'Strict Protection': a Critical Review of the Current Legal Regime for Cetaceans in UK Waters

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'Strict Protection': a Critical Review of the Current Legal Regime for Cetaceans in UK Waters Looking forward to 'strict protection': A critical review of the current legal regime for cetaceans in UK waters A WDCS Science report Editors: Mick Green, Richard Caddell, Sonja Eisfeld, Sarah Dolman, Mark Simmonds 1 WDCS is the global voice for the protection of whales, dolphins and their environment. Looking forward to ‘strict protection’: A critical review of the current legal regime for cetaceans in UK waters Mick Green1, Richard Caddell2, Sonja Eisfeld3, Sarah Dolman3, Mark Simmonds3 Published February 2012 Cover photographs © Charlie Phillips/WDCS, Terry Whittiker ISBN 978-1-901386-33-2 WDCS, the Whale and Dolphin Conservation Society Brookfield House 38 St Paul St Chippenham Wiltshire SN15 1LJ Tel. 01249 449500 Email: [email protected] Web: www.wdcs.org WDCS is the global voice for the protection of cetaceans (whales, dolphins and porpoises) and their environment. Offices in: Argentina, Australia, Germany, the UK and the USA. Registered Charity in England and Wales No. 1014705 Registered Charity in Scotland No. SC040231 Registered Company in the UK No. 2737421 1 Ecology Matters, Bronhaul, Pentrebach, Talybont, Ceredigion, SY24 5EH, Wales, UK 2 Institute of International Shipping and Trade Law, Swansea University, Singleton Park, Swansea, SA2 8PP, Wales, UK 3 Whale and Dolphin Conservation Society (WDCS), Brookfield House, 38 St Paul Street, Chippenham, Wiltshire SN15 1LJ, UK 2 CONTENTS 1 EXECUTIVE SUMMARY .................................................................................................5 2 INTRODUCTION ...........................................................................................................7 3 REVIEW OF CURRENT LEGISLATION ............................................................................8 3.1 Global International Agreements ........................................................................................ 8 3.1.1 United Nations Convention on the Law of the Sea 1982 .................................................. 8 3.1.2 International Convention for the Regulation of Whaling 1946 ........................................... 8 3.1.3 Bern Convention 1979 .................................................................................................. 8 3.1.4 Convention on the Conservation of Migratory Species of Wild Animals 1979 ..................... 9 3.1.5 Convention on Biological Diversity 1992 ...................................................................... 10 3.1.6 Convention for the Protection of the Marine Environment of the North-East Atlantic ...... 12 3.2 European Legislation ....................................................................................................... 11 3.2.1 Habitats Directive ...................................................................................................... 11 3.2.1.1 The designation of cetacean SACs ....................................................................... 11 3.2.1.2 Management of cetacean SACs ........................................................................... 12 3.2.1.3 ‘Strict protection’ measures under Article 12........................................................ 13 3.2.1.4 Fisheries issues and the implementation of the Habitats Directive .......................... 14 3.2.2 Marine Strategy Framework Directive 2008.................................................................. 15 3.2.3 Environmental Impact Assessment (EIA) Directive 1985 ................................................ 17 3.2.4 Strategic Environmental Assessment (SEA) Directive 2001 ............................................. 17 3.2.5 Whaling policies .......................................................................................................... 17 3.3 UK National Legislation ................................................................................................... 18 3.3.1 In England and Wales .................................................................................................. 18 3.3.1.1 Wildlife and Countryside Act 1981 ...................................................................... 18 3.3.1.2 Countryside and Rights of Way (CRoW) Act 2000 ................................................ 18 3.3.1.3 The Conservation (Natural Habitats, &c.) Regulations 1994 ................................... 18 3.3.1.4 The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 ............. 18 3.3.1.5 The Conservation of Habitats and Species Regulations 2010 .................................. 19 3.3.1.6 The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 .......... 19 3.3.1.7 The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2009 ................................................................................................ 19 3.3.1.8 The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2010 ................................................................................................ 19 3.3.1.9 The Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 ..... 19 3.3.1.10 The Offshore Petroleum Activities (Conservation of Habitats) (Amendment) Regulations 2007 ........................................................................................... 19 3.3.1.11 Natural Environment and Rural Communities Act 2006 .................................... 19 3.3.1.12 Wild Mammals (Protection) Act 1996 .............................................................. 20 3.3.1.13 Animal Welfare Act 2006 ................................................................................ 20 3.3.1.14 Marine & Coastal Access Act 2009 .................................................................. 20 3.3.2 In Scotland ................................................................................................................. 21 3.3.2.1 Nature Conservation (Scotland) Act 2004 ............................................................ 21 3.3.2.2 The Conservation (Natural Habitats, &c) Amendment (Scotland) Regulations 2004 . 21 3.3.2.3 The Conservation (Natural Habitats, &c) Amendment (Scotland) Regulations 2007 . 22 3.3.2.4 Marine (Scotland) Act 2010 ................................................................................ 22 3.3.3 Wider protection regulation in the marine environment ................................................. 22 3.3.3.1 Offshore industry ............................................................................................... 22 3.3.3.2 Ministry of Defence............................................................................................ 22 3.3.3.3 Voluntary Codes of Conduct ............................................................................... 23 4 APPLICATION OF THE LAW ........................................................................................24 4.1 Implementation of Global International Agreements .......................................................... 24 4.1.1 Convention on Biological Diversity through UK Biodiversity Action Plans (BAPs) ............. 24 3 4.2 Implementation of European Provisions ............................................................................ 25 4.2.1 ASCOBANS ............................................................................................................... 25 4.2.2 Fisheries legislation ..................................................................................................... 25 4.2.2.1 Application of by-catch issues .............................................................................. 25 4.2.3 NERC Act .................................................................................................................. 25 4.2.4 SEA Directive ............................................................................................................ 25 4.2.5 EIA Directive ............................................................................................................. 27 4.2.6 Habitats Directive ...................................................................................................... 27 4.2.6.1 Inadequacy of SACs............................................................................................ 28 4.2.6.2 Poorly managed activities conducted within SACs ................................................. 31 4.2.6.3 ‘Strict protection measures’ ................................................................................ 33 4.3 Implementation of National Legislation ............................................................................. 34 4.3.1 Disturbance in England and Wales ................................................................................ 34 4.3.2 Disturbance in Scotland............................................................................................... 34 4.3.3 Licensing in England and Wales .................................................................................... 34 4.3.4 MPAs under the Marine and Coastal Access Act and Marine (Scotland) Act ..................... 36 4.3.4.1 Wider protection measures under the Marine Acts ............................................... 37 4.3.5 Effectiveness of Codes of Conduct ............................................................................... 38 4.3.5.1 Ceredigion County Council, Wales ...................................................................... 38 4.3.5.2 Dolphin Space Program, Moray Firth, Scotland ..................................................... 38 5 CONCLUSIONS ...........................................................................................................40
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