and provisions of the present Convention, including the exchange of information of a scientific or technical nature; to perform any other function as may be entrusted to it by the Parties.

In terms of the powers of the cites Secretariat, they are only limited by the agreement of the Parties given it may undertake ‘any other function’ that may be ‘entrusted to it’. The Secretariat divides its work between Corporate Services and Implementation Services. The former oversees meeting services, knowledge management and outreach services, whereas the latter is concerned with scientific and regulatory services.53 Capacity building services then feeds into all of these activities.54 The Secretariat’s key functions thus centre on undertaking studies and providing information that will enhance the implementation of cites. It also has an important role in ensuring compliance with the trade restrictions agreed by the parties.55 Given the increased number of shark species being listed on cites Appendix ii, cites as an institution has become increasingly active in supporting states to adhere to the obligations associated with the listing. In addition to the decisions adopted in listing species, the cites Conference of the Parties has adopted resolutions and decisions addressing sharks and rays. At the 2013 53 54 55

cites, ‘Secretariat Structure Chart  01-09-10’ accessed 21 September 2016. cites, ‘Secretariat Functions Chart  24-11-11’ accessed 21 September 2016. This role is discussed further in Chapter 7.

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Conference of the Parties, Resolution 12.6 was revised and reflected increasing concern about the implementation of the ipoa Sharks and the national plans of action anticipated under ipoa Sharks. The resolution provided in part: Instructs the cites Secretariat to inform fao of the concerns of the cites Parties regarding the significant lack of progress in implementing the ipoa-Sharks, and to urge fao to take steps to encourage actively relevant States to develop npoa-Sharks; Directs the Animals Committee to examine new information provided by range States on trade and other available relevant data and information, and report their analyses at meetings of the Conference of the Parties; Encourages Parties to obtain information on implementation of npoaSharks or regional plans, and to report directly on progress to the cites Secretariat and at future meetings of the Animals Committee; Urges fao’s cofi and Regional Fisheries Management Organizations (rfmos) to strengthen their efforts to undertake the research, training, data collection, data analysis and shark management plan development outlined by fao as necessary to implement the ipoa-Sharks; Encourages Parties to assist in building financial and technical capacity in developing countries for shark and ray activities under cites, and for the implementation of the ipoa-Sharks; Urges Parties that are shark fishing States but that have not yet implemented an npoa-Sharks, to develop their own npoas at the earliest opportunity and take steps to improve research and data collection on both fisheries and trade as a first step towards their Shark Plans, particularly the necessity to improve the collection of catch and trade data at the lowest taxonomic level possible (ideally by species); Further urges Parties to discuss cites activities within the appropriate rfmos of which they are members; Encourages Parties to improve data collection, data reporting, management and conservation measures for shark species, implementing, enhancing and enforcing these actions through domestic, bilateral, rfmos or other international measures…56

56

cites, Resolution 12.6 (Rev. CoP 16), ‘Conservation and Management of Sharks’ accessed 20 October 2016.

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Although the language is predominantly hortatory in addressing states party to cites, this resolution reflects part of the law-making activities of cites. The resolution clearly emphasises the need for collaboration among the diverse institutions addressing shark conservation and management, as well as affirming the importance of research, data collection and sharing, capacity building and training. cites as an institution has been active in assisting implementation of shark conservation and management measures through development of a traceability project, guidance on non-detriment findings and a range of resources to assist in identification of shark fins. Its Animal Committee retains a key role in gathering and analysing data, as well as monitoring the status of other shark species that may be at risk. As will be discussed in more detail in the following chapter, cites also has its own compliance mechanism, including options available to respond to non-compliance, which adds to its value in conserving and managing sharks. The institutional structure as it relates to those shark species listed under cites is therefore relatively strong. 3.4 cms and the Sharks MoU A similar institutional structure is in place under the cms as compared to cites. A Conference of the Parties meets every three years and is the main decision-making body. The Standing Committee then usually meets every year to oversee the implementation of those decisions, to monitor the budget, and develop recommendations for consideration of the Conference of the Parties.57 The Standing Committee is comprised of representatives of every global region (excluding North America), of the Depositary, of the country that hosted the previous triennial meeting and where applicable, of the country which plans to host the next meeting of the Conference of the Parties. A further key responsibility of the Standing Committee is to provide general policy and guidance to the Secretariat, which also supports implementation of agreements under the cms. The Secretariat develops and promotes agreements; facilitates and undertakes research; disseminates information and undertakes capacity building activities, as well as providing services to meetings of the members.58

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cms, ‘Terms of Reference for Regional Members of the Standing Committee’ accessed 21 September 2016. cms, ‘Organizational Structure of cms’ accessed 21 September 2016.

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There is also a Scientific Council and a series of working groups to address particular species or regions or other designated matters. One of the key mechanisms that the cms adds to the toolbox of options for the conservation and management of sharks is the ability to create ­sub-instruments via memoranda of understanding. For the Sharks MoU, a Meeting of Signatories is the main decision-making body and also has responsibility for reviewing the conservation status of migratory sharks and implementation of the Sharks MoU, including its Conservation Plan.59 At time of writing, there were 40 signatories, including the European Union, and this membership includes range states as well as states with vessels flagged to them that engage (or may engage) in the harvesting of migratory sharks on the high seas. Cooperating Partners, such as ngos, may sign on to the Sharks MoU and contribute to the work of the Meeting of Signatories.60 The cms Secretariat supports the work undertaken within the framework of the Sharks MoU, and there is also an Advisory Committee to provide expert advice. A Conservation Working Group has been formed, comprised primarily of marine biologists and the mainstays of shark advocacy, to support the Advisory Committee where needed.61 The key areas of expertise that need to be represented within the group are to ‘include, but are not limited to, fisheries, population ecology, socio-economics, trade, traceability, governance, taxonomy, life history, habitat use, fisheries management, post-release survival, movements/ migrations and geographic range of the species’.62 Their responsibilities are ultimately quite broad under their Terms of Reference, and include sitting as observers in different organisations. A particular task for the group is to develop ‘a strategy for cooperation with Regional Seas Conventions and Action Plans, Regional Fisheries Management Organizations and fisheries-related organisations’.63 For this group to be effective, it will be vital for them to adopt an inclusive and outward-looking strategy so as to ensure that coordination and coherence may be achieved. 59 60 61 62

63

cms, ‘Sharks’ accessed 21 September 2016. The Humane Society of the United States and Humane Society International Australia have this status; see ibid. cms, ‘Conservation Working Group’ accessed 21 September 2016. cms, ‘CMS/Sharks/Outcome 2.8: Terms of Reference of the Conservation Working Group’ (20 February 2016) accessed 21 September 2016. cms, ‘Conservation Working Group’ (n 53).

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Responses within rfmos

Shark conservation has featured increasingly within discussions and decisionmaking in rfmos, as states take steps at the national or local level to improve shark conservation and management.64 By way of example, the basic structure of the Commission for the Conservation of Southern Bluefin Tuna (sbt Commission) is indicative of other rfmos with responsibilities for particular fisheries. The responsibilities of the sbt Commission extend to collecting and accumulating scientific and legal information on southern bluefin tuna; deciding upon the total allowable catch and national allocations for each party, and considering regulatory and other matters arising from the work of the Scientific Committee.65 The Scientific Committee’s authority includes assessing and analysing the status and trends of the tuna population; coordinating research and studies of southern bluefin tuna; and reporting and recommending to the Commission its conclusions on the status of southern bluefin tuna and on the conservation, management and optimal utilisation of these tuna.66 Through the sbt Commission, the members have sought to improve monitoring of southern bluefin tuna fishing practices as well as enhance endeavours for enforcing catch quotas.67 More specifically in the context of sharks, two of the tuna rfmos, the International Commission for the Conservation of Atlantic Tuna (iccat) and the Inter-American Tropical Tuna Commission (iattc), have taken steps to address shark conservation and management even though their primary focus is on tuna. These steps may be justified on the basis of their authority to address bycatch. The iattc Convention has authority to deal with ‘other species of fish taken by vessels fishing for tunas’.68 The aim of iccat is ‘the conservation of resources of tuna and tuna-like fishes of the Atlantic Ocean and its adjacent waters’.69 iccat regulates about 30 species of tuna and tuna-like species. ­i ccat may address ‘such other species of fishes exploited in tuna fishing’ not 64 65 66 67 68

69

See van Osch (n 10) 397. See Convention for the Conservation of Southern Blue Fin Tuna, 10 May 1993, 1819 unts 360, entered into force 20 May 1994, art 8. Ibid art 9. See, e.g., Rosemary Gail Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Martinus Nijhoff 2004) 276–278. International Convention for the Establishment of an Inter-American Tropical Tuna Commission, 31 May 1949, 80 unts 3, entered into force 3 March 1950 (iattc Convention), art i(1). International Convention for the Conservation of Atlantic Tunas, 14 May 1966, 673 unts 63, entered into force 21 March 1969 (iccat Convention), Preamble.

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covered by any other treaty regime.70 Van Osch has noted that iccat has interpreted its mandate broadly in this regard to set zero catch quotas in relation to some species of sharks.71 In addition, regionally based fisheries organisations that are not species specific, such as the Northwest Atlantic Fisheries Organization (nafo) and the Western and Central Pacific Fisheries Commission (wcpfc), have also sought to regulate fishing of sharks in the areas under their purview.72 nafo is intended to apply to ‘all fishery resources’, excluding tuna, salmon, marlin and cetaceans.73 The wcpfc has power to manage highly migratory fish stocks that are listed in Annex i of unclos, which therefore allows it to regulate oceanic shark species.74 These rfmos have capacity to adopt marine spatial planning measures for the benefit of sharks, or other fish species falling within their remit. For example, the North East Atlantic Fisheries Commission (neafc) and the ospar Commission for the Protection of the North East Atlantic (ospar) adopted a collective arrangement in 2014 as a means of working together on particular areas outside of national jurisdiction but still within their convention areas. This arrangement provides ‘an informal framework for dialogue and sharing information of mutual interest – respecting mandates and legal competencies’.75 rfmos have been vital for their endeavours to improve data collection and information sharing. As scientific information is an essential first requirement to establish conservation and management standards, efforts in this regard are positive even if much work remains to be done in this space. iccat, for 70 71 72

73

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75

Ibid art iv(1). van Osch (n 10) 411. For a summary of shark specific measures taken by rfmos see Humane Society International, National laws, multi-lateral agreements, regional and global regulations on shark protection and shark finning (June 2016) accessed 21 October 2016. Convention on Future Multilateral Cooperation in the North West Atlantic Fisheries, 24 Oct. 1978, 1135 unts 369, 34 ilm 1452 (1955), entered into force 1 Jan. 1979 (nafo Convention), art 1(4). Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, 5 Sept. 2000, 40 ilm 278, entered into force 19 June 2004 (wcpfc Convention), art 9(1); United Nations Convention on the Law of the Sea, 10 Dec. 1982, 1833 unts 3, 21 ilm 1261 (1982), entered into force 16 Nov. 1994. Annex i includes saw-fishes as well as the following oceanic sharks: Hexanchus griseus; Cetorhinus maximus; Family Alopiidae; Rhincodon typus; Family Carcharhinidae; Family Sphyrnidae; Family Isurida. ospar Convention, ‘Collective Arrangement’ accessed 20 October 2016.

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e­ xample, has appointed a Sharks Rapporteur as part of its Standing Committee on Research and Statistics,76 which is responsible for undertaking stock status assessments and makes a recommendation to the Commission.77 iccat’s track record in setting quotas reflects a strong tendency to set quotas higher than the recommendations provided by scientists.78 In addition, the quality of the data has been questioned by scientists, academic commentators and the iccat assessors.79 Shark identification guides have been adopted within some rfmos to facilitate data collection on particular species, which may otherwise be difficult to identify when fins and heads have been removed from the shark.80 Van Osch has proposed that distinct shark subcommittees should be established within the existing Scientific Committees that are typically part of the structure of the different rfmo institutions to facilitate the assessment of the data collected and advise on what measures might be appropriate in light of this data.81 Management measures adopted by rfmos include fishing quotas for specific species, detailed protections for particular shark species, gear restrictions and finning bans or requirements.82 Fishing restrictions in rfmos have extended to requirements, or at least encouragement, for the live release of sharks that are caught during fishing for other species.83 Measures taken to protect specific species of sharks may be seen in the iccat Resolution prohibiting the retention of silky sharks, and requiring their release if caught ­incidentally.84 Another recommendation on bigeye thresher sharks required 76 77 78 79 80 81 82

83 84

iccat, ‘Standing Committee on Research and Statistics’ accessed 21 September 2016. iccat Convention (n 61) art viii. Richard Black, ‘Tuna Ban “Justified” by Science’ bbc News (London, 29 October 2009) accessed 15 September 2016. See van Osch (n 10) 413. Ibid 420–421. Ibid 426. Ibid 413; see also cms, ‘Overview on Shark Management Measures by rfmos’ accessed 20 October 2016. van Osch (n 10) 415. iccat, ‘Recommendation by iccat on the Conservation of Silky Sharks Caught in Association with iccat Fisheries’, 11-08 byc, 7 June 2012. This approach was then followed by the iotc and the sbt Commission. iotc, ‘Resolution 12/03 on the Recording of Catch and Effort by Fishing Vessels in the iotc Area of Competence’ accessed 20 September 2016; see further cms, ‘Overview on Shark Management Measures by rfmos’ (n 73) (including reference to the ccsbt practice in this regard).

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parties to ­‘prohibit, retaining onboard, transshipping, landing, storing, selling, or offering for sale any part or whole carcass of bigeye thresher sharks (Alopias superciliosus) in any fishery’.85 This recommendation was followed in other rfmos.86 rfmos have also been active in instituting measures to address finning. The primary response has been requirements based on the fin-to-carcass ratio, where the fin can be detached from the shark on the fishing vessel and stored separately, provided that the total weight of the fins is not more than a certain percentage (commonly 5 per cent) than the weight of the shark carcasses. This position was adopted in Recommendation 04-10 of iccat,87 and was subsequently adopted in other rfmos including the wcpfc, the iattc, nafo, the South East Atlantic Fisheries Organisation, the Indian Ocean Tuna Commission (iotc) and the General Fisheries Commission for the Mediterranean.88 While the use of the fin-to-carcass ratio may be criticised because of difficulties in monitoring and enforcement with a unga Resolution in 2007 requesting relevant actors to consider requiring sharks to be landed with fins naturally attached,89 what is notable from an institutional perspective is that a significant decision on shark management made in one rfmo was then picked up and adopted by a number of other rfmos.90 85

With an exception for a small-scale fishery in Mexico, see iccat, ‘Recommendation by iccat on the Conservation of Thresher Sharks Caught in Association with Fisheries in the iccat Convention Area’, 09-07 byc, 1 June 2010. 86 Namely, gfcm, iotc, and the ccsbt, see gfcm, ‘Recommendation by iccat on the Conservation of Thresher Sharks Caught in Association with Fisheries in the iccat convention area’, 34-2010-4 (C); iotc, ‘Resolution 12/09 on the Conservation of Thresher Sharks (Family Alopiidae) Caught in Association with Fisheries in the iotc Area of Competence’; see further cms, ‘Overview on Shark Management Measures by rfmos’ (n 73) (including reference to the practice of the ccsbt). 87 iccat, ‘Recommendation by iccat Concerning the Conservation of Sharks Caught in Association with Fisheries Managed by iccat’, 04-10 byc, 13 June 2005, para 3. 88 See cms, ‘Overview on Shark Management Measures by rfmos’ (n 82). 89 un General Assembly, Resolution 62/177 (2007), para. 12. Furthermore, a meeting under the auspices of the Fish Stocks Agreement in 2010 called for rfmos to consider requiring sharks to be landed with fins naturally attached: Report of the resumed Review Conference on the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (28 May 2010) accessed 22 October 2016. 90 Nevertheless, ccamlr has prohibited directed shark fisheries and requires species caught incidentally to be released alive, and neafc has prohibited the removal of shark fins at

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Institutional limitations in the operations of rfmos include the possibility that decisions may only be adopted on the basis of unanimity or consensus, or that states may opt out of particular decisions. Some of the management measures adopted in relation to sharks are not necessarily mandatory in nature but are more in the nature of soft law, encouraging states to adopt certain actions or standards.91 Further concerns have included the incidental, rather than primary, focus on sharks;92 incomplete data collection; and, whether there is adequate monitoring and compliance with any requirements that are established. 5

A Shark Commission? Lessons from Whales

Given the challenges that are being experienced in adopting measures to promote the conservation and management of sharks within rfmos, there has been suggestion that a specific organisation should be created for sharks. Herndon et al., for example, have argued that an entirely new international management regime may be needed to regulate all shark removals and to enhance enforcement efforts.93 This proposal can be assessed through reference to the most comparable species-specific organisation for conservation and utilisation, namely the International Whaling Commission (iwc), which is established under the International Convention for the Regulation of Whaling (Whaling Convention).94 The comparison of the whaling situation to that of sharks has been justified on the basis of the shared life-history characteristics of sharks with these large marine mammals: long-lived, late maturity and low fecundity.95 The main pressure on each group of species comes from harvesting activities. The iwc has been the main body responsible for the regulation of the harvesting of whales and meets biennially to discuss a range of matters relating to whaling activities. When the treaty was adopted, it was intended to regulate whaling to

91 92 93

94 95

sea: Humane Society International, National laws, multi-lateral agreements, regional and global regulations on shark protection and shark finning (June 2016) accessed 21 October 2016. See van Osch (n 10) 417. See discussion in Chapter 4. Andrew Herndon, Vincent F Gallucci, Douglas DeMaster, William Burke, ‘The Case for an International Commission for the Conservation and Management of Sharks (iccms)’ (2010) 34 Marine Policy 1239, 1240. International Convention for the Regulation of Whaling, (Washington, 2 December 1946), 161 unts 72, entered into force 10 November 1948 (icrw). Herndon et al., (n 93) 1240.

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ensure that both whale populations and the whaling industry would be sustained. In the 1980s, the emphasis shifted from regulation to conservation. Any international shark organisation would also need to have to a balance between commercial utilisation and conservation efforts. Each state that becomes a party to the Whaling Convention has a Commissioner as representative on the iwc. Any state may accede to the Whaling Convention, irrespective of their level of interest or involvement in whaling activities, and currently stands at 88 member states.96 A prominent feature of the recent activity of the iwc has been the division between members either in favour of commercial whaling (pro-whaling) or in favour of conservation over commercial utilisation (anti-whaling).97 This polarisation has infiltrated all aspects of the work of the iwc, including the conduct and assessment of scientific research programs and any possible amendments to the Schedule of the Whaling Convention regarding conservation and management decisions. Some such divisions would likely also occur in the context of sharks, given the reasons articulated by some states for opposition to the further listing of shark species under cites.98 Membership of an international shark commission would also be critical. Those states with the greatest engagement in shark harvesting, trading, processing and consumption would need to be parties to ensure that any decisions could be implemented or applied consistently across ocean areas and fishing vessels. At present, despite the ongoing decline in shark numbers, the polarised positions of pro-whaling and anti-whaling states has not been reached because of the ongoing economic interests in shark exploitation. It is only a minority of states that have opted for complete bans on shark fishing so as to promote non-consumptive uses of sharks, such as eco-tourism.99 It can be noted that the rise in preservationist and conservationist approaches to whales roughly paralleled the decline of interest in economic uses 96 97 98

99

International Whaling Commission, ‘Overview’ accessed 20 October 2016. Gregory Rose and Sandra Crane, ‘The Evolution of International Whaling Law’ in Philippe Sands (ed), Greening International Law (Earthscan 1993) 159, 161. Although after the listings, the decisions were adhered to by opposing states: cites, cites Secretary-General’s remarks at Asian regional consultative workshop on capacity assessments for the implementation of new cites listings of sharks and manta rays (May 2014) accessed 22 October 2016. These examples may be seen in the Maldives and Palau for example, which have both declared marine protected areas that are no-take zones for sharks. For further discussion, see Chapter 5.

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of whales, particularly as alternative sources or products to whales emerged in diverse industries. Although the cruel practices associated with shark finning have prompted consumer and government reactions, restrictions on finning have not caused a reduced harvest in sharks but rather an increased use of the entire fish so that shark meat is becoming increasingly consumed in addition to use of the fin.100 Shark fisheries therefore remain of critical economic concern. Moreover, this economic interest is reinforced through the take of sharks as bycatch in other fisheries. Bycatch has not been as significant an issue to address in the history of the iwc.101 The regulation of whaling activities is primarily organised under a Schedule to the Whaling Convention, which is an integral part of that treaty but more easily amended than the Whaling Convention itself. The Schedule comprises regulations addressing the conservation and utilisation of whale resources.102 Any amendments to the Schedule: (a) shall be such as are necessary to carry out the objectives and purposes of this Convention and to provide for the conservation, development, and optimum utilization of the whale resources; (b) shall be based on scientific findings; … (c) shall take into consideration the interests of the consumers of whale products and the whaling industry. A three-fourths majority is required for amendments,103 and a government may not be bound by an amendment if it objects within ninety days of its adoption.104 Herndon et al. have suggested that an international shark commission should adopt decisions by majority, as this approach is considered more effective than requiring decisions adopted by consensus.105 The ability of states to object and 100 fao (n 20) 3 (noting a slight decrease in the global trade in shark fins, but steady increase in trade in shark meat). 101 Herndon et al., (n 93) 1244. 102 icrw (n 94) art v(1). 103 Ibid art iii(2). 104 See ibid art v. 105 The difficulties posed by consensus have also been acknowledged in the context of rfmos,­ see Guy Finny, ‘Improving Regional Fisheries Management Organisation decision-making: New hope in the South Pacific?’ (2014) Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 20/2016 accessed 15 September 2016; see also William R. (Bill) Mansfield, ‘Implementation of the un Fish Stocks Agreement: the South Pacific Regional Fisheries Management Organisation and

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not be bound by a particular decision has also been highlighted as undermining the achievement of objectives of different organisations. Gronstal Anderson proposes that any shark commission should have limitations on the types of reservations that would be allowed to ensure effectiveness.106 Herndon et al. raise the possibility of voluntary side payments to those parties that would otherwise object because of the losses perceived to occur by virtue of the decision; those payments being made by the participants who stand to gain by the decision.107 Alternatively, those who object could be required to pay a fee to those members who accept the burden of the decision.108 The iwc is assisted by three committees, including a Scientific Committee that has responsibility for reviewing scientific and statistical information with respect to whales and whaling, scientific research programs, and special permits for scientific programs, as well as considering any additional matters referred to it.109 It currently comprises almost 200 scientists, who may or may not be appointed by member states of the iwc.110 Critical in any sharks organisation would be a strong role for a cooperative network of scientists who could provide regulators with comprehensive data on which to base decisions.111 There is also a Conservation Committee within the iwc that addresses issues concerning conservation management plans, ship strikes, and whalewatching.112 A conservation committee that takes into account environmental degradation and negative impacts on shark species beyond harvesting would also be highly relevant for any organisation dedicated to sharks.113 Two subcommittees further assist the iwc in relation to Infractions and Aboriginal Subsistence Whaling with a Working Group that is concerned with whale killing methods and welfare issues.114

106 107 108 109 110 111 112 113 114

Decision-making Procedures – Consensus; a Good Goal but a Bad Rule?’ (31 March 2015) accessed 20 September 2016. Gronstal Anderson (n 5) 533–534. Herndon et al., (n 93) 1244–1245. Ibid 1245. iwc, ‘Rules of Procedure and Finance Regulations’ (October 2014) accessed 20 September 2016, r. M(4). iwc, ‘Overview’ (n 96). Gronstal Anderson (n 5) 523; see also ibid 535–536. iwc, ‘Organisational Chart’ accessed 20 September 2016. Gronstal Anderson (n 5) 524. iwc, ‘Organisational Chart’ (above n 112).

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The structure of any international sharks organisation would no doubt draw on the practice and experience of other institutions. It would most likely consist of a main deliberative body on which all member states were represented and be supported by smaller committees with expertise or focus on particular issue areas. The iwc, as with the rfmos, are intergovernmental organisations and only have states as members, but allow for differing levels of engagement by non-state actors, either through subsidiary organs or in the context of meeting participation or supportive research. Herndon et al. have suggested that an international sharks organisation could draw on the efforts of varied ngos, particularly for assistance in awareness raising and in ensuring domestic implementation of international requirements. Such a role has been evident in the history of the iwc, particularly during the time of the ‘Save the Whales’ movement in the 1970s.115 In addition, sharks are an important element of the cultural heritage of some peoples, who respect their intrinsic values.116 Any international sharks organisation could benefit from this positive conservation concern. Oversight of the iwc members’ activities may come from different sources. One contentious aspect in this regard has been the conduct of scientific whaling and whether it is consistent with the Whaling Convention’s requirements following the adoption of a zero-catch quota (or moratorium) on commercial whaling in the mid-1980s.117 Article viii allows state parties to determine what permits for scientific whaling will be issued and pursuant to what conditions. The Scientific Committee has responsibility to review any proposed scientific permit, and may issue recommendations with regards to the permit.118 There is no requirement that states receive approval from the iwc to issue the permits, although any results are to be transmitted to the iwc.119 It is possible that any international shark organisation could face similar issues and ‘abuse’ of scientific exceptions. Japan’s reliance on Article viii to conduct scientific whaling in Antarctica has been a source of controversy among anti-whaling states, and, as mentioned above, led to Australia’s challenge of Japan’s whaling activities before

115 Herndon et al., (n 93) 1245. 116 As discussed in EJ Techera, ‘Fishing, Finning and Tourism: Trends in Pacific shark conservation and management’ (2012) 27(3) International Journal of Marine and Coastal Law 1–25. 117 icrw (n 94), sch para 10(e). 118 Ibid sch para 30. 119 Ibid art viii(3).

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the ­International Court of Justice.120 The enforcement of obligations under the Whaling Convention through this route was only possible because both Japan and Australia had accepted the compulsory jurisdiction of the Court under Article 36(2) of its Statute.121 As such, the institutional structure did not provide for this means of dispute settlement and if a new sharks organisation were created, there would need to be careful consideration to any dispute settlement clause to resolve differences between the parties. A state’s compliance with the obligations set out in the Whaling Convention and its Schedule may otherwise be reported to and reviewed by the Infractions Committee within the iwc. A key enforcement mechanism anticipated under the Whaling Convention is a requirement that parties take steps to enforce the measures adopted under the Whaling Convention through appropriate punishment or prosecution.122 It would have to be anticipated that any international shark organisation would face similar monitoring, compliance and enforcement issues that are experienced within rfmos. Herndon et al. issue the following call to action for a dedicated sharks organisation: An iccms [International Commission for the Conservation and Management of Sharks] would represent the physical embodiment of the conservation goals and cooperative efforts needed to sustainably manage shark resources. Such an entity could be vital in addressing some of the most basic questions facing shark management and conservation, such as the extent of these specific stock declines and the methods most suitable for evaluating them. Without an iccms, the current management of shark species will likely remain unchanged with little chance of sustainably managing any shark stocks on a global scale. Likewise, without such

120 Whaling in the Antarctic (n 32). 121 See International Court of Justice, ‘Declarations Accepting the Jurisdiction of the International Court of Justice’ accessed 20 September 2016. Since the decision in the Whaling case, Japan has changed its acceptance of compulsory jurisdiction to exclude any dispute concerning research on, or conservation, management and exploitation of living resources, see International Court of Justice, ‘Declarations Recognizing the Jurisdiction of the Court as Compulsory: Japan’ (6 October 2015) accessed 20 September 2016. 122 icrw (n 94), art ix.

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an entity there will be no global check on the wasteful practice of shark finning.123 The creation of such an institution would undoubtedly provide a clear manifestation to a political commitment to the conservation and management of sharks. The political will to create such an organisation, which would inevitably entail a number of binding obligations and financial commitments, may not be forthcoming; a phenomenon consistent with general international practice at present and not limited to sharks in particular. Therefore, the reality is that such an organisation is unlikely to receive sufficient support for its creation. There is little doubt that an international organisation dedicated to sharks could potentially harmonise agenda, standard setting and capacity building, in terms of the collection and sharing of data but it does risk duplication of effort. Concentrating the collection and study of information in one organisation may be perceived as useful, and provide an opportunity for other organisations to stop doing so to save on their own resources, but arguably the fao already stands as an organisation equipped to provide this function. A limitation on the fao in such a function is that it does not address the nonfished sharks. The fao’s focus is sustainable management and utilisation, and therefore critical data on conservation status of non-fished species is provided by bodies such as the iucn. It would need to be asked how the data collection in support of the conservation and management of sharks would be enhanced by a sharks organisation; although the very focus on sharks may prompt improved efforts in this regard. The challenges and shortcomings associated with implementation and enforcement within rfmos would also risk replication in a sharks organisation. An alternative view may be drawn from regulatory pluralism, as was discussed in Chapter 3. Within the paradigm of regulatory pluralism, in complex contexts, such as that surrounding shark conservation and management, one single framework (whether institution-based or rule-based) alone may be unable to achieve optimal control of the problem. Therefore, a ­multi-dimensional and collaborative approach is more likely to achieve key objectives. In this situation, it is better to enhance existing legal frameworks, and identify ways in which they can work supportively together, rather than requiring their replacement with one single regime.124 A multifaceted problem, spilling into several 123 Herndon et al., (n 93) 1246. 124 See Christine Parker, ‘The Pluralization of Regulation’ (2008) 9(2) Theoretical Inquiries in Law 349–369, 350–351.

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areas, requires a pluralistic response. With this context in mind, it is essential to consider how coordination between different institutions is being managed. 6

Interaction between International Institutions

If no specific intergovernmental organisation dedicated to sharks is to be expected in the near future, the imperative to work better with what is already available is all the greater. The need for cooperation and collaboration between organisations has been recognised as vital in order to achieve the central aims of those organisations. For example, cites in its ‘Strategic Vision: 2008–2020’ identifies as a goal ‘ensuring that cites and other multilateral instruments and processes are coherent and mutually supportive’.125 To this end, cites has entered into a number of Memoranda of Understanding or other agreements with other secretariats of multilateral treaties, including those for the cms and the cbd, and with international organisations, including the fao and World Customs Organization, as well as regional organisations such as iccat and the Secretariat of the Pacific Regional Environment Programme.126 The fao has also been actively involved in cites in relation to commercially-exploited aquatic species since 1994. Beyond these bilateral relationships, a ‘Liaison Group of Biodiversity-related Conventions’ was established in 2002 and encompasses the heads of the secretariats of seven biodiversity-related conventions: cites, cms, cbd, the Ramsar Wetlands Convention, the Intergovernmental Panel on Climate Change (ipcc), the International Treaty on Plant Genetic Resources for Food and Agriculture (itpgrfa), and the World Cultural and Natural Heritage Convention. A modus operandi was concluded between six of these organisations in 2011 (not including the ipcc), and one of the Guiding Principles is for the group to be ‘a platform to exchange information and to enhance implementation at the national level of the objectives of each respective convention whilst also promoting synergies at the national level’.127 This principle appears to be focused on the actions within individual member states rather than ­considering any 125 cites, ‘Strategic Vision: 2008–2020’ (Resolution Conf. 16.3) accessed 20 September 2016. 126 See cites, ‘Cooperation and Partnerships’ accessed 20 September 2016. 127 cites, ‘Modus Operandi for the Liaison Group of the Biodiversity-related Conventions’ (4  September 2011) accessed 20 September 2016.

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dynamics that might exist at the international level as between the institutions and their committees. Nonetheless, a further guiding principle encapsulates the ‘aim … to maximise effectiveness and efficiency and avoid duplication of effort’.128 In the realisation of this aim, it must be anticipated that concrete coordination in the work of the actual organisations must be considered, beyond the steps being undertaken to ensure implementation at the national level. Thus far, the Liaison Group has addressed issues of crosscutting administrative concern, including the lack of uniformity in reporting systems, but pragmatic solutions remain elusive and progress on greater coherence in structure and working methods is slow.129 Another example of coordination among institutions may be seen through the fao’s Coordinating Working Party on Fishery Statistics. This group, which has been functional since 1960, has as its mission to ‘coordinate fishery statistical programmes of regional fishery bodies and other inter-governmental organizations with a remit for fishery statistics’.130 There are nineteen organisations that contribute to this working party, including the rfmos, with the participation of experts in fishery statistics nominated by each of these organisations. It is an important mechanism for reviewing ‘fishery statistics requirements for research, policy-making and management’ and agreeing on ‘standard concepts, definitions, classifications and methodologies for the collection and collation of fishery statistics’.131 The Working Party also makes proposals to allow for the coordination and streamlining of statistical activities among the participating organisations.132 Sharing practices between rfmos will further inculcate conservation and management measures that improve shark protection. As discussed, rfmos have adopted measures that have been developed and applied in other organisations, which is partially possible because of the cross-membership that occurs between the different institutions. A mechanism that works well in one institution may therefore be replicated, or adopted and improved upon, in another institution. Some rfmos have formalised their cooperation and sharing through memoranda of understanding.133 Such sharing of information helps in disseminating 128 Ibid. 129 Richard Caddell, ‘The Integration of Multilateral Environmental Agreements: Lessons from the Biodiversity-Related Conventions’ (2012) 22 Yearbook of International Environmental Law 37, 58–60. 130 fao Fisheries and Aquaculture Department, ‘Coordinating Working Party on Fishery Statistics (cwp)’ accessed 20 October 2016. 131 Ibid. 132 Ibid. 133 van Osch (n 5) 426–427.

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data and best practice measures. neafc has also concluded a Memorandum of Understanding with the International Council for the Exploration of the Sea (ices) so that ices may provide neafc with ‘scientific information and advice, which is independent and free from political influence and subject to best international quality procedures for research and research based advice’.134 Through the efforts of unep and the fao, dialogues are also being promoted as between Regional Seas organisations and rfmos.135 For example, the ospar Secretariat has concluded a Memorandum of Understanding with the Abidjan Convention (which covers a marine area from Mauritania to South Africa) to facilitate inter alia information exchange, joint programs and capacity building exercises in areas of mutual concern.136 As noted previously, the cooperation between neafc and ospar has enhanced marine spatial planning.137 Cooperation may well be required beyond the meta-level of organisation to organisation, and occur as between the constituent organs or committees within different organisations. Notable in this respect is the need for scientific committees to share information so as to ensure that decisions are not only consistent, but also mutually supportive of the different objectives of the organisations. A failure in this regard has been evident in the decisions under the Montreal Protocol to use an alternative fluorinated gas to prevent further depletion of the ozone layer, but without taking into account the negative impact that the substitute chemical has in relation to greenhouse gases and climate change.138 Without a high level of coordination between bodies within organisations, there is a risk of fragmentation in the standard setting as 134 North-East Atlantic Fisheries Commission, ‘Memorandum of Understanding between the North-East Atlantic Fisheries Commission and the International Council for the Exploration of the Seas’ (1 January 2007) accessed 20 October 2016. 135 Baltic Marine Environment Protection Commission, ‘Examples of Ongoing Dialogues Between Regional Seas Organisations and Regional Fisheries Management Organisations (rfmos)’ (21 April 2016) Doc. No. Fish-4-2016, 4–4. 136 ospar, ‘Memorandum of Understanding between the Secretariat of the ospar Convention and the Secretariat of the Abidjan Convention’ (2 October 2013) accessed 20 October 2016. 137 See Chapter 5. 138 Guus J M Velders et al., ‘The Importance of the Montreal Protocol in Protecting Climate’ pnas Direct Submission, 20 March 2007, vol. 104, no. 12, 4814–4819, doi: 10.1073/ pnas.061032810; For discussion, see Mario Molina et al., ‘Reducing Abrupt Climate Change Risk using the Montreal Protocol and Other Regulatory Actions to Complement Cuts in CO2 Emissions’ pnas Direct Submission, 8 December 2009, vol. 106, no. 49, accessed 20 October 2016.

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well as in the implementation of policies and decisions to achieve objectives. Furthermore, there is a greater need for cooperation to monitor and enforce treaty provisions, and address issues such as illegal, unregulated and unreported (iuu) fishing. Rapid expansion in the development and implementation of new technologies, including autonomous vehicles and remote sensing, offer many opportunities that would benefit from approaches that cross both fisheries and environmental treaty areas. These issues are explored in Chapter 7. 7 Conclusion Institutional structures serve a valuable function within environmental and natural resource governance because they provide a mode for actors to decide on common approaches to problems, to set standards and adopt principles for future behaviour, to collect and share information, and to ensure that problems are addressed collaboratively and coherently. How all of this is realised remains a difficult issue in international environmental and natural resources law generally and in relation to the conservation and management of sharks specifically. For international environmental law, there appears to be no shortage of agenda and the cbd has set goals through, for example, the Aichi Targets.139 While this recognises the issues and the need to work together to resolve those problems, actualising the commitments where potential solutions cross international institutions, is clearly difficult to achieve. This difficulty is significantly compounded when there appears to be a segregation between conservation efforts and utilisation of living natural resources. There may be some level of coordination among rfmos, but the expected focus on fisheries for these organisations may result in environmental objectives that are the focus of other organisations not moderating decisions on utilisation in the ­r fmos. A bridge must be built between these organisations and their agenda. This Chapter has identified a range of instances where there has been some effort at coordination between different organisations and where there are shared characteristics or similarities in approaches to dealing with their respective issue areas. However, the efforts to coordinate are largely nascent and vary in their delivery of concrete outcomes. The cooperation that has

139 Although it has been recognized that these goals do not always translate to the domestic level: Benjamin S. Halpern, Karen L. McLeod, Andrew A. Rosenberg, Larry B. Crowder, ‘Managing for cumulative impacts in ecosystem-based management through ocean zoning’ (2008) 51(3) Ocean and Coastal Management 203, 204.

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­developed between the fao, cites and cms in addressing shark conservation and management, as well as between these organisations and rfmos to varying extents, is vital to reducing fragmentation in the international regulation of sharks and improving their overall conservation status. The recognition and willingness to cooperate is important and provides an opportunity to build stronger ties and develop avenues of coordination. This coordination must extend beyond the formal institutions to enhancing collaborations between private industry and ngos in different facets of an organisation’s operation. Greater use of technology for monitoring and enforcement being developed and utilised in one institution could also be put to use in another institution, for example.140 Further steps to enhance stakeholder participation not only builds awareness of the problems, but also promotes opportunities to find solutions to those problems. The awareness raising underscores the efforts at compliance and enforcement of what laws and regulations are in place. These developments are examined in the next Chapter. 140 As noted above, the Western Central Pacific Fishery Commission has a Scientific Committee with several relevant Specialist Working Groups. In particular, the fishing technology specialist working group explores ‘innovative fishing methods and technology to minimise bycatch levels and increase effective targeting’ (emphasis added): wcpfc, Scientific Committee, Terms of Reference for the Specialist Working Groups (5 October 2009) accessed 22 October 2016.

chapter 7

Enforcement and Compliance A perennial issue in international law generally, and for international fisheries law in particular, is how to ensure that regulations set out nationally, internationally or through regional initiatives are followed. Although not comprehensive or coherent, there are a number of relevant international laws in place that should enhance efforts at improving shark conservation and management. However, there is ongoing concern about failures to implement these requirements or to enforce laws and regulations once created internationally and implemented nationally. Recognition of this problem may be seen in the annual un General Assembly resolution on sustainable fisheries that calls on states to implement the Food and Agriculture Organisation’s (fao) International Plan of Action for Sharks (ipoa Sharks),1 and to take ‘immediate and concerted action’ to improve the implementation of measures relating to sharks adopted regionally and at the national level.2 The nature of the oceans and the vast reaches of states’ maritime zones, combined potentially with inadequate resources and technology, contribute to difficulties in effectively policing activities at sea. These factors have contributed to the decline in shark numbers. Coastal states not only seek to control the conduct of their own nationals in fishing but must also regulate the fishing activities of foreign flagged vessels within their waters. Coastal states further have obligations to ensure that critical marine habitats are protected and other potentially damaging activities are controlled in areas within their jurisdiction. To achieve conservation and management objectives, states must be in a position to ensure compliance, or respond to non-compliance, with fishing regulations and spatial measures both for targeted shark fisheries as well as in relation to bycatch. A key challenge is that fishing companies may register or flag their vessels with ‘flag of convenience’ or ‘open registry’ states. These states allow ‘the registration of foreign-owned and foreign-controlled vessels under conditions which, for whatever the reasons, are convenient and opportune for the p ­ ersons

1 fao (1999) International Plan of Action for Conservation and Management of Sharks, available at: . 2 See, e.g., ga Res. 75, un gaor, 70th Sess., Supp. No. 49, un Doc. A/RES/70/75 (Dec. 8, 2015) paras 17–19.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004345515_008

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who are registering the vessels’.3 A central difficulty associated with this system is that these flag states do not necessarily undertake rigorous (or any) enforcement of shipping requirements, including adherence to shark fisheries regulations of coastal states or monitoring of and reporting on sharks harvested from high seas areas. It is therefore indispensable that flag states cooperate to ensure that coastal state efforts in shark conservation and management are supported.4 Typically associated with the use of flags of convenience is the problem of illegal, unreported and unregulated fishing (iuu fishing). In 2015, the un General Assembly commented that iuu fishing is ‘one of the greatest threats to fish stock and marine ecosystems and continues to have serious and major implications for the conservation and management of ocean resources, as well as the food security and economies of many States, particularly developing States’.5 This statement confirmed an earlier view of the un Secretary General that iuu fishing reflected a threat to maritime security because food security is considered a major threat to international peace and security.6 Young has commented that iuu fishing not only contributes to an ecological crisis, but also has economic impact through its effects on legitimate livelihoods based on fisheries and distorts markets, as well as social implications in jeopardising food security and facilitating transnational criminal activity.7 Illegal fishing refers to fishing activities conducted in waters under the jurisdiction of a state without its permission, or in contravention of its laws and regulations, or in violation of measures or obligations adopted nationally, ­internationally or within regional fishery management organisations 3 Boleslaw Adam Boczek, Flags of Convenience: An International Legal Study (Harvard University Press, 1962) 2. 4 Günther Handl, ‘Flag State Responsibility for Illegal, Unreported and Unregulated Fishing in Foreign eezs’ (2014) 44 Environmental Policy and Law 158, 160. 5 ga Res. 109, un gaor, 69th Sess., Supp. No. 49, un Doc. A/RES/69/109 (Feb. 6, 2015) para. 56. The United States has affirmed its views of iuu fishing as a matter of national security through its Our Ocean One Future initiative: see us Department of State, ‘Our Ocean One Future’ accessed 12 October 2016. See further Johan Bergenas and Ariella Knight, ‘Secure Oceans: Collaborative Policy and Technology Recommendations for the World’s Largest Crime Scene’ (Stimson, September 2016) accessed 12 October 2016. 6 unga, ‘Oceans and the Law of the Sea: Report of the Secretary-General’ (10 March 2008) un Doc. A/63/63, para 98. 7 Margaret A. Young, ‘International trade law compatibility of market-related measures to combat illegal, unreported and unregulated (iuu) fishing’ (2016) 69 Marine Policy 209, 209.

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(rfmos).8 In the shark context, it could be anticipated that illegal fishing under this definition would include violation of a state’s laws in relation to fishing activities in ‘shark parks’ or other marine protected areas (mpas), as well as breaches of restrictions on, for example, shark finning. Unreported fishing refers to fishing activities that have not been reported, or have been misreported, in violation of national laws and regulations; or contrary to reporting procedures of a rfmo.9 Unregulated fishing refers to fishing activities inconsistent with the requirements of a rfmo.10 Most relevantly for sharks, unregulated fishing also encompasses fishing activities ‘in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law’.11 Unregulated and unreported harvest of sharks has already been particularly problematic for conservation and management efforts. Reporting has been challenging when fins and carcasses are landed separately, and because the data collected does not always distinguish between shark species.12 This lack or inadequacy of data complicates management decisions on sustainable catch allowances, as well as frustrating scientific research on the conservation status of diverse shark species. For an activity to be determined to be illegal, shark fishing bans and quotas must already have been put in place nationally or through regional arrangements, and, as discussed in Chapter 2, this level of explicit regulation is often scant. Acknowledging these weaknesses, this Chapter nonetheless sets out to assess the enforcement mechanisms in place and compliance techniques available to support international laws relating to shark conservation and management. The first part of this Chapter briefly discusses the legal framework for fisheries enforcement established under the United Nations Convention on the Law of the Sea (unclos)13 and critical gaps in that regime. The following parts on 8

9 10 11 12 13

fao, ‘International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing’ (Rome, 2001) accessed 23 September 2016 (ipoa iuu), para 3.1. Ibid para 3.2. Ibid para 3.3.1. Ibid para 3.3.2. See Felix Dent and Shelley Clarke, State of the Global Market for Shark Products (fao Fisheries and Aquaculture Technical Paper 590, 2015) 4. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 unts 3, 21 ilm 1261 (1982), entered into force 16 Nov. 1994 (unclos).

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port state measures and rfmos indicate additional avenues to enforce fisheries regulations that protect sharks. The fourth part considers enforcement and compliance for two of the key treaties regulating sharks in particular, namely the Convention on International Trade in Endangered Species (cites)14 and the Convention on Migratory Species (cms),15 as well as the Convention on Biological Diversity (cbd)16 as an example of compliance techniques available to enforce conservation-based measures, particularly through area management. The fifth part outlines dispute settlement options available in the face of violations of state obligations relating to shark conservation and management. Finally, the potential to use international mechanisms such as sanctions in response to international law violations is assessed. It is evident that there are a variety of mechanisms that could be used to enhance compliance and enforcement in developing a comprehensive legal framework for the conservation and management of sharks. The greater challenge rests in determining how these mechanisms could be used more effectively. 1

Legal Framework for Enforcement under unclos and the 1995 Fish Stocks Agreement

As with the conservation and management of sharks under international law more generally, the starting point for the enforcement of those measures is unclos and the 1995 Fish Stocks Agreement.17 These treaties provide the core framework as to the rights and duties of different states in each of the maritime zones in setting the parameters to ensure that conservation and management measures are observed. For example, in relation to coastal shark fisheries, the coastal state may prescribe and enforce laws and regulations within its territorial sea on the basis of the sovereignty the coastal state exercises over this maritime zone. This power also allows coastal states to legislate and to license activities in marine protected areas (mpas) relatively close to shore. 14 15 16 17

Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973, 993 unts 243 (entered into force 1 July 1975) (cites). Convention on the Conservation of Migratory Species of Wild Animals opened for signature 23 June 1979, 1651 unts 356, (entered into force 1 November 1983) (cms). 1992 Convention on Biological Diversity, 5 June 1992, 1760 unts 79, 31 ilm 818 (1992), entered into force 29 December 1993 (cbd). The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 Aug. 1995, 2167 unts 88, 34 ilm 1542 (1995), entered into force 11 Dec. 2001 (1995 Fish Stocks Agreement).

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Within the Exclusive Economic Zone (eez), the coastal state has sovereign rights to explore and exploit, conserve and manage marine living resources,18 as well as the power to enforce those laws and regulations.19 The extent of this authority and how these powers are exercised are explored in more detail in this part. Also, once on the high seas, there must be greater consideration of the role of the flag state and this dimension is also analysed immediately below. 1.1 In the eez The coastal state has the primary responsibility for taking any measures that are necessary to prevent, deter and eliminate iuu fishing in its eez.20 This responsibility is aligned with the sovereign rights of coastal states to conserve and manage the natural resources of the eez.21 As mentioned, unclos not only confirms the rights of coastal states to prescribe laws and regulations for fishing activities in its eez, but also has authority to enforce those laws under Article 73. Palma-Robles has highlighted that Article 73 of unclos encapsulates which vessels can be boarded, what offences justify boarding and who can board.22 Although the coastal state has the primary responsibility, responsibility also falls to the flag states to ensure that their vessels act consistently with conservation and management requirements.23 In an Advisory Opinion, the International Tribunal for the Law of the Sea (itlos) considered that flag states had a responsibility to ensure that vessels flying their flag were not violating international fisheries requirements within the eezs of the Sub-Regional Fisheries Commission (srfc) member states. However, vessels violating those requirements would not place flag states in violation of international law.24 Rather state responsibility must be assessed in relation to the due diligence of the flag state in the steps taken to ensure their vessels meet fisheries requirements.25 18 19 20 21 22

23 24 25

unclos (n 13) art 56. Ibid art 73. Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (srfc), Advisory Opinion, Order of 2 April 2015, itlos Reports 2015, 31. unclos (n 13) art 56. Mary Ann Palma-Robles, ‘Fisheries Enforcement and the Concepts of Compliance and Monitoring, Control and Surveillance’ in Robin Warner & Stuart Kaye (eds), Routledge Handbook of Maritime Regulation and Enforcement (Taylor & Francis 2015) 139, 143–145. srfc Advisory Opinion (n 20) 109. Ibid 146. Ibid 148. See discussion in Victor Alencar Mayer Feitosa Ventura, ‘Tackling Illegal, Unregulated and Unreported Fishing: the itlos Advisory Opinion on Flag State Responsibility for iuu Fishing and the Principle of Due Diligence’ (2015) 12 Brazilian Journal of International Law 50, 61.

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In this regard, the itlos stated: ‘The flag State is under the “due diligence obligation” to take all necessary measures to ensure compliance and to prevent iuu fishing by fishing vessels flying its flag’.26 The due diligence requirement has been described in the International Court of Justice’s (icj) decision on Pulp Mills, as: …entail[ing] not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators, to safeguard the rights of the other party.27 The due diligence obligation is not one of result on this basis, but one of means.28 Although the itlos did not articulate precise means for flag states to use in combatting iuu fishing, Ventura has suggested that the 2014 Voluntary Guidelines for Flag State Performance may provide a useful reference point for determining if the requirements of due diligence have been met in assessing flag state responsibility.29 Based on the Advisory Opinion, Romée has identified the following measures for flag states: • adopt enforcement measures to ensure compliance by their vessels with the laws and regulations of srfc member states (i.e. the coastal states) (Art. 58(3) and 62(4) [unclos]); • adopt the necessary measures prohibiting vessels flying their flag from fishing, unless authorised to do so, in the eezs of srfc member states (Art. 58(3) and 62(4) [unclos]); • adopt measures to ensure that their vessels comply with the protection and preservation measures adopted by the srfc member states (Art. 192 and 193 [unclos]) • properly mark their vessels (Art. 94(1) and (2) [unclos])

26 27 28 29

srfc Advisory Opinion (n 20) 129. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, icj Rep. 2010, 18 (Apr. 20), 197. Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, itlos Reports 2011, 41. Ventura (n 25) 58. Although Handl has noted that the Guidelines are criticised as too deferential to coastal state’s sovereign rights in the eez. See Handl (n 4) 161.

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• adopt enforcement mechanisms to monitor and ensure compliance by their vessels with the laws and regulations of the flag state, adopted in order to effectively exercise jurisdiction over their vessels in administrative, social and technical matters (Art. 94 [unclos]) • have in place sanctions of sufficient gravity so as to deter violations and deprive offenders of the benefits from iuu fishing (Art. 94 [unclos]) • investigate alleged iuu fishing, where this is reported to the flag state by the coastal state, and, if appropriate, take necessary action to remedy the situation (Art. 94(6) [unclos]) • cooperate in the event of alleged iuu fishing activities (by analogy to the mox Plant Case, where the duty to cooperate was said to be a fundamental principle to prevent pollution).30 In its opinion, the itlos limited its views to the states members of the srfc and the rights and duties relating to the eez of those member states. Yet the standards set forth may be indicative of what may be relevant benchmarks for all flag states in controlling fisheries operations of their vessels. 1.2 On the High Seas Once on the high seas, it is important to recall that no state exercises sovereignty or jurisdiction over this maritime area,31 but control is limited to state authority over those vessels flying the flag of that state. As mentioned at the outset of this Chapter, the enforcement challenge arises when the flag state does not properly exercise its authority over its vessels and ensure that fishing measures are being observed. 1.2.1 Exclusive Flag State Jurisdiction A number of the requirements to be expected of flag states apply as a general matter, irrespective of whether the vessel is in the eez of another state or on the high seas.32 Article 94 of unclos requires that every state is to ‘effectively exercise its jurisdiction and control’ over ships flying its flag.33 As discussed, the itlos Advisory Opinion identified a due diligence requirement for flag states to ensure that their vessels were meeting conservation and ­management 30

Eva Romée van der Marel, ‘itlos Issues its Advisory Opinion on iuu Fishing’ (The jclos Blog, 21 April 2015) accessed 24 September 2016. 31 unclos (n 13) art 89. 32 Romée van der Marel (n 30). 33 unclos (n 13) art 94(1).

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measures. These measures could include any national requirements for shark protection, as well as international requirements that bind the relevant flag state. In 2014, the fao’s Committee on Fisheries adopted Voluntary Guidelines for Flag State Performance, which are intended to provide criteria to clarify the varied obligations imposed on flag states.34 Although non-binding, these Guidelines could inform the interpretation of the core requirements in unclos. The importance of flag state control over its vessels on the high seas is reinforced in Article 19 of the 1995 Fish Stocks Agreement, which requires flag states to enforce any regional conservation and management measures irrespective of where the violation may occur. This obligation will have greater significance for sharks where rfmos have adopted conservation management measures for particular shark species, as discussed in Chapter 4. In this situation, the 1995 Fish Stocks Agreement obliges the flag state to investigate immediately and fully any alleged violations of conservation and management measures, as well as cooperate with other states in providing information required for the investigation of possible violations.35 Both the 1995 Fish Stocks Agreement and the 1993 Compliance Agreement provide indications as to penalties that flag states may impose in the event of fisheries violations.36 These sanctions may include withdrawing, suspending or cancelling authorisation to fish.37 The penalties under these treaties should be ‘adequate in severity to secure compliance, discourage violations, and deprive offenders of the benefits accruing from illegal activities’.38 1.2.2 Boarding and Inspecting Vessels Flagged to Another State In the absence of specific treaty authorisation, no state may usually board a vessel flagged to another state on the high seas. Any right of visit must be based

34 35

36

37 38

See discussion in Ventura (n 25) 58. 1995 Fish Stocks Agreement (n 17) art 19(1)(d); 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 24 Nov. 1993, 2221 unts 91, entered into force 24 Nov. 2003, art iii(8) (Compliance Agreement). The 1993 Compliance Agreement was a multilateral endeavour to address the reflagging of vessels as a means to avoid compliance with conservation and management measures increasingly instituted on bilateral, regional and multilateral bases. See Palma-Robles (n 22) 140. 1995 Fish Stocks Agreement (n 17) art 19(2); Compliance Agreement (n 35) art iii(8). Palma-Robles (n 22) 148.

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on the consent of the flag state,39 or be exercised consistently with the requirements of the right of hot pursuit.40 This basic position is enshrined in unclos, but has been elaborated on in the 1995 Fish Stocks Agreement, and particularly in the practice of rfmos, which is discussed further below. Article 21(1) of the 1995 Fish Stocks Agreement provides the authority to board and inspect the vessels of state parties to that Agreement to ensure compliance with applicable conservation and management measures established by a rfmo or a regional arrangement.41 This provision assists sharks only to the extent that their conservation and management has been addressed within a rfmo or other regional group. If the boarding and inspection reveal that the vessel has engaged in fishing activity inconsistent with any such regional requirements, the inspecting state is to gather evidence and promptly notify the flag state of the alleged violation.42 The flag state must then investigate, or allow the inspecting state to do so.43 If warranted, the flag state is to take enforcement action against the vessel or may authorise the inspecting state to do so in its stead.44 Where a flag state fails to respond or take action, the inspecting state may require the vessel to enter into port.45 The port state does not have any specific enforcement powers available under the 1995 Fish Stocks Agreement, although it may prevent the landing or transshipment of fish catch within its port.46 The engagement of the flag state in fulfilling its responsibilities is thus critical to the success of enforcement and compliance. The procedure available under the 1995 Fish Stocks Agreement does advance enforcement opportunities on 39

40 41

42 43 44 45 46

The key exception to this requirement being the exercise of universal jurisdiction, which accrues in relation to pirates. The consent may be afforded from multilateral treaties, as seen in Article 110 of unclos for example, or in bilateral agreements. unclos (n 13) art 111. The procedures for conducting such boardings for rfmos are to be set out and duly notified, consistent with the requirements in Article 21(2) of the 1995 Fish Stocks Agreement. There is otherwise an inspection and boarding procedure to be followed consistent with Article 22 of the 1995 Fish Stocks Agreement. 1995 Fish Stocks Agreement (n 17) art 21(5). Ibid art 21(6). Ibid art 21(7). Ibid art 21(8). These powers are augmented if a state is a party to both the 1995 Fish Stocks Agreement and the Port State Measures Agreement. The latter agreement allows for a wider scope of action, as discussed further below, but does not extend to the arrest of a foreign-flagged vessel in the absence of the flag state’s consent.

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the high seas, but will have limited applicability to different shark species if those species are not regulated through regional agreements. State authorities may be able to arrest fishing vessels on the high seas that have violated laws in that state’s territorial sea or eez consistent with the right of hot pursuit. This right enables a state vessel to pursue a foreign-flagged vessel on to the high seas, provided an appropriate signal to stop has been provided, and arrest that vessel for offences committed in its waters.47 The pursuit must be continuous, and will be considered terminated if the vessel enters the territorial sea of another state.48 States may enter into bilateral agreements to facilitate the pursuit and apprehension of illegal fishing vessels, as Australia and France have done in waters surrounding their sub-Antarctic islands.49 Bilateral agreements may also anticipate the use of ‘ship-riders’ whereby authorities from one state will travel with the authorities of another state and authorise entry into the former’s waters or to take action against their vessels.50 Specific agreements are required as an exception to the exclusive flag state authority that would otherwise apply and reflects an ongoing effort to improve the implementation of fisheries regulations as well as enforcement of those requirements. While these efforts relate to fisheries more generally, these sorts of improvements would also be relevant in enhancing efforts for shark conservation and management. 2

Port State Measures

As coastal states do not necessarily have sufficient resources to police the full extent of their maritime zones, there has been increasing reliance on monitoring and inspections being undertaken by port states. Port states may be able to reinforce the requirements of rfmos or other coastal states, including illegal 47

48 49

50

The requirements for the lawful exercise of the right of hot pursuit are detailed in Article 111 of unclos. All conditions must be met for the hot pursuit to be lawful. M/V ‘SAIGA’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Provisional Measures, Order of 11 March 1998, itlos Reports 1998. unclos (n 13) arts 111(1), (3). See Warwick Gullett and Yubing Shi, ‘Cooperative Maritime Surveillance’ in Robin Warner and Stuart Kaye (eds), Routledge Handbook of Maritime Regulation and Enforcement (Routledge, 2015), 387. See further Warwick Gullett and Clive Schofield, ‘Pushing the Limits of the Law of the Sea Convention: Australian and French Cooperative Surveillance and Enforcement in the Southern Ocean’ (2007) 22 International Journal of Marine and Coastal Law 545. Natalie Klein, Maritime Security and the Law of the Sea (Oxford University Press 2011) 134.

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fishing that occurs in a shark sanctuary wherein harvesting of sharks has been banned. Reliance on port states has also increased as a result of poor compliance by flag states in monitoring and policing their fishing vessels. Consistent with the 1995 Fish Stocks Agreement, when fishing vessels come into port, either to deliver the harvested fish or en route to the final destination for the fish catch, the port state has the opportunity to verify the fish catch, inspect documents, including licenses, and check the fishing gear of the vessel to determine whether the catch is lawful and properly reported.51 Further, port states may ‘prohibit landings and transshipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of subregional, regional or global conservation and management measures on the high seas’.52 Port states could therefore play a critical role in enforcing any obligations relating to shark species, including possible trade restrictions covered by cites for species introduced from the seas. Port closures may be an important means of controlling trade in shark species, or censuring the conduct of fishing vessels from a particular state. For example, in response to Japan’s alleged over-fishing of southern bluefin tuna, Australia closed its ports to Japanese fishing vessels.53 Canada closed its ports to vessels from Estonia and the Faroe Islands because of over-quota and other non-compliant fishing activities.54 Any such decisions are consistent with the sovereignty that states are able to exercise over their territory, including their ports.55 An increasingly important role has been ascribed to port states in responding to iuu fishing. In 2009, states adopted the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing,56 which entered into force on 5 June 2016.57 This Agreement was drawn from the 2001 fao International Plan of Action to Prevent, Deter and Eliminate Illegal,

51 1995 Fish Stocks Agreement (n 17) art 23. 52 Ibid. 53 Natalie Klein, ‘Whales and Tuna: The Past and Future of Litigation between Australia and Japan’ (2009) 21 Georgetown International Environmental Law Review 143. 54 See Rosemary Rayfuse et al., ‘Australia and Canada in Regional Fisheries Organizations: Implementing the United Nations Fish Stocks Agreement’ (2003) 26 Dalhousie Law Journal 47, 76. 55 See Klein (n 50) 67. 56 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, 22 Nov. 2009, fao Doc. C 2009/LIM/11-Rev. 1, entered into force 5 June 2016 (Port State Measures Agreement). 57 See discussion in Klein (n 50) 72–73.

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Unreported and Unregulated Fishing,58 and the 2005 fao Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing.59 In many respects, the Port State Measures Agreement reflects existing customary law in terms of the powers that states have in determining the conditions of access to their ports.60 States could rightfully ask for certain information to be presented from foreign flagged fishing vessels, such as the identity and journey of the vessel, its fishing and transshipment authorisations and the catch onboard and the catch to be offloaded, as conditions of entry.61 This information will then determine whether the particular vessel is allowed to enter into port.62 What is then notable for the states that are party to the Port State Measures Agreement is that they must deny entry when there is ‘sufficient proof that a vessel seeking entry … has engaged in iuu fishing or fishing related activities in support of such fishing’.63 In doing so, the fishing vessel will have to voyage to another port, potentially decreasing the value of the catch or rendering it unsaleable. Entry may still be granted for the purpose of inspecting the vessel and taking ‘other appropriate actions in conformity with international law which are at least as effective as denial of port entry in preventing, deterring and eliminating iuu fishing’.64 Where a foreign flagged vessel has entered a port, it may be subject to an inspection consistent with the Port State Measures Agreement.65 That vessel will be denied a range of port services if the port state finds that the vessel lacks authorisation as required by its flag state for fishing or as required by a coastal state for fishing in areas under its ‘national jurisdiction’.66 Port services must also be denied if the port state has ‘reasonable grounds to believe that 58 59

60 61 62 63 64 65

66

ipoa iuu Fishing (n 8). The Committee on Fisheries, foa, Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing (2005) accessed 24 September 2016. See Louise de La Fayette, ‘Access to Ports in International Law (1996) 11 International Journal of Marine and Coastal Law 30. Port State Measures Agreement (n 56) art 8, Annex A. Ibid art 9. Ibid art 9(4). Ibid art 9(5). Ibid art 12(1). Port states are to inspect a minimum number of vessels annually, the precise number being determined through rfmos, the fao or otherwise. Ibid art 12(2). The conduct of inspections is set out in article 13 and Annex B, with the form of the inspection report set out in Annex C. Ibid art 11(1)(a)–(b).

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the ­vessel was otherwise engaged in iuu fishing or fishing related activities in support of such fishing’ unless the vessel can establish it was acting consistently with relevant conservation and management measures.67 In this regard, the port state is exercising authority over a foreign flagged vessel for activities that happen outside its port, extending as far as the high seas, and reflects an increase in authority for the port state over vessels in port. The enforcement powers granted under the Port State Measures Agreement are limited though to the denial of port entry or services. If the port state takes such a step then it is to communicate as such to the flag state as well as other relevant states (the coastal state where iuu fishing occurred, and the state of nationality of the vessel’s master), rfmos and the fao.68 The flag state, following port state inspection, ‘shall immediately and fully investigate the matter and shall, upon sufficient evidence, take enforcement action without delay in accordance with its laws and regulations’.69 Alternatively, the flag state may authorise the port state to take particular measures.70 The availability of port state inspections is a prime mechanism to control finning regulations, especially where states or organisations have moved to naturally attached requirements and so can be more easily monitored. At present, some of the states importing the greatest quantity of shark fin and shark meat have not become parties to the Port States Agreement,71 although it may be noted that the United States, Myanmar, Indonesia and Thailand are parties. Greater adherence to this agreement will be needed for it to be a useful mechanism in enforcing shark regulations. A key risk, however, is that with greater participation, vessels will divert to private ports or ports not operating under these regimes and the problem remains. 3

Inspections, Monitoring and Other Enforcement Processes: Lessons from rfmos

rfmos have explored a variety of processes and tactics to improve compliance with their quotas and catch allocations of fish species. Common techniques include monitoring and inspections, with states increasingly relying 67 68 69 70 71

Ibid art 11(1)(e). Ibid art 9(3), art 11(3), 15. Ibid art 20. See ibid art 18. Notably, China, Malaysia and Singapore, which have been three of the greatest importers of shark fins. See Dent and Clarke (n 12) 21.

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on improved technology to enhance these efforts. Monitoring is also manifest through different documentation and data collection schemes as requirements on fishing vessels and their crews in harvesting fish. A distinct response to iuu fishing has been the use of vessel lists so coastal authorities know which vessels may be particularly problematic for enforcement of fisheries requirements. rfmos have also utilised other market-based measures, including catch documentation schemes and traceability requirements. These sorts of enforcement measures are outlined in this section, taking into account their strengths and weaknesses and hence their potential utility for shark conservation and management. Monitoring and inspection regimes are now common tools to ensure that fishing vessels are complying with the measures established in rfmos. These regimes could assist enforcement in controlling shark management regulations.72 For example, adopted under the auspices of the South Pacific Forum Fisheries Agency, the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region sets out requirements to cooperate to develop regionally agreed procedures for the conduct of surveillance.73 In particular, each party is to provide information to the Forum Fisheries Agency or to any other party directly about the location and movement of foreign fishing vessels; foreign fishing vessel licensing; and fisheries surveillance and law enforcement activities.74 This list is simply indicative, and not exhaustive, of the information that may be shared among the participant states. To enhance these efforts, the parties to the Niue Treaty are to develop standard forms and procedures for reporting information, as well as effective methods of communicating such information.75 Observers are also used on board vessels in different regional schemes, which can support the use of proper gear and adherence to fishing regulations. Drawbacks to the use of observers include the cost, the risk of improper influence or inability to observe everything that occurs on a large fishing vessel.76 Some coastal states have resorted to private organisations and ngos to assist 72 73

74 75 76

Paula Walker, ‘Oceans in the Balance: As the Sharks Go, So Go We’ (2010) 17 Animal Law 97, 162 [citations omitted]. Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region, 9 July 1992, 32 ilm 1238 (1993), entered into force 20 May 1993, art iii(2) (Niue Treaty). Ibid art v(1). Ibid art v(2). Jared R. Wigginton, ‘Governing a Global Commons: Sharks in the High Seas’ (2014) 25 Villanova Environmental Law Journal 431, 454.

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in enforcement efforts,77 even though there may be legal difficulties with those private actors undertaking state action and with the state’s responsibility for those activities should they go beyond the scope of their authority. Cooperation has been essential to overcome exclusive flag state authority, particularly through the provision of advanced consent for states to act in the waters or against the vessels of the other state. Bilateral agreements providing for ship-rider arrangements were mentioned previously.78 In a regional setting, the Niue Treaty, for example, allows for the vessels and personnel of one state to enforce the laws of another state,79 as well as providing a mechanism for states to enter into subsidiary agreements allowing fisheries surveillance and law enforcement activities by other states in their territorial seas of archipelagic waters.80 Coastal states are also seeking to take greater advantage of technological advances in surveillance of fishing activities. For example, when Palau decided to declare its entire eez as a marine sanctuary and ban commercial fishing in 2013,81 it undertook trials of surveillance by unmanned drones to improve enforcement. The turn to technology to improve enforcement was critical given Palau was only in possession of one patrol vessel for an eez equivalent in size to France.82 There is considerable potential for technology to be utilised more extensively in compliance and enforcement efforts. Possibilities include the further use of autonomous vehicles such as drones as well as remote sensing technologies,83 but will likely involve public-private partnerships ­including 77

78 79 80 81 82

83

See, e.g., ‘Sea Shepherd Partners with the Republic of Palau to Control Poaching’, 1 April 2011 accessed 12 October 2016. See Klein (n 50) and accompanying text. Niue Treaty (n 73) art vi(1). Ibid art vi. Palau had declared its entire eez a shark sanctuary in 2009. See discussion in Chapter 5. ‘Enforcement of the commercial fishing ban is expected to be a challenge, as the country only has one patrol boat to cover its economic zone which is roughly the size of France’. ‘Palau President Tommy Remengesau Jr declares marine sanctuary, bans all commercial fishing’ abc News (Sydney, 7 February 2014) accessed 23 September 2016. The Stimson Center has a current project to catalogue existing technologies: Secure Our Oceans accessed 24 October 2016. See also Ariella Knight and Johan Bergenas, ‘Secure Our Oceans: Technology and Innovation to Safeguard Marine Protected Areas and Combat Illegal Fishing’, (Stimson, 17 August 2016) accessed 24 October 2016.

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with the not-for-profit sector as was the case in the Palau trial.84 Satellite Synthetic Aperture Radar (sar) is a remote technology that can be utilised to image vessels and their movement, irrespective of cloud cover; it can be employed alone or with other technologies to detect iuu fishing.85 Vessel monitoring systems (vms) help enhance enforcement activities, as they can provide information as to the movement of fishing vessels, including where they might be transshipping fish catch, or when they are on approach to port or moving into a closed or restricted fishing area within a coastal state’s jurisdiction. There are three categories of vms: those that are nationally operated, dual or fully centralised. Only in the third category is data automatically transmitted to the rfmo and, in a nationally operated system, data is only relayed to the national fisheries monitoring centre.86 Furthermore, despite most fishing vessels operating under the jurisdiction of two or more rfmos, core elements of the vms may differ between each regional body making compatibility an issue.87 The fao has observed that, ‘[t]he major stumbling block facing effective global deployment of vms is not technology or cost, it is mainly the will to deploy the systems and the imperative to reach global agreement on system standards and data sharing arrangements’.88 While vms may be a useful tool for compliance and enforcement, for it to be effective, all vessels must have tracking equipment installed, the system may not be switched off 84

85

86

87

88

See for example wwf-Navama partnership: wwf, Transparency at sea, accessed 24 October 2016; also Satellite Applications, ‘Ending Illegal Fishing: Developing a global monitoring system to combat illegal, unreported and unregulated (iuu) fishing’, accessed 24 October 2016. Emmanouil Detsis, Yuval Brodsky, Peter Knudtson, Manuel Cuba, Heidi Fuqua, and Bianca Szalai, ‘Project Catch: A space based solution to combat illegal, unreported and unregulated fishing Part i: Vessel monitoring system’ (2012) 80 Acta Astronautica 114, 116. Evelyne Meltzer, Susanna Fuller, ‘The Quest for Sustainable International Fisheries: Regional Efforts to Implement the 1995 United Nations Fish Stocks Agreement: an Overview for the May 2006 Review Conference’, (nrc Research Pres, 2009), 232. Although further efforts are being made to share data more broadly: The Pew Charitable Trusts, ‘Tracking Fishing Vessels Around the Globe’ accessed 24 October 2016. Holly Koehler, ‘A Survey of rfmo Vessel Monitoring Systems and Set of Best Practices’, (iotc, 2016) accessed 24 October 2016. John M. Davis, ‘Monitoring Control Surveillance and Vessel Monitoring System Requirements to Combat iuu Fishing’, (Food and Agriculture Organisation, 2000) accessed 12 October 2016, 70.

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or tampered with and must allow for near-real time submission of data and two-way communication.89 However, vms could be used in combination with other technologies, such as satellite sar or Automatic Identification System (ais): vessels fishing in a restricted area for example, could be identified by other means and then those required to have vms enabled but which do not, could be distinguished. ais is a satellite system introduced under the Convention for the Safety of Life at Sea to track vessels, and prevent collisions; it has also been required in the European Union (eu) for fishing vessels.90 One advantage of using this system is that it is an internationally recognised standard. Another monitoring tool used to enhance compliance and accumulate data is a catch documentation scheme (cds). Typically, a cds allows for the certification that a fish catch has been harvested consistently with international or regional regulations. Such certified catches may then be imported and reexported or on-sold. The eu Regulation on iuu Fishing incorporates a cds as a key mechanism to enforce its prohibition on the import of fish or fish products derived from iuu fishing.91 As a further example, under the ccamlr regime, flag states are to issue Dissostichus Catch Documents when one of its vessels harvests toothfish from a licensed location. The location of the vessel can be verified through the vms that fishing vessels are to operate consistently with the requirements of the flag state. In addition to flag state efforts, port state and at-sea inspections are encouraged to ensure the harvested catch matches the catch ­documentation.92 The fao initiated an expert consultation in 2014 intended to consider the

89

90 91

92

See Tony Long, ‘Tracking Fishing Vessels Around the Globe: Vessel monitoring systems play a critical role’ (Pew Charitable Trusts, 20 May 2016) accessed 12 October 2016. European Commission Fisheries, ‘Control Technologies’, accessed 24 October 2016. See European Commission, ‘Handbook on the Practical Application of Council Regulation (ec) No. 1005/2008 of 29 September 2008 Establishing a Community System to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing’ accessed 24 September 2016. See also Young (n 7) 210. See Katherine Weber, ‘Can you Eat Your Fish and Save It Too? Improving the Protection of Pirated Marine Species through International Trade Measures’ (2010) 25 Journal of Land Use and Environmental Law 265, 276. This technique could overcome the criticism highlighted by Wigginton that flag state involvement could still produce mistakes or allow for fraud. See Wigginton (n 76) 454.

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­harmonisation of cds with best practice guidelines,93 which could then potentially be applied in the context of shark fisheries and area management. Reporting methods have been a central process for keeping track of the identities of fish caught and the quantities. In iccat, for example, a Compliance Committee oversees how state parties implement the total allowable catch. For the catch of northern bluefin tuna, a key measure has been the institution of the Bluefin Catch Document (bcd), which tracks fish up the supply chain. The program had been criticised because of the failure of fishing vessels to complete the forms fully, or at all, and because of failure of state parties to implement the reporting requirements.94 The work of iccat has been plagued by under-reporting and mis-reporting by contracting states, as well as harvesting by states outside the iccat regime. Prior to the 17th Special Meeting of ­i ccat in 2010, a report was released by the International Consortium of Investigative Journalists, entitled ‘Looting the Seas’,95 claiming that from 1998 to 2007 more than one-third of all eastern northern bluefin tuna caught were taken illegally.96 In 2010, it was decided that the bcd should be shifted to an electronic version,97 and so as to enhance the information gathered by preventing vessels from leaving fields blank, and facilitate its collation and processing. The shift was intended to enhance further efforts at monitoring and surveillance. These endeavours are always challenged by the fact that non-parties to the regime may still seek to fish the same species or in the same areas and as such may be fishing illegally or are conducting unregulated fishing. There may be limited recourse against such non-parties, especially where they are flagged to 93

fao, Report of the 31st Session of the Committee on Fisheries, (Rome, 9–13 June 2014) para 59, cited in Young (n 7) 210. See also Antonia Leroy, Florence Galletti, Christian Chaboud, ‘The eu Restrictive Trade Measures Against iuu Fishing’ (2016) 64 Marine Policy 82, 88. The Voluntary Guidelines were still under negotiation following an April 2016 meeting at the fao. 94 The International Consortium of Investigative Journalists have examined the bcd database and report on many gaps in the information provided to iccat under the scheme. See bbc News, ‘Bluefin Tuna Protection System “Full of Holes”’ (7 November 2010) < www .bbc.com/news/world-asia-pacific-11692242> accessed 23 September 2016 (citing a comment of one of the icij reporters). 95 International Consortium of Investigative Journalists, ‘Looting the Seas’ accessed 23 September 2016. 96 Ibid; See also Anjali Nayar, ‘Bluefin Tuna Regulators under Pressure’, Nature News (10 November 2010) accessed 24 September 2016. 97 See iccat, ‘17th Extraordinary Meeting of iccat Media Release’ (Paris, 27 November 2010) accessed 24 September 2016, 2.

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open registry states that are not fulfilling their due diligence obligations. One response has been a listing process where state parties have listed the names of vessels flagged to non-state parties that have been identified as unlawfully exploiting fish resources. ccamlr, for example, has developed an iuu Vessel List, which includes not only the current name and flag of suspect vessels, but also former flags and names, as well as any ownership information and data on illicit activities.98 The list can be used by states in deciding whether to license a vessel or to block its access into port.99 Another possibility is to use the listings to direct patrol vessels to the area where that vessel is located or to track it remotely. rfmos have also shared black lists of iuu fishing vessels to facilitate enforcement mechanisms across the different regions covered by the organisations.100 Formal compliance mechanisms may also be introduced in regional settings to ensure enforcement of rfmo requirements. Such mechanisms may be helpful for sharks where the rfmo has introduced reporting requirements or other restrictions in relation to sharks generally, or for particular shark species. In 2010, iccat introduced a three tier compliance process to be overseen by its Compliance Committee.101 Under this process, in the event of a failure to report catch data or overharvesting, a contracting party may be sent a ‘Letter of Concern’, which is followed with a ‘Letter of Identification’ and then the possibility of sanctions arises. Following the Letter of Concern, contracting parties are to report on what actions will be taken to overcome deficiencies and must also submit management plans to ensure that no further overharvesting occurs.102 Continued failure in this regard will result in a Letter of Identification, which includes a warning of the imposition of penalties in the event of continuing non-compliance.103 The appropriate penalty may differ depending on the state concerned, but may include reduction and withdrawal of fishing 98 Weber (n 92) 276. 99 Ibid. 100 See Stijn van Osch, ‘Save our Sharks: Using International Fisheries Law within Regional Fisheries Management Organizations to Improve Shark Conservation’ (2012) 33 Michigan Journal of International Law 383, 427. 101 See iccat (n 97) 1. 102 Ibid. 103 At the 2010 meeting of the Commission when this procedure was initiated, it was decided that 23 Letters of Concern and 23 Letters of Identification were to be issued. Ibid. At that time, there were 35 members of iccat. In the 2016 Biennial Report, a report on the issuance of Letters of Concern and Letters of Identification is provided, along with the replies received from states. See iccat, ‘Biennial Report’ accessed 24 September 2016, 350–393.

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allocations, trade measures, financial penalties, or exclusion from iccat,104 either through a loss of voting rights within the Commission or suspension of membership.105 The iccat Compliance Committee does monitor actions taken to improve shark data collection pursuant to various recommendations.106 However, despite difficulty for the Secretariat in determining compliance with some shark, bycatch (e.g. turtles) and observer coverage measures, no additional steps further to this process appear to have been undertaken to date.107 A key lesson learned from experiences within rfmos in seeking to enforce fisheries regulations is that there are diverse tools and processes open to ­r fmos. The possibilities of sharing information between states as well as between organisations, deploying better technology for data gathering and surveillance, cooperative law enforcement efforts at sea and follow up on reporting requirements all demonstrate that there are ways to ensure improved adherence to fishing requirements. Nonetheless, outstanding problems remain in relation to the political will to endorse the transparency and cooperation needed for improved conservation outcomes and the lack of participation and/or engagement by key fishing states. 4

Compliance with Treaty Obligations: cites, cms and cbd

In protecting sharks, every state party to cites or to the cms has an interest in the requirements of those treaties being upheld. Enforcement of those treaties may be bolstered by mechanisms outside of the particular treaty regimes themselves. An important avenue of dispute settlement in this regard is through international trade law, which takes into account the extent of 104 iccat (n 97) 1. 105 For an analysis of penalties related to membership in an organisation, see Jan Klabbers, An Introduction to International Institutional Law (Cambridge University Press 2nd ed 2009) 109–110. 106 iccat, ‘Recommendation by iccat on the Conservation of Thresher Sharks Caught in Association with Fisheries in the iccat Convention Area’, 09-07 byc, 1 June 2010; iccat, ‘Recommendation by iccat on the Conservation of Oceanic Whitetip Shark Caught in Association with Fisheries in the iccat Convention Area’, byc 10-07, 14 June 2011; iccat, ‘Recommendation by iccat on Hammerhead Sharks (Family Sphrynidae) Caught in Association with Fisheries Managed by iccat’, byc 10-08, 14 June 2011; iccat, ‘Recommendation by iccat on the Conservation of Silky Sharks Caught in Association with iccat Fisheries’, 11-08 byc, 7 June 2012; iccat, ‘Recommendation by iccat to Establish a Working Group to Develop Amendments to the iccat Convention’, 12-10 tor, 10 June 2013. 107 iccat Biennial Report (n 103) 341.

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­agreement on environmental protection measures when assessing if deviations in trade are allowed. One potential development in this regard is provision in the Trans Pacific Partnership requiring parties to fulfill their cites obligations and allowing for the possible imposition of sanctions or penalties to deter cites violations.108 This section focuses on the enforcement and compliance regime existing within the cites, cms and cbd frameworks. The use of trade measures and other sanctions are considered further below. 4.1 cites The implementation of cites is monitored by the cites Secretariat. cites depends on national authorities issuing and inspecting the licences required for the import, export, re-export and introduction from the seas of a listed species. Each cites party must have at the national level a Scientific Authority for findings as to whether the taking of a species will be detrimental to the survival of the species, and a Management Authority to be able to issue permits and certificates consistent with cites requirements.109 The necessary prohibitions or restrictions are to be enshrined within national law and incorporate penalties, possibly including criminal sanctions. As with any treaty, cites relies on each state party to undertake the appropriate implementation of international obligations within national laws and institutions. It does, however, also provide for compliance monitoring at the international level to ensure the relevant steps are taken. A Guide to cites Compliance Procedures was produced and endorsed by the Conference of the Parties in 2007.110 The Guide sets out general principles and outlines the key authority of the Standing Committee, or the Conference of the Parties, in dealing with general and specific compliance matters. Compliance is generally monitored through annual and biennial reports, as well as other special reports and responses to information requests.111 A party may self-identify compliance matters and potentially seek assistance to resolve these concerns.112 In the event a concern arises, the Secretariat contacts the party concerned for any relevant facts or information about remedial action.113 108 Trans Pacific Partnership (signed 4 February 2016, not yet in force) accessed 12 October 2016, art 20.17; See discussion in Young (n 7) 214. 109 cites (above n 14) art ix. 110 cites, ‘Guide to cites Compliance Procedures, Resolution Conf. 14.3’ accessed 23 September 2016. 111 Ibid 15. 112 Ibid 19. 113 Ibid 16–17.

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The process requires a reasonable amount of cooperation from the member states, but the very existence and operation of the process may provide a means to improve compliance. Where a party fails to take remedial action once a compliance concern is identified, the Secretariat may then notify the Standing Committee, which has options of dismissing the concern as trivial or ill-founded or taking additional steps.114 These actions may include the following: (a) provide advice, information and appropriate facilitation of assistance and other capacity-building support to the Party concerned; (b) request special reporting from the Party concerned; (c) issue a written caution, requesting a response and offering assistance; (d) recommend specific capacity-building actions to be undertaken by the Party concerned; (e) provide in-country assistance, technical assessment and a verification mission, upon the invitation of the Party concerned; (f) send a public notification of a compliance matter through the Secretariat to all Parties advising that compliance matters have been brought to the attention of a Party and that, up to that time, there has been no satisfactory response or action; (g) issue a warning to the Party concerned that it is in non-compliance, e.g. in relation to national reporting and/or the National Legislation Project; and (h) request a compliance action plan to be submitted to the Standing Committee by the Party concerned identifying appropriate steps, a timetable for when those steps should be completed and means to assess satisfactory completion.115 In deciding on one of these measures, the Standing Committee is to take into account the capacity of the party, the seriousness of the compliance matter and align the measures with the gravity of the matter, as well as the ‘possible impact on conservation and sustainable use with a view to avoiding negative results’.116 A considerable amount of discretion is thus afforded to the Standing Committee in deciding how to follow up compliance concerns. Where a party’s non-compliance persists, the Standing Committee may recommend that parties suspend trade in the relevant species with that non-compliant party. 114 Ibid 22. 115 Ibid 29. 116 Ibid 32.

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Particularly relevant for enforcing restrictions relating to trade in shark species listed in Appendix ii is the Significant Trade Review Process. This Process requires the Animals and Plants Committees to review the biological, trade and other relevant information on Appendix ii species that are subject to significant levels of trade, as well as to identify problems and solutions concerning implementation.117 Species are selected, information is sought on those species in consultation with the affected range states and recommendations are made where necessary, including the possibility of specific actions to be taken for species of urgent concern.118 The Secretariat subsequently determines whether the recommendations have been implemented and reports to the Standing Committee accordingly.119 In the event of continued non-compliance, under either the general compliance procedure or the Significant Trade Review Process, cites parties may impose a temporary suspension of either commercial or all trade in the relevant species on the non-compliant party. As the length of listing time and the number of shark species listed on Appendix ii increases, more reports and compliance measures may be expected in relation to those listed species.120 At present, attention has been focused on the more recent increase in shark listings following the 2013 Conference of the Parties with efforts being concentrated on national implementation and examining related issues, such as the traceability of shark products in trade as a means to improve compliance.121 4.2 cms Under the cms, for migratory species listed on Appendix i, the Conference of the Parties may recommend that range states take further measures considered appropriate to benefit the species.122 For species listed on Appendix ii, regard must be had to the terms of the agreement and whether that agreement 117 cites, ‘Review of Significant Trade in specimens of Appendix-ii species’, Resolution Conf. 12.8 (Rev. CoP13) accessed 24 September 2016. 118 Ibid (n). 119 Ibid (q). 120 For example, a report was produced on the import of 300 smooth hammerhead specimens from the wild into the uk from Gabon in 2015 for scientific purposes. See cites, ‘Trade Database’ accessed 24 September 2016. 121 For example, a study was conducted on the traceability of shark products in trade. See Dr Heiner Lehr, ‘Traceability in Shark Products’ (cites Secretariat, 2015), accessed 19 October 2016. The cites website includes a trade database that may be searched. See cites ‘Trade Data Dashboard’ accessed 12 October 2016. 122 cms (above n 15) art iii(6).

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is binding or not. It is otherwise left to the Conference of the Parties to decide whether any recommendations are needed to improve the effectiveness of the cms or whether any additional measure should be taken to implement the cms objectives.123 In assessing the cms after 25 years of operation, Waddell has commented: [A] formal compliance mechanism would … have a significant ‘chilling effect’ on the enthusiasm of prospective new parties … [and] constitute a serious disincentive for existing members to conclude subsidiary agreements containing such provisions.124 When the cms Secretariat surveyed compliance mechanisms in multilateral environmental agreements in 2014, it considered that it would not be appropriate to adopt a mechanism comparable to cites as it did not have trade incentives that could be used in a similar way under the cms.125 A proposal to develop a type of peer review process as a form of implementation was addressed at the 2014 Conference of Parties, but some states voiced concerned about creating such a mechanism.126 A resolution ultimately launched ‘an intersessional process to explore possibilities for strengthening implementation of the Convention through the development of a review process’.127 This resolution reflects a decision to adopt a process to consider the possibility of an implementation process. In that sense, it could be said to be a triumph for bureaucracy or diplomacy, but not so much for sharks. Within the Sharks MoU, as it is not a binding legal instrument, states are expected to designate a focal point for coordinating implementation measures and activities under the Sharks MoU and its Conservation Plan.128 They must also endeavour to provide to the Secretariat a regular national report on

123 Ibid art vii(5). 124 Richard Caddell, ‘International Law and the Protection of Migratory Wildlife: An Appraisal of Twenty-Five Years of the Bonn Convention’ (2005) 16 Colorado Journal of International Environmental Law and Policy 113, 146. 125 unep/cms Secretariat, Enhancing the Effectiveness of the Convention through a Process to Review Implementation (2 October 2014) UNEP/CMS/COP11/Doc.18.3/Rev.1, 37. 126 unep/cms Secretariat, Proceedings of the 11th Meeting of the Conference of Parties, (Quito, Ecuador, 4–9 November 2014), paras 156 and 162. 127 Ibid 225. 128 cms, ‘Memorandum of Understanding on the Conservation of Migratory Sharks’ (February 12, 2010) accessed 24 September 2016, s 5.15 (Sharks MoU).

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­implementation.129 Progress on implementation is assessed at Meetings of the Signatories,130 but there are no steps recommended in the event of poor or non-compliance in implementation efforts. Cooperation with other bodies is also anticipated to assist implementation.131 There is no formal dispute settlement mechanism included in the Sharks MoU. 4.3 cbd The cbd does not have any formal non-compliance mechanism. Instead, reliance is placed on identification, monitoring and reporting. Article 7 requires ‘as far as possible and as appropriate’ that state parties identify and monitor ‘components of biological diversity important for its conservation and sustainable use’, as well as ‘[i]dentify processes and categories of activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity, and monitor their effects through sampling and other techniques’.132 Article 26 of the cbd requires each state party to provide reports on measures taken for the implementation of the provisions of the cbd and the effectiveness of those measures in meeting the objectives of the cbd.133 An Ad Hoc Open-ended Working Group on Review of Implementation of the Convention was established in 2004 and has since met on five occasions.134 This Group has dealt with issues such as scientific and technical cooperation and technology transfer, resource mobilisation, biodiversity for poverty eradication and development and improving the efficiency of structures and processes under the Convention. There are also other mechanisms within the institutional structure around the cbd that provide means to help the parties in implementing their obligations. For example, the clearing-house mechanism ‘promotes cooperation in six key areas: tools for decision-making; training and capacity building; research; funding; technology transfer; and the repatriation of information’.135 These endeavours support participation, allow 129 130 131 132 133 134

Ibid s 5.15. Ibid s 6.20. Ibid s 9.28. See also ibid, s 3.6, Annex iii, Conservation Plan, Objective E. cbd (above n 16) art 7. Ibid art 26. Convention on Biological Diversity, ‘Ad Hoc Open-ended Working Group on the Review of Implementation of the Convention (wgri)’ accessed 12 October 2016. 135 Gregory Rose and Lal Kurukulasuriya, Compliance Mechanisms under Certain Multilateral Environmental Agreements (unep Division of Environmental Law and Conventions 2007) 48.

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for sharing of best practice, and raise awareness around the important protections needed conservation-based measures. An example of a relevant tool that illustrates how these provisions have been implemented is the National Reports Analyzer.136 Ultimately, the cites and cms treaty regimes only provide responses for a very distinct context and in relation to a very small number of shark species. As the listed species are those most endangered, such additional protection is undoubtedly warranted. Yet the cms example, as well as the cbd, reflect a lack of formal compliance mechanisms and predominantly seem to rely on monitoring and dialogue through meetings to facilitate the implementation of the treaty requirements. The current under-developed, or soft, status of compliance mechanisms available under the cms and cbd further underline the need to consider more creatively how international obligations for area protection may be better implemented and enforced. 5

Dispute Settlement Options

In the event that disputes arise between states as to the conservation and management of sharks, there would be a variety of dispute settlement options open to those states depending on the precise claims being asserted. The constituent instruments of the rfmos typically have their own dispute settlement mechanism should disagreement arise as to the interpretation or application of the treaty.137 As discussed, claims of non-compliance with cms or cites would be handled under those particular regimes.138 States could seek 136 cbd, National Report Analyzer, accessed 24 October 2016. 137 The consequences of using these dispute settlement mechanisms were starkly demonstrated during Australia and New Zealand’s dispute with Japan over an experimental fishing program Japan conducted in relation to southern bluefin tuna. Australia and New Zealand sought to use the dispute settlement regime under unclos, which is discussed further below, but the arbitral tribunal determined that it lacked jurisdiction because of the consent-based mechanism that was established within the relevant rfmo, namely the Commission for the Conservation of Southern Bluefin Tuna. For discussion, see Tim Stephens, ‘The Limits of International Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case’ (2004) 19 International Journal of Marine and Coastal Law 177; Alastair Cameron, ‘Is there Hope for the Fish?: The PostArbitration Effectiveness of the Convention for the Conservation of Southern Bluefin Tuna’ (2007) 15 nyu Environmental Law Journal 247. 138 cms and cites both provide for disputes to be resolved through negotiations, or referred to arbitration if both parties consent. cms (n 15) art xiii; cites (n 14) art xviii.

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to ­resolve disputes under the panoply of measures set out in Article 33 of the un Charter, which range from negotiation and mediation to arbitration and adjudication, as well as anticipating states utilising regional arrangements or any other peaceful means. Every member of the United Nations is also a party to the Statute of the International Court of Justice (icj) and may seek to establish jurisdiction under the Court’s Statute for a particular international law dispute. States have previously turned to the icj for the resolution of fisheries disputes when coastal states have sought to prevent foreign fishing fleets from accessing their waters.139 More recently, Australia successfully challenged Japan’s scientific whaling program in Antarctic waters as a violation of the International Convention on the Regulation of Whaling.140 While the icj has thus contributed to the resolution of disputes concerning marine living resources, it only has jurisdiction over inter-state disputes,141 and only when those states consent to the Court’s jurisdiction.142 It will often be the case that disputes relating to sharks will implicate the rights and duties set out under unclos or the 1995 Fish Stocks Agreement. If a dispute arises concerning the interpretation or application of provisions of unclos or the 1995 Fish Stocks Agreement as they relate to the harvesting or management of sharks, states may resort to the procedures set out in Part xv of unclos.143 Under Part xv, states are required to seek the resolution of their disputes through an exchange of views,144 or through any dispute settlement procedures that may already be available to them.145 Once those efforts are exhausted, states party to unclos may resort to compulsory procedures entailing binding decisions. unclos sets out a choice of procedure for states, so a case may be referred to the icj, the itlos or arbitration.146 If states have not selected a preferred procedure, or they have chosen different procedures, ad hoc arbitration is the default mechanism available for disputes.147 The court 139 See, e.g., The Anglo-Norwegian Fisheries Case (United Kingdom v. Norway), Judgment, icj Rep. 1951 (December 18). 140 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, icj Rep. 2014 (March 31). 141 Statute of the International Court of Justice, art 34 (icj Statute). Consequently, non-state actors may not access the Court for any disputes against or concerning states. 142 The bases of consent are set out in Article 36 of the icj Statute. 143 1995 Fish Stocks Agreement (n 17) provides that unclos Part xv applies mutatis mutandis. 144 unclos (n 13) art 283. 145 Ibid arts 281, 282. 146 Ibid art 287. 147 Ibid art 287.

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or tribunal has jurisdiction over all disputes concerning the interpretation and application of unclos,148 as well as any other disputes that parties may agree to submit.149 There are some exceptions to the disputes that may be referred to compulsory procedures entailing binding decisions under unclos. Most notably, decisions taken by the coastal state in relation to establishing allowable catches and allocation of fishing rights are largely insulated from binding third-party review.150 In some limited circumstances, the dispute may instead be referred to conciliation.151 The result is that a state may not challenge the failure of a particular state to set sustainable catch levels for sharks within its own eez through litigation under unclos.152 The situation may be different when the shark species at issue is a highly migratory species or straddling stock. In that situation, there may still be scope for a dispute on a state’s conservation and management measures in relation to these stocks or species to be referred to compulsory procedures entailing binding decisions, unless the challenge relates to eez measures addressing migratory shark species.153 Alternatively, a dispute may arise whereby a fishing state seeks to challenge the decision of a coastal state to declare its maritime zones a shark sanctuary and impose a zero-catch quota with stringent penalties for vessels caught fishing unlawfully in these areas. In this situation, if a coastal state arrests a fishing vessel and does not promptly release that vessel upon payment of a reasonable bond, the flag state of that vessel may challenge the detention and the bond requirements under Article 292 of unclos before itlos. In this situation, the merits of any zero-catch quota are not put under review but just the procedure relating to the prompt release of the vessel upon payment of a reasonable

148 149 150 151 152

Ibid art 288(1). Ibid art 288(2). See ibid art 297(3)(a). See ibid art 297(3)(b). However, a coastal state can challenge unlawful fishing activities within its eez through compulsory arbitration or adjudication. The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Award, 12 July 2016 accessed 12 October 2016, para 695. The Philippines alleged that China was responsible for its unlawful fishing of sharks, but no distinct finding was made on China’s exploitation of sharks. 153 Chagos Marine Protected Area Arbitration (The Republic of Mauritius v. The United Kingdom of Great Britain and Northern Island), Award, 18 March 2015