leagal aspects of the whale watching.pdf - International Fund for ...

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• should not have convictions for offences involving the mistreatment of animals In addition, their operations should have sufficient educational value to participants or to the public. Detailed requirements for proposed whale watching operations must be supplied before a permit can be issued. These pertain to such considerations as type of viewing platform, area of operation, number of platforms, duration and frequency of trips, species to be viewed. Suspension, revocation, restriction or amendment of permits may take place (section 13) if violations of behavioural rules around marine mammals (sections 17-20) occur. Conditions concerning behaviour around marine mammals are laid down in Part III Section 18 of the Act. These include: • that the normal movement or behaviour of the marine mammals should not be disrupted • that watching must be abandoned if marine mammals become disturbed or alarmed • that there must be no sudden or repeated change of speed or direction. Special conditions are laid down for whales (Section 19) and dolphins (Section 20). They include: USA • provisions concerning swimming with them • specification of approach distances and direction thereof • coordination of the number of boats involved in watching Whale watching started in the United States of America in the 1950s so there is a long history of this activity. Although the USA was one of the first countries to enact legislation specifically directed at the protection of marine mammals in 1972 and now has an extensive body of legislation on its statute book, whale watching guidelines and regulations have only recently been adopted. As a result, although some voluntary guidelines were issued, whale watching took place without binding regulations for three decades. Increasing concern (for the potential effects of harassment) eventually led to the development of regulatory structures in whale watching. The regulation of whale watching falls under the Marine Mammal Protection Act of 1972 (MMPA) and the Endangered Species Act 1973 (ESA) as amended. The National Marine Fisheries Service (NMFS) is the responsible agency. NMFS relies on the MMPA and ESA prohibitions on “take”, which includes to “harass”, to justify regulation of whale watching. NMFS originally thought it could develop national guidelines, but due to opposition it has now enacted guidelines on a regional basis. However, in reality these are similar throughout the USA. The position in the USA is complicated by the existence of a number of state laws protecting marine mammals. However, only one state appears to have promulgated regulations specifically directed at the impacts of whale watching. Massachusetts has a 500 yard “no approach” regulation (322 Code of Mass. Regulations 12.01-12.05). It also requires avoidance measures and imposes a general prohibition on the “harassment” or “harm” of any right whale. In addition to regional guidelines, state and federal regulations provide special protection for the northern right whale off New England and federal regulations for the humpback whale off Hawaii. The National Park Service has also established regulations for Glacier Bay National Park in Alaska to protect humpback whales. The provincial states have their own Endangered Species Acts, which generally define harassment in the same way as the federal act. To date, this has only been used to list whales by California and two other states. States themselves have to list the species which they want to protect. 16 Legal Aspects of Whale Watching
Enforcement relies very much on self-regulation and voluntary compliance. NMFS does not have enough resources, personnel or vessels to keep watch over every activity. It frequently conducts spot checks, but has to borrow the resources to do so from elsewhere, which means that checks are well publicised in advance. There have been few prosecutions, and these tend to be only of extreme cases, e.g. intentional violators or repeat offenders. Even if witnesses etc. are available, it is very difficult to win the cases in court. Authorities try to follow up private, noncommercial violations, which are usually the result of ignorance. There is a need for better education of both operators and the public in relation to the guidelines and the reasons for them. 6.2 Binding regulations or non-binding guidelines or recommendations The advantages and disadvantages of binding and non-binding approaches were considered. Binding legislation, generally in the form of regulations, has important value as a deterrent though its effect may be weakened if the ability to enforce it is lacking. On the other hand, non-binding guidelines or codes of practice and other forms of recommendations, for breach of which no penalty is incurred, may not be respected in certain societies. There is, however, a perception--which is not necessarily valid--that the ability to take effective enforcement actions is declining in some countries, either because, as in the case of developing countries, they lack resources or, as in many developed states, they are engaged in cost-cutting exercises. Self-regulation on a voluntary basis, coupled with education of operators and the public, is thus regarded by many as being the most effective means of ensuring compliance with all forms of measures in the long term. Nonetheless, the "command and control" approach still retains value and the combination of both approaches is probably the preferred option. Whilst both legislation and non-binding guidelines have certain advantages and disadvantages, a high percentage of the public and industry comply voluntarily regardless of whether measures are promulgated in the form of legislation or guidelines. Available evidence suggests that the levels of non-compliance by private vessels remain unaffected by the form in which the measures are cast. Public education concerning the content of regulations or guidelines, and the reasoning behind them enhances voluntary compliance with both binding and non-binding measures. Binding Legislation Advantages Disadvantages Expressed in terms of command May be expressed in general or ambiguous terms Creates binding obligations Evidence of violation difficult to collect Prescribes penalties Penalties may be too low to deter Enables punishment of the small, irresponsible minority Prosecution expensive and difficult Enforceable by official agencies Enforcement costs May be difficult to change Enforcement requires technical capability Some cultures do not respect non-binding measures Cannot be enforced on foreign visitors or vessels outside national jurisdiction 17
Page 1 and 2: REPORT OF THE WORKSHOP ON THE LEGAL
Page 3 and 4: Report of the Workshop on the Legal
Page 5 and 6: SUMMARY As the previous IFAW worksh
Page 7 and 8: INTRODUCTION 1 OPENING OF THE WORKS
Page 9 and 10: It was determined that generally, a
Page 11 and 12: which was adopted by the UN Confere
Page 13 and 14: If there is any conflict between th
Page 15: other areas as a result of Mexico
Page 19 and 20: Canada The objective laid down in i
Page 21 and 22: 6.7 Means of enforcement: penalties
Page 23 and 24: 2 Definitions Definitions should be
Page 25 and 26: 9 SELECTED LEGISLATION, GUIDELINES
Page 27 and 28: (e) The details of any educational
Page 29 and 30: (g) No aircraft engaged in a commer
Page 31 and 32: It is unlawful to: 1 Operate any ai
Page 33 and 34: • Having taken account of interna
Page 35 and 36: Article 11 The Ministers invite oth
Page 37 and 38: (2) If there is any conflict betwee
Page 39 and 40: (b) at risk of harassment. Example
Page 41 and 42: (a) a stranding coordinator may, in
Page 43 and 44: main shipping channel to Saint John
Page 45 and 46: APPENDIX 1. LIST OF PARTICIPANTS &
Page 47 and 48: APPENDIX 2. AGENDA Workshop on the
Page 49 and 50: (vi) encourage the provision of acc
Page 52: INTERNATIONAL FUND FOR ANIMAL WELFA

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