By-catch mitigation and the protection of Cetaceans: Recent developments in EC law

Journal of International Wildlife Law and Policy

Volumn 8, Issue 2-3, 2005, Pages 241-259

  Caddell, Richard ^a  

^a BANGOR UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

BYCATCH; CETACEAN; ENVIRONMENTAL LEGISLATION; WILDLIFE MANAGEMENT;

CETACEA;

EID: 31344465235     PISSN: 13880292     EISSN: 15481476     Source Type: Journal    
DOI: 10.1080/13880290590965302     Document Type: Article

References (96)

1. See Andrew J. Read, Phebe Drinker & Simon Northridge, By-Catches of Marine Mammals in US Fisheries and a First Attempt to Estimate the Magnitude of Global Marine Mammal By-Catch, SC/55/BC5 (2003).
2. See, for instance, Convention for the Prohibition on Fishing with Long Driftnets in the South Pacific (Wellington, 1989), reprinted at (1990) 29 International Legal Materials 1454; UN General Assembly Resolution 44/ 225, reprinted at (1990) 29 International Legal Materials 1555; UN General Assembly Resolution 45/197, reprinted at (1991) 17 Law of the Sea Bulletin 7; UN General Assembly Resolution 46/215, reprinted in 31 ILM 241 (1992).
3. See also Grant J. Hewison, The Legally Binding Nature of the Moratorium on Large-Scale High Seas Driftnet Fishing, 25 J. Maritime L. & Commerce 557 (1994). For a critical account of this process,
4. see William T. Burke, Mark Freeburg and Edward L. Miles, United Nations Resolutions on Driftnet Fishing: An Unsustainable Precedent for High Seas and Coastal Fisheries Management, 25 Ocean Development & Int'l'L L. 127 (1994).
5. See Andrew Wright & David J. Doulman, Driftnet Fishing in the South Pacific: From Controversy to Management, 15 Marine Pol'y 303, 313-14 (1991).
6. Council Regulation (EC) No. 2371/2002 of December 20, 2002 on the conservation and sustainable development of fisheries resources under the Common Fisheries Policy, [2002] Official J. L358/59. For a discussion of the gradual evolution of EC fisheries law, see infra.
7. Council Regulation (EC) No. 812/2004 of April 26, 2004, laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98, [2004] Official J. L150/12.
8. Alexander Gillespie, Wasting the Oceans: Searching for Principles to Control Bycatch in International Law, 17 Int'l J. of Marine & Coastal L. 161, 163 (2002).
9. Donald R. Rothwell, The General Assembly Ban on Driftnet Fishing, in Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System 122 (Dinah Shelton, ed., 2003).
10. Council Directive 92/43/EEC of May 21, 1992, on the Conservation of Natural Habitats of Wild Fauna and Flora [1992] Official J. L206/7.
11. See infra.
12. See, for instance, Council Regulation (EC) No. 1626/94 of June 27, 1994, laying down certain technical measures for the conservation of fishery resources in the Mediterranean [1994] Official Journal L171/1,
13. and Council Regulation (EC) No. 894/97 of April 29, 1997, laying down certain technical measures for the conservation of fishery resources [1997] Official Journal L132/1.
14. Council Regulation (EEC) No. 345/92 of January 27, 1992, amending for the 11th time Regulation (EEC) No. 3094/86 laying down certain technical measures for the conservation of fishery resources [1992] Official J. L042/15.
15. The use of driftnet fishing in this area was, until recently, regulated solely by the International Baltic Sea Fisheries Commission (IBSFC). As a result of the recent EU enlargement, Estonia, Latvia, Lithuania, and Poland were required to formally withdraw from the IBSFC, and a specific agreement will be concluded between the EU and this body in relation to fisheries management in the Baltic Sea.
16. This exception was qualified by a requirement to prove that the vessels in question had fished for albacore tuna in this area for the previous two seasons.
17. Council Regulation (EC) No. 894/97 of April 29, 1997, laying down certain technical measures for the conservation of fishery resources [1997] Official J. L132/1.
18. Council Regulation (EC) No. 1239/98 of June 8, 1998, amending Regulation (EC) No. 894/97 laying down certain technical measures for the conservation of fishery resources [1998] Official J. L171/1.
19. See infra.
20. Robin R. Churchill, The EU as an International Fisheries Actor - Shark or Minnow?. 4 European Foreign Aff. Rev. 463, 480-481 (1991)
21. See Tullio Scovazzi, The Enforcement in the Mediterranean of United Nations Resolutions on Large-Scale Driftnet Fishing, 2 Max Planck YB United Nations L. 365, 372-373 (1998).
22. Id. at 372.
23. Id.
24. In 1995, this ambiguous policy on the part of the Italian government led to a case being brought by environmental lobbyists in the U.S. Court of International Trade, in which Italy was held to be in violation of the U.S. Driftnet Act: Humane Society of the U.S. v. Brown, 901 F. Supp. 338 (U.S. Ct. Int'l Trade, 1995). This ruling required the U.S. government to move toward imposing sanctions on Italy, although this threat was averted in July 1996, when the Italian government categorically undertook to end driftnet fishing by its nationals and vessels, which was sufficient to remove its certification of having violated the Driftnet Act. As part of the agreement, Italy received significant financial assistance to phase out driftnet fishing, with the U.S. government providing some $235 million in this regard;
25. see Rothwell, note 8 supra, at 140.
26. Nevertheless, this is still something of a live issue, and in 2001 the same NGO tried unsuccessfully to have the Italian government recertified for repeated infractions of the driftnet ban: Humane Society of the U.S. v. Clinton, 236 F.3d 1320 (Fed. Cir. 2001).
27. Council Decision 97/292/EEC of May 13, 1997 [1997] Official J. L121/20.
28. The EC's contribution rises to 75 percent of the costs in the poorest "Objective One" regions. Similar "bribes" of this nature have been paid to eradicate driftnet fishing by Spain, France, Ireland, and the United Kingdom; Council Decision 1999/27/EEC of January 14, 1999 [1999] Official J. L008/22.
29. Cited by the European Commission on its "Scoreboard" of compliance with fisheries laws; reproduced online at: http://europa.eu.int/comm/fisheries/scoreboard/control_en.htm (accessed on March 1, 2005). Due to its clandestine nature, the scale of illegal fishing by EU member states is difficult to quantify accurately, although there have been some ad hoc studies.
30. For instance, in the Mediterranean Sea, a study of the effects of illegal driftnet fishing for swordfish by Spanish vessels in the Straits of Gibraltar estimated that the some 366 dolphins were taken as by-catch in the 1993 fishing season, concluding that ths was not sustainable; see L. Silvani, M. Gazo & A. Aguilar, Spanish Driftnet Fishing and Incidental Catches in the Western Mediterranean, 90 Bio. Conservation 79 (1999).
31. See Sergi Tudela, Abdelouahed Kai Kai, Francesc Maynou, Mohamed El Andalossi, & Paolo Guglielmi, Driftnet Fishing and Biodiversity Conservation: The Case Study of the Large-Scale Moroccan Driftnet Fleet Operating in the Alboran Sea (SW Mediterranean), 121 Bio. Conservation 65 (2005). This study was originally commissioned by the World Wildlife Fund and, in practice, it has been NGOs that have proved most adept at monitoring illegal driftnet fishing in the Mediterranean Sea.
32. For an informative and compelling account of this process, and the legal status of the Baltic Republics during the Soviet period, see Lauri Malksöö, Illegal Annexation & State Continuity: The Case of the Incorporation of the Baltic States by the USSR (2003).
33. The exception to this is the jurisdictional waters of Russia, situated at the easternmost tip of the Baltic Sea, and around the western enclave of Kaliningrad, located between Lithuania and Poland.
34. COM (2003) 451 final: Proposal for a Council Regulation laying down measures concerning incidental catches of cetaceans and fisheries and amending Regulation (EC) No. 88/98; reproduced online at: http://www.europa.eu.int/comm/fisheries/doc_et_publ/factsheets/ legal_texts/docscom/en/com_03_451_en.pdf (accessed on March 1, 2005).
35. Environmental competence within the institutions was far from assured in the early days of the European Economic Community. No environmental provisions were included in the original 1957 EEC Treaty, and the various institutions were forced to stretch the Treaty's provisions allowing for legislation to establish and maintain the common market to near breaking point in order to address environmental concerns. An "Environmental Title" within the Treaty was eventually introduced by the Single European Act in 1987. For a concise yet comprehensive account of this process, see Peter G. G. Davies, European Union Environmental Law: An Introduction to Key Selected Issues 1-25 (2004).
36. Ex Art. 3c. Among the plethora of activities listed in Article 3 is "a common policy in the sphere of agriculture and fisheries": Art. 3(e).
37. COM (2001) 135 final: Green Paper on the future of the Common Fisheries Policy; reproduced online at www.europa.eu.int/comm/fisheries/greenpaper/ green/volume1_en.pdf (accessed on March 1, 2005).
38. Id. at page 9.
39. Id. at page 10.
40. Note 5, supra.
41. Art. 4(g)(iv). In addition to this, Art. 4(h) allows for measures to be taken to mitigate the environmental impact of fishing activities by "establishing incentives, including those of an economic nature, to promote more selective or low impact fishing."
42. COM(2002) 186 final: Communication from the Commission setting out a Community Action Plan to integrate environmental protection requirements into the Common Fisheries Policy; reproduced online at: www.europa.eu.int/comm/fisheries/doc_publ/factsheets/legal_texts/ docscom/en/com_02_186_en.pdf (accessed on March 1, 2005).
43. Id.
44. SEC (2002) 376, reproduced online at: http://europa.eu.int/comm/ fisheries/doc_et_publ/factsheets/legal_texts/docscom/en/ sec_2002_376_en.pdf (accessed on March 1, 2005).
45. SEC (2002) 1134, reproduced online at: http://europa.eu.int/comm/ fisheries/doc_et_publ/factsheets/legal_texts/docscom/en/ sec_2002_1134_en.pdf (accessed on March 1, 2005).
46. Note 39 supra note 39 at 67.
47. Supra note 40 at 31-2.
48. Id. at 50-1.
49. Id. at 52.
50. Advisory Committee on Ecosystems 2002 report, reproduced online at: www.ices.dk/committee/ace/2002/Section-2.pdf (accessed on March 1, 2005).
51. COM (2003) 451 final: Proposal for a Council Regulation laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No. 88/98. Here, the Commission declared that on the basis of the scientific information available to it, it has "come to the conclusion that the measures taken so far are insufficient or lacking in coordination": Note 29 supra.
52. The main amendments to the Regulation made by the Council were postponing the Commission's ambitious time-scale for the phase-out of driftnets by one year to 2008, limiting the operation of the Regulation to vessels of over 15m in length and introducing pilot projects and studies on the use of pingers.
53. P. Berggren, P.R. Wade, J. Carlström, & A.J. Reid, Potential Limits to Anthropogenic Mortality of Harbour Porpoises in the Baltic Region, 103 Bio. Conservation 313, 313 (2002).
54. Id.
55. The heavy pollution of the Baltic Sea may pose serious health problems for these animals, and the high density of vessel traffic in the region has had an adverse impact on habitats. In addition, natural factors such as the extreme cold affects the range of this species in winter and a significant mortality rate is caused by ice.
56. See Per Berggren, Bycatches of Harbour Porpoise (Phocoena phocoena) in the Swedish Skagerrak, Kattegat and Baltic Seas; 1973-1993 Reports of the International Whaling Commission (Special Issue 15) 211, 214 (1994). Undoubtedly, Cold War politics and the strategic military importance of the Baltic Sea area have compounded the dearth of research on this issue to a very significant degree.
57. Berggren et al, supra note 48 at 320.
58. Finland, Estonia, Latvia, and Lithuania have practically abandoned driftnet fishing, although Denmark has approximately the same driftnet fishing capacity as Sweden: ICES Advisory Committee on Fishery Management, Report of the Workshop on Catch Control, Gear Description and Tag Reporting in Baltic Salmon, 26-28 January 2003, ICES CM 2003/ ACFM:12; copies available from ICES. No data are currently available for the Russian driftnet fleet.
59. Namely, the Helsinki Commission on the Protection of the Marine Environment of the Baltic Sea Area (HELCOM) and the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS).
60. ASCOBANS adopted a specific plan for the recovery of stocks of the Baltic harbor porpoise, the Jastarnia Plan, which seeks to reduce by-catch of this species toward zero as quickly as possible: Reproduced online at www.ascobans.org (accessed on March 1, 2005).
61. Council Regulation (EC) No. 88/98 of December 18, 1997, laying down certain technical measures for the conservation of fishery resources in the waters of the Baltic Sea, the Belts and the Sound [1997] Official J. L009/1.
62. Art. 9 of Regulation 812/2004. As a result, Regulation 88/98 has been amended so that this provision now forms Art. 8a(1). The original deadline set by the Commission was one year earlier than this, with a proposed moratorium to begin on January 1, 2007.
63. Now Art. 8a(3) of Regulation 88/98.
64. Now Art. 8a(2) of Regulation 88/98.
65. Now Art. 8a(4) of Regulation 88/98.
66. Now Art. 8b(1) of Regulation 88/98.
67. Now Art. 8b(2) of Regulation 88/98.
68. Berggren, supra note 51.
69. A global survey of incidental porpoise mortality in gillnets concluded that "[g]illnet fishing appears to represent the single most significant threat to porpoise populations. Conflicts between gillnet fisheries and porpoise populations need to be solved soon to avoid the loss of at least one species and several populations of other porpoise species": Thomas A. Jefferson & Barbara E. Curry, A Global Review of Porpoise (Cetacea: Phocoenidae) Mortality in Gillnets, 67 Bio. Conservation 167, 178 (1994).
70. Art. 2.
71. These areas are listed in Appendix I of the Regulation.
72. Art. 2.2.
73. Art. 2.3.
74. Art. 2.4.
75. See Sali Jayne Bache, Bycatch Mitigation Tools: Selecting Fisheries, Setting Limits, and Modifying Gear, 46 Ocean & Coastal Mgt. 103, 118-121 (2003).
76. Stephen M. Dawson, Modifying Gillnets to Reduce Entanglement of Cetaceans,7 Marine Mammal Sci. 274, 275-277 (1991).
77. The Eastern Pacific tuna fishery has played host to a series of acrimonious trade disputes between the United States and other states in the region over import restrictions on yellowfin tuna imposed by the American government for the high levels of dolphin mortality in these waters. This has been resolved to a considerable extent by the conclusion of the Agreement on the International Dolphin Conservation Programme, reprinted at 15 Int'l J. Marine & Coastal L. 405 (2000), which has introduced a series of technical measures to facilitate a reduction in the incidental mortality of dolphins in return for a more flexible U.S. stance on the issue.
78. See Chris Hedley, The 1998 Agreement on the International Dolphin Conservation Programme: Recent Developments in the Tuna-Dolphin Controversy in the Eastern Pacific Ocean, 32 Ocean Development & Int'l L. 71 (2001).
79. Thomas A. Jefferson & Barbara E. Curry, Acoustic Methods of Reducing or Eliminating Marine Mammal-Fishery Interactions: Do They Work?, 31 Ocean & Coastal Mgt. 41, 50-51 (1996).
80. See D. W Johnson & T. H. Woodley, A Survey of Acoustic Harassment Device (AHD) Use in the Bay of Fundy, NB, Canada, 24 Aquatic Mammals 51 (1998);
81. Dave W. Johnson, The Effect of Acoustic Harassment Devices on Harbour Porpoises (Phocoena Phocoena) in the Bay of Fundy, Canada, 108 Bio. Conservation 113 (2002).
82. Scott D. Kraus et al., Acoustic Alarms Reduce Incidental Mortality of Porpoises in Gill Nets, 388 Nature 525 (2002);
83. see also Jay Barlow & Grant A. Cameron, Field Experiments Show That Acoustic Pingers Reduce Marine Mammal Bycatch in the California Drift Gill Net Fishery, 19 Marine Mammal Sci. 265 (2003).
84. See Stephen M. Dawson, Andrew Reid, & Elisabeth Slooten, Pingers, Porpoises and Power: Uncertainties With Using Pingers to Reduce Bycatch of Small Cetaceans, 84 Bio L Conservation 141, 142 (1998).
85. Id. at 145.
86. Tara M. Cox et al., Behavioral Responses of Bottlenose Dolphins, Tursiops truncatus, to Gillnets and Acoustic Alarms, 115 Bio.L Conservation 203, 208-209 (2003).
87. Id. at 209.
88. The cost of installing pingers is estimated as being in the region of $U.S. 40-55 per device, on the basis of one pinger per 92m of net: Dawson et al, note 54 supra at 143. Recently, and before the European Commission's proposals were published, the United Kingdom examined the by-catch issue through a Parliamentary Committee. The Committee concluded that the use of pingers in certain British fisheries should be made compulsory, and established that the costs of achieving this would be in the region of £4000 per boat, with an initial outlay of up to £1 million to fully equip the UK fleet. This figure does not include the costs of maintaining the devices and replacing them in the future: House of Commons Environment, Food and Rural Affairs Committee, Caught in the Net: By-Catch of Dolphins and Porpoises off the UK Coast, HC 88 of January 21, 2004, at 25. Copies available from Her Majesty's Stationary Office.
89. The final version of Regulation 812/2004 requires member states to "take necessary steps to monitor and assess, by means of scientific studies or pilot projects, the effect of pinger use over time in the fisheries and areas covered": Art. 2.4. This requirement was not included in the initial proposal drafted by the Commission.
90. Scott D. Kraus, The Once and Future Ping: Challenges for the Use of Acoustic Deterrents in Fisheries, (1999) 33 Marine Technology Society Journal 90, at 93 (1999).
91. Art. 4.1. Pilot projects and studies are to be used to gather information from vessels below this length: Art. 4.2.
92. Art. 5.1.
93. Art. 5.2.
94. Id.
95. Art. 5.3.
96. Art. 6.2.