The Ministry of Agriculture and Livestock (MAG), represented by INCOPESCA, is trying to revive a decree to approve the commercialization of hammerhead sharks.

In an act that lacks technical criteria to exercise scientific authority and is only categorized as a matter of fisheries policy, INCOPESCA wishes to revive the decree that would allow the commercialization of endangered marine species.

The new proposed regulation was submitted to and accepted by the Prior Control System of the Ministry of Economy and Commerce (MEIC), under form 2017, which seeks to designate the Costa Rican Fisheries Institute (INCOPESCA) as the Scientific Authority and the Ministry of Agriculture and Livestock (MAG) as the Administrative Authority, in order to give them the power to decide which marine species are of fishing interest and consequently, have the freedom to market species such as the hammerhead shark.

The concern is very high, since deciding which marine species are of fishing interest and therefore can be commercialized requires a great deal of scientific knowledge and also requires research to determine the impact on marine biodiversity.

“The decree presented does not respond to a technical criterion, but rather to a political criterion and has no technical, scientific or any type of study foundations that support the decision to give scientific authority to INCOPESCA, beyond simply wanting to continue indiscriminately fishing for sharks and other species of marine wildlife,” stated Walter Brenes, a lawyer specializing in marine wildlife.

We tried to contact the Costa Rican Fisheries Institute (INCOPESCA) to get their side of the story, however, their response was that their executive director, Miguel Durán Delgado, was on vacation and that he was the only person authorized to provide information on the matter.

The data on the decline of the hammerhead shark are truly fragile, and the number of species has decreased by 94% between 2017 and 2019, a figure that represents overexploitation of the species.

Tomorrow could be a key day to determine whether the Ministry of Agriculture and Livestock (MAG), through its fisheries agency INCOPESCA, will proceed with this proposal. This is because, thanks to a lawsuit filed by lawyer Walter Brenes against INCOPESCA, requesting the inclusion of the hammerhead shark as a protected wildlife species, the hearing before the Administrative Court is scheduled for Wednesday, January 13, 2021. In addition to this request for inclusion, the lawyer proposes that the hammerhead shark be added to the list of endangered species within the System of Conservation Areas. This declaration would prohibit the extraction of hammerhead sharks from our waters, thus safeguarding and protecting the species.

According to Mr. Brenes, giving a precise figure for how long the recovery of the hammerhead shark species might take is difficult due to various factors; however, if extraction continues at the current rate, it could become extinct in our waters in approximately 20 years.

Consult MINAE and SINAC.

A consultation was made with the Ministry of Environment and Energy (MINAE) regarding this proposal from INCOPESCA, which they do not support and therefore request an analysis within the framework of international conventions, national regulations and international commitments.

The Ministry of Environment and Energy (MINAE), represented by its Minister Andrea Meza Murillo, issued a statement regarding this situation, which includes the following:

“First, it is important that this proposal be analyzed within the framework of international conventions, national regulations, and international commitments we have undertaken to ensure the conservation of marine biodiversity and the mitigation and adaptation to climate change. The efforts we make as a country to guarantee the conservation of our exclusive economic zone must be consistent with actions that promote the sustainable use of marine species and activities in the ocean.”
Specifically, the CITES Convention aims to protect endangered species and their relationship to international trade; therefore, it is essential to have efficient regulations that ensure transparency, objectivity, and scientific rigor to achieve this objective. In this regard, the following observations arise from the analysis of the articles of the decree:

- Regarding the designation of Incopesca as the scientific authority (Art. 1): It is necessary to evaluate the appropriateness of Incopesca being the scientific authority, given that it is the same institution that grants fishing permits, which could lead to conflicts of interest. This has been pointed out in various legal proceedings and appeals filed by civil society. It is worth noting that, prior to this reform, the Council of Representatives of CITES Scientific Authorities (CRAC-CITES), composed of Higher Education Institutions, Professional Associations, State Institutions, and Civil Society, carried out its functions effectively, efficiently, transparently, responsibly, and in a coordinated manner, enabling inclusive, participatory, and representative decision-making. To ensure consistency in the implementation of the CITES Convention, the Scientific Authority responsible for analyzing matters related to marine wildlife species should be a scientific advisory body made up of duly legitimized and accredited scientists from academia, civil society organizations, research centers, and other relevant institutions.

- Regarding the designation of the Ministry of Agriculture and Livestock (MAG) as the administrative authority (Art. 3): Because SINAC was designated as the administrative authority under the Wildlife Conservation Law, and in pursuit of a coherent implementation of the CITES Convention, we consider it necessary to conduct a hermeneutical analysis to determine whether the MAG's appointment should also be made through legal means. Likewise, it is necessary to clarify, according to Articles 3 and 4, whether this designation of administrative authority applies to the MAG, SENASA, or both.

- Regarding the deadlines for carrying out export and import procedures related to marine species in CITES (Art. 8): Due to the complexity and implications that the granting of permits may have, it is important to review the 10 business days period given to the institution to resolve, even considering a possible extension of the period for another 10 days (Art.9).

- Regarding the establishment of the scientific authority (Transitional Provision II): As mentioned previously, to ensure scientific rigor and the exchange of technical criteria, it is necessary to establish an intersectoral scientific advisory group that conducts ongoing research. We reiterate that a structure like that of the CRAC-CITES allows us to meet the conservation objectives established in the CITES Convention by fostering decisions in strict adherence to the unequivocal rules of science and technology, as well as public access to information, participation, and the protection of fundamental freedoms, in accordance with national laws and international agreements.

Secondly, we note that a reform such as the one proposed could conflict with the Public Administration's obligation to promote institutional coherence, improve effectiveness, efficiency, and simplicity, reduce unnecessary overlaps and duplication, enhance synergies, and improve administrative coordination. This Administration has made a clear commitment to the conservation of the marine ecosystem and to the creation of governance structures and inter-institutional coordination to guarantee healthy and productive seas. The need for a solid scientific basis to guide decision-making regarding the use and trade of species vital to the balance of the marine ecosystem is now, more than ever, an urgent necessity.

Finally, it is important to note that the consultation carried out by the Ministry of Agriculture and Livestock (MAG) on the Ministry of Economy, Industry and Commerce (MEIC) website is insufficient to remedy the defect caused by non-compliance with Article 361 of the General Law of Public Administration (LGAP). The hearings indicated in sections 1 and 2 must be held directly with each of the entities affected by the regulations. To date, this consultation has not taken place, nor has a participatory process been promoted in which the different interests can be taken into account.

Based on the foregoing, I respectfully request that the proposed consultation not be considered and that, instead, the relevant authorities—namely, the Ministry of Environment and Energy and the Ministry of Agriculture and Livestock, as well as the various stakeholders involved in the trade of marine wildlife species listed under CITES—be urged to conduct a participatory process and a legal analysis of cost-benefit, opportunity, and advisability before implementing any modification such as the one proposed. Of particular concern is the lack of certainty regarding the composition of the Scientific Authority and the procedure for ensuring compliance with the public consultations mandated by the First Chamber.

I also believe it is necessary to make a public clarification regarding the procedure for pending export permits, while the possibility of making changes to the regulations is being analyzed.”

Written by: Enrique Hernández

General Management: Marco Montero