1. INTRODUCTION
This article analyzes the legal measures introduced to conserve and manage sharks in the Indo-Pacific island states. The purpose of the article is twofold: firstly, to shed light on shark laws in these little-known jurisdictions; and, secondly, to examine historical and cultural diversities that have influenced legal developments and are likely to continue to do so in the future. The research is significant because these states have made a disproportionate contribution to global numbers of shark sanctuaries, and the legal responses in these island nations have not previously been analyzed comparatively.Footnote 1 Furthermore, in order to achieve conservation outcomes, greater consideration must be given to the cultural context in which laws are adopted and implemented. Although some scholars have pointed to the value of engaging with socio-cultural factors in advancing the governance of sharks in specific circumstances,Footnote 2 relatively little literature explores how these factors influence law. The article contributes to a growing body of literature on shark conservation and management laws, and also has broader implications for the conservation of other species, such as whales and turtles, where positive and negative socio-cultural factors have influenced and continue to impact upon regulatory effectiveness.Footnote 3
Significant attention has been drawn recently to the over-exploitation of sharks, their importance for marine health, and the risks of their disproportionate removal.Footnote 4 This has led to the adoption of a range of legal measures at international, regional and national levels to address declines and advance shark conservation and management,Footnote 5 as well as growth in non-consumptive exploitation through marine-based tourism.Footnote 6 The majority of the domestic responses are less than ten years old, and therefore their effectiveness in increasing shark numbers cannot yet be meaningfully evaluated. Nevertheless, it is timely to explore the different ways in which states have chosen to address shark conservation and management, as a platform for evaluating the effectiveness of these laws in the future.
This article focuses on the small island developing states (SIDS) of the Indian and Pacific Oceans, which have contributed significantly to the global map of shark-based conservation and management measures. Worldwide, 17 states and territories have declared shark sanctuaries across their entire exclusive economic zones (EEZs), and of these nine are Indian and Pacific Ocean states or dependent territories.Footnote 7 Beyond the high profile ‘shark parks’, the majority of these states restrict fishing, have banned finning or have adopted other protection measures for sharks. Therefore, despite their small size and limited resources, these states have shown significant commitment to shark conservation.
On closer inspection, it is clear that, with few exceptions, the measures taken differ considerably in scope and coverage. The variety of responses is linked partly to the diverse legal systems, economic interests, political will, and public pressure to better manage sharks in national waters.Footnote 8 Nevertheless, the various legal tools and the ways in which they are used have also been influenced by history, culture, and human safety concerns, resulting in differing values being placed upon sharks.
Where world views and conservation goals align, synergistic benefits can be achieved; but where culture and conservation clash, negative conservation outcomes often result. In the case of sharks, cultural traditions associated with eating shark fin soup, for example, have been shown to have strongly influenced the prevalence of shark finning.Footnote 9 The influence of culture and tradition on shark populations has been demonstrated in other island jurisdictions such as Indonesia. On the one hand, where customary law forbids the killing of whale sharks, this has led to ‘a low level of harvesting of whale sharks in the region’.Footnote 10 On the other hand, in other parts of Indonesia such as Nusa Tenggara Timur, subsistence-based marine megafauna fishing took place where no such customary beliefs specific to whale sharks existed.Footnote 11 As new issues emerge that require legal action, the various socio-cultural attitudes towards sharks potentially drive differing responses. In the context of the Indo-Pacific islands, legal responses to date and current issues concerning human safety provide an illuminating lens through which to explore these matters to support the inference that socio-cultural factors play a critical role in the good governance of sharks.
The article commences by exploring the history and culture of the Indo-Pacific island states, highlighting diversities and commonalities. The article then examines the legal responses to global concerns about the conservation status of sharks, before analyzing in detail the 17 states (12 in the Pacific and 5 in the Indian Ocean) that have specific shark conservation and management laws. Concerns about tourism, human safety and aquaculture are also explored in the wake of shark attacks and proposed land-use and ocean-based developments. Emerging trends and patterns are then highlighted to support the inference that history and culture have shaped legal responses and may influence implementation, compliance and enforcement in the future. If the Indo-Pacific island shark laws can be made effective over time, then they will become of global significance, given the size of the maritime zones involved. This research is therefore significant because it examines shark laws in a range of poorly researched jurisdictions, and illuminates cultural differences that have influenced legal developments to date and may affect their future success or failure.
2. HISTORY AND CULTURE
This article explores the law in independent island states of the Indo-Pacific region. The Indian Ocean island states considered here include Mauritius, the Seychelles and the Maldives, which are small island developing states (SIDS), as well as Madagascar, which is a least developed country (LDC), and Sri Lanka, a developing country.Footnote 12 The Pacific SIDS explored here include the Cook Islands, the Federated States of Micronesia (FSM), Fiji, Kiribati, the Marshall Islands, Nauru, Palau, Papua New Guinea, Samoa, the Solomon Islands, Tonga, and Vanuatu.Footnote 13
Although both the Indian and the Pacific Oceans are home to SIDS and LDCs, the cultural origins of the inhabitants and patterns of settlement differ markedly. In the Pacific Islands three main groups of people – Polynesian, Micronesian, and Melanesian – came to the region from the Asian continent, and over time have intermingled. Patterns of settlement extend from west to east, beginning with Micronesian and Melanesian peoples and ending with Polynesian settlement. FSM, Papua New Guinea, and the Solomon Islands were populated over 30,000 years ago, Vanuatu in 1300 BC, Fiji in around 1500 BC, and states such as Kiribati and Tonga less than a thousand years ago. The legal systems in place today are largely common law-based with widespread recognition of the customary law of the indigenous peoples.
There are few islands in the Indian Ocean with indigenous peoples. The majority of populations are descended from African, Asian, Arabic, and European settlers, slaves and indentured labourers. Sri Lanka was settled early – around 35,000 years ago – and the Maldives over 2,000 years ago, but these are exceptions in the region. Madagascar was settled by African peoples around 500 AD, and later by Asian and other groups. Mauritius and the Seychelles, for example, were unpopulated before traders and travellers first settled there in the 17th and 18th centuries respectively, and their populations today are descended largely from African slaves or Indian indentured labourers brought to the islands to work on colonial plantations, together with other settlers and workers from Europe, China, and the Middle East.Footnote 14 This history has shaped the cultural fabric of the societies that exist today. The legal systems in Mauritius and the Seychelles are a fusion of common law and civil law derived from earlier periods of French and British rule. Malagasy law is based on the French civil law system but customary law is also recognized.Footnote 15 The legal system in the Maldives is based upon Sharia law with some British common law influences. The legal system in Sri Lanka has a Dutch-Roman origin.
The significance of this background, for the purposes of this article, relates to the varied history of human-shark relationships across the Indo-Pacific. In many Pacific cultures, sharks were respected and believed to have spiritual powers.Footnote 16 Various parts of the shark were used – meat and liver for food, skin for drums, teeth for cutting implements – but these uses had meanings and sometimes sharks were even revered as gods.Footnote 17 In Kiribati sharks feature in settlement mythology, initiation ceremonies and traditional weapons, but they were also fished.Footnote 18 In Papua New Guinea sharks were believed to embody ancestors.Footnote 19 So seriously were these beliefs taken that wars were fought when disrespect was shown to the totem sharks of rival tribes in the Marshall Islands.Footnote 20 This cultural respect did not ensure that sharks remained unharmed, as they were often the subject of ritual killings and eaten in the belief that this would provide the consumer with the sharks’ powers.Footnote 21 The extent of fishing is demonstrated by the historical number of different types of shark hook that have been documented, as well as traditional fishing practices such as shark calling.Footnote 22 More recently, the Cook Islands and Fiji, for example, have had large-scale targeted shark fisheries.Footnote 23
In the Indian Ocean there is little evidence of sharks having acquired elevated status or particular cultural significance. There is a strong history of shark fishing with a focus upon economic gain rather than cultural values. Shark-based fishing in the Maldives allegedly dates back millennia as sharks were targeted for their livers from which oil was used to treat wooden boat hulls.Footnote 24 Although no whale shark fishery has developed in the Seychelles, a shark fishing industry started in 1898 ‘when the trade in dried and salted shark meat to East Africa and Asia began, and shark vertebrae were fashioned into ornamental walking sticks for the tourist trade’.Footnote 25 Demand for shark meat rose in the early 1950s, leading to noticeable declines in stocks by the end of the decade, shortly after which targeted fishing ceased.Footnote 26 This culture of shark fishing meant that when the market value of shark fin rose in the 1990s, a targeted fishery emerged again. As conservation concerns were raised, the Seychelles government moved to ban all gill net fishing for sharks in 1998, and in 2006 banned shark finning by foreign fishing vessels.Footnote 27 Similar regulatory patterns are seen in other jurisdictions where laws were strengthened as shark numbers declined.Footnote 28 In Madagascar sharks appear to have had no traditional cultural importance, and shark fishing has been conducted by traditional and artisanal fishers for some time with a steady incline in catches since the 1980s.Footnote 29 The traditional small-scale fishery in the Maldives has changed over time, with increasing industrialization and the opening up of overseas markets for shark fins, meat, and livers.Footnote 30 As will be seen below, since the 1990s a more conservation-focused approach has been taken.
Increasing catches, industrialization and global demand have led to declines in the number of sharks, and in turn triggered the introduction of the first forms of legal protection; yet, the laws adopted have taken different forms. The cultural background, customs and traditions of Indo-Pacific peoples differ markedly and, it is argued, remain influential in the conservation and utilization of sharks, including legal responses. The next two sections analyze the conservation and fishery-related laws that have been adopted across the jurisdictions to establish shark sanctuaries, and then explore more recent legal measures related to human safety, tourism and aquaculture.
3. LEGAL RESPONSES TO SHARK CONSERVATION AND MANAGEMENT
The section below explores the engagement of the Indo-Pacific states with relevant international laws before identifying the national legal measures that have been adopted for the conservation and management of sharks, which are of particular importance given the extent of the marine areas covered.
3.1. Indo-Pacific Island Engagement with International Law
At the international level, attention was first drawn to the plight of sharks in the 1970s. Since then, a number of international law instruments have adopted a rich range of measures both to conserve and sustainably harvest sharks. These instruments have been explored in detail in other publications and therefore a summary only is set out below.Footnote 31
The first binding international law measures were adopted under the 1973 Convention on International Trade in Endangered Species (CITES).Footnote 32 As the name implies, this treaty regulates cross-border trade of species with such a poor conservation status that a two-thirds majority of member states have agreed to list them in one of three Appendices. Appendix I prohibits international trade in listed species unless there are exceptional circumstances. Species in Appendix II may be traded subject to import and export permits. Any state may list a species in Appendix III to alert other states about conservation concerns, and catalyze voluntary trade control agreements. The great white shark (Carcharodon carcharias) was listed under CITES Appendix III in 2000 and upgraded to Appendix II in 2005. Meanwhile, the whale shark (Rhincodon typus), and basking shark (Cetorhinus maximus) (two docile filter feeding animals) were listed in Appendix II in 2003; three species of hammerhead (Sphyrna lewini, Sphyrna mokarran and Sphyrna zygaena), porbeagle (Lamna nasus) and oceanic white tip (Carcharinus longimanus) sharks were listed in 2014; and, most recently, the thresher (Alopias spp.) and silky shark (Carcharhinus falciformis) in 2017.Footnote 33 These provisions seek to regulate, rather than prohibit, international trade in listed species. Importantly, trade is defined in CITES as including import, export, re-export, and ‘introduction from the sea’. The inclusion of this latter phrase means that the transportation of species caught on the high seas, in areas beyond national jurisdiction, is also covered.
Alongside CITES, the Convention on Migratory Species of Wild Animals (CMS)Footnote 34 provides a listing mechanism for those species endangered throughout all or a significant proportion of their range. Species listed in Appendix I cannot be taken, while an Appendix II listing means that range states must enter into an agreement for their benefit. Appendix I listings under CMS include the whale shark in 1999, great white shark in 2002, and basking shark in 2005. Appendix II listings include mako sharks (Isurus oxyrinchus, Isurus paucus), and porbeagle (Lamna nasus) in 2008, and hammerhead (Sphyrna lewini, Sphyrna mokarran), silky sharks (Carcharhinus falciformis), and thresher sharks (Alopias pelagicus, Alopias superciliosus, Alopias vulpinus) in 2014. A Memorandum of Understanding has also been adopted to encourage cooperation, the development of plans and other measures to conserve and manage migratory sharks.Footnote 35 These two treaties have been widely adopted (see Table 1). Both conventions are focused on conservation, and other international law instruments have addressed the utilization of sharks and fishing.
Table 1 International Instruments and Member States
The United Nations (UN) Food and Agriculture Organization (FAO) adopted the International Plan of Action for the Conservation and Management of Sharks (FAO IPOA Sharks) in 1999.Footnote 36 It covers all shark species and both protection and utilization, but it is a soft law instrument only. It sets out principles, objectives, and implementation procedures to achieve effective conservation and management of sharks, as well as including suggested contents for national measures and assessment reports.Footnote 37 It relies on member states developing National Plans of Action (NPOAs); a number of Indo-Pacific countries have now done so (Table 1).Footnote 38 Although all Indo-Pacific states studied here have signed the FAO IPOA Sharks, greater concern for and focus on sharks can be seen in the Pacific, illustrated by the adoption of the Regional Plan of Action (RPOA).Footnote 39
Regional Fishery Management Organizations (RFMOs) also have a role to play in shark conservation. RFMOs set quotas, catch allocations and, of relevance, conservation management measures for areas and species within their mandate, including areas beyond national jurisdiction. Member states comprise littoral countries and those nations fishing in regional waters. No single international law has yet emerged to prohibit shark finning, but the RFMO measures do impose some restrictions with regard to certain species.Footnote 40 Of relevance to this article are the Indian Ocean Tuna Commission (IOTC), which has adopted specific measures for oceanic whitetip and thresher sharks, as well as more general reporting and release of bycatch obligations,Footnote 41 and the Western Central Pacific Fisheries Commission (WCPFC), which in addition has adopted measures for silky, blue, short fin mako, and whale sharks.Footnote 42
Although not legally binding, the UN General Assembly (UNGA) Sustainable Fisheries Resolutions further demonstrate international concern for shark conservation and management, and recognize their cultural and biological importance as well as their vulnerability.Footnote 43 Reference is made to the FAO IPOA Sharks, which Indo-Pacific states have endorsed, with calls for more states to adopt measures to implement it. Furthermore, the UNGA Resolutions urge further action, which includes data collection at national and regional levels, and compliance with RFMO conservation management measures. The National Plans of Action adopted by the Indo-Pacific island states (see Table 1) respond directly to the FAO IPOA and the UNGA Resolutions, given their form and structure. Domestic shark laws, however, appear to have been influenced by a range of factors, including other international laws.
Indo-Pacific states are important coastal nations in whose waters sharks may be fished or conserved, and sometimes they are the flag states for vessels fishing in these areas. Importantly, they also function as port states where sharks or their parts may be landed. Given the difficulties of monitoring vast ocean areas, port states can play an important role in inspecting catches and enforcing laws for shark conservation and management. The FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing is aimed at addressing illegal fishing, including for sharks and shark fins, and strengthens existing laws that allow a port state to refuse entry to a vessel suspected of engaging in illegal, unreported or unregulated fishing.Footnote 44 As set out in Table 1, all of the Indian Ocean states explored here have ratified this Convention, as well as some of the Pacific island nations.
The above overview demonstrates that, at the international level, both species-based and trade-based measures have been adopted specifically for sharks. In addition to these legal tools, the Convention on Biological Diversity (CBD)Footnote 45 has adopted area-based approaches, setting the target of 10% of ocean areas to be set aside as marine protected areas (MPAs) by 2020.Footnote 46 Although the CBD does not mention sharks, as of May 2018, 7.26% of marine areas globally are under some form of protection,Footnote 47 and almost half of these areas (3% of the world's oceans) are protected as shark sanctuaries.Footnote 48 The inclusion of shark sanctuaries in global updates on MPA targets directly links these conservation measures to international biodiversity laws. Yet, it is not clear that this was the trigger for national shark conservation and management laws. As will be seen below, the majority of the domestic laws utilized to establish shark sanctuaries are fisheries regulations. This points strongly to the influence of the FAO IPOA Sharks, as well as responding to the reality that fishing has the greatest impact on these species.
3.2. Domestic Law for the Conservation and Utilization of Sharks
A considerable number of states have now adopted measures to protect sharks, which include both species-based measures and area-based measures (see Table 2). Much media attention has been given to the declaration of ‘shark sanctuaries’, usually covering the entire EEZ of any given country. Sixteen states and territories worldwide have now adopted such an approach,Footnote 49 of which eight are in the Indo-Pacific region: the states examined here include the Cook Islands, the FSM, Kiribati, the Maldives, the Marshall Islands, Palau, and Samoa. Despite the reference to a ‘sanctuary’, the specific legal provisions rarely utilize protected area management laws, and indeed many of the protection measures are included in fishery regulations. Furthermore, the specific conservation and management measures vary considerably in terms of the breadth of coverage of species and activities, as well as offences and penalties. In part this may be explained by the differing legal systems operating in each country and the existing legal frameworks available for inclusion of shark-based provisions. This article argues, however, that the underlying cultural beliefs and attitudes towards sharks are also at play. The sections that follow explore the domestic legal provisions in detail.
Table 2 National Laws referring to Sharks
Most of the Indo-Pacific SIDS are parties to CITES (as noted above) and therefore have protection measures in place to implement those specific obligations, adopted in direct response to their international commitments. A variety of instruments, however, have been used: general wildlife regulations, endangered species statutes, and specific provisions focusing on international trade. In the Pacific, for example, Fiji has amended its Endangered and Protected Species Act 2002 to include a number of shark species, including the sawfish (Pristidae spp), tiger (Galeocerdo cuvier), blue (Prionace glauca), mako, silky, sandbar (Carcharhinus plumbeus), and several reef sharks (Carcharhinus perezii).Footnote 50 This amendment regulates international trade in accordance with CITES, and extends protection to domestic trade also, requiring registration of any person engaged in trade or commercial activities associated with listed species.Footnote 51 In Papua New Guinea the great white, whale, and basking sharks are listed under the International Trade (Fauna and Flora) Act 2003, as they are under similar legislation in Vanuatu.Footnote 52 Further conservation measures for specific species listed under CITES are found in wildlife laws in some jurisdictions. For example, the Seychelles, in the Indian Ocean, has formally protected whale sharks under the Wild Animals (Whales Shark) Protection Regulation 2003, which provides that the killing or taking of a whale shark anywhere in the Seychelles is prohibited. In Mauritius, the Wildlife and National Parks Act 1993 – Wildlife Regulation 1998 regulates trade in great white, whale, and basking sharks.Footnote 53 Both states also have other relevant fisheries laws, examined further below.
A notable feature of the Indo-Pacific island states is the extent to which fisheries laws have been utilized to conserve and manage sharks. In Samoa, for example, protection extends to sharks through the creation of offences under the Marine Wildlife Protection Regulations 2009, which prohibit the commercial fishing of sharks, landing shark fins without the carcass, keeping sharks caught as bycatch without authorization, or landing a shark that dies before release.Footnote 54 Sharks can, however, still be taken for food, bait or ‘production of a saleable product’.Footnote 55 Significantly, the Samoan legislation includes an exception under regulation 11(3): ‘It shall not be an offence … if a shark is killed for the purpose of protecting human life’. However, recent announcements have been made by the Samoan Prime Minister which indicate that a shark sanctuary will be declared across its EEZ, prohibiting commercial fishing, the sale of, and trade in all sharks.Footnote 56
In the majority of states, specific measures to conserve and manage sharks have been adopted under fisheries laws. All states examined here have general fisheries regulations. These include provision of a framework for the licensing of commercial fishing vessels, quotas and catch limits; restrictions on certain species or areas that may be fished; and provisions for seasonal bans. Some of these provisions have been tailored for the conservation and management of sharks. Three features of this fisheries regulation are of particular note: (i) regulation of finning; (ii) bycatch provisions; and (iii) restrictions on certain gear and equipment.
In the Cook Islands, for example, the Marine Resources (Shark Conservation) Regulations 2012 under the Marine Resources Act 2005 provides for the protection of all sharks, rays, and chimaera.Footnote 57 The catch, capture, target or intentional fishing of sharks is prohibited, as well as finning, mutilating, injuring, or chumming to attract sharks.Footnote 58 Any shark accidentally caught must be released.Footnote 59 Trading, selling, purchasing, bartering, receiving, possessing, transferring, storing, or trans-shipping any shark part is banned.Footnote 60 Wire leaders and trace wires are prohibited.Footnote 61 These strong provisions are matched by penalty provisions: each shark or part constitutes a separate offence, and penalties range between 100,000 and 200,000 New Zealand dollars (NZD).Footnote 62 Notably, sharks formerly featured as a targeted fishery under the Marine Resources (Longline Fishery) Regulations 2008, although finning was banned. Amendments in 2012 resulted in the adoption of the Marine Resources (Large Pelagic Longline Fishery and Quota Management System) Regulations 2016, which make it clear that sharks are no longer a target species, and also refer to WCPFC measures aimed at reducing bycatch of silky and oceanic whitetip sharks.
In the FSM, shark provisions have also been included under fisheries law: Title 24 of the Code of the Federated States of Micronesia on Marine Resources. Three separate amendments to section 913 have been made. Public Law 18-108 (2014) prohibits shark finning (including the removal of shark fins on board a vessel) and makes it illegal to knowingly capture, possess, ship, transport, import, export, or sell any member of the elasmobranchii family.Footnote 63 In addition, the provision requires sharks caught as bycatch to be released if alive, or landed whole at a trans-shipment port if dead.Footnote 64 The only exceptions are for scientific research. The possession of wire tracers or wire leaders is also prohibited.Footnote 65 Penalties range from USD 50,000 to 250,000 and any illegal fins seized will be incinerated.Footnote 66 Interestingly, provisions covering the law of evidence are included: it is a rebuttable presumption that any shark or shark fin found on board a vessel was caught in the FSM EEZ.Footnote 67 Moreover, tampering or destroying evidence, including a shark or fin, is a separate offence with a penalty of USD 100,000 to 500,000.Footnote 68 Purse seine vessels were given an initial six-month moratorium on these provisions; Public Law 19-21 was subsequently passed in 2015 to make the entirety of section 913 applicable to purse seine vessels. The law was further amended in 2015 under Public Law 19-36 to allow sharks caught as bycatch if dead to be ‘recorded in the daily catch report form for the vessel and discarded’.Footnote 69 Section 913(8) is further clarified to confirm that there is a rebuttable presumption that any shark or shark fin found on board a vessel in the FSM EEZ was caught in the that EEZ.
In the Marshall Islands, Public Law No. 2011-63 amended the Fisheries Act 1997 and prohibits targeted commercial fishing for sharksFootnote 70 as well as shark fishing generally, finning, mutilating, or injuring a shark.Footnote 71 Subsistence fishing is exempted (apart from catching protected species), as is other authorized taking.Footnote 72 Any shark caught as bycatch must be released, dead or alive.Footnote 73 The taking, possession, sale, transfer, storage, or trans-shipment of a shark or part is prohibited with a rebuttable presumption that possession indicates violation of the subsection.Footnote 74 The Act also prohibits the use of a trace wire.Footnote 75 Penalties include fines of USD 25,000 to 200,000.Footnote 76
In Sri Lanka, fishing for thresher, big eye thresher, pelagic thresher, oceanic white tip and whale sharks is prohibited.Footnote 77 Removal of fins on board local vessels and the discarding of shark carcass is prohibited, as is retention, trans-shipment and landing of shark fins unless they are naturally attached.Footnote 78 Live sharks caught are to be released, particularly juveniles and pregnant animals.Footnote 79 Similar provisions are included for local vessels engaged on the high seas, with the addition of a prohibition on sale and offers for sale, the requirement to record any shark caught and released, and a prohibition on operating purse seine nets in any area inhabited by whale sharks.Footnote 80 Despite these forms of protection for specific species, it is clear that long-line fisheries do exist for other sharks.Footnote 81 Significantly, Sri Lanka has implemented the FAO Port State Measures Agreement, thus prohibiting the landing or selling of thresher or oceanic white tip sharks, and detached fins of other sharks.Footnote 82
The Maldives has also taken significant steps to protect sharks, with early conservation efforts predating the declaration of the shark sanctuary in 2010. In 1995, 15 dive sites were declared MPAs and fishing for all sharks prohibited within them.Footnote 83 The General Fisheries Regulations under the Fisheries Law of the Maldives prohibited fishing for sharks within 12 nautical miles of seven named atolls,Footnote 84 or within three nautical miles of a fish aggregating device.Footnote 85 The Regulations also banned the catching, killing, fishing, or collecting of any whale sharks in the Maldivian EEZ.Footnote 86 Whale sharks have subsequently been listed as a protected species.Footnote 87 In 2010, the Maldives declared its entire EEZ to be a shark sanctuary by prohibiting fishing, harming, and trade in sharks, and listing all shark species as protected under the Fisheries Law of the Maldives.Footnote 88
Some states have introduced specific legislation to address shark finning. In the Indian Ocean, the Seychelles has adopted the Fisheries (Shark Finning) Regulations under its Fisheries Act, which prohibits the removal of fins on board vessels without approval, as well as keeping or trans-shipping fins, and discarding carcasses.Footnote 89 Approval to remove the fins of a shark will be given only if the whole animal can be utilized, and will not be granted unless the ability to do so and the justification for separate processing is demonstrated. Even where approval is given, discarding a carcass at sea is prohibited,Footnote 90 and a 5% fin-to-weight ratio imposed.Footnote 91 Penalties include fines of up to 500,000 Seychellois rupees (SCR).Footnote 92 Mauritius also imposes a 5% fin-to-weight ratio, requires shark carcasses and fins to be landed from the same boat, and prohibits fins that have been trans-shipped from being landed in the state.Footnote 93 In Vanuatu, power is given to the Vanuatu Observer Program to check compliance with regulations for protected or vulnerable species, and to search vessels and confiscate any shark fins found.Footnote 94 Power is also given to pass regulations to protect individual species, but it is not clear whether this provision has been used in relation to sharks.Footnote 95 In Fiji, gear restrictions to prohibit wire traces apply only to offshore fisheries under the Offshore Fisheries Management Decree 2012 and Offshore Fisheries Management Regulations 2014.Footnote 96 The Decree also requires vessels licensed for offshore fishery to meet the requirements of the WCPFC, including the conservation management measures outlined above.Footnote 97 In Nauru, regulations prohibit the setting of purse seine nets within one nautical mile of a whale shark.Footnote 98 If a whale shark is inadvertently caught in such a net, the master must take all reasonable steps to release it, including ceasing fishing and not recommencing until the shark is released.Footnote 99 Almost identical provisions exist under the laws of the Solomon Islands.Footnote 100
Although most trade measures relate directly to the implementation of CITES provisions, as noted above, several other provisions are relevant. In Tonga, however, the Fisheries Management (Processing and Export) Regulations 2008 have set the fee for a shark fin export licence. Furthermore, shark fins, dogfish, and other sharks are included within import and export duty legislation under the Customs Act 2007 – Customs Duty (Amendment) (No. 3) Order 2013. Similar provisions exist under the Papua New Guinean Customs Tariff (2011 Budget) (Amendment) Act 2010 and Vanuatu's Export Duties Joint Regulation (Amendment) Act 1988. In Mauritius and the Seychelles, laws regulate how sharks are to be displayed in the local market.Footnote 101 The Seychelles also has regulations setting the maximum levels of heavy metals in sharks permitted for export.Footnote 102 All of these provisions confirm the continuation of shark fishing in these jurisdictions.
Seven countries in the Pacific have declared shark sanctuaries covering their entire waters, representing almost half of the total number of shark sanctuaries worldwide.Footnote 103 Only the Maldives in the Indian Ocean has similarly created a shark sanctuary. These shark sanctuaries, or ‘shark parks’, have attracted considerable attention, but relatively little legal research. In addition to the laws explored above, Palau and Kiribati have adopted specific laws to give effect to their shark sanctuaries, and to a lesser extent Fiji and Madagascar have also utilized area-based laws.
Palau is said to be the first country in the world to close its entire EEZ to commercial shark fishing, which it did in 2009.Footnote 104 There was, however, an earlier law that recognized sharks injured by steel leaders and prohibited foreign fishing vessels from utilizing them in Palauan waters.Footnote 105 Subsequently, the Shark Haven Act made it illegal to catch or intentionally fish for sharks, with the exception that Palauan citizens (or wholly owned entities) could catch up to one shark a day, incidental to other fishing, provided it was landed whole, reported, and not used for commercial purposes.Footnote 106 This provision also prohibited shark finning and chumming to attract sharks, possession, transfer, storage or trans-shipment of sharks or parts, and required that sharks incidentally caught as bycatch be released dead or alive. Fishing is defined broadly to include catching, as well as attempting to take or engage in activity likely to result in the taking of a shark.Footnote 107 Placing or recovering a fish-aggregating device is also prohibited.Footnote 108 Gear is also restricted, with steel leaders prohibited.Footnote 109 As with other Pacific laws, there is a rebuttable presumption that anyone found with a shark or part had caught it in breach of these provisions. Penalties include fines of up to USD 250,000, with separate offences in relation to each shark or part found.Footnote 110 The later Marine Sanctuary Act 2015 strengthened these provisions by prohibiting all fishing for sharks and fishing for any living resources within the sanctuary.Footnote 111 The 2015 Act also amended the Marine Protection Act 1994 by prohibiting the fishing or finning of sharks, requiring bycatch to be released and regulating export, trans-shipment and transport.Footnote 112 Penalties were also increased to between USD 500,000 and 1,000,000, with each shark constituting a separate offence.Footnote 113
Kiribati declared a shark sanctuary under the Shark Sanctuary Regulations (2015) pursuant to its Fisheries Act 2010. The Regulations aim specifically to conserve sharksFootnote 114 and ‘protect the balance of the marine ecosystem’ with reference to the national economy and shark-related tourism as well as Kiribati's global reputation.Footnote 115 The Kiribati Shark Sanctuary is an area within which it is illegal to capture, kill, fish for, or fin a shark,Footnote 116 to offer for sale, sell, import or export,Footnote 117 or to possess (in person or on board a vessel) a shark or shark part.Footnote 118 Although specific reference is not made to bycatch, regulation 5(2) notes that, by way of defence, it is possible to argue that the shark was caught inadvertently and released immediately. The possession and use of wire traces is also banned.Footnote 119 Exceptions are provided for authorized use and to prevent a risk to human health, and i-Kiribati people not engaged in commercial trade are exempted from restrictions provided they do not catch a shark species that warrants special protection.Footnote 120 Penalties are relatively low: 5,000 Kiribati dollars for an individual and up to 10,000 Kiribati dollars for a vessel.Footnote 121 As in some other jurisdictions, there are penalties for destroying evidence.Footnote 122
Although declared under the Fisheries Act, the Fijian Fisheries (Shark Reef Marine Reserve) (Serua) Regulations 2014 provide a protected area for sharks in one part of Fijian waters. The marine reserve was declared to conserve, protect, and maintain sharks and other species.Footnote 123 Any fishing activity that consists of collecting any species of shark is prohibited,Footnote 124 as is the use of indiscriminate fishing gear to target sharks.Footnote 125 Penalties include fines of between 500 and 10,000 Fijian dollars, or imprisonment.Footnote 126 Exceptions are made for scientific research where authorized.Footnote 127
In Madagascar, few laws protect or manage sharks. Those Ordinances and Decrees that do seek to protect endangered species or manage fisheries do not list any shark species.Footnote 128 Recently, however, provisions that allow the national government to transfer natural resource governance to local communities have been utilized to conserve sharks. These laws allow a dina to be created, establishing a community-based management agreement.Footnote 129 Such agreements can be validated by a Malagasy court provided they do not conflict with other national legislation, and then enforced under Law 2001-004.Footnote 130 A shark sanctuary was created in Antongil Bay in 2015 as a dina and a Locally Managed Marine Area (LMMA), prohibiting shark fishing and protecting 19 shark species previously harvested.Footnote 131 The only other provisions are found in foreign fishing fleet tuna agreements, which limit the number of sharks harvested as bycatch.Footnote 132
The above analysis demonstrates striking differences between the Indian Ocean and Pacific Ocean island states. While the adoption of shark conservation and management measures are influenced to an extent by international instruments, the variances in the laws are likely to relate at least in part to underlying cultural diversity, given the history of customs and practices surrounding sharks in the Pacific and the history of shark fishing in the Indian Ocean. While such a finding is important in itself, it also has implications for new and emerging issues. Some recent developments are explored below to highlight these issues and their ramifications.
4. TOURISM, AQUACULTURE, AND HUMAN SAFETY
Most of the legal provisions considered above relate to fishing and seek to protect sharks from targeted and incidental harvest. In addition, non-consumptive industries have emerged, which provide employment and economic benefits, and serve a secondary purpose in terms of raising awareness about the importance of sharks. Marine-based tourism has developed in many areas of the Indo-Pacific where sharks aggregate. Whale sharks, for example, migrate through the Indian Ocean and South China Sea with aggregation sites on the west coast of Australia, India, Indonesia, the Maldives, Thailand, and the Philippines.Footnote 133 Not all of these places have developed shark-based tourism: in Indonesia, for example, such an industry has not emerged to any great extent.Footnote 134 In contrast, where historically fishing has dominated, some tourism enterprises now focus on experiences associated with traditional hunting.Footnote 135 Despite the rapidly growing number of shark-based tourism enterprises, regulatory measures to control and manage operators and visitors, and to protect the sharks, tend to lag behind. For the most part only soft laws, such as guidelines and codes of conduct, are in place. Licensing of tourism operations and ensuring suitable qualifications or training for those running such enterprises are critical aspects for which binding law is needed.
Other emerging concerns relate to visitor behaviour, including touching and photographing sharks, as well as the way in which sharks are attracted to boats and cages. In particular, scientists have demonstrated that factors such as provisioning or baiting sharks can have negative impacts on them.Footnote 136 In some Indo-Pacific jurisdictions, including South Africa and Australia, strict regulations exist to manage the number of operators and visitors, and to control feeding and baiting,Footnote 137 whereas other jurisdictions, such as Mozambique, have no formal regulation.Footnote 138 Whale shark tourism in the Maldives is subject to a code of conduct, but there is evidence of non-adherence and poor self-regulation leading to calls for greater regulation in this country.Footnote 139 A common thread across a number of states is that guidelines and codes of conduct are difficult to enforce and therefore may not adequately protect sharks or people, leading to pressure for tighter regulation to include binding provisions.Footnote 140 This is not uncontroversial, even in the context of developed countries, with the proposed New Zealand Shark Cage Diving (Permitting and Safety) Bill recently being rejected.Footnote 141 The Bill sought to create a licensing scheme for commercial shark cage diving operators to minimize impacts on sharks and mitigate risks to people. The Bill was rejected primarily because there was a case lodged contemporaneously before the New Zealand Court of Appeal by the Paua fishery industry relating to human safety concerns associated with shark cage diving. Ultimately the Court found that shark cage diving was an offence under the New Zealand Wildlife Act 1953, and could not be authorized by the government.Footnote 142 This brings sharply into focus the broader connection between tourism and human safety, a subject that has led to considerable controversy in the Indian Ocean.
La Réunion is an external French territory in the South West Indian Ocean. Historically, shark attacks averaged just over one per year, but in 2011 there were six incidents and two per year in 2012 and 2013, mostly involving bull sharks.Footnote 143 What is most striking is the government response: as well as implementing shark nets, the government imposed a ban on using the marine environment for swimming or surfing at the sites of the attacks.Footnote 144 When there was a similar increase in shark attacks in Western Australia in 2013, the response was the implementation of a catch-and-kill policy. In Australia, great white sharks were implicated in the majority of attacks, a species that is protected both internationally and nationally. The legality of the catch-and-kill policy was unsuccessfully questioned in the Western Australian Supreme Court.Footnote 145 Simultaneously, scientists also argued against the cull, partly on the basis that similar approaches had proved to be ineffective in other locations such as Hawaii.Footnote 146 Ultimately the programme was discontinued, but in the aftermath researchers explored the issues from a variety of perspectives including socio-cultural attitudes and the role of the media and culture.Footnote 147 These differing government actions to address human safety risks, and the public responses to them, demonstrate the complexity of the issues and socio-cultural influences that can impact upon the success or failure of the initiatives.
Relatively few legal measures deal with the issue of human safety in the Pacific. In Tuvalu an exception under the Arms and Ammunition Act – Prohibition of Importation of Arms and Ammunition Order 1997 allows shark protection devices to be brought into the country. In Samoa the Marine Wildlife Protection Regulations 2009 include an exception under regulation 11(3) that ‘[i]t shall not be an offence … if a shark is killed for the purpose of protecting human life’. Furthermore, it is not an offence in Kiribati to fish for, catch or possess a shark if it is ‘reasonably necessary to prevent a risk to human health’.Footnote 148
Although the precise cause of the increase in human-shark interactions in La Réunion is unknown, it is clear that when fewer people were in the water there were fewer attacks.Footnote 149 This does not prove, however, that sharks are attracted to humans, although some research indicates that activities such as aquaculture can attract bull sharks.Footnote 150 The link with aquaculture appears to have been influential in later concerns expressed about the introduction of inshore fish farming in the Seychelles, discussed below. Human safety was already the subject of concern in the Seychelles, with two fatal shark attacks in 2011 on Praslin Island. Although again the cause was unknown, it was suggested that food disposal from yachts and pleasure craft had attracted sharks close to shore.Footnote 151 The response was to install shark nets at the beach where the attacks occurred, introduce shark patrols, and employ baited drum lines.Footnote 152 There have been no further shark incidents since then and the Seychelles Maritime Safety Authority removed the nets in January 2017.Footnote 153 Beach nets are controversial as they not only catch sharks but have also been implicated in the death of marine mammals and other species inadvertently caught in them.Footnote 154
The fear of human-shark interactions appears to be influential in the issue of inshore aquaculture developments in the Indian Ocean, and is therefore another rich area for teasing out regional differences. Both the Seychelles and Mauritius have recently experienced tensions associated with proposed inshore fish farming. In the Seychelles, for example, proposed marine aquaculture developments have raised public concerns about the possibility of increased shark activity.Footnote 155 Local hotel owners in Mauritius have brought proceedings before the Environmental and Land Appeals Tribunal to challenge the Department of Fisheries’ plans to install fish farms inside the lagoon, and collaborative action has been taken through the ‘No to Fish Farming at Sea Collective’.Footnote 156 This is somewhat surprising, given that Mauritius has a long history of traditional barachois aquaculture in the lagoon and considering that more recent fish farming initiatives, which commenced in 2005, did not result in an increased incidence of shark attacks.Footnote 157 The lack of shark-based tourism in Mauritius and the Seychelles may account in part for the concern, but the absence of any cultural attachment to sharks may also have played a role. Further research is needed to determine the parameters and extent of socio-cultural influence on the regulation of human-shark interactions before mechanisms can be developed to avoid such tensions in the future.
5. PATTERNS AND TRENDS IN THE SHARK LAWS OF INDO-PACIFIC ISLANDS
The exploration of the legal responses to shark conservation and management reveals a number of patterns. The first observation is that many countries have taken a common approach of declaring shark sanctuaries. These declarations over the last nine years have received considerable public attention but less legal analysis. Many more sanctuaries have been declared in the Pacific than in the Indian Ocean, probably as a result of differences in the underlying cultural attitudes towards sharks combined with no history of human-shark interactions.
The second observation is that although the legal mechanisms vary in terms of the protection they offer, in general they do not constitute genuine MPAs but rather utilize fisheries provisions to prohibit the targeted commercial fishing of sharks inside national waters. Regulations do not create general no-take zones, so sharks could still inadvertently be caught as bycatch. Although much of the law explored above has sought to address the shark bycatch issue by prohibiting the retention of a shark, this remains a significant problem.Footnote 158 Given that the waters now covered by these laws were previously subject to targeted shark fishing, the fisheries restrictions have the potential to contribute significantly to shark conservation.
The third observation is that the declaration of the sanctuaries and adoption of fisheries controls are just the first steps in the conservation and management of sharks. Now that the laws have been adopted, the key issues for the future will be their implementation, compliance and enforcement. These matters rely in part upon legal, technical, and financial capacity, which are often very limited in SIDS. The challenges in monitoring large ocean areas are well recognized, and although technologies such as satellites and drones offer opportunities to enhance surveillance, their utilization will further strain limited resources, placing them out of reach for some Indo-Pacific nations.Footnote 159 Given that most of the laws are relatively recent, effectiveness in terms of curtailing shark fishing and improving species’ health and conservation status cannot yet be comprehensively evaluated. Catch statistics and other data are either not available for the majority of the countries or out of date.Footnote 160 Future empirical research is needed to measure success through analysis of implementation and management plans, compliance mechanisms, infringements and prosecutions, as well as landings of sharks or their parts.
The fourth observation is that the shark laws with the strictest controls and broadest scope are found in the Pacific. Palau, the Marshall Islands and FSM protect all species in all waters and from a range of targeted and incidental catch. Their commitment is further shown through the collaborative establishment of the world's first regional shark sanctuary covering their respective adjoining EEZs.Footnote 161 The Cook Islands and Kiribati also have strong measures in place. These states also exhibit cultural traditions associated with sharks. The Maldives is the only Indian Ocean island country to have declared its waters to be a shark sanctuary. In keeping with other states in the region, the Maldives has little evidence of cultural traditions associated with sharks other than a long-standing fishing sector. However, it relies heavily on the marine environment as an asset for its tourism industry, as do other Indian Ocean states such as Mauritius and the Seychelles. Unlike these last two countries, the Maldives also has a strong shark-based tourism industry that has lobbied for protection, which may explain in part the very different approach it has taken to shark conservation.Footnote 162 It may be that the Maldives, with its history of shark fishing and the absence of cultural reverence for sharks, will be challenged more in terms of compliance with and enforcement of its law. Nevertheless, the economic motivations for the measures could prove to be a strong enough driver for effective enforcement.
It is clear that much weaker conservation measures are in place in many states such as Tonga and Vanuatu in the Pacific, and Mauritius and the Seychelles in the Indian Ocean. Why this is the case in the two Pacific states requires further research, given the strong cultural values associated with sharks in this region. It could be related to multiple factors such as a lack of shark data demonstrating conservation concerns, a greater tradition of shark fishing, limited opportunities associated with shark-based tourism, a reduced legal and technical capacity to adopt and implement new law, and/or the pressure of competing priorities; however, these hypotheses must be tested. Concerns about public safety in the Indian Ocean appear to have dominated over conservation interests. Human safety concerns only feature explicitly in Tuvalu and Samoan legislation (although the latter has subsequently declared its intention to protect sharks across its entire EEZ). It does not appear that human safety is a significant issue in this region, as it is in the Indian Ocean. La Réunion has already taken radical steps following a spate of shark attacks. The Seychelles also did so, but it has since removed most of them as no further human-shark interactions have occurred. The major fears appear to be related to potential impacts on tourists and the tourism industry, as well as on local people. Private industry and public concerns raised in both the Seychelles and Mauritius around inshore aquaculture and the potential to attract sharks into the lagoon demonstrate the importance of unpacking the complexity of attitudes towards and values associated with sharks.
Although the conservation of sharks appears to have outweighed human safety concerns in much of the Pacific, it should be noted that countries such as Palau and the Marshall Islands have not had any incidents for many decades,Footnote 163 and others such as FSM and the Cook Islands have never had a fatal attack.Footnote 164 Similarly, the Maldives and Sri Lanka have little or no history of shark incidents.Footnote 165 It appears that shark conservation laws are weaker in countries where such incidents have occurred, such as Papua New Guinea, Fiji, Vanuatu, and the Solomon Islands. Further research is needed to explore whether the higher incidence of shark attacks has in fact reduced conservation efforts in these countries. States such as Mauritius and the Seychelles also have very low incidents of human-shark interaction, but it seems that attacks occurring in the waters surrounding neighbouring islands are influencing attitudes.
Although cultural respect and reverence for sharks is a relevant factor, it is not by itself sufficient to secure their survival. In their study of the Gilbert Islands in Kiribati, Drew, Philipp and Westneat show that historical shark tooth weapons evidence the presence of spot-tail and dusky sharks in the past, but they have not been recorded in contemporary baseline studies.Footnote 166 Therefore, even in the Pacific where sharks have traditionally been culturally important, extinctions may be attributable (at least in part) to humans. Further research is needed to determine in each jurisdiction the extent of socio-cultural influences on shark conservation and attitudes towards legal measures. Such research must extend beyond customary beliefs and traditions that have been weakened by processes of colonization, globalization and modernization, to include contemporary values and relationships with other social factors. Where comprehensive socio-cultural research has been carried out, findings indicate that attitudes towards sharks and regulatory responses are complex, and there is nothing to suggest that similar complexity would not also be found in the Indo-Pacific island states.Footnote 167 To take full advantage of community values that support shark conservation and to overcome those that do not, the complex socio-cultural influences must be unpacked.
Finally, it is clear that tourism plays a number of valuable roles in raising awareness about sharks and providing non-consumptive economic benefits. It can therefore educate people who have no values associated with sharks. Tourism is also an important alternative livelihood to fishing, but in many parts of the world it is poorly regulated. Tourism regulation is needed to manage the industry, control visitors, and protect the sharks involved. Yet few of the Indo-Pacific island states have specific shark-based tourism laws and these are necessary as part of the mosaic of legal measures to ensure effective shark conservation. Research has pointed to the importance of shark-based tourism regulation with calls for legally enforceable provisions for operators.Footnote 168 This adds to other research demonstrating that lack of legislation in general is a driver of the decline in shark species.Footnote 169
6. CONCLUSION
Human-shark interactions span millennia, with the earliest dating back to the Bronze age.Footnote 170 Evidence of shark fishing has been found in ancient trade locations, on pottery and mosaics, and in the writings of Aristotle and Pliny the Elder, demonstrating a wide range of values, including utilization, fear, reverence, and scientific curiosity.Footnote 171 It is clear, therefore, that current concerns, conflicts and interactions with sharks are just a further step on this human-shark interactive journey. Yet as evidence mounts of the continued decline of these ancient species, more effective ways and means must quickly be found to secure their future.
In many parts of the Pacific, sharks were sacred and culturally important, leading to limited shark fishing. This traditional foundation remains influential: Palau, for example, makes specific reference to culture in its shark legislation.Footnote 172 In much of the Indian Ocean, traditions associated with sharks tend to be only fishing-focused. Socio-cultural support for conservation is less evident, highlighted particularly by the debates about inshore aquaculture. In these states, the lack of cultural traditions associated with sharks provides no counterbalance to increased human safety and economic concerns.
The rapid expansion of shark sanctuaries and other shark-based conservation measures is a positive sign that concern for sharks is becoming more widespread. Yet, most of the legal provisions are less than ten years old and their effectiveness is still to be determined. Empirical work will be needed on the ground in each jurisdiction to determine the extent of implementation, compliance, and enforcement efforts; all of which are likely to be impacted upon by a lack of technical, legal, and financial resources and capacity. Concern has been raised about the ability to measure success given that few of the laws require monitoring and baseline data is limited, thus hampering evaluation of accurate shark numbers.Footnote 173 Nonetheless, non-governmental organizations and governments will be keen to demonstrate that these restrictive measures are what is needed to ensure the future of sharks. Social sciences – including fields such as sociology, psychology, politics, law, media, and communications – have a clear role to play in securing public support and the political will to adopt legal measures to conserve and manage sharks, as well as in determining how implementation can best be achieved. It is clear that written law is not enough; paper parks and unenforced protection are of little value. To ensure effectiveness, it is critical to harness supportive cultural values where they exist, and to understand and overcome the fear and cultural demonization that has hitherto prevented conservation goals being met.
