A Call to Arms: Responsible Marine Wildlife Conservation and Fishery Management

“From birth, man carries the weight of gravity on his shoulders. He is bolted to Earth. But man has only to sink beneath the surface and he is free.”

-Jacques Yves Costeau

 

Earth is comprised of approximately 71% water and 29% land. While the tallest peak, Mount Everest reaches to a height of just over 29,000 feet, the deepest oceanic trench, the Mariana Trench, extends to almost 36,000 feet. Given the sheer magnitude of Earth’s oceans and the vital role they play in everyday life, it is disturbing that only about 5% of Earth’s oceans have been explored and even less, about 2%, is protected. In fact, as a human race, we know more about and spend around 150 times more on outer space than we do our own oceans. However, if the current way of viewing our oceans continues, the vital role they play may soon come to a screeching halt. In particular, the ways fishery management and oceanic wildlife conservation are handled must be dramatically altered.

One aspect of oceanic wildlife conservation that needs addressed is that of corals- shallow water reefs as well as deep-sea corals. Deep-sea corals, unlike their recognizable tropical reef relatives, are adapted to cold, dark depths.  Most deep-sea corals are centuries old and some are even Earth’s oldest known living animals. Similar to the shallow, warm water type, deep-sea corals grow slowly, and are extremely fragile, yet provide an important habitat for thousands of marine species. Fishing gear, especially through trawling, frequently and easily gets caught on coral structures, breaking, and toppling them. Once contacted, the corals are killed and the habitats they provide are destroyed for centuries.

Map of Protected Marine Areas

Responsible fishing, including restricting certain fishing gear and practices that are known or likely to cause damage to coral structures, has slowly begun to get the recognition it deserves. Just this year, a patch of the Atlantic Ocean about the size of Virginia (39,000 square miles) was deemed protected waters where harmful fishing activities were prohibited. But that patch of water represents a very small fraction of the world’s oceans and the same protections need to be expanded to cover all  of the world’s seas.

At the same time, irresponsible fishery management is currently causing a major controversy in the State of Florida, and demonstrates the need for stronger fishery management controls. Recently, NOAA’s National Marine Fishery Service rescheduled the opening date for the Commercial Shark Fishing Season in the Atlantic Ocean. Instead of beginning in July, the season will begin on January 1, 2016. While affecting the entire portions of the Atlantic Ocean under the United States’ jurisdiction, NOAA’s decision will have the most profound effect off a small section of the Florida Coast, from Stuart to West Palm Beach, where the continental shelf is narrower than anywhere else along North America’s east coast at only 3 miles wide. From December through April, huge numbers of sharks (including Hammerhead, Tiger, Lemon, Bull and Sandbar Sharks, among others) migrate down the east coast to escape colder northern waters. The narrow continental shelf and the large number of sharks create a bottleneck-like effect leaving a very large concentration of sharks highly vulnerable to commercial exploitation. When the commercial season begins in July the sharks are not nearly as vulnerable to overfishing: the concentration of sharks is a lot lower for they begin to disperse and return north in April.

The sharks that migrate to Florida are a favorite among divers, especially the Lemon Sharks which have a highly mild-mannered behavior. They also happen to be extremely vulnerable to overfishing, and in 2010, the State of Florida passed a law granting complete protective status to Lemon Sharks in state waters. Despite the ban, in 2013, the first year NOAA moved the commercial season from July to January, Lemon Shark populations were devastated, as most large sharks caught were labeled “Bull Sharks,” irrespective of their actual species, to expedite business.

While NOAA established a catch limit of 45 sharks per vessel per trip, the number of sharks caught can easily multiply exponentially just based on the number of vessels that participate. Allowing commercial exploitation of the sharks gathered off Florida’s coast to begin in January will dramatically reduce, and perhaps eliminate entirely, shark populations. If one doubts the likelihood of commercial overfishing pushing various shark species towards extinction, one only has to look at the world’s Cod numbers to realize that not only is it a possibility, but likely inevitable unless responsible conservation measures are taken immediately.

World Cod Stocks
World Cod Stocks

Unsustainable commercial overfishing has resulted in the near extinction of worldwide Cod stocks. During the 1990’s, several Cod stocks, including the American and Canadian stocks, collapsed (declined by greater than 95%). Even with subsequent protection and cessation of fishing, the stocks have failed to recover. In fact, in 2004, the World Wildlife Fund predicted the world’s Cod stock to be completely depleted within 15 years if the current catch rates were continued. Cod is an apex predator, and the collapse of Cod stocks has led to a trophic cascade in many areas of the world. The removal of Cod from the ecosystem removed significant predatory pressure on other species which, no longer kept in check by the Cod, began to increase in number and range. The trickle down effect dramatically changes the ecosystem, resulting in increasing homogeneity among marine species.

The tragic fate of Cod stocks should serve as a lesson in fishery management. Unfortunately, it has not, and other species have begun to take its place and face the same fate. Tuna is likely the next species of fish overexploited to the point of no return. Given NOAA’s increased commercial shark season, sharks may also face the same fate. And if the loss of Cod as an apex predator caused a trophic cascade that altered the entire ecosystem, imagine the effect on a marine ecosystem with the removal of one of the planet’s biggest apex predators-the shark.

Current fishery management and marine wildlife conservation practices desperately need reworking. One obvious effect of the destruction of coral habitat and the complete collapse of species is the inability for future generations to enjoy the many wonders of the sea. Divers will increasingly have fewer places to explore, and will find fewer marine species. But a less subtle effect is even more important: once Cod stocks are completely exhausted, the fishing industry will move on to the next species, such as Tuna, and the ecological impact will multiply. Species after species will be overfished, and the trophic cascade that results with each new species taken out of the ecosystem will cause the ecosystem to become more and more homogenous.

Beneath the waters all over the world, Mother Nature holds exhilarating surprises for those willing to search for them. From the worlds largest animal, the Blue Whale, to the small, yet stunningly beautiful Nudibranch, and everything in between, the wildlife that can be found inhabiting our oceans are truly breathtaking. From diving with Orcas in Norway, Great Whites in South Africa, Leopard Seals off Antarctica, Manatees in Florida or Giant Mantas in the Galapagos, some of the world’s greatest adventures may be found under water. Unless more responsible fishery management and marine wildlife conservation is implemented, these once-in-a-lifetime adventures may disappear forever.

Protecting both shallow-water and deep-sea corals, as well as preventing species annihilation caused by overfishing, are just two examples of ways to better improve our ocean conservation efforts. Reducing wasted catch, protecting sites where fish breed, reducing/eliminating dredging operations, ending dynamite fishing and reducing maritime waste (especially plastic) are a few other desperately needed measures. In April, 2016, the Magnuson-Stevens Act, the primary law governing fishing in United States waters, turns 40 and is due for renewal and revision. This law, along with international treaties and agreements, needs updating to protect the vulnerable resources of the world’s oceans. Otherwise, the treasure one can find underwater today may not last much longer.


Frank Sullivan is a 3L and the Managing Editor of Communications for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

Citations to articles & documents are included in the aforementioned underlined hyperlinks.

To Arbitrate or not to Arbitrate: An Analysis on the Continued Viability of Arbitration In Settling International Commercial Disputes

Over the years, international commercial arbitration has been the prevalent method used in settling international commercial disputes.[i] However, as of recently, the international corporate community has begun to view arbitration as no longer being as time and cost efficient as it once was in settling international commercial disputes.[ii] It is for this reason that parties to disputes have began to look for more time and cost efficient alternatives to both arbitration and litigation.[iii] Despite this recent push towards mediation in the international corporate community, arbitration still remains the most viable option in settling international commercial disputes. A central reason for arbitration’s continued viability is its uncomplicated nature in enforcing arbitral awards in the international realm.

The Continued Enforceability of Arbitral Awards Internationally

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) ensures the enforceability of arbitral awards internationally. Further, the Convention provides uniformity among different states in enforcing arbitral awards. To date, 156 states are parties to the New York Convention.[iv] Accordingly, these statess have adopted a pro-arbitration stance that promotes the enforceability of arbitral awards. Therefore, when international parties enter into arbitration agreements, as long as the agreement is not null or void, arises out of a defined legal relationship, and concerns a matter capable of settlement by arbitration, contracting states are required to recognized the agreement.[v]

The Next Best Alternative to Arbitration has not Received Success in International Enforceability

 Mediation has been regarded by those in the international community as the next best alternative to arbitration; one of the central reasons being that it is believed to be more cost and time efficient than arbitration. Another reason mediation is favored over arbitration by some is because mediation allows the parties to come to mutual agreements during settlement, thereby increasing the chances that the parties will preserve their business relationships.[vi]

However, there are several obstacles that continue to threaten the enforceability of mediated settlement agreements (“MSA”) in the international realm. For example, parties to an MSA may at some point have a change of heart. Parties’ change of heart is an obstacle to the enforceability of a MSA because in most countries, MSAs are regarded as contracts.[vii] Therefore, a party cannot directly file for a court to enforce a MSA.[viii] Instead, that party would have to either file for arbitration or file a lawsuit.[ix] For MSAs to be directly enforced by a court when there is a protesting party, states would have to adopt an international model law on mediation similar to the New York Convention.[x] It is for this reason that in July 2014 at the forty-seventh conference held by the UN Commission on International Trade Law (“UNCITRAL”), the U.S. government proposed that UNCITRAL’s Working Group II create a conciliation convention that would promote the enforceability of international commercial mediated settlement agreements.

Accordingly, some may argue that once a model law on mediation is created, mediation would be able to replace arbitration as the prevalent method of settling international commercial disputes. However, that is not necessarily the case. Before the New York Convention was able to achieve success in the international enforceability of mediated settlement agreements, it had to be accepted by the international business community.[xi] Similarly, for mediation to be a successful alternative to settling international commercial disputes, it is imperative that mediation gains the trust of international commercial parties, which as of now MSAs have not yet been able to achieve.

Conclusion

While the view that mediation may serve as a better alternative resolution method in settling disputes between international commercial parties has been continuously supported, arbitration still remains the most viable option in settling international commercial disputes. Arbitration remains viable because of the current uncertainty regarding the enforceability of MSAs in the international realm. Due to this uncertainty, business representatives remain hesitant about using mediation and not arbitration, a method that remains highly enforceable internationally, in settling their disputes. Until mediated agreements are able to gain the trust of international representatives as an alternative resolution method capable of being easily enforced in the international realm, arbitration will continue to be the prevalent method of settling international commercial disputes.

 

Joyce Fondong is a 3L and a Resident Student Blogger with the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

[i] See Gary B. Born, International Commercial Arbitration 68 (2009).

[ii] S.I. Strong, Beyond International Commercial Arbitration? The Promise of International Commercial Mediation, 45 Wash. U.J.L. & Pol’y 011 (2014).

[iii] See Jacqueline Nolan-Haley, Mediation: The “New Arbitration,” 17 Harv. Negot. L. Rev. 61, 66-67 (2012).

[iv] http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html.

[v] New York Convention, article II (1&3)

[vi] See Edna Sussman, The Final Step: Issues in Enforcing the Mediation Settlement Agreement, p. 3 (2008).

[vii] Audry Hong Li, Thought on Developing Convention on Enforceability of Settlement Agreements Reached Through Conciliation, AL-ZL-Aprag, p. 3 1118 (2014).

[viii] Id.

[ix] Id.

[x] See supra Sussman at 4-24.

[xi] Enforcing Arbitration Awards under the New York Convention, p. 4 (1999).

 

U.S. Compliance and the ICCPR

Modern democracy originated largely from the Lockean idea that people formed governments to preserve rights of life, liberty and property.[1] This idea that people were born with natural rights derived from natural law “heavily influenced the thinking of many of the founders of the early American republic.”[2] A belief that people have unalienable rights was used as justification for U.S. independence. The French Declaration of the Rights of Men and the American Bill of Rights addressed and enumerated critical civil rights, providing a vision for nations to be founded upon an ideal of individual liberty. Indeed, the Bill of Rights “established the legal foundation for the protection of human rights in the United States.”[3]

While the realities of eighteenth and nineteenth century America differed greatly from the rhetoric of individual liberty, these ideas sparked discussion and inspired domestic and international reform through early nongovernmental organizations.[4] Despite the mixed legacy of U.S. history concerning human rights as “a country whose practice did not always match its rhetoric,” there has existed a strong domestic tradition of advocacy for the protection of civil rights and civil liberties within the United States.[5]

While the numerous reservations, declarations and understandings undermine U.S. compliance with the Covenant, generally, modern democracies have a strong or growing tradition founded on civil liberties, and thus may be said to be generally in compliance with the ICCPR.

That being said, the Human Rights Committee finds the U.S. to be in violation of its treaty obligations under the Covenant.[6] Principally, the Committee finds the applicability of the Covenant at the national level to be of concern, citing factors that “considerably limit the legal reach and practical relevance of the Covenant, in violation of Art. 2.”[7]

The Committee also discusses issues within the criminal justice system including gross racial disparities within the prison system and racial profiling caused by the promulgation of “stop and frisk” practices by local police departments.[8]

Notably, the commission also expresses concern regarding targeted killings using unmanned vehicles, a practice discussed within Penn State University’s recent screening of World on Trial.[9] Specifically, the Committee mentions articles two, six, and fourteen in discussing its concern.[10]

The Committee remains concerned with the State party’s very broad approach to the definition and geographical scope of “armed conflict,” including the end of hostilities, the unclear interpretation of what constitutes an imminent threat,” who is a combatant or a civilian taking direct part in hostilities, the unclear position on the nexus that should exist between any particular use of lethal force outside areas of active hostilities, as well as the precautionary measures taken to avoid civilian casualties in practice (arts. 2, 6 and 14).[11]

Under the plain language of the ICCPR, the drone killings may constitute arbitrary deprivations of life without judicial oversight if they are found to fall outside the context of armed conflict. However, the Human Rights Committee has clarified that state parties must adhere to their treaty obligations and the ICCPR and humanitarian law are complementary. While many of the Committee’s criticisms have been discussed in context of the World on Trial, perhaps the most novel solution provided is the concept of a individual remedy for victims where a violation of the ICCPR has occurred, including the provisioning of adequate compensation and the establishment of “accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their government.”[12]

 

Tim Joseph is a 3L and a Senior Editor for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


[1] Paul Gordon Lauren. A Human Rights Lens on U.S. History: Human Rights at Home and Human Rights Abroad, in Bringing Human Rights Home at 7.

[2] Id. at 10.

[3] Id. at 11.

[4] Id. (“The formation of the Society for the Relief of Free Negroes Unlawfully Held in Bonadage by the American Quaker and activist Anthony Benzenet and others . . . not only created perhaps the very first human rights nongovernmental organization . . . but in the process served as an example for Thomas Clarkson and other deeply committed campaigners in Britain to establish the much larger and more influential Society for Affecting the Abolition of the Slave Trade.”).

[5] Id. at 35.

[6] Human Rights Committee, Concluding observations on the fourth periodic report of the United States of America, Mar. 10–Mar. 24, 2014, U.N. Doc. CCPR/C/USA/CO/4 (Apr. 23, 2014).

[7] See id. “The Committee regrets that the State party continues to maintain the position that the Covenant does not apply with respect to individuals under its jurisdiction, but outside its territory, despite the interpretation to the contrary of article 2, paragraph 1, supported by the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and State practice. The Committee further notes that the State party has only limited avenues to ensure that state and local governments respect and implement the Covenant, and that its provisions have been declared to be non-self-executing at the time of ratification. Taken together, these elements considerably limit the legal reach and practical relevance of the Covenant (art. 2).”).

[8] See id. at 3–4.

[9] See id. at 4.

[10] See id.

[11] Id. at 5.

[12] Id. at 5.

Child Marriage in Africa

More than 40 percent of African girls face the prospect of child marriage. Meaning, that these girls will be married before reaching the age of 18. The Human Rights Watch has been calling attention to this phenomenon and the dire consequences that result for these women. Without progress to prevent child marriage, the number of married girls in Africa will rise from 125 million to 310 million by 2050.

Child marriage occurs in African countries due to a variety of reasons. Namely, poverty, tradition, safety and gender inequality. Poverty is widespread in Africa and marriage is a way for a family to reduce their expenses. Many places in Africa have practiced child marriage for generations and it is a tradition that is engrained in the people where straying from it could lead to exclusion. Girls in Africa are also much more at risk of physical and sexual assault, and marriage can be seen as a way to ensure safety. Lastly, in many of the countries, girls are seen as a burden or commodity where they are valued less than boys. All of these factors contribute to the practice of child marriage.

The reasons child marriage needs to cease, outlined by Girls Not Brides, is the following:

  • Life-threatening health consequences for girls: Many girls will become pregnant soon after they are married when their bodies are not capable to safely deliver children. Additionally, they are more at risk of contracting sexually transmitted diseases.
  • Denial of the right to education: Once married, most girls will drop out of school entirely. Over 60 percent of child brides have no formal education.
  • Risk of sexual, physical and psychological violence: Child brides are more likely to be subjected to violence.
  • Negative impact on the economy: Millions of girls will not be educated and will not be able to financially contribute to their household to lift the family out of poverty. It is a never-ending cycle.

There have been efforts by organizations to help put a stop to this harmful practice. Educating the local communities is one of the most powerful tools advocates can implement. According to Girls Not Brides, advocate groups have successfully gotten many African countries to recognize that child marriage is a violation of human rights and that the minimum age of consent is 18. A few African countries have even developed strategies to end child marriage. This includes education in addition to legislation. Egypt has developed a five-year implementation plan that relies on a partnership between government and private actors. Zambia has also launched a similar program to ensure that girls’ rights are protected and child marriage is no longer practiced.

Slowly the child marriage rates are decreasing, but more work needs to be done so this practice is all-together banished. All African governments should implement comprehensive plans that aims to curb child marriage. Women and girls need to be empowered and better educated. Families and communities need to be made aware of the issues and the harmful effects of child marriage on the women and the community as a whole.

 

Tom Osborne is a 3L and a senior editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


Citations to articles & documents are included in the aforementioned underlined hyperlinks.

Argentina’s New President and Economic Reform

For the first time in 14 years, the people of Argentina said “no” to the Peronist regime and elected a conservative, non-Peronist as president. Mauricio Macri was sworn in as president of the country on December 10th and his swearing-in marks a departure from the leftist ideology that has pervaded not only the presidency, but the legislature, for more than a decade.

Like many of the other Latin American countries, Argentina has been crippled by indebtedness, hyperinflation, stagnation, deficits, and corruption, that has steadily increased since World War II.[1] The Peronist party ruled the country by nationalizing rather than privatizing many of the country’s industries. In the Economic Freedom of the World Report for 2013, Argentina was ranked 151 out of 157 countries.[2] Ex-President Cristina Kirchner and her husband, Nestor Kirchner, before her sharply increased spending on social welfare programs and raised tariffs in attempts to protect local industries.[3] They also aligned the country with leftist leaders like late Venezuelan President Hugo Chavez and Bolivian President Evo Morales.[4] The country’s poverty and inflation are nearly 25 percent, some of the highest rates in all of Latin America.[5]

President Macri has vowed for economic reform. His political promises included, among many, the development of infrastructure and the development of industries in many of Argentina’s providences.[6] As one of the richest men in Argentina and as former mayor of the city of Buenos Aires, Macri understands the importance of capitalism and how the government should not be in complete control of industry.

This change in ideology, will mean good things for the United States and for Argentina. Macri has already spoken with Vice President Biden about strengthening cooperation between the countries.[7] Relations with the United States have been strained for the past decade due to enormous debts owed to United States creditors. One of the ongoing cases has been with the recent court ruling that U.S. hedge funds do not have to accept restructured loan payments on bonds. This bitter fight was undertaken by the ex-president who had legislation passed in defiance of the U.S. courts’ rulings.[8]

Presumably with Macri, the situation will improve and relations with the United States will only get better. It will be a long journey until the country is able to come out of the economic crisis it has made for itself. However, with strong leadership and a proactive government it will be possible for Argentina to one day join the ranks of the most prosperous countries.

 

Tom Osborne is a 3L and a senior editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

[1] Doug Bandow, Mauricio Macri Takes Helm In Argentina: Tough Battle With Vulture Politicians Ahead, Forbes, Dec. 10, 2015.

[2] Id.

[3] Argentina: New President Macri Promises Major Changes and Honesty, NBC News, Dec. 10, 2015.

[4] See Id.

[5] Taos Turner, Argentina Inaugurates President Mauricio Macri, The Wall Street Journal, Dec. 10, 2015.

[6] Id.

[7] Readout of Vice President Biden’s Call with President-Elect Mauricio Macri of Argentina, White House Press Release, Dec. 5, 2015.

[8] Argentina accuses US judge of being ‘imperialist’ after debt plan ruling, Reuters, Aug. 22, 2014.