Would the establishment of an International Sharks Commission make sense?

Introduction

In my post from 26 August (here) I showed that many of the world’s shark species face conservation concerns, based on data collected by the IUCN. This begs the question whether shark management and conservation efforts in its current form are sufficient or effective enough to ensure long-term conservation and sustainable use of these species.

Already in 2010, Herndon et al. published a paper in Marine Policy that called for the establishment of an International Commission for the Conservation and Management of Sharks (ICCMS) (Herndon et al., 2010; here). In that paper, the authors argue that such a Commission is sensible in order to ensure the longevity of sharks, but that certain issues should be avoided and/or implemented. As a comparative organisation they use the early days of the International Whaling Commission (IWC) from 1946-1960, the mistakes that were made then and how these mistakes should be avoided for an ICCMS.

In this post I will address a potential sharks commission. Contrary to Herndon et al., I would, however, be cautious to go down that route in light of the recent withdrawal of Japan from the IWC and increasing normative rifts in other regimes, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

The Status Quo in the IWC

The IWC was established in 1948 with the coming-into-force of the International Convention for the Regulation of Whaling (ICRW). While, in the beginning, it was considered a ‘whalers club’, i.e. an organisation that aimed to protected whales in order to make the whaling industry thrive, over time, and especially since 1982, it has developed into an organisation that has placed great emphasis on the protection of whales. This has gone in parallel with an ever-increasing membership from originally 10 to now 88.

Membership of the IWC, 1948-2019 © Nikolas Sellheim

The question over a complete halt on commercial whaling arose during the 1970s, which prompted quite a few states to join the organisation in order to achieve just that, i.e. to cast their vote in order to stop commercial whaling. This necessary 3/4 majority was finally achieved in 1982 when the zero-catch-quota was established (the so-called ‘Moratorium’) and which is still in place today. Whaling states such as Japan, Norway and Iceland, along with some other states, have consistently attempted to lift the moratorium, but have failed to garner the necessary 3/4 majority. This has led to a situation that many have termed a ‘deadlock’, because consensual decision-making on whaling and whale conservation has no longer been possible. In the end, one of the most prominent whaling states and one of the most financially supportive countries, Japan, left the IWC in 2019. An extensive body of literature on the IWC exists, which I will not reproduce here (e.g. Fitzmaurice, 2016; Friedheim, 2001; Stoett, 1997)

The problem of how to solve issues related to conservation and sustainable use (a term often used to describe the lethal utilisation of whales) has, however, not been resolved. Despite this, Norway and Iceland have, following the provisions of the ICRW, entered into reservations concerning the moratorium and are consequently still able to conduct commercial whaling. This possibility is criticised by Herndon et al. as a drawback of the current management system of the IWC, essentially rendering it ineffective.

The Status Quo in CITES

The situation in CITES has been different to the IWC, even though some similarities exist. Currently, CITES holds a membership of 183 states, making one of the most global environmental treaties that exist.

Membership of CITES, 1974-2016 © Nikolas Sellheim

CITES does not allocate quotas and is not concerned with the management of species, which are listed on its Appendices. Instead, it is concerned with the control and/or prohibition of trade in endangered species, their body parts or other produce deriving from them. Whether this approach is effective, has been subject to debate (e.g. Wyatt, 2021). Nevertheless, due to its global character and because the convention has been rather restrictive as well as proactive (precautionary), it has been hailed as one of the most successful biodiversity treaties in existence.

While that may be so, the convention’s work has not been without controversy. For instance, the discussions surrounding the split-listing of different populations of the African elephant (Loxodonta africana) has led to significant disagreements between parties. Similarly, proposed resumption of trade in rhino horn or the listing of shorfin mako sharks (Isurus oxyrinchus) and longfin mako sharks (Isurus paucus) onto Appendix II have proven not to be universally supported (e.g. Sellheim, 2020). Reasons for this lie, on the one hand, in the decision-making structure, which require a 2/3 majority to make amendments to the Appendices; and, on the other hand, in the way the precautionary principle is applied vis-à-vis existing scientific data.

This fact has, similarly as in the IWC, cause quite some uproar and emotional statements during the conferences of the parties. After all, states that do not accept a certain decision by the majority of the parties still have to obey this decision. This, in the end, rather resembles a legislative body with states acting as political parties rather than a body of international environmental governance, aiming for consensus.

Lessons for an International Sharks Commission?

Herndon et al. draw several conclusions out of their analysis of the IWC and their proposed ICCMS. First, their idea is to establish a majority-based decision-making structure, yet with the possibility for trade-offs for those having voted against the majority view. A compensation scheme might be a possibility for those states that experience economic disadvantages because of a decided measure. Another option might be an ‘objection fee’ for those states objecting to majority decisions in order for them to evaluate the necessity to object. In my view, this would cause major democratic deficiencies, because it would economically force developing states into subjecting to majority opinion.

The authors Also call for the establishment of several sub-units within a proposed Sharks Commission. First and foremost, an independent Secretariat should be established right from the beginning – an issue that the IWC failed to do until the 1970s. However, other bodies, such as CITES or the Bonn Convention on Migratory Species (CMS), do, in fact, have such Secretariat. But in CITES, even though the Secretariat either supports or objects to amendments to the Appendices, these recommendations are not always followed. The Appendix-II-listing of mako sharks is a case in point here (Sellheim, 2020).

The interaction with the epistemic community is another call for action in case a Sharks Commission is being established. While I would certainly agree, this does not address the question of the normative status of scientific data vis-à-vis other criteria. For instance, in CITES it is biological criteria and trade criteria which are to steer the decision-making process. In the IWC, recommendations by the Scientific Committee, which in the early 1990s even found that certain whale populations could withstand a limited commercial hunt, are often disregarded since here the normative role of whales – or their ‘unexploitability’ – have, up to this day, prevented the lifting of the moratorium. If the decision-making process or the degree to which the proposed Sharks Commission were to issue management decision was to be fully based on science, an automatic inclusion in the protective measures based on the status within the IUCN Red List would appear reasonable. Or to put it more simply: if the status of a shark species were to reach the status of ‘vulnerable’ or ‘near threatened’, this would prompt automatic policy responses by the Sharks Commission. A call similar to this was uttered by Frank & Wilcove concerning whales and their inclusion in CITES Appendix I and II (2019, p. 688):

The ultimate goal should be to create a near-automatic pathway by which unprotected species identified by the IUCN as threatened by international trade receive a prompt vote for inclusion in CITES Appendix I and II.

From purely science-based perspective, this would certainly make sense. However, as is the case with whales or elephants, not all sub-populations are equally affected by anthropogenic disturbances. Hence, this would be a sweeping mechanism that places, for instance, a sub-population experiencing no anthropogenic threats in one part of the world under the same level of protection as the sub-population facing conservation concerns. The resource users, even though one may act sustainably while the other doesn’t, would be equally affected, consequently rendering this option rather pointless, making it prone to controversy.

Lastly, and probably most importantly, would the establishment of a Sharks Committee make sense bearing the current state of affairs in mind? After all, in my view, the focus on species appears to be somewhat outdated, because the ecosystem-approach is gaining more and more momentum in international environmental governance. This means that it is no longer individual species that are protected, but rather the ecosystems, including all species, in which they live. Especially in light of the currently negotiated Agreement on Biodiversity Beyond National Jurisdiction (BBNJ) under the United Nations and the Law of the Sea Convention, the sole focus on sharks might miss its mark: after all, the BBNJ Agreement places great emphasis on the role of marine protected areas (MPAs) and thereby no-take-zones and -seasons. Whether or not that is the right way to achieve conservation of biodiversity is a different matter. However, this method appears to correspond to the prevailing zeitgeist of international environmental decision-making. As Hoyt has shown, MPAs as well as specific sanctuaries for sharks have proven to be a rather effective tool to rebuild depleted populations (Hoyt, 2014).

Conclusion

With all of the above in mind, to me it does not appear reasonable – at least at the present stage – to establish a Sharks Committee. I would fear that an organisation that resembles the IWC or CITES would start to face similar problems in the longer run, irrespective of the way that is being chosen. Even with the existence of an independent secretariat problems would not necessarily be solved. Also pure reliance on science would cause problems in implementing the regime’s provisions.

It would therefore appear more reasonable to strengthen existing regimes – especially regional fisheries management organisations (RFMOs) and their regulations on sharks – and place sharks more prominently on the agendas of regimes such as the Convention on Biological Diversity or the BBNJ Agreement. Another option would also be to draft a binding sharks agreement under the aegis of the Bonn Convention, where, currently, only a non-binding Memorandum of Understanding on sharks exists. Moreover, biodiversity-related provisions in other regimes – and maybe even with a focus on sharks – that deal with marine pollution could be strengthened while agreements such as the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, which entered into force in June 2021, could include specific provisions on sharks in the longer run.

References

Fitzmaurice, M. (2016). Whaling and International Law. Cambridge: Cambridge University Press.

Frank, EG. & DS. Wilcove (2019). Long delays in banning trade in threatened species. Policy Forum. Science 363 (6428): 686-688.

Friedheim, R. (Ed.) (2001). Toward a Sustainable Whaling Regime. Seattle: University of Washington Press.

Herndon, A., VF. Gallucci, D. DeMaster & W. Burke (2010). The case for an international commission for the conservation and management of sharks (ICCMS). Marine Policy 34: 1239–1248.

Hoyt, E. (2014). The Role of Marine Protected Areas and Sanctuaries. In: Techera, EJ. & N. Klein (Eds.), Sharks. Conservation, Governance and Management, pp. 263-285.

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.

Stoett, PJ. (1997). The International Politics of Whaling. Vancouver: UBC Press.

Wyatt, T. (2021). Is CITES Protecting Wildlife? Assessing Implementation and Compliance. Abingdon: Routledge.

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