Progress and Gaps in Legal Protections for Whales, Dolphins, Tuna, Orcas, and Octopuses

The legal protection for cetaceans — which includes whales and dolphins — as well as tuna, and octopuses, has grown over the last century. Due to environmental protests, growing public concern, species’ population data, and a growing body of scientific evidence, international and domestic laws have begun to better protect the lives and treatment of cetaceans. These legal protections vary across species and geographic location, and likewise vary in the effectiveness of enforcement. This research paper notes that, overall, there has been progress with some notable success stories.

Whales

The legal protection of whales domestically in the U.S. and internationally has greatly improved over the past 100 years. For much of the 1900s, legal mechanisms were used to manage whale populations, but their purpose was to protect the whaling industry so that people could continue to economically prosper from whales as a resource to exploit. However, due to growing environmental protests at the end of the 1960s and early 1970s, the U.S. listed all commercially fished whale species on the Endangered Species List, and enacted an import ban on whale products into the United States. Currently, 16 species of whale are listed as endangered species, including the Blue Whale, Sperm Whale, Killer Whale, and Humpback Whale. Today, sustained objections by historical whaling nations such as Japan, Russia, and Norway have prevented complete international legal protection for whales.

There is also a legal requirement for the humane treatment of whales, minimizing pain, suffering, and disturbance both within U.S. waters and by U.S. vessels. In practice, these laws are not strictly enforced and recreational activities involving whales in the wild remain common domestically. Another example of imperfect legal protection is where military activities using sonar are often allowed despite their harm to whales.

Dolphins

The legal protection of dolphins in the U.S. has improved since the 1980s due to targeted advocacy efforts and public interest. Tens of thousands of dolphins were killed annually in the 1980s as a by-product of tuna fishing. In the 1990s, restrictions on capture and imports were put in place domestically and internationally to eliminate dolphin deaths and create “dolphin-safe tuna.” Disputes between countries such as Mexico and the U.S. show the ongoing conflict between the economic interests of fisheries and the deadly consequences to dolphins.

Orcas And Other Cetaceans In Captivity

Since the 1960s, there have been efforts to provide legal protection to cetaceans including humane handling, housing, and feeding. However, this legal protection is limited and has been criticized by animal rights groups. Several U.S. states have passed more specific and stringent cetacean captivity laws in recent years. Since 2000, South Carolina is the only state to legally prevent the public display of all cetaceans. Since 2016, California is the only state to legally prevent the captivity and breeding of orcas, although this does not apply to orcas already in captivity before the Orca Protection Act was introduced. Similar bans have been proposed in other states, such as Washington, New York, and Hawaii, but have not yet become law.

Tuna

There is an increasing amount of scientific data that shows a steady decline in tuna populations since the early 1900s. Pacific bluefin tuna and some populations of Atlantic tuna are at particular risk, with the main cause being overfishing. The fishing industry has overexploited tuna populations for economic gain with minimal restrictions. International laws have been introduced to limit catches, however, these laws have failed to support sustainable fishing practices over recent decades. In the U.S. there is no legal protection of tuna as an animal in its own right, and attempts to protect tuna as an endangered species have failed. For example, since 1991, efforts by many countries (such as Sweden, Kenya and Monaco) at different international forums have tried but failed to list bluefin tuna as an endangered species.

Octopuses

Currently, there are few international legal protections for octopuses in research, captivity, and farming. In Florida, recreational fishing of octopuses requires a recreational saltwater fishing license, and daily catches are limited. Since 2010, the European Union has provided the same legal protection to octopuses as vertebrates in scientific research. However, an increase in demand for eating octopuses has meant that octopuses are increasingly being captured, killed, and farmed. This has led to a decline in populations, although there is not any currently reliable data to monitor this. Octopus farming is likely to increase in the coming years, and the ban on the sale of farmed octopuses in specific cities is seen by some people as the priority focus area for advocacy.

As the cases above show, over the past 100 years, more legal protections exist to support these aquatic species right to exist free of human exploitation for economic interests. Whales and dolphins in particular have never been more legally protected than they are today. Despite progress, however, only a few laws relating to cetaceans refer directly to animal agency, sentience, or cognition. Therefore, there is still much animal advocacy work to do for these legal protections to be strengthened. Notably tuna and octopuses have little protection at present, and protections for cetaceans can be better and more effectively enforced domestically and internationally.