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Oceanic shark populations have declined significantly in the last decades, with fishing
mortality identified as the main cause. Their highly migratory nature, co-occurrence with
primary target species in commercial fisheries, and the intrinsic vulnerability of oceanic
shark species to fishing pressure make international cooperation in their conservation and
management paramount.
This legal opinion examines the obligations of States under international fisheries law and
the Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) with respect to the conservation and management of oceanic sharks caught in
fisheries under the competence of regional fisheries management organizations with a
mandate to manage tuna (t-RFMOs). The focus of this opinion is on those species whose
retention and landing are of significant commercial value to the fisheries (commercially
exploited sharks). This analysis is timely, given that States have displayed a steadily
growing trust in the role of CITES in the conservation and management of such sharks over
the past decade.
This opinion argues that commercially exploited shark species, particularly when listed
under CITES Appendix II, should be legally classified as (secondary) target species rather
than non-target species under the United Nations Convention on the Law of the Sea
(UNCLOS), the Agreement for the Implementation of the Provisions of the United Nations
Convention on the Law of the Sea relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA) and other instruments of
international fisheries law. It follows that t-RFMOs have a responsibility to manage
populations of CITES-listed commercially exploited sharks within their regulatory
competence through precautionary, science-based, and effective conservation and
management measures. Addressing mortality and maintaining populations at a level
consistent with their role in the ecosystem should be advanced by developing appropriate
harvest strategies – as commonly applied for other target species - and include robust
harvest control rules.
Against this background, this opinion argues that States should closer align their
implementation of their obligations under the UNFSA with those under CITES and vice
versa. From the perspective of CITES, this includes the obligation to regulate international
trade in CITES-listed species on the basis of prior, science-based assessments to ensure
that it is not detrimental to the survival of the species (NDFs) and that the population
throughout its range is maintained at a level consistent with its role in the ecosystems.
Because CITES’ definition of international trade includes the introduction from the sea, i.e.
all landings from the high seas, and CITES provisions apply regardless of whether a species
is considered a target, secondary target or bycatch species, these obligations likely apply to
much, if not most fishing of CITES-listed sharks under t-RFMO competence. In addition,
CITES has well established compliance mechanisms. These include, in particular, the
Review of Significant Trade (RST), a peer-review process of States’ NDFs that acts as a
“safety net” to monitor and improve implementation, and the possibility of compliance
measures against States as a last resort. This means that non-compliance with CITES’
obligations may carry consequences, including trade suspensions, for States. While there is
not yet a clear indication of the quality standard based upon which States’ NDFs will be
assessed, existing guidance states that NDFs should take into account all sources of
mortality, maintain the species at a level consistent with its role in the ecosystem, and
collaborate when making NDFs for shared stocks, including through existing regional
bodies, such as t-RFMOs.
This opinion argues that the most appropriate tool t-RFMOs have available to support their
Parties in fulfilling their CITES obligations for commercially exploited sharks, such as the
blue shark, are comprehensive harvest strategies, including robust harvest control rules.
These requirements align well with our findings on the existing obligations of States under
the UNFSA.
