House of Commons - Environment, Food and Rural Affairs

Select Committee on Environment, Food and Rural Affairs Third Report

4 UK's legal position

34. The UK Government is legally obliged to deal with the problem of small cetacean by-catch, under a range of international agreements and regulations. The Government's ability to act is, however, constrained by the provisions of the European Community's Common Fisheries Policy.

Legal obligations to protect small cetaceans

35. The UK is a party to several agreements that create legal obligations to protect populations of small cetaceans from by-catch. The most important of these are ASCOBANS and the EC Habitats Directive; the UN Convention on the Law of the Sea is also relevant.

ASCOBANS

36. The Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas—known as ASCOBANS—was concluded under the auspices of the United Nations Convention on Migratory Species, and came into force in 1994. Its aim is to minimise (and ultimately to reduce to zero) anthropogenic removals of cetaceans from the Baltic and North Seas. There are currently eight parties to the agreement: Belgium, Denmark, Finland, Germany, the Netherlands, Poland, Sweden and the United Kingdom.[54]

37. The parties to ASCOBANS consider by-catch to pose the most serious threat to cetacean populations in the Baltic and North Seas. Consequently, in 2000, the parties passed a resolution which called on competent fishery authorities to ensure that the total anthropogenic removal of marine mammals was reduced as soon as possible to below a level of 'unacceptable interaction'. An unacceptable interaction was agreed as being above 1.7% of the best estimate of the total population. The resolution also underlined that the intermediate precautionary objective was to reduce by-catch to less than 1% of the best available population estimate.[55] These targets were accepted by North Sea Ministers, including the UK, in 2002 at the 5th North Sea Conference.

EC Habitats Directive

38. Council Directive 92/43/EC on the Conservation of Natural Habitats and of Wild Fauna and Flora (the Habitats Directive) imposes two requirements on the UK in respect of cetaceans. The first requirement applies only to the bottlenose dolphin and the harbour porpoise, whereas the second applies to all cetaceans.

Requirement applying to bottlenose dolphin and harbour porpoise

39. Article 3 of the Habitats Directive requires member states to designate Special Areas of Conservation (SACs) in respect of specified species.[56] Included amongst these species are the bottlenose dolphin and the harbour porpoise. Member states must take all necessary measures to ensure the conservation of species in SACs, and to avoid their deterioration and disturbance.

40. SACs are designated in three stages:

each member state identifies possible SACs and submits them to the European Commission;
the Commission then adopts a list of sites of Community importance;
the member state concerned then designates the site as a special protection area within six years.

41. The UK has submitted a number of possible SACs to the Commission; to date, however, the Commission has yet to adopt a list of sites of Community importance. Despite this, the UK has used domestic legislation to enable protection to be given to 'candidate' SACs—that is, SACs which have been submitted to the Commission.[57] Of the 65 candidate marine SACs currently designated in the UK:

three were selected in order to protect the bottlenose dolphin—two as their primary purpose and one as a secondary purpose.[58]One of these sites is off the Scottish coast and the other two are off the Welsh coast;[59]
none offer protection to the harbour porpoise. The Joint Nature Conservation Committee (JNCC) attributes this to the fact that, currently, there are no readily identifiable areas "representing the physical and biological factors essential to their life and reproduction", as is required by the Habitats Directive.[60] The JNCC states that further work is underway to try to identify areas to consider for designation as SACs for harbour porpoises although, currently, none of the areas under consideration are in the south-west.[61]

42. Any SACs intended to protect the bottlenose dolphin or the harbour porpoise are more than likely to lie within the UK's territorial sea (that is, within 12 nautical miles). Responsibility for proposing SACs that lie in this zone is a devolved matter: the relevant statutory conservation agency (the Countryside Council for Wales, English Nature, the Environment and Heritage Service in Northern Ireland and Scottish Natural Heritage) is therefore responsible for identifying and submitting to the Commission a proposed SAC of this type.

Requirement applying to all cetaceans

43. Article 12(4) of the Habitats Directive requires member states to establish systems to monitor the incidental capture and killing of all cetaceans. In light of the results of this monitoring, member states are required to undertake further research or conservation measures to ensure that the incidental capture and killing "does not have a significant negative impact on the species concerned".[62] However, the Whale and Dolphin Conservation Society believes that few, if any, member states are monitoring cetacean by-catch adequately, in terms of requirements of the Habitats Directive, and that no member states are fulfilling the requirement to ensure that by-catch does not have a significant negative impact.[63]

United Nations Convention on the Law of the Sea

44. The United Nations Convention on the Law of the Sea has been in force since 1994; the UK acceded to it in 1997.[64] The Convention creates an obligation for those states that are parties to the Convention to co-operate over the conservation of marine mammals and, in the case of cetaceans, to work through the appropriate international organisations for their conservation, management and study.[65] It enables a coastal state or an international organisation to go beyond the provisions of the Convention in prohibiting, limiting or regulating the exploitation of marine mammals.

Extent of UK's jurisdiction

45. Under the United Nations Convention on the Law of the Sea, the UK's territorial sea extends up to 12 nautical miles from the UK coastline and its exclusive economic zone extends up to 200 nautical miles from the coastline.[66] The Convention provides that a coastal state enjoys rights of sovereignty and jurisdiction over both these zones, but that it may exercise greater rights of control over its territorial sea.

46. As a member of the European Community, however, the UK's waters form part of "Community waters". The UK can exercise only those rights of sovereignty and jurisdiction that are permitted under the Community's Common Fisheries Policy (CFP). The Council Regulation that provides the regulatory structure for the CFP gives all member states a right of equal access to resources in Community waters.[67] Given the provisions of the CFP, it is not clear the UK is able to enforce national conservation measures on vessels within UK waters.

47. The CFP does, however, give a coastal state some ability to restrict access to fisheries in its territorial sea. Therefore, within 12 nautical miles of its coast, the UK can restrict access to those fishing vessels that traditionally fish in those waters from ports on the adjacent coast, provided that those restrictions do not prejudice certain existing access arrangements, specified in the Council Regulation.[68] France, Ireland, Germany, the Netherlands and Belgium all have existing access arrangements, relating to various fisheries, although the only state with access rights relevant to the fisheries we are examining in this inquiry is France. Importantly, however, no other member state has access rights within six nautical miles of the UK's coastline.[69]

Imposing emergency measures under the Common Fisheries Policy

48. Any member state can ask the European Commission to impose emergency measures where there is "evidence of a serious threat to the conservation of living aquatic resources, or to the marine eco-system resulting from fishing activities and requiring immediate action".[70] The UK recently made such a request, in relation to the Darwin Mounds, coral reefs off north-west Scotland which resulted in the Commission deciding to impose emergency measures.[71] Any measures imposed may last up to six months, and may be renewed for a further six months. The Commission may also take such a decision on its own initiative.

49. Member states are also empowered to impose emergency measures unilaterally, within their own exclusive economic zone (up to 200 nautical miles), where there is "evidence of a serious and unforeseen threat to the conservation of living aquatic resources, or to the marine eco-system resulting from fishing activities … [and] any undue delay would result in damage that would be difficult to repair".[72] Any measures imposed may last up to three months and cannot be renewed.

54 In addition, there are six "non-party range states"-that is, parties that co-operate with ASCOBANS without having formally acceded to the agreement: Estonia, France, Latvia, Lithuania, Norway and the Russian Federation. Back

55 Resolution No. 3: Incidental Take of Small Cetaceans, 3^rd Session of the Meeting of Parties, Bristol, UK, July 2000 Back

56 These are listed in Annex II to the Habitats Directive. Back

57 The Conservation (Natural Habitats, &c.) Regulations 1994 (SI 1994/2716) and The Conservation (Natural Habitats, &c.) (Amendment) (England) Regulations 2000 (SI 2000/192), which transpose the Habitats Directive in the UK. Back

58 As at 24 October 2003 Back

59 The SACs are known as: the Moray Firth, off Scotland; Bae Ceredigion/ Cardigan Bay, off Wales; Pen Llyn a`r Sarnau/ Lleyn Peninsula and the Sarnau, also off Wales. Back

60 Article 4(1) Back

61 Memorandum from the JNCC submitted to this Committee in relation to its inquiry into the marine environment and information from the JNCC on 20 January 2004. The memorandum will be published in the Committee's forthcoming report on the marine environment. Back

62 Article 12(4) Back

63 Ev 27 [Whale and Dolphin Conservation Society] Back

64 The Convention was opened for signature in 1982 and came into force on 16 November 1994. Back

65 This obligation applies both within a coastal state's exclusive economic zone (Article 65) and on the high seas (Article 120). Back