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. 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. The adoption of this proposal is controversial among CITES member nations because of high market demands for white shark products. Although research on white sharks is limited due in part to the elusive nature of the species, all available research indicates that the population of white sharks is decreasing; in some areas the decline is in large, possibly unsustainable, numbers. This population decrease is particularly alarming because market demand remains a powerful motivation for continued depletion.
*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)
A. Biological and Behavioral Considerations Making White Sharks Vulnerable to Predation
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. [FN14]
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.
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.
C. Collector Market
A. CITES Organizational Structure
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. [FN109]
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.” [FN121]
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. [FN123]
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. [FN128]
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. [FN131]
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.” [FN138]
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.
A. An Appendix I Listing Is Necessary to Preserve the Species
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. [FN153]
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. [FN156]
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
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.” [FN164]
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.
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.
C. National Efforts Towards International Conservation
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. [FN176]
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. [FN179]
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. [FN180]
2. Sea Turtle Amendment/WTO Shrimp-Turtle Case
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. [FN189]
*221 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. [FN191]
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.” [FN193]
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. [FN195]
*222 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.” [FN202]
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
1. White Shark Exhibition
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.” [FN213]
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. [FN217]
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.” [FN220]
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. [FN223]
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.
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.