Scholar identifies pitfalls of marine mammal protections and pushes for coordinated global standards.
When accidentally caught in a fishing net, drowning whales and dolphins can experience high levels of stress, pain, and suffering.
Although Pavone acknowledges that these standards have made a start at protecting marine mammals, he argues that they do not prevent all hunting and incidental catches, nor do they fully protect animal welfare. Given these deficiencies, Pavone urges regulators to systematize wildlife laws and fisheries laws on an international scale for more effective, welfare-focused conservation.
Within the marine mammal category, Pavone includes whales, dolphins, porpoises, seals, manatees, and dugongs.
He explains that wildlife laws provide “direct protection” for threatened marine mammals because their entire purpose is to ban the hunting and trade of certain species. Fisheries laws provide “indirect protection” because they limit the number of marine mammals that fishermen catch accidentally.
In Pavone’s view, standards promoting welfare should seek to reduce marine mammals’ pain and suffering because doing so is desirable as a matter of ethics, not economics.
In reviewing wildlife laws, Pavone points to two international treaties: the International Convention for the Regulation of Whaling (ICRW), which bans the hunting of certain species of whales, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which restricts trade in threatened and endangered species, including some kinds of whales, porpoises, and dolphins.
In addition, Pavone considers EU rules that provide direct protection on a regional scale, such as a regulation implementing CITES and a regulation banning the importation of products made from whales and similar marine mammals.
The welfare ideals animating wildlife laws have limitations, argues Pavone. For example, he recognizes that CITES is “the only environmental treaty that makes reference to animal welfare,” as it sets minimum standards of care for handling and transporting wild animals. But the treaty gives only tangential attention to animal welfare, as these protections arise solely in the context of the commercial capture of marine mammals. CITES also only applies to species that are already endangered, so it may provide too little protection too late.
Pavone highlights other EU standards that give marine mammals protection because they are living creatures who understand pain—not because protecting them would keep the commercial market for marine animals alive. He cites an EU regulation that limits the trade of seal products because, as the regulation notes, “seals are sentient beings that can experience pain, distress, fear and other forms of suffering.”
Still, Pavone finds problems in existing welfare laws. Countries like Norway, for example, have opted out of the ICRW, symptomatic of a “long-standing struggle” between states that support whaling and states that do not. Although EU member states may protect marine mammals because of their capacity for suffering, places like Greenland and the Faroe Islands continue to hunt for whales for cultural reasons. Pavone paints a picture of standards in conflict.
In the fisheries law context, Pavone states that alleviating bycatch—the incidental catching of marine mammals in fishing nets—is paramount.
In the United States, for example, the U.S. National Marine Fisheries Service incorporates bycatch mitigation into its plans for sustainable fishing. The Marine Mammal Protection Act prohibits any trade in or use of marine mammals that have been caught by commercial fisheries. Under a regulation implementing the Act, the United States will not import seafood from countries that lack similar restrictions of their own on bycatch.
The European Union has taken steps forward as well. Under one EU regulation, fishing vessels must take steps to diminish bycatch of whales, dolphins, and porpoises. Vessels must have “acoustic deterrent devices” to scare marine mammals away, and they cannot use certain types of fishing gear that tend to catch marine mammals. An independent observer must also be on board to record and report bycatch.
But member states have implemented this regulation inconsistently, according to Pavone. Some states have made “genuine efforts” to do so, while other states do not consider bycatch mitigation “a top priority.” And the European Union has failed to penalize these “reluctant” states.
Pavone grants that wildlife and fisheries laws have helped save marine mammals, but nevertheless he expresses dissatisfaction with both legal systems.
“Uniformity” across global waters is especially important because marine mammals may face varying levels of protection as they migrate. Pavone asks regulators to work together on a global scale to create more consistent international standards by blending wildlife law and fisheries law.
Pavone provides an example of what this collaboration might look like. He points to domestic and regional laws that regulate fishing of certain species that are especially prone to result in bycatch. He suggests extending CITES’s protections to these species, thereby globalizing protection of marine mammals against bycatch.
In addition, Pavone insists that conservation efforts should promote welfare through standards that recognize marine mammals’ “high cognitive capabilities.” As such, he argues, protective standards should cover all marine mammals, regardless of whether a certain species is endangered.
Considering this vast and perhaps turbulent body of rules, Pavone’s analysis may provide a starting point for policymakers around the world rethinking the laws protecting marine mammals.