Protecting aquatic animals and their habitats forms an important part of international conventions and national laws. Water habitats are mega biodiverse and marine and freshwater ecosystems directly impact climate and sustain life.1
Due to the vast diversity in the animals that live under water, there is a wide range of laws that protect them on the basis of the varying relationships and interfaces between humans and different aquatic species. Most laws protect these animals for their instrumental value rather than their intrinsic value. Extending legal protection to animals for their intrinsic value recognizes them as sentient beings who are cohabitants and equal stakeholders on our planet. Sentience, according to the Cambridge Dictionary, is defined as “the quality of being able to experience feelings.”2 It is not just the capacity to feel pain, but feelings of pain, distress or harm, that have a special significance for animal welfare law.3
Legal landscape for aquatic animal protection
Laws for marine animals are often drafted with the aim of species protection, either as resources or for conservation, such as the Marine Living Resources Act, 18 of 1998 in South Africa or the Marine Mammal Protection Act in the United States. Poland’s Regulation of the Minister of Agriculture and Rural Development4, lays down species of aquatic animals of economic importance and the areas intended for the protection of these species.
Laws for farmed fish are also designed with the aim to regulate aquaculture to protect human health, the environment and animal welfare. Aquaculture falls under the radar of several sectoral laws including land law, water law, environmental law, animal disease and public health laws and fisheries laws. Numerous countries have enacted specific laws with aquaculture-specific legislative texts such as the Fisheries Management (General) Regulation 1995 in Australia, the General Aquaculture Regulation (2001) in Mozambique and the Aquaculture Act 1985 (2003) in Norway; law that govern the fisheries industry such as the Fisheries Law of the People’s Republic of China (1986) and the Philippines Fisheries Code Act (1998); water law such as in Portugal or agricultural laws such as in Brazil. These laws help regulate aquaculture practices, set minimum standards and provide authorities and mechanisms for implementation. These minimum standards may or may not directly benefit the welfare of the animals being farmed.
The pressing need for laws regulating aquaculture
In some countries, the fisheries and aquaculture sectors are covered under the same laws, indicating that the legislature attaches a similar importance to both sectors, such as Madagascar’s Fisheries and Aquaculture Ordinance of 1993, Burkina Faso’s Forestry Code of 1997, Malawi’s Fisheries Act of 1997, Zambia’s Fisheries Act 2011 and Chad’s Forestry, Fauna and Aquatic Resources Act 2008.
A lot of factors, however, that require regulation for aquaculture to ensure the welfare of the animals, are not naturally provided for in fisheries legislation. These include quality of feed, disease management, use of antibiotics and chemical fertilizers, waste disposal and water quality.
These concerns are best addressed through statutes that are context-specific. According to FAO, more than 350 finfish species are cultivated in aquaculture. Many of these species evolved in a variety of entirely different habitats and adapted to different environmental conditions and thus developed highly diverse biological traits. Consequently, each species and each stage of life has its own specific welfare requirements which need to be incorporated into legal mandates.
Environmental laws are often utilized for the protection of aquatic animals – whether wild or farmed. Environmental laws in developing countries also increasingly subject aquaculture activities to an Environment Impact Assessment (EIA). Gambia and Seychelles legally require an EIA for initiating aquaculture projects in sensitive areas. India’s Coastal Aquaculture Authority Act, 2005 mandates an EIA for large aquaculture farms and application of a code of conduct. Mozambique also requires an environmental license in addition to mandatory EIA for marine and freshwater aquaculture projects. In some countries, including China, Thailand and Vietnam, the use of chemicals in aquaculture is regulated through environmental legislation. A lot of such environmental regulation positively impacts animal welfare.
Many environmental laws do not necessarily impact animal welfare such as the waste disposal laws have been adopted by many countries for aquaculture. For example, Chile requires aquaculture farms to adopt measures to prevent the dumping of solid or liquid waste and residue that could harm the surrounding environment. The Zambia Fisheries Act allows the government to attach conditions to an aquaculture license to minimize the disposal of dead fish, the dumping of waste products, and the pollution of the water in and around the aquaculture facility. The Namibia Aquaculture Act bans the discharge of waste that may have harmful or detrimental effects on human health and the environment.
These laws often benefit wild populations of aquatic animals and may not benefit farmed fish directly, but advocacy efforts may utilize the laws to better protect the animals and improve the rearing conditions.
Scope for better framework through recognition of sentience
Many EU countries are at the forefront of developments in law and policy that prioritize animal welfare to maintain effective systems for safeguarding consumer safety. Furthermore, the European Union (EU) recognises the sentience of nonhuman animals under Article 13 of the Treaty on the Functioning of the EU which specifies that, “as sentient beings, full regard should be paid to animals’ welfare requirements” in formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies. The EU has additionally recognised that animal welfare is important for sustainability.
These regulations are not only binding on the Member States but also translate into legislation in producer countries. For instance, the Sri Lanka Fishery Products (Export) Regulations 1998 implement EU requirements for aquaculture products at both the processing and farm levels. Jamaica adopted the Aquaculture, Inland and Marine Products and By-products Act, which provides for the inspection and certification of various categories of aquaculture, inland, and marine products intended for export, and for the licensing of persons and facilities engaged in the production, harvesting, processing, handling, storage and, transport for export of such products.
Moving away from the status quo
The legal and governance frameworks that protect animals across jurisdictions systemically protect terrestrial animal species and often neglect or don’t afford similar protections to aquatic animals. Even within aquatic animals, it is evident that greater protection afforded to aquatic mammals and charismatic or endangered species. Moreover, the vast diversity of aquatic animals often gets limited to fish. The term aquatic animals also includes reptiles, insects and also crustaceans. However, recent developments are paving the way for law to recognize the intrinsic value of animals by recognizing them as sentient beings.The recent years have seen a shift regarding scientific evidence and public awareness on the cognitive abilities of fish as well as recognizing fish as organisms with complex behavioral and social abilities and needs.
Pathways to legal reform
A defining framework for addressing the climate crisis is the United Nations Sustainable Development Goals of which Goal 14 seeks to protect “Life Under Water”. In 2022, the United Nations Environment Assembly (UNEA) adopted a resolution recognizing the ‘Animal Welfare – Environment – Sustainable Development Nexus’. These are stepping stones that are paving the way for transforming the legal landscape for aquatic animal welfare.
One of the few countries in the world with a law to protect aquatic animals is Nepal – Aquatic Animal Protection Act, 2017 (1960). The law places restrictions on the methods for catching and killing aquatic animals and outlines the powers of the government to prohibit the catching, killing and wounding of certain species and animals in specific aquatic habitats. It makes it a criminal offense to carry out activities in contravention of the Act. Standards for carrying out aquaculture and monitoring mechanisms are also prescribed in the statute.
Recently, the UK included cephalopod molluscs and decapod crustaceans in the Animal Welfare (Sentience) Act 2022 after a study from the London School of Economics and Political Science found evidence these marine invertebrates are sentient. The study highlighted the welfare risks to these animals in commercial fisheries and aquaculture practices. Austria, New Zealand, Norway, Switzerland, some Australian states and territories, and some Italian and German cities already have animal welfare laws that protect cephalopods and decapods. This has set a powerful precedent in the legal consideration of the capacity of animals to suffer or feel pain.
Additionally, it also is a great example of how scientific research and advocacy can translate into law and policy change. Investing more resources and advocating for more research into the welfare of aquatic animals can provide for better pathways for legal action.