Fragmented governance: Reconciling legal strategies for shark conservation and management

Fragmented governance: Reconciling legal strategies for shark conservation and management

Marine Policy 35 (2011) 73–78 Contents lists available at ScienceDirect Marine Policy journal homepage: Fragmented g...

154KB Sizes 0 Downloads 0 Views

Marine Policy 35 (2011) 73–78

Contents lists available at ScienceDirect

Marine Policy journal homepage:

Fragmented governance: Reconciling legal strategies for shark conservation and management$ Erika J. Techera, Natalie Klein n Centre for International & Environmental Law, Macquarie Law School, Macquarie University, NSW 2109, Australia

a r t i c l e in fo


Article history: Received 2 July 2010 Received in revised form 13 August 2010 Accepted 14 August 2010

Sharks play a critical role in the ocean environment yet many species are under threat. Over the last ten years, the international community has taken significant steps to protect shark species and address the threats to them through the adoption and implementation of international laws, plans and programmes. Nevertheless, despite the attention given to this issue, many shark species continue to deteriorate in numbers. While the reasons for this decline are complex and varied, regulatory fragmentation is one contributing factor. Legal regulation is a critical element in achieving effective conservation and management of sharks. This article considers the international laws, plans and programmes that seek to conserve shark species, explores the current fragmented regime and outlines possible strategies to overcome this challenge and enhance shark protection in the future. & 2010 Elsevier Ltd. All rights reserved.

Keywords: Sharks Environmental governance International law Marine conservation Ecosystem based fishery management

1. Introduction There are at least 400 species in the class Chondrichthyes, which evolved 400 to 450 million years ago [1]. Shark1 species are found almost everywhere in the world with a diverse array of habits and habitats. They may be highly migratory or have a narrow range and live in shallow or deep water, and may be pelagic or bottom dwelling.2 Some are apex predators,3 and others are themselves eaten.4 Sharks are usually scavengers and therefore play an important part in consuming dead and weaker members of other species [2]. Deterioration of shark numbers affects the stability of the entire marine system [2,3], and in particular vulnerable ecosystems such as coral reefs.5

$ A previous version of this paper was presented by the authors (as two presentations) at the Sharks International Conference in Cairns, Australia, in June 2010. It has not been previously published, or submitted elsewhere for consideration for publication. n Corresponding author. Tel: +61 2 9850 9931; fax: + 61 2 9850 7686. E-mail addresses: [email protected] (E.J. Techera), [email protected] (N. Klein). 1 Here the term ‘shark’ is used to refer to the entire class of chondrichthyes and includes sharks, rays, skates and chimaera. 2 Examples of shallow water sharks are the grey nurse, the hammerhead, the sandbar, the great white and the tiger shark. Pelagic sharks include shortfin makos and whale sharks. Deep water sharks include catsharks, goblin sharks and megamouth sharks. 3 Such as the great white shark and shortfin mako. 4 Such as by whales, killer whales and larger sharks. 5 For example, sharks consume groupers which in turn feed on algae-grazing parrotfish. When shark numbers decrease the grouper numbers increase and

0308-597X/$ - see front matter & 2010 Elsevier Ltd. All rights reserved. doi:10.1016/j.marpol.2010.08.003

There appears little doubt that many shark species are declining in numbers [5–7]. What is also clear is that data is incomplete for many species and their status is largely unknown [8]. Catch statistics have generally been inadequate to assist with the management of individual species [9–11]. Nevertheless, it is well known that shark species are particularly vulnerable to over-exploitation and are also susceptible to collapse because they tend to be slow growing and late maturing with low reproduction rates [12,13]. This is particularly so for the larger species [14]. Sharks are impacted by the same environmental degradation that affects many species: habitat loss, ecosystem impacts, climate change. More particularly they are under threat from over-fishing as a target species (for meat and fins) or as a nontarget but commercially valuable harvest or as bycatch [15,16].6 The shark market has grown considerably in recent decades, particularly in relation to fins [13,14]. Regulatory efforts are one way to improve the conservation and management of sharks, and these have been pursued at the local, national, regional and international level. As this article will explain, this layered approach presents both problems as well as positive opportunities. For many years, the vulnerability of shark species was not addressed at the international level. However, particularly in the last 10 years, efforts have been made to put

(footnote continued) consume more parrotfish. Without the parrotfish the growth in algae stresses coral reef areas [4]. 6 Bycatch is defined here to include situations where species are not targeted but when caught are either retained or discarded.


E.J. Techera, N. Klein / Marine Policy 35 (2011) 73–78

laws and plans into place for shark management. At the national level, on the one hand, there is an opportunity for states or communities to tailor conservation measures to respond to the particular behaviour and habitats of certain shark species, as well as cater to local fishing interests or cultural practices. On the other hand, in the absence of local or national action, the regional and international regimes have permitted gaps in regulation, resulting in poor implementation and hence inadequate conservation efforts. For an effective regulatory approach to shark conservation and management, there must be interaction between the different levels of law-making to create an appropriate blend of consistency and scope for targeted action where needed, while still ensuring that the measures put in place enhance efforts to conserve and manage shark species. Equally, the different management tools relied upon, such as protecting habitats, controlling catch quantity and trade measures, may further cause gaps or overlaps for shark protection. These efforts should also be harmonised. In this article, the international legal regime will be examined, with a focus on the international environmental laws and fisheries regulations relevant to shark conservation and management as well as the International Plan of Action adopted by the Food and Agriculture Organization (IPOA-Sharks), which has provided the impetus (or not) for regional and national plans of action. The synergies and voids that have occurred through shark management and conservation efforts at the different levels of law-making are then explored, and an analysis of the fragmentation that exists in the current governance regime is provided. From this understanding, preliminary recommendations are made in relation to areas in need of reform if regulatory responses are to be an effective tool in protecting sharks.

2. The international legal regime The international laws that protect and manage sharks can be divided into several categories: conservation approaches that include listing of specific species and requiring habitat protection, as well as fisheries regulations. Each of these is considered below. 2.1. Conservation—listing of species There are two main international treaties that create mechanisms to protect certain endangered or threatened species on an inter-state level. The Convention on the International Trade in Endangered Species and Wild Fauna and Flora (CITES) provides a means for states parties to control or prohibit international trade in threatened or endangered species.7 There is a constant tension in this regime between interests in trade with those of conservation, and there have been particular challenges in relation to exploitable marine species being listed because of the high commercial stakes involved. Parties to CITES decide whether species should be listed in one of three Appendices. Appendix I is reserved for species threatened with extinction and prohibits international trade in these species (including their body parts),8 unless there are exceptional circumstances.9 States are able to enter reservations to the listing of a species, but even in this situation, the trade of the species must be conducted 7 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’). 8 Article I refers to ‘any readily recognizable part or derivative thereof’. CITES, article I(b)(ii). 9 These circumstances required 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 minimize risk of damage or injury; and an import permit was obtained. CITES, article III(2).

consistently with the requirements of a species listed in Appendix II.10 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. At present, three shark species are listed in Appendix II: the great white, basking and whale sharks. A small number of states have filed reservations to the listing of these shark species.11 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’.12 At the 2010 CITES Conference in Doha, proposals were submitted to list an additional eight species of sharks on Appendix II,13 but these were unsuccessful. The same approach of listing species to enhance conservation and management is followed under the Convention on the Conservation of Migratory Species of Wild Animals (CMS).14 Migratory species are listed in Appendix I to the CMS if they are endangered throughout all or a significant proportion of their range.15 Once listed, states 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.16 A listing in Appendix I of the CMS 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. The three shark species protected under CITES are afforded Appendix I protection under CMS: the basking, great white and whale sharks. A listing under Appendix II of CMS requires range states to enter into agreements with each other for the benefit of the species.17 Four shark species listed in Appendix II are: spiny dogfish, porbeagle, shortfin mako and longfin mako. Under the auspices of the CMS, states adopted in 2010 a Memorandum of Understanding (MoU).18 The fundamental principles in Section 3 of the MoU highlight the need for cooperation among governments, international organisations, non-governmental 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 MoU. Another fundamental principle of the MoU is the ecosystem and precautionary approach. Further sections of the MoU address the objectives of conserving and managing migratory sharks and outlines measures that may be taken to meet these objectives. A Conservation Plan is to be attached – once it is finalised – to the MoU as a separate annex. Although non-binding and with limited species coverage,19 the


CITES, April 19–30 1983, Effects of Reservations, Conference 4.25 [17]. 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. 12 CITES, article II(3). 13 The species proposed for listing were: the porbeagle shark, white-tipped shark, scalloped hammerhead great hammerhead, smooth hammerhead, spiny dogfish, sandbar shark and dusky shark. 14 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). 15 CMS, article I, para 1(e); article III, para 2. 16 CMS, article I(1)(h). 17 CMS, article IV(3) and article V. 18 For an overview of the final negotiations and adoption of the MoU, see [18]. 19 The MoU only applies to the sharks listed in Appendices I and II of the CMS. Even then, there was some doubt during negotiations that the species included in Appendix II would be covered by the MoU [18]. 11

E.J. Techera, N. Klein / Marine Policy 35 (2011) 73–78

MoU serves to illustrate some of the measures that need to be in place to improve shark conservation and management. The CMS and CITES both provide important tools to improve shark protection at the international legal level in focusing conservation and management efforts for the limited shark species that are recognised as threatened with extinction or are endangered. 2.2. Conservation—habitat protection Critical at the international level for habitat protection is the Convention on Biological Diversity (CBD), which envisages both in situ and ex situ conservation, including the establishment of protected areas.20 The CBD takes a holistic ecosystem-based approach, incorporating integrated and adaptive management techniques and rigorous scientific methodologies. There is a large body of literature supporting the efficacy of a marine protected area (MPA) to conserve fish stocks [16,19,20]. It is suggested that this mechanism may be the most suitable in part because it is easier to restrict access than to control the size of catch [19], and this dimension would be particularly relevant to addressing bycatch issues [14]. 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. In relation to MPAs, it must be noted that almost all are limited to one jurisdictional zone. This administrative arrangement is not necessarily supported by science. Many highly migratory shark species cross different maritime zones. Even the less migratory are likely to move in and out of territorial waters and exclusive economic zones (EEZ). There is a clear need to integrate science and law in terms of the placement of MPAs, and in considering the placement of networks of MPAs (to account, for example, for different breeding grounds and nursery areas). As noted above, more species specific data is needed; studies in philopatry of particular species will assist in identifying critical habitats that should be afforded legal protection. 2.3. Fisheries regulation The starting point for fisheries regulation at the international level is the UN Convention on the Law of the Sea (UNCLOS),21 and the 1995 Fish Stocks Agreement.22 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 EEZ, a zone extending 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.23 In relation to straddling stocks and highly migratory species, UNCLOS imposes duties on states to cooperate either directly or through international organisations.24 On the high seas, states are also to cooperate in the conservation and management of living resources in exercising authority over vessels that are flagged to them. These obligations apply to all fish species. 20

CBD, article 8. 21 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). 22 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, opened for signature 5 December 1995, 34 ILM 1542 (entered into force 11 December 2001). 23 UNCLOS, article 62. 24 UNCLOS, articles 63 and 64.


The 1995 Fish Stocks Agreement elaborates on the basic rights and obligations set forth in UNCLOS in relation to the fishing of highly migratory species on the high seas. Considerable emphasis is placed on the role of regional fisheries management organisations or arrangements, 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. It must be noted at the outset that there is no regional organisation that has been established to address shark conservation and management. Instead, some of the regional tuna fisheries organisations have considered shark regulation given that sharks constitute a significant byproduct of or bycatch in tuna fisheries.25 Difficulties associated with these regional measures include limited species coverage, non-binding obligations, lack of clarity on finning practices and prohibiting targeted fishing operations against sharks but not addressing bycatch issues [21]. These issues are compounded by the gaps and inconsistencies across the different organisations in the steps they are each taking in relation to shark management. 2.4. International plan of action for sharks A vital complement to these conservation and management regimes established by treaty is the International Plan of Action for the Conservation and Management of Sharks (IPOA-Sharks), which was adopted by the FAO Committee on Fisheries in 1999. The IPOA-Sharks is a voluntary international instrument. In essence, it calls upon states to develop national plans of action (NPOAs) for the conservation and management of sharks. It covers both target species and bycatch,26 and applies to states whether sharks are caught in their waters or elsewhere by their nationals. The IPOA-Sharks comprises principles, objectives and implementation procedures to achieve this goal, and includes suggested contents for national shark plans and assessment reports.27 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, assessment and reporting, sustainable use of target species and full utilisation of dead sharks.28 The IPOA-Sharks addresses shark conservation and management in a more comprehensive way than is achieved in the treaties previously discussed in this part. One of its core problems, from a legal perspective, is that it does not create binding rights and obligations on states, because it is not a treaty or ‘hard’ law. Instead, it serves as a framework for regulatory action at the regional and national levels. The uptake at the national level has been slow, as is discussed further below, but notable developments are the adoption of a regional plan of action in the South Pacific, and a proposed plan of action to be adopted by the European Union. This interaction at international, regional and national levels contributes to the problem of fragmented governance, which is next addressed.

3. The fragmented governance regime It is clear from the above that the current regime for the protection of sharks has not evolved holistically. Its evolution has, to a great extent, been reactionary resulting in both horizontal and vertical fragmentation. In addition, each of the existing 25

For a summary of the measures, see [21]. IPOA-Shark, paragraph 4. 27 IPOA-Shark, Appendices A and B, respectively. See also IPOA-Shark, paragraph 22. 28 IPOA-Shark, paragraph 22. 26


E.J. Techera, N. Klein / Marine Policy 35 (2011) 73–78

international laws has weaknesses and gaps. These issues must be addressed if the international regulatory framework for shark conservation and management is to be effective.29 Horizontal fragmentation has occurred because laws have been developed within both the environmental conservation and natural resource management areas. Essentially there is an underlying tension between conservation efforts in environmental laws and the utilisation focus of fisheries regulations. This fragmentation is compounded by the lack of uniformity at the national level. While some countries have implemented laws and policies to conserve and manage sharks these provide different approaches and levels of protection. This dissonance is problematic because it is known that many species travel through different state waters.30 Therefore if one range state has weaker laws, this may undermine conservation and management efforts in another. Vertical fragmentation results from legal approaches that are divided between, and in some cases duplicated at, different levels of governance including the international, regional, national and local jurisdictions. International law provides a framework, albeit with weaknesses that are considered further below, that relies heavily on regional and national implementation. However, little assistance is provided for building capacity at the state level. For example, many countries struggle to implement international law in multi-jurisdictional or legally pluralist contexts. The international regime could provide much greater guidance and facilitate the sharing of best practice regulatory options to overcome these issues. Lastly, little attention is paid to the local level and those that rely upon marine species for food and livelihoods. Some community-based fisheries management projects have proven successful.31 If these are to be scaled up to deal more effectively with marine management issues in the future, then they must be integrated with national and regional regimes. Furthermore, despite a number of pieces of international law, weaknesses and governance gaps remain. CMS and CITES provide the only ‘hard’ law obligations in this area, but their scope of operation is limited and even those protections are only available to a very small number of shark species. The CBD sets out broad goals of conserving and sustainably using species but its wording is ‘soft’, permitting states a wide scope of action, or inaction. UNCLOS obligations are general only and the FAO IPOA-Sharks is voluntary. Gaps exist particularly in relation to high seas governance where state control is at its weakest. Furthermore, there is a lack of international law for habitat conservation of nonmigratory sharks. Finally, there are also loopholes associated with particularly destructive practices such as shark finning, which is not universally banned or even consistently regulated [15].

4. The possibility of harmonisation From a legal perspective, this fragmentation does not appear to be inevitable. There are a number of common factors between the various regimes and different levels of governance that favour a more harmonised approach. First, both conservation and fisheries laws have an underlying goal of sustainability and this principle has been incorporated into various of the laws considered in Part 2.32 Secondly, the actors and key stakeholders involved in the 29 The need for integration has been examined by Underdahl [22], and includes a call for horizontal and vertical consistency. See also [23]. 30 For example, the whale shark [24]. 31 For example, the Locally Managed Marine Area Network operating in the South Pacific [25]. 32 E.g. IPOA-Sharks, paragraph 16; CMS MoU, Section 3; 1995 Fish Stocks Agreement, article 6.

various governance frameworks are the same. At the international and regional levels, the primary decision-makers are states. At the lower governance levels, non-state actors have greater input and their involvement in decision-making percolates up to influence the policy position of states. Increasingly, the views of scientists and conservation advocates are feeding directly into international and regional fora. Yet perhaps most importantly for this article, the legal tools utilised in each regulatory environment and at every level of governance are common. For example, both conservation and fisheries laws use geographically based management tools. In conservation terms, marine protected areas or reserves are designated with restrictions placed on the use that can be made of those sites. In the fisheries sector, zones restrict harvesting effort and distinctions may be drawn between, for example, commercial, recreational and indigenous fishing areas. A further example involves species restrictions that are used in all regimes. In conservation, species are identified as endangered and protected through a listing process. In fisheries, species may also be controlled by listing with controls being placed on the size and quantity that may be harvested. In addition technical measures are used to further restrict behaviour, equipment regulations and seasonal closures for example. None of these tools is novel; the challenge today is to identify the most effective mix of regulatory options for each country and species.

5. Addressing weaknesses in existing international law Most importantly, the tension between conservation and fisheries regimes must be addressed. A first step in this process is engagement with the issue, rather than attempts to maintain artificial silos,33 and the identification of synergies between existing systems of governance. This involves ensuring that there is a forum for communication and cooperation between the various actors. In many cases, the specific bodies involved in these governance issues have been separate and worked apart from each other. For example, at the international level, the FAO is the UN body with responsibility for fishery issues. In terms of conservation, it has been UNEP that has taken a lead role complemented by the various treaty bodies. This has led some commentators to call for the establishment of an international commission for the conservation and management of sharks [26]. At the national level, fisheries management often falls under an entirely different ministry and departmental structure to environmental conservation. Therefore, in order to facilitate cooperation, spaces must be identified for these actors to come together. Such a forum must also provide for cross-disciplinary communication between, for example, scientists, law- and policymakers and economists all of whom are critical in ensuring the integration of environmental, socio-cultural and economic concerns. This leads to the second principal weakness, the lack of reliable and comprehensive data in relation to species, habitats, catch and trade of sharks. The lack of scientific information in relation to specific shark species hampers both sustainable fisheries and conservation efforts. It can be seen from the IUCN Red List [27] that there is little or no data for many species.34 The FAO does 33 An example of this may be seen in the decision at the 2010 CITES conference to retain the question of northern bluefin tuna within the relevant regional fisheries management organisation. 34 For example the silver shark is listed as endangered but with the data ‘needing updating’. Many species are listed as ‘unknown’ or ‘data deficient’. See also the publications by TRAFFIC. o at 2 July 2010.

E.J. Techera, N. Klein / Marine Policy 35 (2011) 73–78

collect data, which is available on the FAO Fishstat Capture Production Database [28]. But the information issue is compounded for sharks by the lack of specificity in the current reporting of harvesting and bycatch.35 Furthermore, the reason for fluctuations from year to year is difficult to determine.36 At all levels of governance, monitoring and enforcement of shark regulation remain significant issues, and pose similar problems vis-a -vis other commercial fisheries. Incentivising compliance is also an important issue and in this context research in relation to attitudes towards sharks is essential. Wherever possible, cultural drivers, local knowledge as well as governance options should be utilised. For example, ecotourism could be a means to increase awareness of the conservation status of sharks and provide alternatives to the harvesting of sharks.

6. Strengthening the IPOA-Sharks The IPOA-Sharks addresses the limited coverage of shark species under CITES and CMS. The strength of its approach is that it is comprehensive as it considers the multiple pressures placed upon sharks and in theory applies to all species. Three areas of weakness can be seen: it is only voluntary, its implementation is patchy and there is no consistency between the NPOAs that have been implemented by states [11]. To date only 14 countries have developed plans [29].37 While the IPOA-Sharks requires states to report on the progress of the assessment, development and implementation of shark plans38 it is unclear whether this has been done.39 To address these issues it may be possible to develop a legally binding compliance agreement. This approach was taken in relation to the voluntary Code of Conduct for Responsible Fisheries [32], which was subsequently followed by the FAO Compliance Agreement [33]. However, given that few countries have undertaken shark assessment reports and developed NPOAs, a first step will be to encourage broader compliance by states. One of the reasons for the poor uptake may be that the development of NPOAs is just ‘too hard’. In order to overcome this, the FAO could also consider drafting a ‘model’ NPOA or a range of options from which states can choose that suit their particular circumstances. Again a similar approach was taken by the FAO in developing the Model Scheme on Port State Measures to facilitate compliance with the FAO International Plan of Action to combat illegal, unreported and unregulated fishing [34]. In the longer term the FAO could establish an online database of NPOAs to facilitate the sharing of best practice.40 35 Lack and Sant [12] report that only 20% of shark catch data reported to the FAO is on a species basis. The data that is available often simply indicates the gross shark catch in tonnages, which is of limited informational value in designing regulatory tools to conserve and manage individual species. See for example FAO Yearbook 2006, Fishery and Aquaculture Statistics, which reports under one category ‘sharks, rays and chimaeras’. 36 For example, if the total catch decreases, this could be because there is a decline in species numbers, deterioration of reporting, improvements in the identification of species, successful implementation of regulatory measures, or a combination of all of the above [12,13]. 37 However, this figure may be inaccurate. In 2009, it indicated that 50% of ‘members’ had conducted assessment of the need for an NPOA for sharks and 90% of ‘members’ had developed and implemented NPOAs [30]. Given that there are more than 170 members of FAO signed up to the Code of Conduct for Responsible Fisheries, it may be that other states have not passed on their NPOA to FAO and therefore it is not on the website. 38 IPOA-Sharks, paragraph 28. 39 Reporting is required to be done biennially as part of the reporting on the Code of Conduct for Responsible Fisheries. While the FAO includes annual progress reports on its website, none contain specific reference to the contents or effectiveness of NPOAs [31]. 40 Again this has been done in relation to illegal, unreported and unregulated fishing [35].


7. Conclusion Legal regulation is a critical element in achieving effective conservation and management of sharks. In order to improve the governance regime it is necessary to overcome the fragmentation identified above. Top-down standard setting through international law remains important. But equally critical are mechanisms for local to global information exchange. A cooperative information exchange takes on considerable importance when it is recalled that reliable data is essential for the formulation of appropriate regulatory tools at all levels of governance. The absence of necessary data should not be the foundation for a failure to act [14]. Rather, precautionary approaches become appropriate and it is essential for regulatory mechanisms to be ecosystem-based. Any new or improved legal governance regime for sharks must be flexible. Regulatory mechanisms currently in place or developed in the future must be monitored on an ongoing basis. This practice is essential to determine whether the regulatory mix is achieving positive biodiversity outcomes. If not, then the measures must be reviewed. Furthermore, it is clear that much scientific research is being undertaken in relation to sharks, including work on species habitats, ranges and behaviour, as well as various human impacts upon sharks. As new information becomes available, this research must be taken into account and regulatory mechanisms such as marine protected areas and fishing restrictions, altered accordingly. Other disciplines remain relevant as well, including education and economics, in shaping a sustainable governance regime. It is acknowledged that multi-faceted approaches are needed but fragmented legal systems can lead to gaps, duplications in efforts, as well as overlapping regimes, which in turn result in conflicts. Coherent and comprehensive legal strategies are critical to ensure improved biodiversity outcomes and complement the efforts of all stakeholders in the sustainable conservation and management of shark species and their habitats. Undoubtedly much more research needs to be undertaken to explore the various legal options. Only by engaging with this need, and the issues articulated in this article, will the future of sharks be assured.

References [1] CBD. Biodiversity loss—it will make you sick. Available from; /http://www. [accessed 8 December 2009]. [2] Stevens JD, Bonfil R, Dulvy NK, Walker PA. The effects of fishing on sharks, rays, and chimaeras (chondrichthyans), and the implications for marine ecosystems. ICES Journal of Marine Science 2000;57:476–94. [3] Myers RA, Worm B. Rapid worldwide depletion of predatory fish communities. Nature 2003;423:280–3. [4] CBD Secretariat, Statement of Ahmed Djoghlaf Executive Secretary at the opening session of the ninth meeting of the conference of the parties to the Convention on Biological Diversity, Bonn, 19 May 2008. Available from; / [accessed 2 July 2010]. [5] Baum JK, Myers RA, Kehler DG, Worm B, Harley SJ, Doherty PA. Collapse and conservation of shark populations in the Northwest Atlantic. Science 2003;299(5605):389–92. [6] Myers RA, Baum JK, Shepherd TD, Powers SP, Peterson CH. Cascading effects of the loss of apex predatory sharks from a coastal ocean. Science 2007;315:1846–50. [7] Dulvy NK, Baum JK, Clarke S, et al. You can swim but you can’t hide: the global status and conservation of oceanic pelagic sharks and rays. Aquatic Conservation 2008;18:459–82. [8] Ahonen H, Harcourt RG, Stow AJ. Nuclear and mitochondrial DNA reveals isolation of imperilled grey nurse shark populations (Carcharias Taurus). Molecular Ecology 2009;18:4409. [9] Stevens JD, Bonfil R, Dulvy NK, Walker PA. The effects of fishing on sharks, rays, and chimaeras (chondrichthyans), and the implications for marine ecosystems. ICES Journal of Marine Science 2000;57:476–94.


E.J. Techera, N. Klein / Marine Policy 35 (2011) 73–78

[10] Levesque JC. International fisheries agreement: review of the International commission for the conservation of Atlantic tunas case study—shark management. Marine Policy 2008;32. 528-33 at 531. [11] FAO Yearbook. Fishery and aquaculture statistics. 2006. [12] Lack M, Sant G. Trends in global shark catch and recent developments in management. TRAFFIC International 2009. Available from; / species-reports/traffic_species_fish34.pdfS [accessed 20 November 2009]. [13] Abercrombie DL, Clarke SC, Shivji MS. Global-scale genetic identification of hammerhead sharks: application to assessment of the international fin trade and law enforcement. Conservation Genetics 2005;6:775–88. [14] Lewison RL, Crowder LB, Read AJ, Freeman SA. Understanding impacts of fisheries bycatch on marine megafauna. TRENDS in Ecology and Evolution 2004;19(11):598–604. [15] Lack M, Sant G. Confronting shark conservation head on! TRAFFIC International 2006. Available from; / [accessed 2 July 2010]. [16] Musick JA, Berkeley SA, Cailliet GM, Camhi M, Huntsman G, Nammack M, et al. Protection of marine fish stocks at risk of extinction. AFS policy statement. Fisheries 2000;25(3):6–8. [17] Edwards H. When predators become prey: the need for International Shark Conservation. Ocean and Coastal Law Journal 2006–2007;12:305–54. [18] Chiarolla C, Nyingi D, Sommerville M. 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: 8–12 February 2010. Earth Negotiations Bulletin 2010;18(40): / cms/sharks3/S [at 2 July 2010]. [19] Man A, Law R, Polunin NVC. Role of marine reserves in recruitment to reef fisheries: a metapopulation model. Biological Conservation 1995;71:197–204. [20] Banks SA, Skilleter GA. Implementing marine reserve networks: a comparison of approaches in New South Wales (Australia) and New Zealand. Marine Policy 2010;34:197–207. [21] Lack M, Sant G. Illegal, unreported and unregulated shark catch: a review of current knowledge and action. TRAFFIC April 2008. [22] Underdahl A. Integrated marine policy: what? why? how?Marine Policy 1980;4(3):159–69.

[23] Mossop J. The integration problem: challenges for international governance of oceans beyond national jurisdiction. In: Conference paper presented at 2010 annual meeting of the Australia and New Zealand Society of International Law. 25 June 2010. [24] Castro ALF, et al. Population genetic structure of Earth’s largest fish, the whale shark (Rhincodon typus). Molecular Ecology 2007;16:5183–92. [25] Techera EJ. Customary law and community based conservation of marine areas in Fiji. In: Pavlich D, editor. Managing environmental justice. Amsterdam/New York: Rodopi Press; 2010. [26] Herndon A, Gallucci VF, DeMaster D, Burke W. The case for an international commission for the conservation and management of sharks (ICCMS). Marine Policy 2010;34:1239–48. [27] IUCN Red List. Available from; / [accessed 2 July 2010]. [28] FAO Fishstat Capture Production Database. Available from; /http://www.fao. org/fishery/statistics/software/fishstat/enS [accessed 2 July 2010]. [29] FAO, International plan of action for the conservation and management of sharks. Available from; / [accessed 2 July 2010]. [30] FAO COFI Progress in the Implementation of the Code of Conduct for Responsible Fisheries, related International Plans of Action and Strategy March 2009, COFI/2009/2. [31] FAO, Code of conduct for responsible fisheries, monitoring. Available from; / [accessed 2 July 2010]. [32] FAO, Code of conduct for responsible fisheries. Available from; /http://www. [accessed 2 July 2010]. [33] Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas. Available from; / [accessed 2 July 2010]. [34] Model scheme on port measures to combat illegal, unreported and unregulated fishing. Available from; / a0985t/a0985t00.htmS [accessed 2 July 2010]. [35] FAO Database on Port State Measures. Available from; / fishery/psm/enS [accessed 2 July 2010].