Vol. 53-1 Recent Publications

Recent Publications

Kelsey Peden’s “Stuck in the Net: Promoting Global Shark and Ray Populations Through National Sustainability Import Laws”

Introduction

Shark and ray populations—known together with skates as “elasmobranchs”—have been on the decline over the past fifty years, subject both to high levels of intentional fishing and high levels of accidental catch.^[1] In January 2021, scientists from around the globe noted that some shark and ray populations were in danger of extinction, and therefore deserved strong legal protection from the international community.^[2] In her article “Stuck in the Net: Promoting Global Shark and Ray Populations Through National Sustainability Import Laws,” Kelsey Peden attempts to answer the question of how to achieve the necessary protection.[3] While noting the benefits of current international conservation and trade laws, she ultimately finds the existing international framework lacking.[4] Instead, Peden argues that the most promising avenue is for countries that she considers conservation-friendly, like the United States, to design their domestic trade laws in a manner that promotes sustainable seafood harvesting.^[5]

International and Regional Conservation Law

Peden paints a disappointing picture of the international conservation scheme for oceanic wildlife. While acknowledging that the United Nations Convention on the Law of the Seas (UNCLOS) and subordinate agreements include language that protects “highly migratory species,” which includes many elasmobranchs,  this language is broad and lacks specific goals or terms.^[6] Additionally, these agreements are largely voluntary and without specific enforcement provisions.^[7] Universal conservation agreements are ultimately the wrong avenue for shark and ray preservation, as continued unsustainable fishing practices have demonstrated.^[8]

Regional agreements and conventions like the Regional Fish Management Organizations (RFMOs) may be a more promising path forward. Promoted by UNCLOS and related agreements,^[9] these arrangements allow for intergovernmental cooperation on a more local level.^[10] However, much like the broader UNCLOS, these agreements face problems from nations that value profit over conservation.^[11] The inadequate measures taken to protect bluefin tuna at the regional level, for example, demonstrate that RFMOs are susceptible to recalcitrant member states that wish to maximize the profitability of marine life at the expense of sustainability efforts.^[12]

International Trade Law

Peden next turns to international trade law as a more productive avenue for shark and ray preservation.^[13] At the center of these sustainable international trade regulations is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).^[14] CITES works largely by classifying species into appendix groups, adapting the convention into national laws, and providing for enforcement.^[15] The level of protection afforded to species varies depending on which appendix they are placed in. Appendix I offers the most protection, with trade being generally prohibited outside of exceptional circumstances.^[16] Appendix II, the most populous appendix with 34,419 species listed, maintains less strict but still tight regulations on trade.^[17] Finally, Appendix III requires sellers to obtain a certification of origin to be eligible for trade.^[18] In addition to these specific guidelines, CITES also has enforcement provisions, including sanctions and the suspension of trade.^[19] Peden specifically looks at language in Article XIV of CITES, which allows nations to develop “stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II and II, or the complete prohibition thereof.”^[20] Through this language, Peden sees in CITES a way for party nations to engage in unilateral enforcement of the convention, providing the enforcement mechanism that is critically lacking in other conservation agreements such as UNCLOS and the RFMOs.^[21]

Unfortunately for sharks and rays, the author does not see CITES as a cure-all for elasmobranch protection. She notes that the first shark was not introduced to a CITES Appendix until 2003.^[22] While there are now forty-six shark and ray species listed in the CITES Appendices, the author notes the comparative paucity next to the nearly 1000 shark and ray species currently alive.^[23] Ultimately, she notes that this comes down to the same profit-motivation driving countries to block and obstruct other conservation efforts.^[24] While the author finds that “CITES’ emphasis on trade and preventing profit-based interests from harming endangered species is the most direct and effective approach to international ocean management,”^[25] she ultimately looks to other sources of law to supplement that regime and hopefully improve elasmobranch conservation.^[26]

Domestic Conservation Law

Lastly, turning to domestic law, the author sees significant promise for shark and ray conservation.  She notes that the U.S. has its own suite of fishing sustainability laws.^[27] For example, under the Federal Shark Conservation Act, shark finning has been largely banned within U.S. jurisdictions.^[28] The use of driftnets—the type of net most associated with the accidental catch of elasmobranchs—is similarly banned throughout most of the U.S.^[29] While these stricter laws are beneficial, the author notes that U.S. international trade law still has gaps that allow for the import of elasmobranchs with fewer protections than those provided by domestic law.^[30] Peden believes that filling these gaps in import restrictions can support shark and ray sustainability.[31]

Peden finds the use of domestic import restrictions particularly worthwhile since it leverages the U.S.’ outsized market power.^[32] As the author notes, the U.S. imported more than $20 million worth of seafood in 2016;^[33] by using domestic import controls, Peden believes that the U.S. can promote shark and ray preservation on a global scale. The author notes that the U.S. has already enacted promising import controls for some species under several pieces of legislation, including the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA).^[34] She finds the MMPA’s framework, which requires countries exporting fish to America to have equally strong marine mammal protections as the U.S., particularly interesting.^[35] Promisingly, some states have contributed to the conservation effort, with several including Texas, California, and New York having outright bans on the sale and possession of shark fins.^[36] Peden concludes that these import restrictions should be expanded to cover elasmobranchs and suggests several options: banning the import of elasmobranchs,[37] improving by-catch import regulations and labeling requirements,^[38] and increased supply chain monitoring.^[39]

The first path the author explores is banning the import of elasmobranchs, which she calls the “most simple and direct method of promoting elasmobranch population growth.”^[40] Peden notes that the U.S. was the unintentional middleman to between 650 and 772 tons of shark fin exports from 2010–2017, “accounting for as many as 1.29 million sharks.”^[41] The Shark Fin Sales Elimination Act, which would ban shark fin imports on a national level, represents a positive first step but has yet to be passed.^[42] Recognizing the existing double standard that shark finning is illegal domestically but importing those same fins is legal, the author promotes a dual-track solution: First, to pass a federal ban on elasmobranch import; second, to adopt a federal reciprocity requirement for elasmobranch imports similar to the protection marine mammals receive under the MMPA.^[43]

Next, the author explores improving by-catch regulations and labeling requirements. Identifying by-catch as one of the main sources of elasmobranch population decline, Peden examines several techniques that could be used to reduce by-catch.^[44] Calling for U.S. import laws to prioritize existing practices and technologies, the author recommends establishing an MMPA-like regime that mimics its mandate to ban seafood “caught with commercial fishing technology which results in the incidental kill or incidental serious injury” of protected animals in excess of U.S. standards.^[45] Additionally, the author recommends establishing a labeling regime similar to the one Congress enacted for dolphins in the Dolphin Consumer Protection Act.^[46]  While acknowledging that these kinds of labeling acts are unlikely to prevent the by-catch problem entirely, Peden contends that these efforts would be a worthwhile first step towards reducing the accidental death of sharks and rays.^[47]

Lastly, the author recommends imposing traceability requirements on imports to promote elasmobranch population growth.^[48] Currently, there is no way to know where most shark and ray imports are coming from or what methods were used to catch them.^[49] While some sharks and rays covered by CITES and the ESA do have traceability requirements, this covers only a minor portion of shark and ray species.^[50] Peden notes that setting up such a traceability system is critical to the success of any other import regulation.^[51] While the author does not offer any specifics as to what such a traceability system would look like, she notes that traceability systems exist for several other species, including those covered by the MMPA, and that there is no reason they could not also be implemented for more elasmobranch species.^[52]

Going Forward

The author’s proposed solutions offer a hopeful path for improving elasmobranch protection. We live in an era of rising international tensions, where international cooperation seems increasingly difficult.^[53] In this context, taking advantage of the market power of the U.S. seafood industry to target both intentional and unintentional killings of elasmobranchs is sensible.^[54] However, the rise in global international deadlock has been mirrored by similar partisan tensions in the United States.^[55] It can be a tall order to ask both houses of Congress and the President to agree on legislation.^[56] Even regulatory action runs the risk of changing with administrations.^[57] For all of its strengths, Peden’s article does not grapple with these questions.

Regardless, Peden offers a worthwhile path toward preserving sharks and rays. As she notes, international agreements have not stopped their population decline. Domestic law, and particularly import restrictions, presents a worthwhile avenue for the U.S. to promote shark and ray preservation abroad. By highlighting this, Peden’s article is a valuable addition to conservation efforts.

Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.

Trevor Mathes is a J.D. Candidate, Class of 2023, at The University of Texas School of Law. Trevor joined TELJ in the Fall of 2020 and serves as a Staff Editor. He was born in Abilene, Texas and studied History at William & Mary.