Illegal, Unreported, and Unregulated Fishing is a Crisis for Sharks and Other Aquatic Animals
Across the globe, aquatic animals and oceans are in peril due to industrial-scale fishing.
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The industrial-scale removal of marine animals from our oceans costs the lives of countless aquatic animals and is a grave environmental crisis. According to the Intergovernmental Panel on Biodiversity and Ecosystem Services (IPBES), direct exploitation is the number one driver of marine animal loss, and a significant portion of that loss comes at the hands of illegal, unreported, and unregulated (IUU) fishing. In addition to the direct, targeted loss of aquatic animal life, the consequences of IUU fishing include habitat destruction, bycatch, and the stranding of fishing gear, amongst others. In particular, sharks and their relatives suffer greatly from IUU fishing. With a quarter of all shark, ray, and chimaera species threatened with extinction and some shark species suffering 80% declines, all opportunities under the law to curb both the targeted and incidental killing of these species should be deployed.
At the Global Law Alliance for Animals and the Environment (GLA), we are working toward transformative shifts in our relationships with animals, including marine animals, and while we advocate for paradigm-shifting legal reforms, we also leverage existing law to provide as much protection for animals as it possibly can. While many—nearly all—existing laws fail to provide animals the rights-based recognition they deserve, if existing laws were implemented to their full extent and enforced with vigor, fewer animals’ lives would be lost to human exploitation.
As we explore opportunities for ratcheting up pressure on policy-and law-makers to take action, we often begin with an assessment of the opportunities under a particular law. In this case, faced with escalating IUU fishing, GLA has begun a critical review of the IUU provisions of the High Seas Driftnet Moratorium Protection Act (MPA). As amended, the MPA requires the National Marine Fisheries Service (NMFS) to identify nations whose vessels are engaged in IUU fishing, among other harmful practices. Identified nations receive a positive or negative certification from NMFS following a two-year consultation process that encourages nations to take appropriate corrective action.
On paper, the MPA could be an incredibly powerful weapon in the fight against IUU fishing because it bargains access to U.S. markets for concerted actions by foreign nations to address IUU fishing. Absent satisfying remedial action by targeted nations, trade sanctions are possible.
To date, our analysis reveals both opportunities and obstacles to realizing the MPA’s full power to address IUU fishing. Aside from the very real political challenges related to certifying and denying market access to countries, the definition of IUU fishing used by NMFS presents a limitation on the effectiveness of the law. For example, although vessels flagged to China are known to fish illegally in waters under other countries’ jurisdictions, this does not constitute IUU fishing for the purposes of MPA identification and certification because, although the fishing took place in national waters, it did not take place in United States national waters or the high seas. In its 2019 report to Congress, NMFS noted that despite a likely “pervasive” problem, NMFS was hamstrung under the law to act. Much, if not most, IUU fishing thus likely escapes U.S. scrutiny under the MPA given that only a limited number of the fish and marine species destined for commercial markets are caught in the high seas.
In a sign of strength, most identifications have resulted in positive certifications, meaning that the U.S. has determined that some amount of corrective action has been taken with respect to the identified activities. That this behavioral change occurs in the two-year consultation window signals the law’s potential strength. For instance, following its identification in the 2013 Biennial Report, the Republic of Korea (South Korea) welcomed the United States’ suggestions, actively amended legislation to combat IUU fishing activities, and even identified additional vessels engaged in IUU fishing. As with many laws that threaten U.S. sanctions, the real reason for sanctions may be their deterrent effect or their persuasive, as opposed to punitive, force.
Importantly, though, despite examples of concerted, corrective measures taken to combat the instances of IUU fishing identified by the U.S., IUU fishing remains globally an escalating tragedy. One clear limitation of the MPA is its ability to address the systemic and structural issues that allow IUU fishing to flourish, such as countries known to issue “flags of convenience” and enforcement difficulties related to distant-water fishing. This is evidenced by the re-identification of several countries, even after positive certifications, suggesting back-sliding or, more often, the emergence of a new problem following amelioration of its predecessor. NMFS requires evidence of specific instances of IUU fishing as feedstock for identification. This is a fair and just approach on one hand, but it means that positive certification hinges on taking corrective measures that are often limited to the confines of the specific instance or instances flagged to the agency. NMFS’ administration of the MPA does not seem to adequately encourage attempts at broader, systemic reforms.
The industrial-scale exploitation of marine animals demands international and national level scrutiny, and the MPA is an important tool to advance the goal of addressing the IUU fishing aspects of that exploitation. Still, both regulatory reform and political will are needed to unlock the law’s full potential. Please continue to follow GLA’s efforts as we work, step-by-step, to keep marine animals safe and our ocean ecosystems healthy.
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The Global Law Alliance for Animals and the Environment (GLA) was launched in the fall of 2020 as an innovative collaboration of the Center for Animal Law Studies and the top-ranked Environmental Law Program at Lewis & Clark Law School. GLA champions wild animals and wild spaces around the world.
The Center for Animal Law Studies (CALS) was founded in 2008 with a mission to educate the next generation of animal law advocates and advance animal protection through the law. With vision and bold risk-taking, CALS has since developed into a world-renowned animal law epicenter. CALS’ Alumni-in-Action from over 20 countries are making a difference for animals around the world. CALS is a nonprofit organization funded through donations and grants.
