Jaws of life: developing international shark finning regulations through lessons learned from the International Whaling Commission.

 I. INTRODUCTION                                                512  II. THE INTERNATIONAL WHALING COMMISSION                       514    A. History of the IWC                                        514    B. Current Status of the IWC                                 515  III. CHALLENGES TO EFFECTIVE INTERNATIONAL REGULATION OF      MARINE ANIMAL RESOURCES                                   518    A. Cultural Differences                                      518      1. Whaling                                                 518      2. Shark Finning                                           520    B. Scientific Data Collection                                521      1. Whaling                                                 522      2. Shark Finning                                           523    C. Environmental Issues                                      524      1. Whaling                                                 524      2. Shark Finning                                           524  IV. POTENTIAL SHARK FISHING REGULATORY APPROACHES              525    A. Individual National Laws                                  525      1. United States Regulations                               525      2. United Kingdom Regulations                              527    B. Current International Organizations                       528      1. CITES                                                   528      2. Convention on Migratory Species                         529      3. Regional Fisheries Management Organizations             530      4. European Union                                          532    C. A Proposal for a New International Commission for Shark      Regulation: The International Shark Fishing Commission    533      1. Membership and Reservations                             533      2. Cultural Claims                                         535      3. Scientific Data                                         535      4. Environmental Concerns                                  536      5. Recommendations                                         536  V. CONCLUSION                                                  536 

I. INTRODUCTION

Every summer the Discovery Channel airs a week-long programming schedule devoted entirely to sharks. (1) "Shark Week" has been a staple of Discovery Channel's summer season for over twenty years. (2) In addition to programs that follow researchers or feature dramatic reenactments of human shark attack victims, the Discovery Channel airs ads that inform viewers about the practice of commercial shark finning and encourage them to take action to stop it. (3) For many Americans, this may be the first time they learn that humans present much more of a danger to sharks than sharks do to humans.

In the last decade, shark finning has become an increasingly common way for commercial fishermen to harvest fins for shark fin soup. (4) This soup is an expensive delicacy in Asian countries, especially China, and a bowl can often sell for over $100 in fine restaurants. (5) Because shark fins are much more valuable than the rest of the shark's body, fishermen often discard everything but the fins. (6) Sharks are often caught on long lines and brought aboard a fishing vessel. (7) Once the sharks are onboard, fishermen cut off their fins, usually while the shark is still alive, and throw the rest of the animal's body back into the ocean. (8) The sharks are often still alive when this happens, and they end up bleeding to death or drowning because many shark species cannot pass air through their gills without swimming. (9)

The practice of shark finning is not only brutal, but it is also an extremely unsustainable way to fish. (10) Because fishermen discard everything but the fins, they can harvest many more sharks than if they had to store the entire carcass on board. (11) Some international organizations estimate that fishermen kill over seventy million sharks each year by finning. (12) As the demand for shark fin soup has rapidly increased, so has the use of finning in commercial fishing operations. (13) Unfortunately, the international community has failed to implement comprehensive international legal protection for sharks against this gruesome practice. (14)

While shark finning is not the only shark fishing practice that threatens shark species' viability, it is the least sustainable fishing practice, and is the largest threat for species extinction from commercial shark fishing. (15) Other fishing methods, such as bycatch and sport fishing, cause harm to shark populations, (16) but this Note will focus primarily on shark finning because this practice is the most detrimental and requires immediate international regulatory attention.

It is necessary for the international community to regulate shark fishing practices for several reasons. The most important factor for international regulation is to maintain a sustainable harvest for shark fishermen. As mentioned above, the increase of shark finning has resulted in an unsustainable shark harvest that will likely cause species extinctions in the near future, which would be disastrous for the international shark fishing industry. Furthermore, species extinctions caused by shark finning will result in catastrophic effects on global ocean environments. Sharks are apex predators in ocean ecosystems, and the loss of these predators will likely result in a drastic increase of prey species. (17) These prey species are often predators for lower species in the food web, and an imbalance in these intermediate species can cause ecosystem imbalance and further species extinctions in lower species. (18)

This Note will recommend a regulatory scheme for a sustainable shark harvest. In developing this regulatory recommendation, this Note will examine the strengths and weaknesses of commercial whaling regulations implemented by the International Whaling Commission ("IWC") and the success of those regulations in maintaining sustainable whale species populations.

Section II will discuss the IWC's history and its current status regarding whaling regulations. Section III will discuss the issues of cultural differences, lack of scientific data, and the risks of environmental degradation associated with the commercial harvesting of whales and sharks. Each subpart will discuss the issue as it relates to whaling, and then discuss the issue as it relates to developing shark fishing regulations.

Section IV of this Note will discuss possible regulatory approaches to shark fishing that may reduce its disastrous effects. Subsection A will discuss the potential to manage shark populations through individual national laws. Subsection B will discuss the possibility of regulating shark finning through existing international conservation organizations. Finally, subsection C will propose a new international commission, similar to the IWC, to regulate the practice of shark finning and shark fishing in general. This Note will conclude that the international community can best regulate shark finning through creating such a commission.

II. THE INTERNATIONAL WHALING COMMISSION

The IWC is comprised of voluntary member nations that work together to produce international regulations for commercial whaling. (19) This section will discuss the IWC's history and current status.

A. History of the IWC

In the early 20th Century, commercial whaling was an immensely profitable industry, but it was also highly unsustainable. (20) For instance, some whale species populations decreased by 96 percent or more from their pre-whaling levels. (21) Recognizing the dangers that these population declines posed to the whaling industry, whaling nations convened the International Convention for the Regulation of Whaling ("ICRW") in 1946. (22) Through this convention, whaling nations formed the IWC. (23) The participating nations intended the IWC to establish catch limits and manage populations to allow commercial whaling to continue at a sustainable level. (24)

The IWC struggled for four decades to develop catch quotas that would lead to sustainable whale populations. (25) However, the IWC members failed to develop quotas that accurately reflected scientific data on sustainable population levels and failed to enforce the quotas they developed, which resulted in the continual decline of most whale species. (26)

The IWC Member Nations could not agree on appropriate management procedures to create sustainable whale populations, so the nations agreed to ban commercial whaling until the Commission could gather sufficient data and reach a consensus on an effective management scheme. (27) In 1982, the IWC voted to ban all commercial whaling in an attempt to preserve declining great whale populations. (28) The ban took effect in 1986. (29) The IWC also stated that an underlying reason for its moratorium on whaling was a change in some of the whaling nations' attitudes toward harvesting whales. (30) The moratorium is still in effect today. (31)

B. Current Status of the IWC

There are currently eighty-eight member countries in the IWC, and membership is voluntary. (32) The IWC includes both pro-whaling and Anti-whaling nations. (33) The United States, the United Kingdom, and Australia are the strongest anti-whaling nations, while Norway, Iceland, and Japan have repeatedly led attempts by pro-whaling countries to lift the commercial whaling ban. (34)

Because IWC membership is voluntary, pro-whaling countries frequently threaten to leave the IWC if the Commission does not lift the ban. (35) Additionally, Norway and Iceland have objected to the ban and established their own catch quotas. (36) While Iceland has currently stopped hunting whales because demand for the meat has diminished in Iceland in recent years, (37) Norway continues to establish quotas for itself and may even increase its catch in the coming years. (38)

The IWC's moratorium on whaling includes exceptions for aboriginal subsistence whaling (39) and scientific research. (40) Japan's research program is the most infamous, largely due to media attention from programs such as Animal Planet's Whale Wars. (41) There is considerable debate regarding the scientific nature of Japan's research program, as Japan has produced little published research as a result of its permits, and DNA studies have shown that Japanese markets sell unauthorized whale meat that the IWC has banned for commercial use. (42) Some independent researchers also suggest that scientific permits are not necessary because technology now allows scientists to gather good data without killing the animals. (43) For instance, scientists have long used aerial photographs to measure animal length and estimate growth rate and maturity over time. (44)

In the years since the IWC approved the whaling ban, …