Maritime Law

A Cold-Blooded Cure: How COVID-19 Could Decimate Already Fragile Shark Populations

Emily Kennedy, MJLST Staffer

Movies like Jaws, Deep Blue Sea, and The Meg demonstrate that fear of sharks is commonplace. In reality, shark attacks are rare, and such incidents have even decreased during the COVID-19 pandemic with fewer people enjoying the surf and sand. Despite their bad, Hollywood-driven reputation sharks play a vital role in the ocean ecosystem. Sharks are apex predators and regulate the ocean ecosystem by balancing the numbers and species of fish lower in the food chain. There are over 500 species of sharks in the world’s oceans and 143 of those species are threatened, meaning that they are listed as critically endangered, endangered, or vulnerable. Sharks are particularly vulnerable because they grow slowly, mature later than other species, and have relatively few offspring. Shark populations are already threatened by ocean fishing practices, climate change, ocean pollution, and the harvesting of sharks for their fins. Sharks now face a new human-imposed threat: COVID-19.

While sharks cannot contract the COVID-19 virus, the oil in their livers, known as squalene, is used in the manufacture of vaccines, including COVID-19 vaccines currently being developed. Shark squalene is harvested via a process known as “livering,” in which sharks are killed for their livers and thrown back into the ocean to die after having their livers removed. The shark squalene is used in adjuvants, ingredients in vaccines that prompt a stronger immune response, and has been used in U.S. flu vaccines since 2016. Approximately 3 million sharks are killed every year to supply squalene for vaccines and cosmetic products, and this number will only increase if a COVID-19 vaccine that uses shark squalene gains widespread use. One non-profit estimates that the demand for COVID-19 vaccines could result in the harvest of over half a million sharks.

Sharks, like many other marine species, are uniquely unprotected by the law. It is easier to protect stationary land animals using the laws of the countries in which their habitats are located. However, ocean habitats largely ungoverned by the laws of any one country. Further, migratory marine species such as sharks may travel through the waters of multiple countries. This makes it difficult to enact and enforce laws that adequately protect sharks. In the United States, the Lacey Act, the Endangered Species Act, and the Magnuson-Stevens Fishery Conservation and Management Act govern shark importation and harvesting practices. One area of shark conservation that has gotten attention in recent years is the removal of shark fins for foods that are considered delicacies in some countries. The Shark Conservation Act was passed in the United States in response to the crisis caused by shark finning practices, in addition to the laws that several states had in place banning the practice. The harvest of shark squalene has not garnered as much attention as of yet, and there are no United States laws enacted to specifically address livering.

Internationally, the Convention on the Conservation of Migratory Species of Wild Animals (CMS) and the International Plan of Action for the Conservation and Management of Sharks (IPOA) are voluntary, nonbinding programs. Many of the primary shark harvesting nations have not signed onto CMS. The Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) is binding, but there are loopholes and only 13 shark species are listed. In addition to these international programs, some countries have voluntarily created shark sanctuaries.

Nations that have refused to agree to voluntary conservation efforts, that circumvent existing international regulations, and lack sanctuaries leave fragile shark species unprotected and under threat. The squalene harvesting industry in particular lacks transparency and adequate regulations, and reports indicate that protected and endangered shark species end up as collateral damage in the harvesting process. A wide array of regional and international interventions may be necessary to provide sharks with the conservation protections they so desperately need.

Research and development of medical cures and treatments for humans often comes with animal casualties, but research to development of the COVID-19 vaccine can be conducted in a way that minimizes those casualties. There is already some financial support for non-animal research approaches and squalene can also be derived and synthesized from non-animal sources. Shark Allies, the conservation group that created a Change.org petition that now has over 70,000 signatures, suggests that non-shark sources of squalene be used in the vaccine instead, such as yeast, bacteria, sugarcane, and olive oil. These non-animal adjuvant sources are more expensive and take longer to produce, but the future of our oceans may depend on such alternative methods that do not rely on “the overexploitation of a key component of the marine environment.”


Seasteading

Will Dooling, MJLST Staffer

This February, students at the University of Minnesota fought record snowfalls and low temperatures. A lot of us are dreaming of running away to a tropical island somewhere, or buying one and starting our own country. Today, we explore “seasteading,” the practice of founding a sovereign nation on the high seas, usually on a floating platform, or a remote private island.

Sovereign nations have already claimed every large island, and every part of the ocean even remotely near shore. As such, seasteading requires a would-be nation-builder to either construct a new island on a deep ocean seamount or build a floating platform from scratch. Both are remarkably challenging and costly feats of engineering. Even very generous estimates put the cost of a freestanding deep-sea platform capable of supporting a few residents at $50 million. The other challenge, of course, is supplying the community’s inhabitants with food, water, and electricity. While a seasteader could try imaginative solutions ranging from self-sufficient algae farms to enormous solar-powered desalination systems, the practical startup cost of such an operation is utterly enormous.

The attraction is obvious, though, largely thanks to the persistent myth that once safely in international waters on a floating platform or a private island, no laws will apply. It is certainly true that Article 2 of the 1958 UN Convention on the High Seas prohibits any signatory from claiming sovereignty over the high seas, and Article 57 of the UN Convention on the Laws of the Sea limits the exclusive economic zone of any nation (the region of the sea over which that nation has total sovereign control) to no more than “200 nautical miles from the baselines from which the breadth of the territorial sea is measured.” However, these limitations have never seriously prevented the United States, for example, from carrying out law enforcement activities to prevent “acts done outside a geographic jurisdiction, but which produce detrimental effects within it[.]” United States v. Smith, 680 F.2d 255, 258 (1st Cir. 1982). This means that the most tempting uses of a seastead—an offshore casino, a drug den, or a tax haven—are unworkable. One of the only law review articles to seriously examine seasteading puts it bluntly: “Given the United States’ penchant for exercising jurisdiction thousands of miles from its coastlines, not even the territorial seas of other nations may be sufficient to protect a seastead from American jurisdiction.”

A few innovative souls have tried semi-serious attempts to start a sovereign nation on the high seas, but none have quite succeeded. In the 1970s, real estate tycoon Michael Oliver spent millions of dollars attempting to found a sovereign state on a cluster of reefs in the South Pacific, about 250 miles from the island nation of Tonga. He dubbed his project the “Republic of Minerva.” Oliver created his own currency, flag, and declaration of independence from Tonga, but his project ultimately failed when Tongan king Taufa’ahau Tupou, and a construction crew, arrived and dissembled Oliver’s early construction work on the reefs. Oliver then abandoned the project.

Similarly, from 1976 to 2010, pirate radio broadcaster Paddy Roy Bates made periodic attempts to claim a World War II era anti-aircraft platform situated in the North Sea as a sovereign nation. Sealand, like the Republic of Minerva, has its own currency, constitution, and even its own national anthem. Sealand also sells titles of nobility. British pop star Ed Sheeran, for example, is a Baron of Sealand. Unlike the Republic of Minerva, Sealand is still going strong, and purportedly celebrated its 50th anniversary in 2017, but only two people live there permanently.

Currently, the largest promoter of seasteading is the libertarian-aligned Seasteading institute, an organization that hopes to build utopian communities of artificial islands set in international waters, though critics charge that the project is largely an attempt to bypass regulation (and taxation) that its members find inconvenient. In 2017, the government of French Polynesia briefly flirted with the idea of allowing the Seasteading Institute to establish an experimental economic seazone in their territorial waters, though the deal ultimately seems to have fallen through.

While no one has successfully gotten a self-sufficient seasteading community afloat, the dream is completely understandable. Once we get better at deep-water construction and remote power generation, it may actually be possible. Until then, it remains a dream, though one that is relatable and understandable in the depths of a Minnesota winter, at least until Tonga invades.


Marooned on Mars: A Legal Look at Space Piracy

Tim Joyce, MJLST Staffer

Trending on the LawSciBlog’s recent foray into the intersection of law & pop culture, this week our intrepid Staffer corps fact-checks the legal accuracy of certain claims made in Andy Weir’s The Martian. With apologies to the many quality primetime law-connected dramas out there – such as How to Get Away with Murder, Scandal, and The Good Wife (note all the strong female protagonists: go Hollywood!) – this is a science & technology blawg. I will thus attempt to constrain my meanderings to science-related law topics in this book/film.

You may already be familiar with the premise of Hollywood’s most recent riff on the tried and true “We must rescue Matt Damon” formula: an American astronaut with one of the first manned missions to Mars is accidentally left behind during an emergency evacuation. With only his superior botany skills and a can-do attitude, he is forced to “science the s@*t” out of his resources, MacGuyver-style, to avoid starving to death before the rescue mission arrives. Along the way he has all kinds of time alone with his thoughts, and the audience is treated to some hilarious, if occasionally profane, musings.

Author Andy Weir wrote the book as a compilation of various thought experiments he had been entertaining for years. He wanted to know what an actual manned mission to Mars might look like, and what kind of problems might pop up. Although smarter people than I have probed the book’s relative scientific accuracy (hyperlink warning: spoilers inside!), there is one short chapter that explores some legal complications of being the only colonist on an unclaimed planet. Here’s how Matt Damon’s character concludes that he is a “space pirate” (mild spoilers ahead):

  1. An international treaty says: no one can lay claim to anything not on the Earth’s surface.
  2. Another treaty says: if you’re not in any country’s territory then maritime law applies.
  3. The NASA living enclosure and rover are NASA property, and inside American non-military property American law applies.
  4. THEREFORE: Martian land is governed by maritime law; any step outside of his living enclosure or rover vehicle is a journey into “international waters.”
  5. He intends to travel across Martian soil to take control of another NASA vessel.
  6. He has not been able to communicate with NASA to get explicit permission to commandeer this other vessel. (Plot point: communication capability is a major reason he must travel to said ship.)
  7. THEREFORE: By travelling across “international waters” with the intent to commandeer an American non-military vehicle, but without explicit permission, he intends to engage in piracy.

Ergo: space pirate. (If you’re curious, this all happens in the short “Sol 381” chapter.) The character seems to think this is a pretty sweet outcome, but, is he right about the law?

By and large, the answer is yes.

Article II of the Outer Space Treaty guarantees that, “[o]uter space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” So, Mars’ surface cannot be claimed by any sovereign party to the treaty. For an exploration of the Treaty’s rationale, see “the common heritage of mankind.”

Further, Article VIII of the Treaty guarantees American jurisdiction over American objects launched into space. So, the living enclosure and rover are definitely under active American jurisdiction on Mars. By extension, anything outside those Earth-originated environments would be “international waters.”

Here’s where it gets tricky.

The other American vessel should still be under American jurisdiction. A trusting reader might assume that NASA would allow its own astronaut to commandeer its other vessel, but we all know what happens when you assume. It is at least plausible that the astronaut had not been given explicit permission to use other NASA spacecraft’s communication devices. Under Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS), which arguably should apply to dispute in outer space, a private person seeking to plunder a ship on the high seas commits an act of piracy. What is unclear is whether an American can be a pirate with regard to NASA property. Weir hurdles this deftly by claiming the astronaut’s botanical cultivation of Martian soil makes him a planetary colonist and the very first human Martian (hence, the book’s title).

That is basically the situation Matt Damon’s character finds himself in, more or less. Certainly, any other astronaut seeking to prevent him from taking control of the other spaceship would view him as a pirate! On the other hand, the assumption that NASA wouldn’t give advance permission for their astronauts to use other Mars-stationed property stretches the limits of believability a bit. And, even if he technically qualifies as a space pirate while travelling to the other vessel, once he gets there and asks NASA politely, he would probably lose technical pirate status.

Is any of this important?

Maybe. Though the current space race isn’t furiously driven like the furious Cold War days, space is becoming ever more crowded as more nations and even private companies enter the game. Even Andy Weir himself admits in a website Q&A that advances in technology since the 60’s make it less justifiable to risk human life to gain scientific data that robots can gather just as easily. It seems like the focus of space law, for the time being, will be a little closer to home. For an in-depth examination of some legal issues surrounding allocation of geostationary orbits, see MJLST Editor Ian Blodger’s article in the upcoming Winter 2016 issue of MJLST.
tl;dr: The legal issue of space piracy may all be just a nerdy thought experiment for the moment. If nothing else, this article should provide you with an interesting conversation starter at the holidays, and a perfect way to change the subject when your non-lawyer relatives start pontificating about the real meaning of the Second Amendment. For now: live long and prosper.