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

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