Section 6 – Legislation and Conventions
39. As discussed in the High Level Strategy document, UK cetaceans are protected from disturbance and harm under a range of national and international legislation.
40. Table 5 sets out the legislation/convention and the purpose of the provisions in terms of the level of protection afforded to the species, as well as where our international obligations come from.
41. Table 2 of the High Level Strategy lists the current conservation status of the nine species and the reporting mechanism the data was gathered under. Table 5 here, explains the obligations under those reporting mechanisms, including the timescales for reporting.
Table 5: Legislation and conventions which support conservation of dolphins, porpoises and minke whales
International Whaling Commission (IWC)
To “provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry”.
Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR)
Requires the contracting parties to take all possible steps to prevent and eliminate pollution and shall take the necessary measures to protect the maritime area against the adverse effects of human activities so as to safeguard human health and to conserve marine ecosystems and, when practicable, restore marine areas which have been adversely affected.
Convention on the Conservation of Migratory Species of Wild Animals (CMS)
An environmental treaty under the aegis of the United Nations Environment Programme, CMS provides for the conservation and sustainable use of migratory animals and their habitats. CMS brings together the States through which migratory animals pass, the Range States, and lays the foundation for internationally coordinated conservation measures throughout a migratory range.
Agreement on the Conservation of Small Cetaceans in the Baltic, North East Atlantic, Irish and North Seas (ASCOBANS)
An agreement developed under the auspices of CMS. The aim of the Agreement is to promote close cooperation amongst Parties with a view to achieving and maintaining a favourable conservation status for small cetaceans. A Conservation and Management Plan obliges Parties to engage in minimising human induced mortality, habitat conservation and management, surveys and research, pollution mitigation and public information.
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
An international agreement between governments to ensure that international trade in specimens of wild animals and plants does not threaten their survival.
Convention on Biological Diversity (CBD)
CBD has three main objectives: the conservation of biological diversity, the sustainable use of the components of biological diversity and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. Development of Biodiversity Action Plans is a key requirement for cetacean conservation.
Aims to eliminate or restrict the production and use of persistent organic pollutants (POPs) in order to protect human health and the environment.
Habitats Directive (and UK implementing legislation)
Maintain or restore natural habitats and species of Community interest to Favourable Conservation Status (FCS). Establish Natura 2000 network of SACs, including those for harbour porpoises and bottlenose dolphins.
It also protects all cetacean species from capture, injury or killing and disturbance. There are differences in how this directive is transposed into each devolved administration. These are explained below in the table.
(EU) 2019/1241 Technical Conservation Measures Regulation
The EU Council Regulation (EU) 2019/1241 have been implemented to afford the strict protection for sensitive marine species such as marine mammals, provided for in Directives 92/43/EEC and 2009/147/EC. Member States should put in place mitigation measures to minimise and where possible eliminate the catching of such species by fishing gear.
Although not explicitly stated in the legislation, the ASCOBANS threshold for anthropogenic removals of 1.7% of the best population estimate has been tacitly adopted as the limit below which bycatch needs to kept (SGFEN, 2002).
Marine Strategy Framework Directive (MSFD)
The overarching aim is to achieve Good Environmental Status (GES) in marine waters by 2020. To achieve this a series of descriptors have been developed which include the following:
‘At the scale of the MSFD sub-regions abundance of cetaceans is not decreasing as a result of human activity: in all of the indicators monitored, there should be no statistically significant decrease in abundance of marine mammals caused by human activities’
‘At the scale of the MSFD sub-regions cetacean populations are in good condition: mortality of cetaceans due to fishing bycatch is sufficiently low so as not to inhibit population targets being met.’
Various regulations relating to persistent organic pollutants
The impact of persistent organic pollutants (POPs) in the environment is well recognised, with legislation in place for many years. Example legislation includes Council Directive 96/59/EC on the disposal of polychlorinated biphenyls and polychlorinated terphenyls; Decision 2001/68/EC establishing two reference methods of measurement for PCBs pursuant to Article 10(a) of Council Directive 96/59/EC on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCBs/PCTs); Council Decision concerning the conclusion, on behalf of the European Community, of the Protocol to the 1979 Convention on Long Range Transboundary Air Pollution on Persistent Organic Pollutants; Commission Regulation (EC) No 323/2007 amending Annex V to Regulation (EC) No 850/2004 of the European Parliament and of the Council on persistent organic pollutants and amending Directive 79/117/EEC.
Wildlife and Countryside Act 1981 (England and Wales only)
Protects all cetaceans from intentional or reckless disturbance.
Marine and Coastal Access Act 2009
Help ensure clean, healthy, safe, productive and biologically diverse marine and coastal environments that meet the long term needs of people and nature. Puts in place a system for improved management and protection and provides for the establishment of marine conservation zones for important habitats and species, as well as a marine planning and licensing system.
Marine (Scotland) Act 2010 (Scotland only)
Help ensure clean, healthy, safe, productive and biologically diverse marine and coastal environments that meet the long term needs of people and nature. Puts in place a system for improved management and protection and provides for the establishment of marine protected areas for important habitats and species, as well as a marine planning and licensing system.
UK Marine Plans
In the UK, marine planning is the responsibility of the MMO in England, the Welsh Government in Wales, Marine Scotland in Scotland and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. Marine plans are either at a subnational level, e.g. the East Inshore and East Offshore Marine Plans in England adopted in 2014 or a national level, e.g. Scotland’s National Marine Plan adopted in March 2015. Plans covering the rest of the UK will be established by 2021 at the latest, in accordance with the Maritime Spatial Planning Directive.
Seven of the species assessed in this strategy are Priority Marine Features in Scotland, and therefore do receive additional general protection from policies in Scotland’s National Marine Plan.
Natural Environment and Rural Communities (NERC) Act 2006 (England only)
Makes provision for bodies concerned with conserving, enhancing, and managing England's natural environment for the benefit of current and future generations. The Act made amendments to the both the Wildlife and Countryside Act 1981 and the Countryside and Rights of Way (CROW) Act 2000. For example, it extended the CROW biodiversity duty to public bodies and statutory undertakers, and altering enforcement powers in connection with wildlife prosecution.
Environment (Wales) Act 2016 (Wales only)
Part 1 of the Act sets out Wales' approach to planning and managing natural resources at a national and local level in line with the principles of the sustainable management of natural resources. Section 6 of the Act places a duty on public authorities to seek to maintain and enhance biodiversity and promote the resilience of ecosystems.
Wellbeing of Future Generations Act 2015 (Wales only)
The Act aims to improve the social, economic, environmental and cultural well-being of Wales. It sets out seven wellbeing goals for Wales, including a Wales which is globally responsible and resilient.
The Marine Act 2013 (Northern Ireland only)
This Act sets out a framework for Northern Ireland’s seas based on: a system of marine planning that will balance conservation, energy and resource needs; improved management for marine nature conservation and the streamlining of marine licensing for some electricity projects. Part 3 of the Act enables the Department to designate areas as Marine Conservation Zones (MCZ).
The Conservation of Habitats and Species Regulations 2017 as amended
The Conservation (Natural Habitats, &c.) Regulations 1994 as amended
The Regulations provide for the designation and protection of 'European Sites', the protection of 'European Protected Species', and the adaptation of planning and other controls for the protection of European Sites.
The Regulations make special provisions for the protection of European marine sites, requiring the country agencies to advise other authorities of the conservation objectives for a site, and also of the operations which may affect its integrity. The Regulations also enable the establishment of management schemes and byelaws by the relevant authorities and country agencies respectively, for the management and protection of European marine sites.
The Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995
For the designation of sites and their management schemes including under the Habitats Directive and protection of European Protected Species throughout Northern Irish waters including all cetaceans.
Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 as amended
These regulations fulfil the UK’s duty to comply with European law beyond inshore waters and ensure that activities regulated by the UK that have an effect on important species and habitats in the offshore marine environment can be managed. Under the Regulations, competent authorities i.e. any Minister, government department, public body, or person holding public office, have a general duty, in the exercise of any of their functions, to have regard to the EU Habitats and Birds Directives.
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