August 2019
On 25th July, a new EU Regulation titled ‘Conservation of fisheries resources and the protection of marine ecosystems through technical measure’ became law. The Technical Measures Regulation combines about 30 pieces of EU fisheries conservation legislation that determine the conditions under which fishermen may fish, including the incidental catches of cetaceans in fisheries (previously covered by Regulation 812/2004). This new Regulation has entered into force and will influence how the UK and other Member States tackle protected species bycatch and wider conservation of species and habitats in fishing activities.
On protected species bycatch specifically, the Regulation includes an obligation for technical measures to contribute to ensure bycatch of sensitive species is ‘minimised and where possible eliminated’ (Article 3). This is consistent with the ASCOBANS (Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas) aspiration towards zero bycatch, with regard to whales, dolphins and porpoises.
In Article 4, the new regulation also provides that technical measures must “aim to ensure” that the levels of cetacean bycatch do not exceed the limits in EU law and international agreements binding on the EU. Therefore, although the new regulation does not tighten the bycatch limits, it opens up new legal avenues for implementing measures that will be key for increasing compliance and maximising the impact of existing obligations in EU law related to the prevention and monitoring of bycatch.
Michael Gove reported the UKs ambition to become “a world leader in managing our resources while protecting the marine environment”. Measures required under the EU Regulation should be a minimum standard, whether the UK is part of the EU or not in future. We need to go further.
In 2017, the Fisheries Minister George Eustice committed the UK to developing a cetacean bycatch strategy. This is currently being developed by a Bycatch Focus Group of stakeholders, including WDC and other WCL members. This will need to be a robust, legislated strategy with clearly laid out and time-bound commitments to achieve the government aim of world-leading fisheries.
Further, other Member States operating in UK waters should be compelled to meet the requirements of the new law. For example, there is currently no data on the cetacean bycatch of non-UK fleet fishing in UK waters. This needs to change and measures should be enforceable.
Whilst the Habitats Directive is a robust piece of EU legislation, scientific evidence shows us that the historic cetacean bycatch regulation was piecemeal, inadequate, poorly implemented and poorly enforced. As a result, WDC and ClientEarth submitted a formal complaint to the European Commission in July, with the support of 25 European NGOs about the failures of 15 Members States – including the UK - to implement adequate cetacean bycatch measures, under the EU Habitats Directive.
The new EU Regulation provides Member States with opportunities to improve protected species bycatch measures, including through implementation of Joint Recommendations on a regional basis, but the European Commission will need to enforce implementation.
Looking ahead, many thousands of cetaceans and other protected species, including seabirds, seals and sharks, could be saved by implementation of robust national and regional management measures. The Technical Conservation Measures could help us to achieve this, but will require the UK and other Member States to be motivated and compelled to do so. Regardless of the new EU Regulation, the UK has this opportunity through the development of a world-leading bycatch strategy, and we will continue to do all we can until cetacean bycatch is eliminated.
Sarah Dolman, End Bycatch Programme Lead, Whale and Dolphin Conservation
Follow @dolmansarahj and @whalesorg
The opinions expressed in this blog are the author's and not necessarily those of the wider Link membership.
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