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Great Apes and the Law
Maps of State Laws
THE PRICE OF FAME: CITES REGULATION AND EFFORTS TOWARDS INTERNATIONAL PROTECTION OF THE GREAT WHITE SHARK
Julie B. Martin
39 Geo. Wash. Int'l L. Rev. 199 (2007)
Place of Publication:
George Washington University
THE PRICE OF FAME: CITES REGULATION AND EFFORTS TOWARDS INTERNATIONAL PROTECTION OF THE GREAT WHITE SHARK
George Washington International Law Review
*199 THE PRICE OF FAME: CITES REGULATION AND EFFORTS TOWARDS INTERNATIONAL PROTECTION OF THE GREAT WHITE SHARK
Julie B. Martin [FNa1]
Copyright (c) 2007 George Washington University; Julie B. Martin (reprinted with permission)
After several failed attempts, the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) passed a proposal in October of 2004 to increase trade restrictions on the Great White Shark (white shark), also known as carcharodon carcharias, by placing it on Appendix II of its list of protected species.
[FN1] Trade in Appendix II species is restricted by the requirement that states parties issue export permits for all specimens or parts of specimens on the list.
[FN2] The adoption of this proposal is controversial among CITES member nations because of high market demands for white shark products.
[FN3] Although research on white sharks is limited due in part to the elusive nature of the species,
[FN4] all available research indicates that the population of white sharks is decreasing; in some areas the decline is in large, possibly unsustainable, numbers.
[FN5] This population decrease is particularly alarming because market demand remains a powerful motivation for continued depletion.
In Part II, this Note discusses the biological characteristics of white sharks and the economic conditions that make conservation necessary. Part III presents a brief overview of CITES before examining its efforts towards white shark conservation. In Part IV, this Note examines: (1) the effectiveness of the inclusion of the white shark on CITES Appendix II; (2) how this measure is likely insufficient; and (3) what further international and state efforts are necessary to ensure survival of the species. This Note concludes by offering ecotourism as a potential mechanism for increasing awareness of the white shark's plight. Ecotourism as an economic model may combat black market trade in white shark products by making white sharks more valuable as live attractions than as items for sale.
II. Threats to the White Shark
This Part identifies biological and behavioral considerations that put white sharks in danger of severe population decline when even a few members of a population are removed from the environment. It then explores the two main reasons for human predation on white sharks: the popularity of shark fin soup and a demanding international collector market for teeth and jaws. Finally, this Part examines the current effects of over-fishing.
A. Biological and Behavioral Considerations Making White Sharks Vulnerable to Predation
The white shark is undoubtedly one of the most fearsome fish in the ocean. An apex predator, the white shark preys upon sick and diseased large fish and mammals, thereby maintaining balance between predator and prey down the food chain.
Though white sharks look invulnerable, their populations are maintained by a delicate balance.
[FN7] Because they are top predators, population size is naturally low.
[FN8] Female white sharks are generally twelve to fifteen years of age, and males are typically eight to nine years old before they are able to reproduce.
[FN9] The white shark's gestation period is likely longer than one year,
[FN10] making its reproduction*201
rate the lowest of all the large sharks.
[FN11] Litters of live pups typically range from two to ten,
[FN12] a small number considering that the infant mortality rate could be as high as eighty percent.
[FN13] Due to these biological limitations on the shark's ability to build sustainable populations, the relatively small number of white sharks can quickly become alarmingly low when their environment is disturbed.
One important study of the white sharks at the Farallon Islands off the coast of San Francisco, California illustrates that white sharks are not able to adapt to sudden changes in their environment.
[FN15] The Farallon Islands are regularly visited by white sharks during the seal population's breeding season.
[FN16] The Farallon population of seals grew rapidly in the 1970s and early 1980s, leading scientists to believe the white shark population would also rise due, in part, to the increased availability of prey.
[FN17] The white shark population did increase, but only became noticeably larger between 1983 and 1993--a span of thirteen to twenty-three years from the onset of seal population growth.
[FN18] The researchers concluded that this slow rate of response to increased availability of prey was likely due to the white shark's reproductive maturation rate of nine to twelve years, reasoning that “[a]n increase in prey abundance should result in an increase in predator abundance, with a lag period roughly equivalent to the maturation rate of the predator.”
[FN19] Thus, due to the time necessary for the white shark to adapt to new surroundings, the population is unable to grow quickly in response to environmental changes.
Although white sharks are relatively slow to respond positively to changes in their prey environment, the addition of a predator can have immediate negative effects.
[FN20] In 1982, a fisherman near the Farallon Islands caught four adult white sharks.
[FN21] Despite prey abundance, researchers reported that the removal of these few individuals contributed to a decrease in white shark sightings during the following two years: “[s]ignificantly fewer attacks than expected were observed,” indicating the “possible vulnerability of the shark population” at the Farallon Islands.
[FN22] Similar events in Australia confirmed that the removal of a few individuals from a population can have “profound effects” on population status.
The most significant threat to the white shark is human predation.
[FN24] Sections B and C discuss the two main manifestations of this threat: finning and killing to satisfy market demand for other shark parts.
Finning, a practice by which the fins of a live shark are removed and the shark is thrown back into the ocean to drown, is a threat to all large shark species.
[FN25] Shark fins are valuable trade items used predominately to make shark fin soup, a delicacy in many Eastern countries.
[FN26] Legal trade in shark fins is growing by an estimated five percent per year, with Hong Kong creating half of the world's demand for fins.
[FN27] Estimates for shark fin trade quantities in the year 2000 range from five to fourteen thousand tons.
[FN28] Though the shark fin trade is legal in mainland China and Hong Kong, there is also a significant illegal market in those countries, among *203
others, which is driven by the incentive to avoid paying tariffs.
[FN29] Thus, the global market for shark fins is likely much larger than the estimates of legal trade report.
Because of the large market for shark fins, changes in the industry are closely monitored by participants.
[FN31] In 2000, the United States amended the Magnuson-Stevens Fishery Conservation and Management Act to improve conservation of sharks and to establish a national policy on shark finning.
[FN32] This policy subsequently resulted in a ban of finning in U.S. waters,
[FN33] a measure that concerned purveyors of shark fin soup.
[FN34] Citing the United States as a “major supplier” of shark fins, the South China Morning Post reported China's concern that a U.S. ban on finning would increase the price of the dish.
[FN35] The article further reported that prices of shark fins had increased thirty to forty percent in the last year, making the price for an average bowl of shark fin soup about US$300.
[FN36] A bowl of high quality soup can cost as much as US$720.
[FN37] Though supply is decreasing--whether because of population decline, the U.S. ban, or a combination of both factors--demand remains high, due in part to economic growth in China.
[FN38] As individual wealth grows, a delicacy traditionally reserved for the aristocracy has become available to the general public.
Although national efforts to ban finning have had limited positive effects, international efforts have been less successful. The International Union for Conservation of Nature and Natural Resources-World Conservation Union
[FN40] (IUCN) has urged its *204
members to support a United Nations General Assembly resolution to ban finning in international waters.
[FN41] The IUCN reasoned that finning causes unsustainable levels of mortality because it is practiced in many countries, largely without regulation, and to such an extent that shark species are not able to maintain stable populations through reproduction.
[FN42] Japan, however, voiced its immediate opposition,
[FN43] and it is expected that other states with significant markets in shark fins will also decline to accept the IUCN's recommendation. Even if the General Assembly passed such a resolution, it would have little to no practical effect on illegal trade. Therefore, finning remains a major threat to the species.
C. Collector Market
In addition to the market for shark fins, there is a significant international collector market for other white shark body parts; the jaws and teeth are the most desirable white shark items in international trade.
[FN44] This trade appears to thrive even in areas where the white shark has enjoyed protection.
[FN45] Government officials in Mexico, for example, report that although the country has no commercial fisheries directed at the white shark, specimens are sometimes caught in trawl nets and longlines set for other fish.
[FN46] When white sharks are accidentally captured, “their jaws and fins are taken, the first for their sale as ‘trophies' and the second for the shark fin trade . . . .”
[FN47] The government noted that the teeth and jaws are generally offered to tourists, who will pay significant prices for them, “generating a certain expectation among Mexican fisherman.”
[FN48] The report concluded that poaching--the purposeful killing of a protected species for trade--in Mexican waters is a likely, though illegal, practice.
[FN49] Similarly, white shark cage-divers in South Africa have reported that white sharks in their waters, *205
though protected by law, are also poached for their jaws and teeth for sale on the black market.
Poaching is a significant threat to the white shark's continued survival. Though fishery data concerning the global capture rates of white sharks is limited, an examination of historical figures conducted by the IUCN Shark Specialist Group depicts an alarming decline in abundance.
[FN51] A comparison of landing data indicates the proportional frequency of white sharks inadvertently caught on lines but generally not taken from the ocean as compared to other species.
[FN52] For instance, game fishery captures of sharks in South East Australia between 1961 and 1990 “indicated a catch-ratio of whites of 1:22 in the 1960s, declining to 1:38 in the 1970s and 1:651 in the 1980s.”
[FN53] Off the eastern coast of the United States, “National Marine Fisheries Service statistics from 1965 to 1983 show a decline in ratio from 1:67 to 1:210.”
[FN54] These statistics illustrate the rapid drop in white shark populations in areas where the sharks were previously present in significant numbers.
Because white sharks respond slowly to changes in their environment, any replenishment of the species will take some time and most likely will require a significant reduction, if not complete cessation, in predation by humans. Further, because white shark populations are widespread and migratory,
[FN55] international conservation efforts are needed to save the shark from depletion. According to the IUCN's report, “[s]eeking a listing within the remits of CITES protection [was] considered imperative . . . .”
[FN56] The next Part provides a brief overview of CITES and discusses its ability to adequately address the need for white shark conservation.
*206 III. The Convention on International Trade in Endangered Species of Flora and Fauna (CITES)
A. CITES Organizational Structure
CITES was created through an IUCN resolution to form an international convention on trade in fauna and flora.
[FN57] Its purpose is to regulate trade in animal and plant products derived from species that are, or are likely to become, endangered as a result of trade.
[FN58] Twenty-one nations signed the original treaty forming CITES in 1973.
[FN59] Since that time, membership has grown to 169 countries.
CITES effectuates its trade restrictions through a permit system implemented by Management Authorities, who grant or deny CITES permits, and Scientific Authorities, who advise Management Authorities regarding whether trade will endanger a species.
[FN61] CITES permit requirements depend on the level of trade restriction for the species, which is designated by the appendix to which the species is assigned.
[FN62] The Conference of the Parties (CoP) meets every two years to review member nation proposals for including, removing, or changing the status of any species on the three appendices.
[FN63] Party proposals must contain information such as known or estimated population size, geographic range, habitat destruction, effects of trade, and other factors that put the proposed species at risk of extinction.
[FN64] A two-thirds majority vote of parties present and not abstaining is required to effect any change to Appendices I or II.
[FN65] Several committees meet on a more frequent basis to ensure that trade regulations are closely monitored.
Species listed on Appendix I are the most seriously endangered by trade, and thus receive the highest level of protection.
[FN67] CITES Article II provides that “Appendix I shall include all species threatened with extinction which are or may be affected by trade. *207
Trade in specimens of these species must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.”
[FN68] Appendix I requires the issuance of both import and export permits to ensure that all trade of listed species is properly authorized.
[FN69] An export permit is granted contingent upon a showing that it will not be detrimental to the survival of the protected species.
[FN70] Likewise, an import permit will only be granted when the Management Authority is satisfied that the specimen will not be used for commercial purposes.
Appendix II includes species not currently threatened with extinction, but which may be endangered in the future “unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival.”
[FN72] Appendix II also includes the regulation of non-endangered species necessary to guarantee that trade in potentially endangered species may be effectively controlled.
[FN73] This regulation ensures the protection of potentially endangered species by enabling CITES to monitor other species that closely resemble or inhabit the same environment as the protected target.
[FN74] Appendix II regulations require only an export permit from the country of origin.
[FN75] The export permit must be presented to the Management Authority of the importing country, and no import permit is required.
CITES requires parties to employ a “precautionary principle” when considering proposals to amend Appendix I or II.
[FN77] The precautionary principle directs that scientific uncertainty should not be used as a basis to deny protections to vulnerable species when such protections would otherwise be in the best interest of conservation.
[FN78] The precautionary principle is an important instruction when considering proposals to protect shark species because relatively*208
little scientific research has been conducted on sharks--particularly white sharks--and it is difficult to ascertain the population sizes of some species.
Inclusion of a species on Appendix III differs significantly from listing on Appendices I and II in two significant respects: (1) inclusion of a species on Appendix III does not require a vote of the parties; and (2) enforcement is wholly voluntary.
[FN80] Appendix III includes “species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other Parties in the control of trade.”
[FN81] Appendix III requires that an export permit be presented upon importation only if the species is exported from a party that recognizes the Appendix III restriction.
[FN82] Apart from this requirement, an Appendix III listing imposes no restrictions on parties who do not agree to enforce it.
Parties to CITES may enter specific reservations relating to any protected species listed in Appendix I, II, or III, as well as to any “parts or derivatives specified in relation to a species included in Appendix III.”
[FN84] Until the party withdraws its reservation, it is exempt from enforcement action.
[FN85] This at-will ability to opt out of CITES regulations can be devastating to conservation and monitoring efforts. In recognition of this problem, CITES adopted a resolution recommending that “any Party having entered a reservation with regard to any species listed in Appendix I treat that species as if it were listed in Appendix II for all purposes, including documentation and control.”
[FN86] This resolution, however, is solely advisory.
[FN87] Further, it likely will not carry weight with parties that have chosen to elect reservations because reservations are typically taken to preserve financially beneficial trade or because the party does not believe the species to be endangered.
*209 B. CITES Shark Conservation Initiatives
Although CITES monitors an extensive list of over 25,000 plant and 5000 animal species,
[FN88] it has been uncharacteristically slow to recognize the protection of fish and other marine animals. CITES is not alone; only within the last fifteen years has shark conservation emerged as an important issue in the scientific community.
[FN89] CITES efforts are closely tied to the Food and Agricultural Organization of the United Nations (FAO), which the United Nations has tasked with promoting the conservation of natural resources.
[FN90] The FAO is the only international institution with general authority over national fisheries.
The remainder of this Part discusses white shark conservation efforts leading up to, and culminating in, the 2004 vote to include the white shark as a protected species on Appendix II. Part V discusses the import of this listing and explores further, and possibly more effective, mechanisms of conservation.
1. Efforts Preceding the 2004 Listing on Appendix II
a. Research Initiatives
Efforts to research the population levels of white sharks began in 1997, when CITES parties voted to work with the FAO and regional fisheries to improve identification methods, increase the accuracy of landing records, and monitor the number of sharks taken as by-catch in non-targeted fisheries and sold in international trade.
[FN92] As part of this research effort, parties that had shark fisheries were encouraged to track information regarding growth rate, life span, sexual maturity, and fecundity.
[FN93] Parties were also encouraged to keep records concerning the distribution of sharks by age and sex, seasonal movements, and interactions between populations.
[FN94] Finally, parties were encouraged to adopt protective regulations at the national level and to “establish international/regional bodies to co-ordinate management of shark fisheries throughout the geographic*210
range of species that are subject to exploitation, in order to ensure that international trade is not detrimental to the long-term survival of shark populations.”
The FAO's resulting research plan, called the International Plan of Action for the Conservation and Management of Sharks (IPOA-Sharks), was wholly voluntary.
[FN96] It called for states to develop National Plans of Action (NPOAs) for conservation to: (1) ensure that shark catches are sustainable; (2) assess threats to populations; (3) minimize waste and discards from shark catches (such as requiring retention of sharks whose fins are removed); and (4) facilitate identification and reporting of species-specific biological and trade data.
[FN97] The FAO stressed that states should develop NPOAs before the 2001 meeting of the United Nations Conference on Fisheries.
Unfortunately, the IPOA-Sharks failed considerably to meet its goals. By 2002, of the known 113 states that land sharks, only twenty-nine reported having made any progress at all.
[FN99] Of these twenty-nine states, only six had created NPOAs or interim reports called Shark Assessment Reports (SARs).
[FN100] By September 2002, none of the eighteen major shark fishing nations had produced a SAR, while only two had NPOAs.
[FN101] An IUCN report on IPOA-Sharks concluded that this lack of progress was due to the voluntary nature of the program, declaring that member states “are not obliged to undertake any of the actions urged by FAO in the IPOA and it appears that few consider it to be a priority.”
[FN102] The failure of the IPOA-Sharks to generate interest in conservation created a greater need for a CITES listing in the eyes of concerned nations.
b. Proposals to Include the White Shark on CITES Appendices
i. CITES 2002 Meeting (CoP 11)
In 2000, the United States and Australia proposed the first international protection for the white shark.
[FN104] Citing evidence that the populations of white sharks may have declined by at least twenty percent over the last three generations, the proposing parties sought protection of the species under Appendix I.
[FN105] Their proposal cited the white shark's small population and low reproductive rate in comparison to other fish species, in combination with significant trade in the species, as precipitating factors for Appendix I protection.
[FN106] Specifically, the proposal stated that illegal trade continues to exist even in areas where the species is protected at the national level.
The proposal noted that several parties objected to an Appendix I listing due to a belief that there was a lack of information to support stated population declines.
[FN108] Although the position that a species should not be protected due to insufficient information violates CITES precautionary principle, the parties rejected the proposal to include the white shark on Appendix I.
ii. CITES 2002 Meeting (CoP 12)
In October 2001, Australia listed the white shark on Appendix III.
[FN110] This listing did not require a vote of the parties, as it only recognized Australia's national prohibition of trade in white shark products.
[FN111] Japan and Norway entered reservations on the listing, thus exempting them from CITES requirements without any future penalty for not abiding by the Appendix III controls of requiring export permits for white shark parts or derivatives received from Australia.
iii. CITES 2004 Meeting (CoP 13)
Recognizing the insufficiency of the Appendix III protections, in preparation for the 2004 conference (CoP 13), Australia teamed with Madagascar to again seek Appendix I protection for the white shark.
[FN113] This proposal came on the heels of a change in the IUCN listing of populations of white sharks in particular regions from “Vulnerable,” as identified in 2000, to “Endangered” or “Critically Endangered.”
[FN114] However, based on comments received from other parties, including strong opposition by Japan, and in the hope of securing enough votes, Australia and Madagascar (the proposing parties) amended their proposal to seek an Appendix II listing rather than the more comprehensive Appendix I protection.
[FN115] This listing was also strongly opposed by nations with extensive fisheries.
In their amended proposal, the proposing parties set forth arguments as to how their proposal satisfied the requirements for an Appendix II listing.
[FN117] CITES Annex 2(a)(A) provides that a species should be included in Appendix II if certain criteria are met, including a requirement that the proposing parties show that “[i]t is known, inferred or projected that unless trade in the species is subject to strict regulation, it will meet at least one of the criteria listed in Annex 1 in the near future.”
[FN118] The proposing parties asserted that this requirement was met because the white shark already satisfied four independent Annex 1 criteria,
[FN119] namely: (1) the wild population is small and there is an observed, inferred, or projected decline in the number of individuals; (2) the wild population*213
is small and there is a high vulnerability due to the species' biology or behavior, including migration; (3) there is a decline in the number of individuals in the wild, which has been observed as ongoing or as having occurred in the past, but with a potential to resume; and (4) there is a decline in the number of individuals in the wild, which is inferred or projected on the basis of levels or patterns of exploitation.
The proposing parties also maintained that the amendment to Appendix II is valid under Annex 2(a)(B) based on their facts supporting the qualification that “[i]t is known, inferred or projected that the harvesting of specimens from the wild for international trade has, or may have, a detrimental impact on the species by . . . exceeding, over an extended period, the level that can be continued in perpetuity.”
The proposing parties set forth a strong factual overview of scientific knowledge regarding the white shark in support of their proposal. Specifically, they argued that all data series available from fisheries that catch white sharks purposefully or through by-catch indicate either significant population declines over time, or stability, but no growth.
[FN122] Further research has shown that some populations of white sharks have exhibited a decline of up to twenty percent of the historic baseline, a statistic significant enough to qualify it for listing under Appendix I.
The parties further noted that the reproductive activity of the white shark, at approximately a 4 to 5.6 percent annual population increase, is lower than that of other large sharks.
[FN124] Also, individuals may spend significant amounts of time near feeding grounds--areas that are typically also frequented by commercial fishers.
[FN125] Most significantly, females and juveniles tend to frequent shallow waters more often than adult males, making them more accessible to fishermen.
[FN126] Although mature females are a very small proportion of the species, they are the most vulnerable to the threat of international trade.
[FN127] The proposing parties concluded that considering the white shark's late reproductive age, low rate of reproduction, and long gestational period, the fact that females and *214
juveniles are more likely to be harvested is potentially devastating.
The proposing parties listed nine major impacts on the white shark attributed to human actions.
[FN129] Of those, the parties believed sport fishing, commercial fishing, and trade to be significant legal factors.
[FN130] The parties also cited a thriving illegal trade in white shark fins, jaws, and teeth as a major contribution to endangerment.
To support the argument that illegal trade is widespread and significant, the Australian government submitted an information paper to the CoP 13.
[FN132] This information paper reported the findings of an internet search for white shark products on the afternoon of October 2, 2004, the date of the opening ceremonies for CoP 13.
[FN133] Two sets of jaws were found online, one for the asking price of US$12,500 and the other for US$8,000.
[FN134] As a pair of jaws fetched the price of US$20,000 in New Zealand in 2003,
[FN135] the drop in price may indicate that the supply is increasing. Hundreds of teeth were also available, with an individual tooth selling for as much as US$625.
[FN136] Notably, sellers indicated willingness to ship internationally in most cases.
[FN137] The report concluded that there is “both a substantial demand for great white shark specimens in many countries, and a widespread network of suppliers and retailers willing and able to meet that demand.”
The proposal received the necessary two-thirds majority vote of parties in attendance, although only by six votes.
[FN139] Though the proposal barely passed, it was a significant victory for Australia, *215
Madagascar, and for the white shark because for the first time, an international convention restricts and monitors trade in the species. Delegations opposing the proposal included Japan, China, and Norway
[FN140]--all nations with extensive fisheries.
Though it is an important step towards conservation of the white shark, an Appendix II listing is insufficient to protect the species in critical sustainable levels. This Part addresses the relative import of the 2004 Appendix II listing and explores other avenues for conservation that address the economic impetus for human predation.
A. An Appendix I Listing Is Necessary to Preserve the Species
Chief among the reasons why an Appendix II listing offers inadequate safeguards to white sharks, given their delicate population balance, is that trade in Appendix II species is legal.
[FN141] Appendix II solely requires that export permits accompany shark products.
[FN142] Export permits are issued for non-living specimens when: (1) “a Scientific Authority of the state of export has advised that such export will not be detrimental to the survival of that species;” and (2) “a Management Authority of the state of export is satisfied that the specimen was not obtained in contravention of the laws of that State . . . .”
[FN143] The export permit must then be presented upon importation.
Export and import monitoring is a process based on random selection.
[FN145] In Hong Kong, approximately 320 vessels arrive at port every day.
[FN146] Of imported shipments, customs officials inspect only one in one thousand, or 0.1 percent, in detail.
[FN147] Further, importers often purposely mislabel goods to avoid tariff fees and taxes on restricted items.
[FN148] TRAFFIC estimates that up to eighty percent of cargo is mislabeled to circumvent import duties.
[FN149] Frequently, smuggled imports of restricted species are not registered *216
for export permits.
[FN150] Instead, traders will obtain one export permit and use it for multiple imports as “protection” against detection from customs.
[FN151] If customs inspects the goods and discovers a restricted species, the trader will present the permit, thus enabling him to avoid prosecution.
[FN152] If the shipment is not detected, the permit can be recycled for future use.
It is also possible for governments to circumvent trade restrictions.
[FN154] In 2000, China amended its Customs Commodity Code to classify fresh, chilled, and frozen shark fins as shark meat despite “the lack of any reference to shark fins in internationally published descriptions and statistics for these categories.”
[FN155] This change in the customs code likely explains an observed dip in China's declared imports of shark fin from 4646 tons in 2000 to 3128 tons in 2001.
In light of the inability to sufficiently regulate trade, the recent listing of the white shark on Appendix II is inadequate protection. These examples illustrate that Appendix II trade restrictions are easily circumvented, and the white shark is vulnerable to significant population declines with the removal of even a few specimens.
[FN157] Therefore, an Appendix I listing, prohibiting all commercial trade, is a more appropriate use of CITES to preserve the species. Yet, even Appendix I offers an incomplete solution to an increasingly dire problem.
B. Even If Granted, An Appendix I Listing May Not Be Sufficient Protection
Although Appendix I is a more stringent restriction on trade than Appendix II because it prohibits commercial trade and requires both import and export permits,
[FN158] even if it were granted, an Appendix I listing may not be sufficient protection for the white shark. A specimen may be imported when: (1) a Scientific Authority of the state of import has advised that the import *217
will be for purposes not detrimental to the species' survival; (2) a Management Authority of the state of import is satisfied that the specimen is not to be used for primarily commercial purposes; and (3) in addition to export scrutiny as detailed under Appendix II, a Management Authority of the state of export is satisfied that an import permit has been granted.
When export and import of goods is carefully monitored, Appendix I can be a well-designed barrier to restricted trade, particularly because it requires a determination that the specimen will not be used for commercial purposes.
[FN160] Trade in most countries, however, is not sufficiently monitored in that significant numbers of exports or imports cannot possibly be certified in a timely and cost effective manner.
[FN161] An Appendix I listing would somewhat improve the white shark's chances for survival because it would significantly restrict legal trade, but it would not address the substantial illegal trade in white shark jaws, teeth, and fins.
Further, CITES itself is an incomplete mechanism for regulating international trade in endangered species. CITES is wholly voluntary and relies on its member parties to enforce violations of restrictions according to the laws of the member party, which “vary significantly in scope, content, and effectiveness, according to each country's resources.”
[FN163] The CITES secretariat possesses no actual enforcement authority under the treaty and must “rely on powers of persuasion to either convince parties to comply or else move the other parties to call for international sanctions.”
As it relates to the shark trade, the lack of CITES enforcement power is illustrated by Hong Kong's failure to implement amendments to the Appendices in a timely manner.
[FN165] Although amendments enter into force ninety days after the approving CoP,
[FN166] Hong Kong did not enact legislative provisions for enforcing protected shark listings or the Appendix III listing of the white shark until two years after they came into effect.
[FN167] In the meantime, *218
CITES could only request that Hong Kong make implementation of the listings a priority.
CITES also lacks enforcement power over members with active, species-specific reservations.
[FN169] Accordingly, such reservations are also a threat to the white shark's survival. Japan, Iceland, and Norway have entered reservations exempting themselves from the requirements of the Appendix II listing.
[FN170] Because all three countries have extensive fisheries,
[FN171] the lack of international regulation with regard to trade in white sharks is cause for alarm.
C. National Efforts Towards International Conservation
As CITES itself is an insufficient mechanism to suppress illegal trade in white shark products, this Note now explores alternative solutions to the problem. Section C reviews the ability of individual nations to impede trade that threatens conservation efforts. Section D offers ecotourism as a new solution that specifically addresses the economics of white shark predation and conservation.
As CITES has no internal enforcement powers, restrictions imposed by member nations have the potential to effectively prohibit trade and are encouraged by CITES.
[FN172] However, such regulations may expose nations that are willing to use economic sanctions as a tool for white shark conservation to penalties for possible World Trade Organization (WTO) violations.
1. The Pelly Amendment
The United States has attempted to relate cooperation in international conservation to economic incentives on several occasions, though it has met with minimal success.
[FN173] In 1971, the United States passed the Pelly Amendment to the Fisherman's Protective Act of 1967 to authorize the use of environmental trade measures *219
(ETMs) against foreign nations.
[FN174] Under the Act, the secretaries of commerce and the interior must notify the president of acts by foreign nations that are either “conducting fishing operations in a manner or under circumstances which diminish the effectiveness of an international fishery conservation program” or are “engaging in trade or taking which diminishes the effectiveness of any international program for endangered or threatened species.”
[FN175] The president may respond to such acts by imposing trade sanctions or an embargo on the offending nation.
In 1998, the United States used the Pelly Amendment to threaten Japan and Iceland with sanctions when the two countries acted in defiance of a whaling moratorium imposed by the International Whaling Commission (IWC).
[FN177] Though threats had proved successful in the past, the United States failed to achieve compliance with the IWC in these instances because the threatened nations responded with serious counter-threats.
[FN178] Japan promised to retaliate with trade restrictions on the United States, and Iceland threatened to close a strategic U. S. airbase.
Thus, trade sanctions and threats of trade sanctions imposed by individual member parties to CITES will likely only be successful when the threatened party has insufficient bargaining power to fight the sanction. Powerful nations such as Japan and China are not ideal targets for threatened trade sanctions because they are valuable trading partners to the United States.
2. Sea Turtle Amendment/WTO Shrimp-Turtle Case
Conservation efforts by the United States conflicted with the General Agreement on Tariffs and Trade (GATT) in United States--Import Prohibition of Certain Shrimp and Shrimp Products (Shrimp-Turtle), in which the United States attempted to use trade restrictions *220
to enforce a CITES listing.
[FN181] The Shrimp-Turtle case examined the extent to which a WTO member can place trade requirements on another member under the environmental conservation exception to GATT found in Article XX(g).
[FN182] As CITES relies on parties to implement trade restrictions against other parties in violation of the Convention,
[FN183] an examination of the plausibility of this mechanism is warranted.
The United States passed the 1973 amendment to the Endangered Species Act (ESA) to implement CITES.
[FN184] The Sea Turtle Amendment to the ESA authorizes the use of ETMs to enforce CITES restrictions on sea turtles,
[FN185] seven species of which were listed on Appendix I.
[FN186] Under the Sea Turtle Amendment, U.S. vessels engaged in shrimp trawling were required to use approved Turtle Excluder Devices (TEDs),
[FN187] and harvesting nations were required to certify that they employed comparable standards.
[FN188] The Sea Turtle Amendment applied only to Caribbean/Western Atlantic countries, pursuant to the Inter-American Convention for the Protection and Conservation of Sea Turtles (IAC), a multi-national agreement created for the sole purpose of protecting sea turtles.
The Earth Island Institute challenged the Sea Turtle Amendment in the United States Court of International Trade on grounds that the ESA cannot be selectively applied and must be enforced against all nations that sought to import shrimp to the United States.
[FN190] The court agreed, ordering the secretary of commerce and the Department of Treasury to ban the importation of shrimp from countries that did not use TEDs or other comparable safety mechanisms, notwithstanding questions relating to conflict with GATT.
Once the restrictions were in place, affected nations requested that the WTO dispute settlement body establish a panel to examine whether the restrictions violated GATT.
[FN192] The United States contended that the measures were a valid exercise of an environmental conservation exception to GATT restrictions under Article XX(g), which allows ETMs “relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.”
The WTO panel rejected the U.S. argument and held that the U.S. restrictions constituted an impermissible trade barrier, though it recognized that protection of endangered species is a legitimate aim under Article XX(g).
[FN194] Notably, the panel found that the U.S. effort to share and develop TED technology with countries in the Caribbean/Western Atlantic region, pursuant to the IAC, was a discriminatory practice to the complaining nations outside the region, who received no such invitations of cooperation from the United States.
The WTO appellate body affirmed the panel's holding that the United States had engaged in a discriminatory trade practice even though its measure fit the conservation exception in Article XX(g).
[FN196] In a potentially significant move, however, the appellate body explained that trade restrictions such as those employed by the United States are not per se excluded from Article XX(g).
[FN197] Finding against the United States, the appellate body affirmed the panel's determination that unjustified discrimination was apparent in the failure to negotiate seriously with all countries involved in the trade restrictions.
[FN198] The appellate body reasoned that the United States might have won the Shrimp-Turtle case had it sought to work with the non-IAC countries to develop policies consistent with their resources and abilities instead of seeking to impose a “rigid and unbending standard” of U.S. law that disregarded the economic conditions prevailing in other countries.
[FN199] Thus, the ultimate violation by the United States was the failure to adjust the appropriateness of the regulation to coincide with the prevailing conditions in affected countries.
[FN200] In essence, under GATT there is a duty to negotiate to the same extent with all affected parties, no matter how basic or extensive such negotiations may be.
[FN201] The appellate body concluded its review of the case by opining that individual governments should “[a]void unilateral action to deal with environmental challenges” and that “[e]nvironmental measures addressing transborder problems should, as far as possible, be based on an international consensus.”
The IAC Sea Turtle Agreement is an excellent example of the trade regulations CITES encourages its member parties to develop. However, the WTO appellate body refused to permit IAC parties to execute their agreement in the context of universally-applied trade restrictions because it did not afford equal rights to WTO members who were not also parties to the IAC.
[FN203] Given the Court of International Trade's holding that the ESA must be applied globally, *223
multi-national trade agreements can only be held valid under GATT if the duty to negotiate has been met,
[FN204] a policy which greatly hampers the effectiveness of efforts to encourage environmental conservation through restrictions on trade.
D. An Alternative Proposal--Nations Interested in Saving the White Shark Should Promote its Notoriety
Perhaps the most effective way to promote white shark conservation is to capitalize on human curiosity. As research continues to provide fascinating insights on white sharks--for instance, that they breach, thrusting themselves out of the water to catch prey, and engage in forms of inter-species communication
[FN205]--curiosity may overcome fear through the lure of new opportunities in ecotourism. Two examples illustrate the power of this emerging industry: first, the interest generated by a recent live capture and exhibition of a small white shark, and second, the growing popularity of shark cage-diving.
1. White Shark Exhibition
A research project conducted by the Monterey Bay Aquarium in Monterey, California could prove pivotal in bringing awareness to the white shark's precarious position and providing realistic exposure to the species.
[FN206] On August 20, 2004, the Aquarium acquired a young female white shark as part of its research project on the species' biology and behavior.
[FN207] The four foot long shark was inadvertently caught in a commercial net off Malibu and was placed in the Aquarium's ocean pen, a five million gallon enclosure in the open ocean, for further observation.
[FN208] Because she remained in good health, the shark was transferred to the Aquarium's million-gallon tank in Monterey on September 15, 2004.
[FN209] The shark was released on March 31, 2005 after 198 days in captivity, far surpassing the prior number of days a white shark has survived outside the open ocean.
[FN210] The shark was released because, *224
at six feet long, she had outgrown the million gallon tank and required a change in diet from salmon fillets to rays and small mammals.
The shark's exhibition at the Monterey Bay Aquarium presented a unique opportunity for research and an important chance for the public to gain exposure to the white shark in a non-threatening environment. Cynthia Vernon, vice president of conservation programs, remarked that this exhibit offered the aquarium the opportunity to “raise awareness about the threats [white sharks] face and mobilize public support for white shark conservation.”
[FN212] She also opined that “[g]iven the way white sharks have been demonized in popular culture, a change in public attitude is critical if we want to assure their survival.”
The plan to increase public awareness and change negative attitudes appears to be working; between September 2004 and March 2005, over 850,000 people visited the white shark exhibit, causing a thirty percent increase in visitations from the previous year.
[FN214] The Aquarium obtained a second juvenile great white in September 2006.
[FN215] This shark also commands an audience: in its first seven weeks on display, 250,000 people came to see it.
[FN216] It is the strong hope of conservationists that exhibits such as this will promote an understanding of the species and the exploitation that threatens its survival.
Cage-diving is another important development in the white shark's public relations campaign. A recent socio-economic study *225
of the value of white shark ecotourism in a South African fishing community revealed that white shark watching was the largest source of income from marine-based tourism.
[FN218] Grossing four million dollars, income from white shark observations topped that derived from whale watching and recreational sport fisheries.
[FN219] Recognizing the importance of this trend in entertainment, Australia and Madagascar concluded in their proposal for an Appendix II listing of the white shark that “[i]t is clear that well-regulated non-consumptive ecotourism can yield greater profits to small coastal communities than can recreational and commercial fisheries for the species.”
The increasing popularity of white shark observation tours or cage-diving excursions not only expose people to the thrill of seeing a live white shark, they also create economic incentives for community residents to monitor the illegal trade in fins, jaws, and teeth.
[FN221] Individuals in South African fishing communities have already informed their governments of such illegal activities because “poaching posed a risk to [the] industry.”
[FN222] Further, the IUCN recognizes shark ecotourism as an important new industry to be monitored and developed.
The popularity of white shark ecotourism is encouraging for two main reasons. First, the interest generated by individual opportunities to observe white sharks increases the general public's awareness of the shark's precarious situation. Second, the demand generated by tourism has the potential to make, and in some instances already has made, white sharks more economically valuable alive than they are as items in trade.
[FN224] For these reasons, ecotourism is a vital component to the white shark conservation effort, offering an exciting potential to generate the immediate interest and action necessary to ensure the species' survival.
While the recent Appendix II listing of the white shark is encouraging, it is an insufficient measure of protection to ensure sustainable populations because commercial trade is permitted and illegal *226
trade is not addressed. An evaluation of export data gathered in cooperation with the Appendix II requirements, however, could provide useful information on regional white shark populations and aid in determining further population trends, which may result in additional protection through a future listing on Appendix I. Regional trade agreements should also be explored to protect white sharks in coastal waters of nations using measures that expand the trade restrictions of CITES, though such measures must be carefully crafted to withstand scrutiny by the WTO under GATT.
CITES and national trade measures alone provide an incomplete and insufficient remedy. Ecotourism has the potential to provide valuable monitoring services to circumvent illegal poaching efforts, and, as ecotourism grows, countries will realize increased economic incentives for protecting their white shark populations. As its public relations campaign continues to grow through ecotourism and greater understanding realized through conservation efforts, it is yet possible that the price of fame for the white shark will not amount to extinction.
[FNa1]. Law Clerk, United States Court of Appeals for the Armed Forces; Adjunct Professor of Scholarly Writing, George Washington University Law School. J.D. 2006, George Washington University Law School; B.A. 2000, University of Michigan.
[FN1]. Convention on International Trade in Endangered Species of Wild Flora and Fauna [CITES], Notification to the Parties: Amendments to Appendices I and II of the Convention, at 4, Notification No. 2004/073 (2004), http:// www.cites.org/eng/notif/2004/073.pdf.
[FN2]. Convention on International Trade in Endangered Species of Wild Flora and Fauna art. IV, Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243 [hereinafter CITES].
[FN3]. See CITES Conference of the Parties, Consideration of Proposals for Amendment of Appendices I and II, at 26-40, CoP 13 Prop. 32 (2004) [hereinafter 2004 Proposal], http://www.cites.org/eng/cop/13/prop/E13-P32.pdf (noting Japan's refusal to list the white sharks in Appendix II because of the uncertain impact on international trade).
[FN4]. Wildlife Conservation Society, White Shark Carcharodon Carcharias: Status and Management Challenges, Conclusions of the Workshop on Great White Shark Conservation Research, at 3, CITES A.C. 20 Inf. 1 (2004) [hereinafter Wildlife Conservation Society], www.cites.org/common/com/ac/20/E20-inf-01.pdf.
[FN5]. Species Survival Network [SSN], Great White Shark: Carcharodon Carcharias, at 1 (2004) [hereinafter Species Survival Network], http:// www.defenders.org/cites/gws.pdf.
[FN9]. Fox Shark Research Foundation [FSRF], Reproduction, http:// www.sharkfoundation.com (follow “Shark Facts--Reproduction” hyperlink) (last visited Feb. 11, 2007).
[FN10]. PRBO Conservation Science [PRBOCS], Research on the Farallon Islands, http://www.prbo.org/cms/index.php?mid=171&module=browse (last visited Feb. 11, 2007).
[FN11]. PRBOCS, History of PRBO Research on White Sharks [hereinafter History of PRBO Research on White Sharks], http://www.prbo.org/cms/index.php? mid=172 (last visited Feb. 11, 2007); see also 2004 Proposal, supra note 3, at 1 (noting that the white shark's productivity is lower than that of many other large sharks).
[FN12]. 2004 Proposal, supra note 3, at 2.
[FN13]. Todd Preston, Who's the Real Killer?-Overfishing of Sharks, Envtl. Mag., Dec. 1995, at 19.
[FN14]. Species Survival Network, supra note 5, at 1.
[FN15]. See Peter Pyle et. al., Trends in White Shark Predation at the South Farallon Islands, 1968-1993, in Great White Sharks: The Biology of Carcharodon carcharias 375 (A. Peter Klimley & David G. Ainley eds., 1996) (noting the impact of the removal of four sharks from the waters of the South Farallon Islands and the resultant decrease in shark sightings).
[FN16]. History of PRBO Research on White Sharks, supra note 11.
[FN17]. Pyle, supra note 15, at 378 (noting that the slow growth rate of white sharks also helps explain the gradual increase in the shark population).
[FN20]. See id. at 375; see also Species Survival Network, supra note 5 (noting the biological traits of white sharks that make recovery from sharp declines difficult).
[FN21]. Pyle, supra note 15, at 375.
[FN22]. Id. at 375, 379.
[FN23]. History of PRBO Research on White Sharks, supra note 11 (noting the impact on the shark population in Australia after fishermen depleted local specimens).
[FN24]. FSRF, Conservation, http://www.sharkfoundation.com (follow “Shark Facts--Conservation” hyperlink) (last visited Feb. 11, 2007).
[FN25]. See 145 Cong. Rec. H11154, 11156 (1999) (“[S]hark finning ... is a rapidly growing problem that is directly responsible for a huge increase in the number of sharks killed annually ....”).
[FN26]. Jessica Spiegel, Even Jaws Deserves to Keep His Fins: Outlawing Shark Finning Throughout Global Waters, 24 B.C. Int'l & Comp. L. Rev. 409, 413 (2001).
[FN27]. Traffic East Asia (TEA), Shark Product Trade in Hong Kong and Mainland China and Implementation of the CITES Shark Listings v (2004), available at http://www.traffic.org/news/press-releases/Traffic_East_Asia_ Sharks.pdf.
[FN28]. Id. at 7.
[FN29]. Id. at 23 (noting that Customs targeted the shark fin trade for enforcement based on the prevalence of smuggling to avoid paying tariffs). Following one arrest for selling US$500,000 worth of shark fins on the black market, Chinese officials reported that the taxes owed for the sale were approximately US$35,000. Id.
[FN30]. See id.
[FN31]. Jenny Chung, Bill Worries Shark's Fin Aficionados, S. China Morning Post, June 8, 2000, at 7.
[FN32]. Shark Finning Prohibition Act of 2000, S. 2831, 106th Cong. (2d Sess. 2000) (enacted).
[FN33]. 16 U.S.C. §§ 1857(1)(P)(i)-(iii) (2000).
[FN34]. See, e.g., Chung, supra note 31, at 7.
[FN35]. Id. (explaining that shark fin soup is an expensive delicacy).
[FN38]. Michael Richardson, Demand for Shark Fin Soup Leaves Bitter Taste, N.Z. Herald, Dec. 29, 2004, at B6.
[FN40]. In 1990, the organization changed its name from the International Union for Conservation of Nature and Natural Resources (IUCN) to IUCN--The World Conservation Union. See generally IUCN--The World Conservation Union, About IUCN, http://www.iucn.org/en/about (last visited Feb. 11, 2007).
[FN41]. See Shark Finning, RECWCC33.116, at 2 (Nov. 2004), available at http://www.iucn.org/congress/members/Individual_Res_Rec_Eng/wcc3_rec_116.pdf.
[FN42]. See id. at 1.
[FN43]. Id. at 2.
[FN44]. Traffic East Asia, supra note 27, at 6.
[FN45]. See 2004 Proposal, supra note 3, at 35-36 (noting the level of commercial transactions for white shark products and the level of exports to the United States).
[FN46]. Id. at 35.
[FN50]. Melanie Gosling, Great White Sharks Under Attack by Curio Pirates, Cape Times, Oct. 16, 2003, at 3.
[FN51]. See Ian K. Fergusson, Review of the Great White Shark Carcharodon Carcharias: Status & Biology-Abundance (1998), http://www.zoo.co.uk/~ z9015043/gws_conserv.html.
[FN55]. Research on the Farallon Islands, supra note 10.
[FN56]. Fergusson, supra note 51.
[FN57]. M. Lynne Corn, The Convention on International Trade in Endangered Species: Its Past and Future 1 (1994).
[FN60]. See CITES, Member Countries, http:// www.cites.org/eng/disc/parties/index.shtml (last visited Feb. 11, 2007).
[FN61]. Corn, supra note 57, at 1, 6.
[FN62]. Id. at 4-5.
[FN63]. Id. at 1.
[FN65]. CITES, supra note 2, art. XV(1)(b).
[FN66]. See generally CITES, http://www.cites.org (last visited Feb. 11, 2007).
[FN67]. CITES, supra note 2, art. II(1).
[FN68]. Id. Circumstances permitting trade may include breeding and educational and scientific research. See, e.g., CITES, Res. Conf. 5.10 (CoP 5) (1985), available at http://www.cites.org/eng/res/05/05-10.shtml.
[FN69]. Id. art. III.
[FN70]. Id. art. III(2)(a).
[FN71]. Id. art. III(3)(c).
[FN72]. Id. art. II(2)(a).
[FN73]. Id. art. II(2)(b).
[FN74]. See id.
[FN75]. Id. art. IV(2).
[FN76]. Id. art. IV(4).
[FN77]. CITES, Criteria for Amendment of Appendices I and II, Res. Conf. 9.24 (Rev. CoP 12), at 2 (2002) [hereinafter Criteria for Amendment], available at http://www.cites.org/eng/res/all/09/E09-24R12.pdf.
[FN79]. See Fergusson, supra note 51 (noting that protective measures should be based on the precautionary principle due to the lack of baseline data on the population size of the white shark).
[FN80]. See CITES, supra note 2, art. II(3).
[FN81]. Id. (emphasis added).
[FN82]. Id. art. V(3).
[FN83]. See id.
[FN84]. Id. arts. XXIII(2)(a)-(b).
[FN85]. Id. art. XXIII(3).
[FN86]. CITES, Effects of Reservations, Conf. 4.25(b), available at http://www.cites.org/eng/res/04/04-25.shtml (last visited Feb. 11, 2007).
[FN88]. See generally CITES, FAQ (Frequently Asked Questions), http:// www.cites.org/eng/resources/faq.shtml (last visited Feb. 11, 2007).
[FN89]. See, e.g., Fergusson, supra note 51 (noting various lobbying efforts to change laws regarding shark conservation).
[FN90]. Philippe Sands & Pierre Klein, Bowett's Law of International Institutions 84 (5th ed. 2001).
[FN91]. Id. at 141.
[FN92]. CITES, Decisions of the Conference of the Parties, at 132 (1997), available at http://www.cites.org/eng/cop/10/E10-Decisions.pdf.
[FN93]. Id. dec. 10.48(c)(ii).
[FN94]. Id. dec. 10.48(c)(iii).
[FN95]. Id. dec. 10.48(d).
[FN96]. See Food and Agriculture Org. of the U.N., International Plan of Action for the Conservation and Management of Sharks 12 (1999) [hereinafter IPOA-Sharks].
[FN97]. Id. at 13-14.
[FN98]. Id. at 13.
[FN99]. Sarah Fowler, The International and National Frameworks for Conservation and Management of Sharks 11 (2005), available at http:// www.iucn.org/themes/marine/pdf/ecuador_npoa-fowler.pdf.
[FN103]. See CITES, Proposal to Include Carcharodon carcharias (Great White Shark) on Appendix I of the Convention of International Trade in Endangered Species of Wild Fauna and Flora 12 (2000), available at http:// www.cites.org/eng/CoP/11/prop/48.pdf.
[FN104]. Id. at 3.
[FN105]. Id. at 3, 5.
[FN106]. Id. at 5, 8-9.
[FN107]. Id. at 9, 10 (noting that nations with protective legislation included the United States, South Africa, New Zealand, and the Australian territories of New South Wales, Victoria, and Tasmania).
[FN108]. Id. at 12 (noting that Japan, Argentina, Spain, and Mexico asserted this claim, while the Republic of China commented that IPOA-Sharks was sufficient protection for the white shark).
[FN109]. See id.
[FN110]. 2004 Proposal, supra note 3, at 11.
[FN111]. See CITES, The CITES Appendices, http:// www.cites.org/eng/app/index.shtml (“[S]pecies may be added to or removed from Appendix III at any time and by any Party unilaterally.”) (last visited Feb. 11, 2007).
[FN112]. Traffic East Asia, supra note 27, at 4; see generally CITES, supra note 2, arts. XXIII(2)-(3) (“Until a Party withdraws its reservation entered under the provisions of this Article, it shall be treated as a State not a Party to the present Convention with respect to trade in the particular species or parts or derivatives specified in such reservation.”).
[FN113]. 2004 Proposal, supra note 3, at 14, 33 (noting that Madagascar requested comment on adding the white shark to Appendix II and that Australia suggested that the species be included in Appendix II so as to increase the likelihood that the proposal would be accepted).
[FN114]. Wildlife Conservation Society, supra note 4, at 3.
[FN115]. See 2004 Proposal, supra note 3, at 26-40. Japan's response reflected its “strong concerns ... regarding the increasing attempts to include non-endangered commercially exploited marine species in the Appendices of CITES” and its opinion that even if trade were not sufficiently regulated in some states, this “should not be used as the reason to impose excessive global regulations, such as inclusion in Appendix I.” Id. at 30, 31.
[FN116]. See, e.g., CITES, The Proposal to List Great White Sharks (Carcharodon carcharias) in Appendix II with a Zero Quota: A Discussion of Issues 1, 3 (2004), available at http://www.cites.org/common/cop/13/inf/E13i-25.pdf (stating that China opposed the listing on Appendix II out of an asserted belief that national legislation was the proper remedy for the population decline).
[FN117]. See 2004 Proposal, supra note 3, at 1, 14-15.
[FN118]. Criteria for Amendment, supra note 77, at 5.
[FN119]. 2004 Proposal, supra note 3, at 15.
[FN120]. Criteria for Amendment, supra note 77, at 4.
[FN121]. Id. Annex 2(B)(i).
[FN122]. 2004 Proposal, supra note 3, at 1.
[FN123]. Id. at 1-2.
[FN124]. Id. at 1.
[FN125]. Id. at 3-4.
[FN126]. Id. at 4.
[FN128]. Id. at 3-4.
[FN129]. Id. at 7-8.
[FN131]. Id. at 9.
[FN132]. See Gov't of Australia, October 2, 2004: A Single Day Snapshot of the Trade in Great White Shark (Carcharadon carcharias) 1 (2004), available at http://www.cites.org/common/cop/13/inf/E13i-51.pdf.
[FN133]. Id. at 2.
[FN139]. See CITES, Thirteenth Meeting of the Conference of the Parties: Fifteenth Session, CoP 13 Comm. I. Rep. 15 (Rev. 1) 4 (2004), available at http://www.cites.org/eng/cop/13/rep/E13-ComIRep15.pdf (noting that there were eighty-seven parties in favor, thirty-four against, and nine abstentions). Abstentions are not counted toward a vote. See CITES, supra note 2, art. XV(1)(b). Thus, the proposal required eighty-one of the potential 121 votes to pass.
[FN140]. Thirteenth Meeting of the Conference of the Parties: Fifteenth Session, supra note 139, at 4.
[FN141]. See CITES, supra note 2, art. IV(2).
[FN143]. Id. arts. IV(2)(a)-(b).
[FN144]. Id. art. IV(4).
[FN145]. Simon Parry, Environment: Food for Thought by Saying No to Shark Fin Soup, Inter-Press News Service Agency, Nov. 11, 2004.
[FN147]. Id. (representing data taken in 2002).
[FN150]. Traffic East Asia, supra note 27, at 31.
[FN152]. Id. (explaining that the instance recorded was a two-layer carton with non-protected species of turtle on top and a protected species on the bottom).
[FN153]. Id. (noting that an export permit may be used within six months from the date of issuance); CITES, supra note 2, art. VI(2).
[FN154]. See Traffic East Asia, supra note 27, at 13-14.
[FN156]. See id. at 12.
[FN157]. See Species Survival Network, supra note 5, at 1.
[FN158]. See CITES, supra note 2, art. V(3).
[FN159]. Id. art. III.
[FN160]. See id. art. III(3)(c).
[FN161]. See Parry, supra note 145.
[FN162]. See 2004 Proposal, supra note 3, at 37-38.
[FN163]. Shennie Patel, The Convention on International Trade in Endangered Species: Enforcement and the Last Unicorn, 18 Hous. J. Int'l L. 157, 167-68 (1995).
[FN164]. Id. at 171.
[FN165]. See Traffic East Asia, supra note 27, at vi.
[FN166]. CITES, supra note 2, art. XV(1)(c).
[FN167]. Traffic East Asia, supra note 27, at vi, 4.
[FN168]. Patel, supra note 163, at 171.
[FN169]. See CITES, supra note 2, art. XXIII(3).
[FN170]. See CITES, Specific Reservations Entered by Parties, http:// www.cites.org/eng/app/reserve_latest.shtml (last visited Feb. 11, 2007).
[FN171]. See generally John Pickrell, Whaling Nations Blame Whales for Fish Declines, Nat'l Geographic News, June 22, 2004, available at http:// news.nationalgeographic.com/news/2004/06/0622_040622_whalefisheries.html.
[FN172]. See Corn, supra note 57, at 9-11.
[FN173]. See, e.g., Appellate Body Report, United States--Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Oct. 12, 1998); GATT Dispute Panel Report, United States--Restrictions on Imports of Tuna, 30 I.L.M. 1598 (1991).
[FN174]. See generally Carol J. Miller & Jennifer L. Croston, WTO Scrutiny v. Environmental Objectives: Assessment of the International Dolphin Conservation Program Act, 37 Am. Bus. L.J. 73, 87-88 (1999).
[FN175]. 22 U.S.C. §§ 1978(a)(1)-(2) (2000).
[FN176]. 22 U.S.C. § 1978(a)(4).
[FN177]. William C. Burns, The International Whaling Commission and the Future of Cetaceans: Problems and Prospects, 8 Colo. J. Int'l Envtl. L. & Pol'y 31, 47, 78 (1997).
[FN178]. Id. at 77-78.
[FN179]. Id. at 48, 78.
[FN180]. See generally China's Trade and U.S. Manufacturing Jobs: Hearing Before the H. Comm. on Ways and Means, 108th Cong. (2003) (statement of N. Gregory Mankiw, Chairman, Council of Economic Advisers) (stating that trade between China and the United States is substantial and important to both economies).
[FN181]. See Appellate Body Report, United States--Import Prohibition of Certain Shrimp and Shrimp Products, P 7, WT/DS58/AB/R (Oct. 12, 1998) (noting the Panel Report's conclusion that the import ban on shrimp and shrimp products as applied by the United States was inconsistent with GATT Articles XI:1 and XX). The Appellate Body ultimately agreed with the Panel Report and determined that the United States' measure was not justified under Article XX of the GATT 1994. Id. P 187(c).
[FN182]. Id. PP 2-7, 98(b). GATT Article XX(g) provides an exception for environmental trade measures (ETMs) “relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.” General Agreement on Tariffs and Trade art. XX(g), Oct. 30, 1947, 61 Stat. A-3, 55 U.N.T.S. 187 [hereinafter GATT].
[FN183]. See Patel, supra note 163, at 170-71.
[FN184]. 16 U.S.C. §§ 1531-1543 (2000); see also 16 U.S.C. § 1531(a)(4)(F) (implementing CITES).
[FN185]. See Sea Turtle Amendment to the Endangered Species Act, Pub. L. No. 101-162, 103 Stat. 1037 (1989) (codified at 16 U.S.C. § 1537 (2000)).
[FN186]. Miller, supra note 174, at 91.
[FN187]. 50 C.F.R. § 223.206 (d)(2)(i) (2006) (requiring shrimp trawlers in the Atlantic or Gulf area to have an approved TED installed in each net that is rigged for fishing). A TED is a metal grid placed inside trawling nets to prevent the entry of larger sea-life, while allowing prawns and shrimp to pass through. Commonwealth Scientific & Indus. Research Org., TED Saves Prawn-Fishers Dollars, Oct. 11, 2001, http:// www.csiro.au/files/mediaRelease/mr2001/TEDs.htm.
[FN188]. Miller, supra note 174, at 91.
[FN189]. Id. at 93 (discussing U.S. efforts to establish consensual arrangements through the Inter-American Convention with other countries in the Caribbean/Western Atlantic region); see also Humane Society of the United States, Inter-American Convention for the Protection and Conservation of Sea Turtles (IAC), http://www.hsus.org/about_us/humane_society_international_ hsi/international_policy/treaties/interamerican_convention_for_the_protection_ and_conservation_of_sea_turtles_iac (last visited Feb. 11, 2007).
[FN190]. Earth Island Inst. v. Christopher, 913 F. Supp. 559, 562 (Ct. Int'l Trade 1995); see also Miller, supra note 174, at 92.
[FN191]. Christopher, 913 F. Supp. at 580, vacated, Earth Island Inst. v. Albright, 147 F.3d 1352, 1354 (Fed. Cir. 1998).
[FN192]. Miller, supra note 174, at 92 (indicating the affected nations of India, Malaysia, Pakistan, and Thailand).
[FN193]. GATT, supra note 182, art. XX(g); see also Appellate Body Report, United States--Import Prohibition of Certain Shrimp and Shrimp Products, P 113, WT/DS58/AB/R (Oct. 12, 1998).
[FN194]. Appellate Body Report, United States--Import Prohibition of Certain Shrimp and Shrimp Products, P 112, WT/DS58/AB/R (Oct. 12, 1998) (reciting the findings and reasoning of the Panel in concluding that the measure constituted unjustifiable discrimination prohibited under Article XX).
[FN195]. Id. P 121 (” [Panel's finding] fell within [the] class of excluded measures because [it] condition[ed] access to the domestic shrimp market of the United States on the adoption by exporting countries of certain conservation policies prescribed by the United States.”).
[FN196]. See id. P 187; see also Robert Howse, The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environmental Debate, 27 Colum. J. Envtl. L. 491, 492 (2002).
[FN197]. Appellate Body Report, United States--Import Prohibition of Certain Shrimp and Shrimp Products, PP 148-60, WT/DS58/AB/R (Oct. 12, 1998).
[FN198]. Id. P 166.
[FN199]. Id. P 163.
[FN200]. See Howse, supra note 196, at 506.
[FN201]. See id. at 508-09.
[FN202]. Appellate Body Report, United States--Import Prohibition of Certain Shrimp and Shrimp Products, P 168, WT/DS58/AB/R (Oct. 12, 1998).
[FN203]. See id. PP 172-73, 175-76.
[FN204]. See Howse, supra note 196, at 508-09.
[FN205]. Fergusson, supra note 51.
[FN206]. See Monterey Bay Aquarium [MBA], Monterey Bay Aquarium Puts Young White Shark in Million-Gallon Outer Bay Exhibit (2004) [hereinafter MBA-- Announcement], http://www.mbayaq.org/aa/aa_pressroom/content/media/white_shark_ press_kit_Sept_04.pdf.
[FN210]. Id. (noting that the prior record number of days survived in captivity was sixteen). The inability to keep a white shark in captivity for any length of time prior to this project is generally thought to have been due to the “stress of capture, inability to encourage ... sharks to feed, and inadequate exhibit design.” MBA, White Shark Research Project Fact Sheet (2004), http://www.mbayaq.org/aa/aa_pressroom/content/media/white_shark_press_ kit_Sept_04.pdf.
[FN211]. Interview with Jack Oliver, Volunteer Guide, Monterey Bay Aquarium, in Monterey, Cal. (Mar. 4, 2005).
[FN212]. MBA--Announcement, supra note 206.
[FN213]. MBA--Announcement, supra note 206.
[FN214]. MBA, Monterey Bay Aquarium Commits Another $500,000 to White Shark Conservation Research Projects (2005), http://www.mbayaq.org/aa/aa_ pressroom/content/media/MBA_05_white_shark_research_REL.pdf. Jack Oliver, a volunteer guide, stated that the viewing lounge was filled to capacity during the first few months of the white shark's exhibition, which coincided with the aquarium's “off-season” at the end of summer. Interview with Jack Oliver, supra note 211.
[FN215]. Juliet Eilperin, Rare Look at a Great White Shows Shark's Fragility, Wash. Post, Oct. 23, 2006, at A8.
[FN217]. See, e.g., MBA--Announcement, supra note 206.
[FN218]. 2004 Proposal, supra note 3, at 14.
[FN221]. See Gosling, supra note 50.
[FN223]. See Wildlife Conservation Society, supra note 4, at 4-5.
[FN224]. See id. at 5.
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