[*PG409]EVEN JAWS DESERVES TO KEEP HIS FINS: OUTLAWING SHARK FINNING THROUGHOUT GLOBAL WATERS

Jessica Spiegel*

Abstract:  Sharks have reigned at the top of the marine food chain for 200 million years, but their recent slaughter by fishermen has imperiled their populations significantly. Unfortunately, this graceful animal is killed primarily for its fins, which are used to make shark-fin soup, while the rest of the carcass is discarded at sea. Even worse, the shark is usually alive when finned and then left in the ocean to bleed to death or drown. There is no global shark-finning regulation in place, and only very recently has the United States implemented its own national regulations. A worldwide resolution is urgently needed to halt the rampant slaughter of sharks, if for no other reason than that their position as the top predator of the sea is crucial to maintaining a balance of all life on the planet.

Introduction

Sharks first appeared on Earth 400 million years ago and, after 200 million years of evolutionary trial and error, they have maintained their position at the top of the marine food chain.1 Today, more than 350 species of sharks swim the planet, ranging in size from less than one foot long (dwarf shark) to fifty feet long (whale shark).2 Until recently, sharks were not a major target of commercial or recreational fisheries.3 In the last thirty years, however, the shark industry has boomed in such an unexpected and frantic manner that many shark populations recently have become severely threatened.4 Shark finning [*PG410]is one of the leading causes of shark deaths around the world because of the high market value of the fins used in shark-fin soup.5 Shark finning is the practice of removing the fins from a deceased shark and dumping its carcass back into the ocean, or slicing the fins off of a live shark and then leaving the helpless shark in the ocean to drown, starve to death, or be eaten by other predators.6 This latter practice appalls conservationists the most because sharks cannot swim without their fins and, therefore, a majority of them drown because they need to stay in motion to flush oxygen-rich water over their gills in order to breathe.7 If a shark is not dead when it is finned, it dies shortly thereafter when the rest of the fish is thrown back into the sea.8

Only fifteen out of one-hundred and twenty-five shark-fishing nations have implemented shark fishery management plans that include banning or regulating finning.9 These countries, most of which have some of the world’s largest shark fisheries, are the United States (U.S.), United Kingdom (U.K.), Australia, New Zealand, Canada, Oman, Malta, Namibia, Honduras, Maldives, Philippines, Israel, Thailand, South Africa, and Brazil.10 There is no comprehensive global regulation in place for managing shark fishing or finning; beyond national boundaries, shark fishing is a free for all.11 The current lack of global protection for sharks from finning practices is largely the result of a general lack of awareness about the worsening status of shark populations.12

This Note explains the history of shark finning and explores the tension between the economic profits realized from shark fins and the [*PG411]reality that the practice wastes a valuable natural resource. Part I of this Note provides background on the shark finning industry and on various preliminary measures that some nations have adopted toward prohibiting the practice. Part II explains why shark finning is wrong and discusses the enforcement difficulties prevalent in the existing shark fishery management plans of the nations that impose them. Part III offers and analyzes a proposal to halt shark finning on a global scale. This Note concludes that shark finning is contrary to human philosophical, moral, and humanitarian values and therefore should be prohibited in all waters around the world.

I.  Background

A.  The Practice of Shark Finning

1.  How Did Shark Finning Become an Industry?

The Chinese have used shark fins in shark-fin soup, considered a delicacy, since the Han Dynasty over 2200 years ago.13 There are records of both the Song Dynasty (960–1279) and the Qing Dynasty (1644–1911) using shark-fin soup as a banquet staple.14 The liberalization of the People’s Republic of China in the 1980s resulted in an explosion of commerce that fueled an expansion of the shark finning industry.15 Consequently, shark finning flourished, as a much wider stratum of Chinese society had enough disposable income to afford shark-fin soup.16 Even the recent Asian economic crisis did not significantly lower the demand for fins.17 Hong Kong exemplifies the rapid increase in the shark fin market as it alone consumes an estimated three million kilograms of shark per year.18

Information about the international shark trade is limited, but the prevailing industry proves that the market for shark fins is extremely profitable.19 As the price of shark fins has skyrocketed in the last two decades, a new chapter in commercial shark fishing has be[*PG412]gun.20 From 1991 to 1996 the price of shark fins doubled, and current estimates suggest that the world trade of shark products approaches $240 million.21 True numbers are unknown because of the expansive operation of black markets.22 Another reason why these numbers are unclear is because the U.S. is the largest recorder of this data, and the U.S. Commerce Department combines sharks with all other species of fish in trade statistics.23 It is also estimated that, worldwide, over 100 million sharks per year die in the fishing/finning process.24 A further indication of the expanding market in shark fins is the opportunity to buy and sell fins over the internet.25

The shark fishing industry has focused on North America because its waters contain one of the world’s last great reserves of sharks.26 Finning has only recently been prohibited in all U.S. waters.27 Prior to this nationwide prohibition, shark finning was only banned along the U.S. southeast coast, where 1993 legislation halted the practice in the region.28 The 1993 legislation was prompted by a National Oceanic Atmospheric Administration (NOAA) report that the abundance of many shark species found along the southeast coast of the U.S. had declined as much as 80% between the early 1970s and late 1980s due to the focus on North American waters.29 In Hawaii, where the economy lags behind much of the nation, thirty million dollars worth of shark fins changes hands annually at the docks.30 Because the markets for shark meat, skin, and cartilage are small, fishermen simply throw the shark’s body overboard after taking its fins.31

[*PG413] Sharks preferred for shark-fin soup are the sandbar, bull, hammerhead, blacktip, porbeagle, mako, thresher, and blue.32 Generally, fins from white sharks are considered superior to those of black or gray sharks.33 The blue shark is the most abundant shark along the east and west American coasts and is therefore the biggest target of the North American shark finning industry.34 The blue shark is a veteran swimmer of the world’s oceans, known for its extensive migrations in temperate and tropical waters.35 Most commonly, blue sharks wind up on fishing vessels because they live in the same areas as swordfish and tuna, two prime targets of the Pacific commercial fishing industry.36 The fishermen take advantage of the shark bycatch (the inadvertent catch that arrives at the boat with the targeted species) to slice off the shark’s fins, guaranteeing a profit-maker at the docks.37

2.  What Are Shark Products Used for?

Sharks have immense practical value.38 While shark cartilage does not prevent cancer, despite claims to the contrary, it has been used to make artificial skin for burn victims.39 Shark corneas have been used experimentally for human transplants, shark blood contains anti-clotting agents, and shark-liver oil seems to aid white-blood-cell production.40 In addition, shark skin is used to make high-quality leather.41 Furthermore, sharks were the first creatures in evolutionary history to develop an immune system, and biomedical researchers [*PG414]believe that determining how sharks’ immune systems work will provide valuable insight into human immune systems.42

Sharks also are killed for their fins, which have become one of the most expensive fish products in the world.43 These fins are used primarily in Asia for shark-fin soup, which previously cost up to $150 per bowl.44 Now, however, with recent finning regulations in big supplier countries such as the U.S., the prices are skyrocketing 30 to 40% higher, or approximately $300 for a regular quality bowl of soup up to $720 for superior quality soup.45 There are a multitude of grades of fins, depending on the size of the fin and quality of processing.46 The very largest fins can sell for as much as $10,000 each.47 Shark fin is comprised of protein-packed gelatinous cartilage, and fins with a high “needle” count—the elastin fibers that make up the fin—are especially desirable.48 The noodle-like cartilaginous tissues in the shark’s fin are used by chefs to thicken and flavor the broth.49 Thus, the stringy tendrils from the dorsal, pectoral, and lower tail fins of sharks are prized as the namesake ingredient of the soup.50

B.  The Long Struggle Against Shark Finning in the U.S.

1.  The Magnuson-Stevens Act

In 1976, Congress passed the Magnuson Fishery Conservation and Management Act (now known as the Magnuson-Stevens Act; hereinafter, the Act), which is the primary law regulating fisheries’ resources and fishing activities in U.S. federal waters.51 The primary [*PG415]goals of the Act are: (1) the conservation and management of U.S. fishery resources, (2) the development of U.S. domestic fisheries, and (3) the phasing out of foreign fishing activities within the 200 mile fisheries conservation zone (also known as the Exclusive Economic Zone; hereinafter, the EEZ) which is 3 to 200 nautical miles off of the coast.52 Since the Act has been in effect, the percentage of fish harvested by foreign nations in the EEZ has declined from 71% of the total catch in 1977 to near zero in 1992, thus achieving the third goal of phasing out foreign fishing activities within the zone.53

The Act also created eight independent Regional Fishery Management Councils throughout the nation, managed by the National Marine Fishery Service (NMFS), to implement its goals.54 Each council’s principle task is to prepare fishery management plans (FMPs) for each fishery in its area, considering the unique circumstances of the presiding region, which then are forwarded to the Department of Commerce for approval.55 If the plan is approved, the NMFS then must issue regulations to implement the plan.56 Sharks are not included in the FMPs because they are a “highly migratory species” under the Act, and the Secretary of Commerce has sole authority to prepare and implement conservation and management plans for those types of species; councils are not permitted to independently regulate “highly migratory species.”57 While the Act is the foundation for many shark regulations, it is the NMFS and the federal and state [*PG416]governments that lead the shark conservation endeavor.58 In addition, States may regulate their residents’ shark fishing under the Act, even in the EEZ, in the absence of a conflict with Federal regulations.59

2.  The Atlantic Plan

Throughout the 1970s and 1980s, the U.S. government actively promoted the commercial exploitation of the Atlantic shark fishery.60 The government’s objective was to develop a presumably “under-utilized resource” and to relieve the acute fishing pressure on more commercially popular fish stocks.61 Consequently, the lucrative market for shark fins, in particular, largely contributed to a 64% decline in the Atlantic blue shark population within less than ten years.62 In response to this drastic reduction in shark populations, scientists and conservation groups lobbied for federal conservation and management plans for Atlantic shark fisheries.63

Finally, in 1993, the NMFS issued the Atlantic Shark-Fishery Management Plan for Sharks of the Atlantic Ocean (the Atlantic Plan).64 The Atlantic Plan established various management regulations for thirty-nine species of sharks and outlawed finning in federal waters of the Atlantic Ocean, Caribbean Sea, and Gulf of Mexico.65 However, the Atlantic Plan prohibits only the wasteful practice of cutting off a shark’s fins and discarding its carcass.66 It allows commercial ships holding federal permits to land fins as long as the number of fins is proportional to the number of shark carcasses.67 The Atlantic Plan does require data collection to enable the NMFS to monitor the [*PG417]extent of shark fishing, adjust future catch quotas, and implement other management measures and outlaws fishing by a foreign flag vessel in the U.S. EEZ zone.68

The NMFS continued to tighten regulations for Atlantic shark fishing after it introduced the Atlantic Plan in 1993.69 In 1997, the NMFS halved the quotas for large coastal sharks and, for the first time, established a quota for small coastal sharks.70 Furthermore, in 1999, the NMFS expanded the Atlantic Plan’s finning prohibition from the thirty-nine originally regulated species to all sharks.71 Until December 2000, when the U.S. Congress passed a national finning ban in all U.S. waters, however, Atlantic shark conservation remained a problematic patchwork of inconsistent measures, primarily because of the lack of coinciding state regulations.72 Many Atlantic coastal states have lenient, poorly managed regulations, and some altogether lack anti-finning measures.73

a.  Atlantic Shark Fishery States

Florida has the largest and most active commercial shark fishery of any Atlantic or Gulf coastal state, and accounted for 4.8 million pounds (round weight), or 48%, of the commercial landings in 1996.74 Other major shark-fishing states include North Carolina (ranked second), Louisiana (third), and New Jersey (fourth), all with commercial landings over 500,000 pounds (round weight).75 Together, they accounted for 40% of the 1996 landings.76 Texas, South Carolina, Maine, and Virginia have moderately large commercial shark fisheries and, combined, contributed 8% of the landings.77 The remaining ten Atlantic states combined accounted for only 4% of the [*PG418]1996 landings.78 Most of the New England states, except for Maine and Massachusetts, have minor shark fisheries.79 Despite its comparatively small shark fishery, the Massachusetts’ commercial fishery single-handedly leads the extermination of the spiny dogfish, a small and slow-growing coastal shark.80

Unfortunately, recreational shark fishing exacerbates the rapid decline in shark populations and is difficult to regulate effectively.81 Florida has the biggest recreational shark fishery, followed by South Carolina, Louisiana, and Mississippi.82

b.  Atlantic Shark Fishery States’ Regulations

A number of the aforementioned shark-fishing states have implemented shark management programs in their waters.83 From 1996 to 1998, Maryland, Delaware, South Carolina, Virginia, and North Carolina implemented relatively comprehensive shark fishing regulations, and Georgia has some regulations in the proposal stage.84 Florida maintains the most progressive shark fishing regulations.85 Moreover, Florida implements more restrictive shark management measures in its waters than exist in federal waters, even for federally permitted commercial fishers.86 Florida, North Carolina, and Maryland essentially have closed their state waters to commercial shark fishing.87 Other states have taken their first steps: Alabama now closes its waters to shark fishing when federal waters are closed, and Mississippi prohibits the taking of five species and has minimum size regulations for anglers to protect juvenile sharks.88 Notably, New York, Texas, Maine, Delaware, Florida, Maryland, North Carolina, South Carolina, and Virginia prohibit finning in their waters.89

[*PG419] Two of the states with the largest shark mortality rates, Louisiana and New Jersey, have not yet addressed the management needs of sharks in their waters.90 New Jersey is among the top four states for both commercial and spiny dogfish landings.91 New England states generally lack shark fishery management.92 Although Massachusetts has significant shark research underway, tension between its senators, conservationists, and commercial fishermen has resulted in an inadequate management of the spiny dogfish shark, which is close to extinction.93 Furthermore, the New England and Mid-Atlantic Fisheries Management councils disagree on how to best manage the important commercial species.94

In sum, the Atlantic Plan is U.S. federal legislation regulating fisheries and prohibiting finning in U.S. federal waters of the Atlantic, Caribbean, and Gulf.95 As explained above, state regulations vary, which undermined the anti-finning efforts at the federal level until very recently, given that sharks swim in and out of state and federal waters and, therefore, in and out of protection.96

3.  The Pacific Resolution

Shark finning has been conservationists’ most immediate concern in U.S. state and federal waters in the Pacific Ocean since the explosion of the shark fin trade.97 According to the NMFS, the number of sharks killed in the Central and Western Pacific fisheries rose from 2289 in 1991 to 60,857 in 1998, an increase of over 2500%.98 Currently, at least 150,000 sharks landed annually by longline fishermen off Hawaii are stripped of their valuable fins and tossed back into the water.99 Approximately 568 million pounds of shark are [*PG420]landed every year from the Pacific.100 The rampant shark finning market in the Pacific was inconsistent with the Atlantic Plan and with U.S. international obligations, which prompted Congress to pass a nationwide ban in December of 2000.101 The international obligations include the Code of Conduct for Responsible Fishing of the Food and Agricultural Organization of the United Nations, the International Plan of Action for Sharks, the United Nations’ Agreement on Straddling Stocks and Highly Migratory Species, and the Sustainable Fisheries Act.102

In response to the rising death tolls for sharks resulting from a practice that already had been outlawed in other U.S. federal waters, Representative Cunningham, a Republican from California, introduced House Continuing Resolution 189 (the Pacific Resolution) to the House of Representatives in September 1999.103 The Pacific Resolution urged a ban on finning in U.S. federal Pacific waters in order to complete the ban in all U.S. federal waters.104 In November, the House of Representatives passed the Pacific Resolution and the Senate concurred.105

The passage of the Pacific Resolution was Congress’ reaction to the unsuccessful efforts of the Department of Commerce and the NMFS to persuade the Western Pacific Regional Fishery Management Council (WESPAC) and the Hawaiian State Legislature to stop the practice of finning in their waters.106 WESPAC is one of the regional fishery councils created under the Magnuson Act and it manages fisheries in federal waters off the coasts of Hawaii, American Samoa, Guam, and the Northern Mariana Islands.107 Although, under the Magnuson Act, WESPAC does not have jurisdiction to independently create and implement shark management plans (because regional fisheries do not retain authority to regulate highly migratory species), all regional fisheries are required to develop fishery management [*PG421]plans that are consistent with national standards.108 Congress claimed that the national standard had been set by outlawing finning in the Atlantic, Caribbean, and Gulf of Mexico, under the Atlantic Plan.109 In addition, the NMFS and the Secretary of Commerce directed WESPAC to “take immediate action to ban the practice of shark finning.”110

One of the main reasons for WESPAC’s refusal to initiate a prohibition of shark finning is the increasing demand and economic rewards of shark fins in the fisheries markets.111 The international market for shark-fin soup has created a lucrative opportunity for fisheries, which can sell shark fins for approximately $50 per pound.112 Consequently, Pacific fishery officials balked at the idea of banning finning under the Pacific Resolution and waited for Rep. Cunningham’s second bill, H.R. 3535, mandating the ban, to become federal law.113

A second reason why WESPAC refused to adopt any finning bans is its lack of federal funding to offset or subsidize the added expense.114 The fisheries under WESPAC’s control comprise approximately 48% of the entire area that NMFS regulates, yet WESPAC only receives 12% of the total funding that all of the commissions receive.115 WESPAC, therefore, requested an increase in funds from the NMFS to achieve the overall goals of better managing the fisheries, including eventually banning finning.116 Rep. Cunningham believes these excuses are a way to shift the responsibility of the lack of a finning ban from the Council to the NMFS.117

[*PG422]a.  Pacific Shark Fishery States

Hawaii is by far the most active U.S. state in the Pacific shark fishing and finning trade.118 According to state law, any shark landed in Hawaii must be intact, but thousands of fishermen evade this law and bring fins to the docks without carcasses to match.119 There, dealers pay cash for the fins and then send them to Asia.120 Furthermore, local shark fin shippers manage to avoid paying taxes on the lucrative catch and, without a law prohibiting shark finning, enforcement officials complain that they do not have the resources or funds to seize the fins.121 On the west coast, California maintains the highest recreational shark catches.122 Washington and Oregon do not have substantial shark fisheries.123

b.  Pacific Shark Fishery States’ Regulations

Until very recently, the Hawaiian legislature resisted all attempts by the U.S. federal government to persuade it to prohibit finning in its waters.124 On March 17, 2000, Hawaii’s Senate Committee on Economic Development passed H.I. Bill 1947 which limits the possession, purchase, sale, or trade of shark fins.125 Furthermore, the bill bans the finning of live sharks and mandates that all landed sharks in Hawaii are whole.126 The legislation also applies to vessels registered in the state that are fishing outside of Hawaiian territorial waters (three miles).127 However, foreign vessels are allowed to have shark fins aboard without a matching carcass but are prohibited from unloading or shipping from Hawaii.128

[*PG423] California has taken a strong initiative in shark protection and conservation and outlaws finning in its waters.129 In addition, California fisheries discard, live or dead, all blue shark bycatch.130 However, shark fins may be sold commercially if accompanied by a corresponding shark carcass.131 Neither Oregon nor Washington has any specific shark finning regulations, but California, Oregon, and Washington have outlawed use of drift gill net fishing in an effort to eliminate shark bycatch.132 Furthermore, the Alaska Board of Fisheries closed the state’s waters to commercial shark fishing in 1997.133

4.  U.S. Bans Finning From All U.S. Waters: H.R. 5461

Despite Rep. Cunningham’s efforts, the Pacific Resolution fell short of mirroring the Atlantic Plan’s management schemes and prohibitions on finning because it did not mandate any action; it merely defined the term “shark finning” and urged all federal and state agencies to ban the practice in their waters.134 To rectify this shortcoming, Rep. Cunningham introduced a second bill, House Resolution 3535 (H.R. 3535), on January 27, 2000 to amend the Magnuson Act to mandate a total ban on finning.135 The ultimate objective of H.R. 3535 was to outlaw finning in all U.S. federal and state waters.136 H.R. 3535 passed the House of Representatives on June 7, 2000, with a landslide victory of 390 to 1.137 On June 29, 2000, the Senate introduced the Shark Conservation Act of 2000 which prohibited finning.138 The U.S. Congress finally recognized the dire state of its shark populations, but slight differences between the two bills and an [*PG424]abbreviated Congressional calendar prevented immediate implementation of a finning ban.139

Finally, Congress enacted H.R. 5461 on December 7, 2000, which amends the Magnuson Act to prohibit finning in all U.S. waters, federal and state.140 Also included in H.R. 5461 is an International Negotiations section, which calls on the Secretary of State to initiate discussions with other nations to develop bilateral or multilateral agreements to end shark finning on a global, or at least regional, scale.141 The direction to halt the global shark fin trade requires more than 100 countries to reduce the demand for shark fins.142 H.R. 5461 only requires the signature of the U.S. President to become law.143

C.  Foreign Response to Shark Finning

To date, only four industrialized and westernized nations besides the U.S. have implemented comprehensive, effective shark management plans within their coastal waters and have advocated a global shark finning ban: U.K., Canada, Australia, and New Zealand.144 The U.S. suffered from a glaring hypocrisy in its domestic shark finning policy until H.R. 5461.145 Australia has yet to implement a complete ban on finning of all sharks in its waters, but Canada and Britain have done so more extensively.146 The other leaders of the anti-finning movement, who have completely outlawed shark finning in their waters, are Oman, Brazil, and Malta.147 Unfortunately, their efforts are undermined by the absence of similar regulations in the surrounding nations’ waters.148 Some isolated shark fishing regulations, including some finning restrictions, currently exist in South Africa, the Philippines, Thailand, Israel, Namibia, Maldives, and Honduras.149

[*PG425] In 1999, New South Wales became the first Australian state to ban shark finning in its coastal waters.150 The ban extends to six kilometers off the New South Wales coast, after which Australian waters are under Commonwealth control.151 The anti-finning laws have been adopted officially by New South Wales fisheries, and breaches attract fines of up to $A100,000 or six months in jail.152 The Humane Society International has urged the remaining Australian states to implement similar bans so that sharks in all Australian waters can enjoy consistent and uniform protection.153 In addition to the state legislation, the Australian navy patrols all Australian waters to stop poachers from illegally finning sharks.154 Last year, Australian naval patrols boarded 360 vessels and arrested fifty-one people for illegal finning.155

In October 2000, Western Australia outlawed the finning of live sharks, which complements an interim federal government ban on finning in the Commonwealth fisheries.156 Unfortunately, the federal ban does not prohibit finning live sharks.157

In 1998, Great Britain banned hunting and finning of the basking shark, which frequently inhabits its waters, because their numbers have declined by as much as 90% in the past twenty years.158 However, Britain’s proximity to other countries lacking the same protections for the shark has prevented the basking shark from replenishing its population.159 The basking shark, the second largest fish in the world, has an enormous dorsal fin (up to two meters long) that can be sold for up to 20,000 pounds sterling per ton in East Asia.160 The high value of the fins means that sharks caught accidentally outside Britain’s protected waters are likely to be finned rather than released unharmed.161

[*PG426] This reality prompted Britain to launch a program in August 1999 to try to save the basking shark from extinction in its waters by proposing a global regulation of the international trade in shark fins.162 In order to secure better global protection for the species, Britain submitted a proposal for an Appendix II listing on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which met in April 2000.163 This proposal, although not intended as a complete trade ban for shark fins, would end the unregulated and unmonitored trade in shark products.164

Canada implemented its Atlantic Shark Management Plan from 1997 to 1999 to counter the over-exploitation of sharks in its waters.165 The main objective of this Plan was to increase scientific knowledge of the various shark species.166 The Plan prohibits recreational and commercial shark finning, but allows the fins from the commercial exploratory fishery to be sold, traded, or bartered in the proportion to the shark carcasses held onboard.167 Fisheries of the Atlantic Provinces of Canada are not allowed to land shark fins without the rest of the carcass and the penalty for a violation is loss of the fishing license for one year.168 Now that the U.S. has implemented a nationwide ban, Canada hopefully will follow suit in order to protect the migratory sharks throughout the waters of North America.169

South Africa recently has declared the great white shark a protected species and has imposed a ban on fishing them and selling their jaws and other parts.170 The law does not expressly prohibit finning, although “other parts” could be interpreted to ban selling of shark fins.171 In addition, the recent report of The Shark Trade in [*PG427]Mainland Tanzania and Zanzibar formally has called on Tanzania to impose strict controls on shark fishing, including finning.172

In Thailand, authorities are facing pressure in three southern Thai provinces to ban the hunting of the whale shark, a shark killed primarily for its fins.173 The argument most frequently offered in support of the sharks is that they “help attract tourists who are fond of marine life. . . . [K]illing them will not only ruin the country’s image but it will also drive away the tourists.”174 The Thai government’s reason for protecting the whale shark in its waters, while selfish, is nonetheless effective in preventing the wasteful practice of finning.175 In June 2000, the Thai government further showed its concern about the decimation of the world’s shark population by removing shark-fin soup from the menu of its national airline.176

China and Singapore are the world’s biggest shark fin traders and processors and they do not yet have any shark management measures, despite pressure from environmental groups.177 The United Nations Food and Agricultural Organization (FAO) rated Singapore the third largest center for shark fin trade after Hong Kong and Taiwan.178 Indonesia is probably the world’s largest shark fisher, catching approximately 100,000 tons per year of its 350 species.179 Japan and Hawaii follow close behind.180 A search for “shark’s fin” in Asian newspapers pulls up restaurant reviews while in U.S. papers the stories are almost entirely about the threat to sharks.181

D.  Global Efforts to Control Shark Finning

There are no binding international treaties or strategies for the management of sharks, including regulating or outlawing finning.182 The world has been quite slow to realize the danger confronting [*PG428]sharks.183 Until fairly recently, the economic value of sharks was relatively low, and there was little incentive for governments to expend resources on monitoring the status of shark populations.184 Thus, there is very little global information available on the number of sharks killed deliberately, the number caught incidentally, the individual species that are most heavily utilized, or the volume of international trade in shark products.185 Although the FAO attempts to gather shark catch data from around the world, some countries do not supply it.186 The gathering of shark trade data is also problematic.187 Honk Kong, the center for the world’s shark fin trade, re-exports shark parts to other countries that may not record the fact that their imports originated from Hong Kong.188 Enormous discrepancies also exist between what one country records as having exported to another country and what the receiving country records as having imported.189 In the U.S., shark fin imports are recorded but shark fin exports are not.190

The first major global convention to address fishery management on a worldwide scale, especially for highly migratory species, was the United Nations Law of the Sea Convention (UNCLOS) in 1982.191 UNCLOS stressed the need for international cooperation through sub-regional, regional, and global organizations for the conservation, management, and utilization of living aquatic resources.192 The Agreement for the Implementation of the Provisions of UNCLOS Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks came into force as international law in 1995 (1995 UN Fish Stocks Agreement).193 The 1995 UN Fish Stocks Agreement placed a particular obligation on coastal States and high seas fishing States, with respect to highly migratory fish stocks, to cooperate in management endeavors.194

[*PG429] In 1992, in Sydney, Australia, delegates from many nations attended a conference on shark conservation and agreed to recommend a ban on finning to their respective national governments and to establish quotas and fishery management plans in their nations’ waters.195

In 1994, the Ninth Conference of the Contracting Parties for the CITES ordered an investigation into the status of sharks worldwide.196 That year, data indicated that fishers killed more than 700,000 sharks per year (which has since become 100 to 200 million sharks per year).197 This startlingly high number highlighted the issue of overfishing.198 In addition, CITES also adopted the Resolution on the Biological and Trade Status of Sharks which requested that (1) FAO and other international fisheries management organizations establish programs to collect and assemble the necessary biological and trade data on shark species, and (2) all nations utilizing and trading specimens of shark species cooperate with FAO and other international fisheries management organizations.199

Despite CITES’ finding that unregulated shark fishing, both commercial and recreational, would result in dramatic declines, and some extinctions, in shark populations, several nations attending the 1997 CITES meeting in Zimbabwe successfully argued that fisheries management should be handled on a regional rather than a global basis.200 This result mystified and disappointed marine biologists, as some shark species migrate thousands of miles, and at the very least, most shark species do not remain solely within one nation’s waters.201

Also during the CITES 1997 meeting, the FAO announced its sponsorship of a collaborative effort between the U.S. and Japan on the conservation and management of sharks.202 Unfortunately, the first meeting, which took place in April, 1998, did not include any specific finning regulations.203

[*PG430] In October 1998, representatives from seventy countries attended the Consultation on Management of Fishing Capacity, Shark Fisheries, and Incidental Catch of Seabirds in Longline Fisheries in Rome, Italy.204 The participants, which included major fishing nations, discussed an International Plan of Action for the Conservation and Management of Sharks.205 This voluntary plan focused on keeping “fishing mortality sufficiently low that each species or stock can maintain itself.”206

In 1999, the FAO formally introduced the voluntary International Plan of Action for Sharks (IPOA-Sharks), the culmination of both the Tokyo and Rome meetings of 1998.207 The IPOA-Sharks calls for international cooperation and coordination of shark management plans, given the wide-ranging distribution of sharks and the long migration of many species.208 It includes some progressive measures for shark conservation and fishery regulation, but it disappointed many conservationists with its failure to urge an end to finning.209 The IPOA-Sharks pushes nations to aim to minimize waste and discards from shark catches, and it encourages full use of dead sharks.210 For example, countries should require the retention of sharks from which fins are removed.211 The IPOA-Sharks applies to nations in whose waters sharks are caught by their own or foreign vessels and to nations the vessels of which catch sharks on the high seas.212 Furthermore, it calls upon countries to adopt national plans of action for conservation and management of shark stocks if their vessels conduct directed fisheries or regularly catch sharks in non-directed fisheries.213 The voluntary nature of the IPOA-Sharks, and the absence of an explicit finning ban, show that finning has not been a priority.214

[*PG431] The most recent CITES convention, in Gigiri, Kenya during April 2000, rejected a proposal for restricting the shark fin trade.215 It also failed to declare sharks endangered, and proponents of the listing aim to re-table the debate at the next meeting in 2002.216

II.  Discussion

A.  The Harsh Realities of Shark Finning

There are a number of reasons why sharks should be protected from senseless and wasteful killing through finning. First, sharks are apex predators in the marine food chain and, without a proportionate number of sharks, an ecological imbalance with potentially disastrous repercussions will occur in the world’s oceans.217 Common sense and an overview of evolution show that sharks have evolved to a vital stabilization role in all oceans.218 Sharks prey on weak and/or sick fish which, over time, creates better genetically and evolutionarily capable species.219 Sharks also keep populations in check, such as the octopus population in Australia and the stingray population in Florida.220

Second, sharks are particularly vulnerable to overfishing because of their slow growth (it can take thirty years for a large shark to grow to maturity), late sexual maturity, and production of few offspring.221 These biological limitations severely affect the ability of sharks to replenish themselves.222 Shark populations in many areas worldwide already have declined in alarming rates because they can not keep up with the mass slaughtering of their species.223 For example, in North American waters, shark finning, of blue sharks in particular, promotes the extirpation of a stock about which there is very little informa[*PG432]tion.224 This practice is extremely risky, given sharks’ inability to replenish their populations as fast as they are being exterminated, and it is misguided to proceed on the assumption that blue sharks are immune to overfishing.225 Until a proper stock assessment is complete, allowing the taking of blue sharks, especially for a wasteful practice, is a nearsighted policy.226

Third, from a utility standpoint, shark finning is exceedingly wasteful because shark fins comprise less than 5% of the flesh of the animal, thereby wasting 95% of a valuable resource.227 The meat, skin, organs, and other body parts are all thrown away.228 For example, blue sharks’ fins are not even of top quality for shark-fin soup, but the sheer number of them being caught makes the fins tempting to keep and sell at a lower price than “grade A” shark fins.229 Thus, over 95% of this natural resource is discarded for the sake of a lower quality product.230

Finally, from a conservationist and fishery perspective, finning encourages bycatch mortality in commercial fisheries.231 Sharks are a bycatch of swordfish and tuna longline fisheries and, although the fishermen presumably are not trying to catch sharks, allowing them to keep the shark fins does not utilize the catch more fully.232 On the contrary, it removes the motivation to avoid bycatch in the first place.233 For example, indisputably the overwhelming majority of blue sharks caught in the Hawaii longline fishery are still alive when brought to the boat.234 Were they not finned, these sharks would have a decent chance of survival after release because they have a relatively higher survival rate on pelagic longlines than many other shark species.235 In 1998, 60% of the sharks brought to the boat were finned rather than released.236 Thus, efforts to encourage fisheries to reduce [*PG433]bycatch and to release live bycatch are thwarted by the profits made from selling the fins.237

B.  Why It Took So Long for the U.S. to Uniformly Ban Finning in Its Waters

The overarching barrier to an effective and successful uniform ban on shark finning in all U.S. waters was the disparity between state and federal shark management regulations.238 Sharks are a highly migratory species that does not respect political boundaries; during seasonal migrations, sharks often will move through state, federal, and international waters.239 Furthermore, state waters are shallower and more coastal, thus serving as pupping and nursery areas for many shark species.240 Moreover, commercial fishers holding federal shark permits are required to abide by federal regulations even when fishing in state waters; however, a substantial loophole is available to state-permitted vessels that fish only in state waters.241 Those vessels must abide only by state regulation, if it exists.242 The U.S. government could no longer rely on individual states to do their part to rebuild depleted shark populations by reducing bycatch and eliminating finning in their own waters.243 Without a uniform nationwide ban, the U.S. could not effectively stop or regulate finning,244 and without a comprehensive nationwide finning ban, the U.S. could not be a persuasive advocate of outlawing finning on a global scale.245

The natural question arising out of the intermittent and inconsistent status of U.S. shark regulations is: why did the U.S. government fail to legislate a nationwide comprehensive shark finning ban until December 2000?246 The U.S. government retains power, via the Supremacy Clause in the U.S. Constitution, to preempt a state regulation if it conflicts with a federal regulation such that dual compliance is impossible.247 Thus, once shark finning in Pacific federal waters was finally banned, U.S. federal law outlawed finning and the government [*PG434]could have overturned inconsistent state regulations.248 However, Congressmen, while supportive of federal shark conservation measures, for many years were reluctant to damage the fishery economies of their individual states and thereby alienate a strong voting block.249 Fortunately, recent exposure of the harsh realities associated with the shark finning industry repulsed most of the American public, exacerbating federal pressure on the individual states enough for Congress to usurp the state regulations and ban the wasteful practice nationwide.250

Another lobbying force that expressed enormous concern and resentment toward the forerunners to H.R. 5461 (Pacific Resolution and H.R. 3535) was the regional fishery councils.251 The councils interpret the actions of the government as a direct usurpation of their power.252 The disgruntled and insulted councils claim that their very purpose is to design fishery management plans unique to their particular areas, and a nationwide ban ignores this function.253 Congress, in response, has assured the regional fisheries that it is not, in fact, usurping their power but merely using its own power (the Commerce Department has jurisdiction over sharks) to halt a horrendous and inhumane practice, albeit with incidental effects on a few state fisheries.254 The federal government realized that it could not participate in a global effort to ban finning with its current lack of protection of sharks, and therefore a nationwide ban was inevitable.255

The U.S. still faces one more impediment to effectively banning shark finning with the potential implied exception in H.R. 5461, which fails to prohibit finning dead sharks.256 The NMFS “does not agree that finning should be allowed for dead sharks because [it] would create a regulatory loophole making enforcement of the general finning prohibition very difficult.”257 By allowing the finning of dead sharks, fishers can claim that the sharks were bycatch that were [*PG435]already dead upon arrival at the boat and, therefore, that it is technically legal to cut the fins off and discard the carcass.258 Allowing finning of dead sharks simply encourages finning in general and exacerbates enforcement difficulties.259

C.  Enforcement Problems Applicable to All Countries

One of the greatest impediments to enforcing shark fishery management and a ban on shark finning in any country is the lack of species-specific and size-specific catch and discard data.260 In addition, once a shark fin is detached from the shark and dried, it is difficult to identify the shark species that was the source of the fin.261 As a result, it is almost impossible to track which species are being killed.262 It is also very difficult to assess shark populations because of the lack of knowledge about critical habitat areas for pelagic sharks and the absence of accurate monitoring of stocks, particularly in international waters.263 Before 1993, U.S. fishermen voluntarily submitted most data on shark landings to the Secretary of Commerce and to the states.264 They recorded the weight of the dressed carcasses and average prices of sharks purchased by seafood dealers.265 Most of the data currently available originates from potentially unreliable logbooks and observer data.266

IV.  Analysis

A.  Proposal

The main challenge for shark fisheries worldwide is long-term sustainability.267 One way to achieve this goal is to globally eliminate the practice of shark finning. For obvious reasons, general international regulations on shark finning are much harder to implement [*PG436]than local laws.268 However, it is nearly impossible to force other nations to adopt certain regulations in their own national waters. Given that 70% of earth is covered by water, it is also difficult to outline an effective global shark finning ban without an extravagant system of enforcement.

All countries that border the ocean, and other countries that maintain substantial shark fishing industries, need to participate in a global shark finning ban. Further, the ban must be mandatory because all of the preceding shark regulations have been voluntary, and therefore, largely unsuccessful. Moreover, unless a complete ban on finning exists in all waters, fishermen will be able to evade penalties by lying about the location of the source of the fins.

A global shark fishing/anti-finning law should include provisions that:

1.Make shark finning illegal by international law.

2.Create a definitive shark fishing season.

3.Grant shark fishing permits only to a small number of commercial vessels. No finning permits should be allowed because finning would be outlawed.

4.Ban commercial shark fishing for endangered species of sharks and keep a sustainable quota for those not yet endangered.

5.Maintain very low quotas on the number of sharks that permitted commercial vessels are allowed to land.

6.Ban all recreational shark fishing.

7.Require that all sharks be brought to the dock intact, which ensures that an entire shark is not wasted solely for its fins or any other body part.

8.Maintain strict enforcement at all docks to record what types of sharks the boats bring in and to enforce the above laws.

9.Uphold heavy penalties for violations of the law, ranging from monetary penalties to revocation of the vessels’ licenses.

10.Require that fishermen keep logbooks to record all catches at sea.

11.Appoint a globally neutral body, not affiliated with any western or industrialized nation (in order to avoid alienating other nations), to oversee and enforce this project. Ideally, various nations would lend a few experts on a rotating basis to form a council-type overseeing body and then each coastal nation could use its own nationals to patrol the docks and report to [*PG437]the council. The council chairperson also could rotate between regions and cities, all in order to remain as neutral as possible.

Ideally, all shark finning should be banned worldwide. However, the market for fins continues to expand. Thus, in order to secure the cooperation of those nations with substantial finning industries, the proposal could be altered to allow finning in only the narrow circumstances outlined above for shark finning. These requirements likely would deter many fishermen from finning.

C.  Potential Enforcement Problems

Some potential enforcement problems with this proposal follow. First, national governments worldwide might not be willing or able to allocate the necessary funds for this project, as the costs of enforcing a shark finning ban are likely to be substantial. The cost will depend on which and how many agencies are involved and how much money they are willing to spend. Many governments might consider a ban to be a noble endeavor, but not a cost-effective one and, therefore, not worthwhile. Meanwhile, there is much to be lost with the extinction of the marine food chain’s top predator.

A second potential enforcement problem would be smugglers and black markets. It is relatively easy to smuggle fins because of their size. Fishermen could fin a shark at sea and hide the fins to pass inspection. To deter this evasiveness, each nation could implement random boat inspections.

Third, it is naive to rely on the honesty of fishermen and allow them to only fin dead sharks. Some will inevitably lie and claim the shark arrived at the boat dead as an incidental catch in their lines or nets. Therefore, finning should be absolutely prohibited at sea.

Most significantly, any global regulation of the oceans is inherently difficult to enforce because it is nearly impossible to patrol the open sea. Every country must do its part in its own national waters including enforcing the ban at its docks when the vessels land. Boat inspections and requiring fishermen to maintain logbooks should be standard.

Finally, if the U.S. and other industrialized nations are the strongest advocates of this ban, they may end up funding most of it, assuming other nations cannot be convinced. While this result might seem unfair, it may be the only way to effect such a needed change. [*PG438]Now that the U.S. has tightened and unified its policies, it will be a more effective advocate on a global scale.269 However, the U.S. should refrain from governing the proposal so as to avoid alienating those countries that do not have good relations with the U.S. CITES is “the only effective mechanism for monitoring and controlling trade in shark parts,” and, therefore, it should play an integral part, if not a leading role, in this proposal.270

Conclusion

The cruel and wasteful practice of shark finning is an egregious waste of a global resource. Sharks are a valuable marine resource, and it is the responsibility of all fishing nations to ensure that this resource is utilized in a non-wasteful, sustainable manner. The traits that make sharks the masters of the ocean: camouflage, speed, and strength, are no match for human technology and hunting power. Furthermore, aside from a few cultures that revere sharks for their grace, beauty, and healing power, the prevailing human attitudes toward sharks are animosity and fear. Most people’s fear of sharks is so great that they are unwilling to consider the serious danger of extinction facing most shark species. However, if nations agree to cooperate, the resulting collaborative expertise and information could create an effective global, comprehensive regulation and management scheme.

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