Upholding laws to prevent whales and dolphins from becoming entangled in fishing gear

Hundreds of thousands of dolphins, porpoises and whales (collectively known as cetaceans) are bycaught in fishing gear every year and tens of thousands die in European waters.

This has been happening for decades.

Governments have been slow to act, to understand bycatch impacts and, more critically, to prevent bycatch from happening despite stringent laws in many parts of the world.

Dead dolphin washed up on a French beach

More positively, three important legal developments are incentivising governments to act to reduce cetacean bycatch. These regulatory decisions taken at national, regional and global levels – and the management actions that result from them – should help to shape the future of bycatch management in Europe and around the world, hopefully increasing the pace of change and, undoubtedly, leading to reductions in the number of cetacean deaths.

For decades, common dolphins have been bycaught each winter in very high numbers in the Bay of Biscay, with more than 110,000 bycaught in the region since 1990. At a national level, the French Council of State ordered measures to reduce cetacean bycatch through fishing closures back in March 2023. Subsequently, the European Commission implemented a Joint Recommendation agreed between fishing nations of France, Spain, Portugal and Belgium through a delegated act to secure regional measures. A closure of high-risk gear for fishing vessels longer than eight metres was introduced for four weeks each winter between January and February, from 2024 to 2026. The closure is expected to affect about 300 vessels.

The second of winter fishery closures took place in the Bay of Biscay this January and February. Due to the first four-week closure of fisheries in Biscay in early 2024, bycatch was reduced to the lowest level since 2015. As a result, this court decision has already saved thousands of dolphins and porpoises from deaths in fishing gear.

Fishing nets

There is just one court-mandated winter closure of the Bay of Biscay left, due to take place in early 2026. Effective long-term measures now need to be implemented as a matter of urgency. These will need to meet the scientific requirements that have already been set out by regional bycatch experts and will require large-scale and long-term reform in fishing practices.

Regionally, in February this year, the European Commission initiated an infringement procedure against Croatia for failing to implement the EU Habitats Directive to protect cetaceans from fisheries bycatch.

Croatia is the eighth EU member state against which the Commission has begun legal action since 2020 for its failure to implement nature laws to prevent cetacean bycatch.

France and Spain each received a reasoned opinion in July 2022 because of their lack of action to prevent dolphin bycatch in the Bay of Biscay. Sweden has also received a reasoned opinion because of failure to adequately protect critically endangered harbour porpoises from static net bycatch in the Baltic Proper.

The Commission has initiated infringement procedures against the Netherlands, Portugal, Italy and Bulgaria over failures to implement adequate bycatch measures for cetaceans and other protected marine species.

The countries legally challenged by the European Commission have increased their efforts to reduce cetacean bycatch by implementing policies and measures to better manage bycatch since the infringement procedures were initiated. Those efforts, whilst necessary, have been sub-standard and infringement procedures should be pursued at pace until robust measures are implemented by all fishing member states and meet the legal requirements.

Harbour porpoise (c) Ceri Wyn Morris

Thirdly, and undoubtedly most significant on a global scale, the US will stop importing seafood products from countries that do not meet their standards for protecting marine mammals due to fisheries bycatch. The rule was published in 2016 and is due to come into force on 1 January 2026.

It will require all countries exporting fish products into the US to meet the requirements of this law. An agreement was reached between US conservation groups and the Government in a landmark settlement in the US Court of International Trade.

The US is a huge market for fish products from around the world. The List of Foreign Fisheries catalogues every country and fishery in the world that exports to the US and which also has marine mammal bycatch associated with it. It’s a very long list.

Implementation of this legislation will level the playing field for US fisheries, which should already have bycatch measures in place.

It should also revolutionise the bycatch prevention efforts of governments around the world and have the positive effect of reducing marine mammal bycatch levels.