Shark Management, NGOs and Environmental Policy-making

Introduction

In recent study on representatives of non-governmental organisations (NGOs) engaged in shark issues, Shiffman and others found out that it is especially small NGOs whose representatives do not engage with the scientific literature on shark management favour a ban on all shark fisheries. They consider this fishery inherently unsustainable. Even though the science in this regard is rather clear: that shark fisheries can be sustainable and that these fisheries also exist (Shiffman et al., 2021).

At the same time, most of the shark advocates in larger NGOs, especially those holding PhD and master degrees, agree with the state of science that shark fisheries are not necessarily unsustainable, but that not all of these fisheries are in fact sustainable. A noteworthy finding of Shiffman et al.’s study is furthermore that the prevailing number of shark advocates opposing shark fisheries stem from North America and from Europe and that in the developing world shark fisheries are supported.

In this post I will briefly depict the current international regimes protecting (or not) sharks and then explore the question of how the findings of the study could translate on the international conservation level.

International Protection of Sharks

Sharks belong to the class of Chondrichthyes, to which also rays, skates, sawfish and chimaeras belong. The IUCN Red List on Threatened Species includes all in all 1.200 species of this class with different population statuses, either of the entire species or its subpopulations: 528 are of least concern (LC) while 209 are data deficient (DD). 122 are near threatened (NT), 175 are vulnerable (VU), 117 are endangered (EN) and 86 are critically endangered (CR). A closer look reveals that the vast majority of species listed as CR, EN, VU and NT are experiencing population declines while slightly more than half of the LC-listed species are stable. Of all Chondrichthyes, merely 27 are increasing.

Internationally, several multilateral regimes exist that deal with the conservation and sustainable use of different shark species – albeit with different levels of success and obviously all in all not being very successful. Three of the most prominent ones are the 1976 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the 1979 Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention) and the 1982 UN Law of the Sea Convention (UNCLOS) with its 1995 Straddling Fish Stocks Agreement.

Seven shark species are listed on CITES Appendix II, which means that controlled and monitored trade in them is possible. I published a paper on the 2019-listing of mako sharks in Marine Policy in 2020 (here); All in all 40 species of sharks, rays and sawfishes are listed on Appendix I and II of the Bonn Convention, which means that they are either fully protected from exploitation and/or require extra conservation measures. That is why a Memorandum of Understanding (MoU) exists under the aegis of the Convention, exclusively dealing with sharks (Memorandum of Understanding on the Conservation of Migratory Sharks, here) that 49 Member States, including the European Union, have signed. The Sharks MoU furthermore cooperates with 12 NGOs.

Under the UNCLOS, parties are to conserve and ensure optimum utilisation of highly migratory species through ‘appropriate international organisations’ (Article 64). These species are listed in its Annex I and includes the bluntnose sixgill shark (Hexanchus griseus) and the basking shark (Cetorhinus maximus) as well as five shark families: thresher sharks (Alopiidae), whale sharks (Rhincodon typus), requiem sharks (Carcharhinidae), hammerhead sharks (Sphyrnidae) and mako sharks (Isurida; after the new classification scheme mako sharks belong to the family of Lamnidae ). The Straddling Fish Stocks Agreement, which has a membership of 90 states, including some of the most important shark fishing nations, essentially implements article 64 of the UNCLOS and places great emphasis on the role of Regional Fisheries Management Organisations (RFMOs, see here).

RFMOs are organisations that, generally, aim at the maximum sustainable yield of commercial fish stocks and they provide scientific data as well as management advice to the governments of their members. Without the need to go into detail, it suffices to say here that while managing commercial fisheries, RFMOs have also adopted several measures for the protection of sharks, such as live release, restrictions of fishing gears and different measures related shark finning.

Science. The Guiding Light for International Conservation Law?

The study by Shiffman et al. essentially circles around the question whether NGO shark advocates take into account the existing scientific literature when formulating their conservation actions. This means, in essence, that it is assumed that science serves – or at least should serve – as the fundamental basis for environmental decision-making. After all, most, if not all, international environmental regime do have some kind of scientific body or bodies, which take into account the available science. But as was shown, for instance, by Michael Heazle in regard to the International Whaling Commission (IWC), the application of scientific data is often subject to interpretation (Heazle, 2006). The rather recent case before the International Court of Justice (ICJ) concerning ‘scientific’ whaling activities in the Antarctic has demonstrated that such activities ‘for the purposes of science’ are more than blurry in their interpretation as it begs the fundamental question of what these purposes are and, consequently, what science in the end is (see Fitzmaurice & Tamada, 2016).

This is to say that even though the larger NGOs consider shark management in line with scientific findings, this does not mean that it automatically translates into science-based decision-making. As I showed in my article on mako sharks (Sellheim, 2020), from a scientific (read: conservation) perspective, there was no need to include mako sharks on Appendix II. Both the CITES Secretariat as well as the FAO expressed the lack of a scientific basis. Still, the two mako species were included nevertheless. This means that other factors must have played a role, which go beyond science.

Within CITES, science is but one factor to be taken into account. The other are trade criteria. However, based on Resolution 9.24 (Rev. CoP17) on the criteria for amending the appendices (here), the precautionary approach plays a fundamental role. And this puts the burden of proof onto those wishing to engage in a certain trade, while making it significantly easier for those fearing detrimental effects. There has been scholarly criticism towards this very prohibitive precautionary approach (e.g. Sunstein, 2003), but it appears as if on international environmental fora, this criticism has fallen on deaf ears.

Conclusion

With the above in mind it appears reasonable to assume that while Shiffman et al.’s findings are intriguing it their own right, translated into the decision-making arena I do not think that they will make a significant difference. Because also there oftentimes environmental NGOs as well as conservation- (preservation-)oriented decision-makers are guided by the most prohibitive precautionary principle. It is hard to imagine that an NGO such as Oceana would argue against the listing of a species on CITES Appendix I or II or on Appendix I of the Bonn Convention, just because science does not necessarily support this listing. Or could you imagine an NGO arguing against the plans of an RFMO to put the strictest no-use policy for a shark species into place even though this species could withstand (some) exploitation?

While not related to sharks, an interesting exception in this regard is, nevertheless, WWF Canada and their position on the commercial seal hunt in Atlantic Canada. In 2009 the organisation published a statement that it, despite the controversy surrounding this hunt (or ‘slaughter’, as many would put it), it does not explicitly oppose it since it does not constitute a threat to conservation (here). It boils down the a question of mandate then, I presume. Because, for instance, the International Fund for Animal Welfare (IFAW) in fact deals with animal welfare and not necessarily with conservation concerns. It consequently would seem odd it the organisation were to accept the seal hunt then (even though different studies on its welfare aspects exist).

Be that as it may, science, its interpretation and consequently its application in international environmental decision-making is far from being a clear-cut and straightforward issue. It remains to be seen which path International regimes are going to tread: increasing precaution, conservation or sustainable use? Or all of these approaches together?

References

Fitzmaurice, M. & D. Tamada (Eds.) (2016). Whaling in the Antarctic. The Significance and the Implications of the ICJ Judgment. Leiden: Brill Nijhoff.

Heazle, M. (2006). Scientific Uncertainty and the Politics of Whaling. Seattle: University of Washington Press.

Sellheim, N. (2020). The CITES appendix-II-Listing of mako sharks. Revisiting counter-arguments. Marine Policy 115. https://doi.org/10.1016/j.marpol.2020.103887

Shiffman, DS., CC. Macdonald, SS. Wallace & NK. Dulvy (2021). The role and value of sciencein shark conservation advocacy. Scientific Reports 11. https://doi.org/10.1038/s41598-021-96020-4.

Sunsein, CR. (2003). Beyond the Precautionary Principle. University of Pennsylvania Law Review 151 (3): 1003-1058.