Proposal for a Council Decision establishing the position to be adopted on behalf of the European Community with regard to proposals for amendments to the International Convention on the Regulation of Whaling and its Schedule
Date: 2008-11-06
Institutions: European Commission
Subjects: EU action, hunting regulations, international cooperation, marine mammal, protected species, protection of animals, whale

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 6.11.2008 
COM(2008) 711 final 

Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted on behalf of the European Community with 
regard to proposals for amendments to the International Convention on the Regulation 
of Whaling and its Schedule 

(presented by the Commission) 

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Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted on behalf of the European Community with 
regard to proposals for amendments to the International Convention on the Regulation 
of Whaling and its Schedule 

(1) 

(2) 

(3) 

EXPLANATORY MEMORANDUM 

According  to  Article  174.1  of  the  EC  Treaty,  one  of  the  objectives  of 
Community environment policy is the promotion of measures at international 
level  to  deal  with  regional  or  worldwide  environmental  problems.  This 
objective  encompasses  the  conservation  of  species  at  global  level,  including 
whales.  The  European  Community  is  committed  to  the  conservation  of 
whales and other cetaceans and has put in place environmental legislation that 
ensures a high level of protection in this regard. 
The Habitats Directive1 lists all cetacean species in its Annex IV. This means 
that  all  whale  species  are  strictly  protected  from  deliberate  disturbance, 
capture  or  killing  within  Community  waters.  The  same  Directive  also 
prohibits  the  keeping,  transport  and  sale  or  exchange,  of  specimens  taken 
from the wild. This legislation does not allow the resumption of commercial 
whaling on any stock totally or partially occurring in Community waters. Due 
to the migratory character of whale stocks, it is clear that the objectives of the 
Habitats Directive can only be achieved in full if a comparable international 
regulatory framework is in place. 

Council Regulation 338/97/EC on the protection of species of wild fauna and 
flora  by  regulating  trade  therein,2  implementing  the  provisions  of  the 
Convention on International Trade in Endangered Species of Wild Fauna and 
Flora  (CITES)  in  the  EC,  bans  the  introduction  of  cetaceans  into  the 
Community for primarily commercial purposes.3 This high level of protection 
is  further  reinforced  by  the  EC  Marine  Strategy4  and  the  Marine  Strategy 
Framework Directive5 that is expected to strengthen whales' protection in the 
EC by fostering the overall objective of good environmental status of the EU 
oceans and seas. 

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Directive  92/43/EEC  on  the  conservation  of  natural  habitats  and  of  wild  fauna  and  flora,  OJ  L  206, 
22.7.1992, p. 7. 
OJ L 61, 3.3.1997, p. 1. 
In  addition,  Council  Regulation  (EEC)  348/81  on  common  rules  for  imports  of  whales  and  other 
cetacean products only allows imports of listed products if they are not used for commercial purposes. 
Communication from the Commission to the Council and the European Parliament: Thematic strategy 
on the protection and conservation of the Marine Environment COM(2005) 504 final. 
Directive  2008/56/EC  of  the  European  Parliament  and  of  the  Council  establishing  a  Framework  for 
Community Action in the field of Marine Environmental Policy of 17 June 2008. 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Therefore,  the  ultimate  objective  of  Community  environmental  policy  in 
relation  to  whales  is  to  seek  their  strictest  protection.  The  above  mentioned 
environmental  legislation  ensures  a  highest  level  of  protection  through 
extensive rules harmonisation.  

EC  policy  on  whales  will  not  be  effective  within  Community  waters  if  it  is 
not  backed  by  coherent  worldwide  action.  In  the  context  of  the  integrated 
maritime policy for the EU, the Commission will work for the coordination of 
European interests' on international issues. 

The International Whaling Commission (IWC) is the competent international 
organisation  regarding  the  conservation  and  management  of  whale  stocks  at 
global  level  and  it  was  set  up  under  the  International  Convention  for  the 
Regulation of Whaling ('the Convention') signed in 1946. The purpose of the 
Convention is to "provide for the effective conservation and management of 
whale stocks, and thus make possible the orderly development of the whaling 
industry" (preamble of the Convention). Membership of the IWC is only open 
to  governments  that  adhere  to  the  Convention.  An  amendment  to  the 
Convention  allowing  the  EC  to  become  a  member  would  require  the 
ratification  of  a  protocol  by  all  IWC  members.  The  Commission  adopted  a 
proposal  in  19926  to  negotiate  the  accession  of  the  Community  to  the 
Convention  but  the  Council  has  not  given  any  follow  up  to  this  proposal. 
However, the Community has observer status thereto. 

Commercial  whaling  was  suspended  in  1986  as  a  result  of  a  moratorium 
agreed by the majority of countries represented in the IWC. Uncertainties in 
the scientific analyses concerning the status of various whale stocks were the 
main reasons for this pause in commercial whaling. Ever since, the main issue 
regularly discussed at IWC meetings is whether whale stocks have recovered 
enough to lift the ban on commercial whaling in a controlled fashion.  

The  dual  mandate  of  the  IWC  of  both  managing  whaling  and  conserving 
whales  has  led  to  extremely  polarised  positions  over  the  years  between 
leading  'pro-  whaling'  States  and  'anti-whaling'  ones.  Leading  pro-whaling 
States  (e.g.  Japan,  Iceland  and  Norway)  have  consistently  contested  the 
moratorium and still carry out whaling for what they call scientific purposes 
or other exceptions.  

The  general  ban  on  commercial  whaling  decided  within  the  IWC  is  in  line 
with  EC  policies,  as  defined  by  the  above-mentioned  legislation.  It  is 
important  that  the  IWC  ensures  that  whales  will  be  effectively  protected 
worldwide.  Therefore,  the  21  EU  Member  States  that  are  IWC  members7 
have to express at each IWC meeting their position on such proposals which 
fall within Community competence.  

(10) 

In accordance with the principle of loyal cooperation reflected in Article 10 
of  the  EC  Treaty  and  with  the  principle  of  the  unity  in  the  external 
representation  of  the  Community,  it  is  essential  that  Member  States  prepare 

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Draft  Council  Decision  authorizing  the  Commission  to  negotiate,  on  behalf  of  the  Community,  a 
protocol amending the international Convention on the regulation of whaling, Washington, 2 December 
1946 COM (92)316. 
Austria, Belgium, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, 
Luxembourg, Netherlands, Portugal, Slovak Republic, Slovenia, Spain, Sweden, UK, Romania. 

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meetings  of  the  IWC  by  reaching  a  common  position  in  the  Council.  Such 
position,  due  to  the  limitations  intrinsic  to  the  observer  status  of  the 
Community  should  be  expressed  by  the  Member  States  acting  jointly  in  the 
interest  of  the  Community  within  the  IWC.  It  is  also  essential  that  the 
remaining Member States that are not yet Parties to the IWC accelerate their 
accession  procedure.  Only  acting  together  and  developing  a  Community 
position  the  EU  Member  States  would  stand  a  chance  to  ensure  the 
development  and  enforcement  of  an  adequate  and  effective  international 
regulatory framework for the protection of whales.  

(11)  To this end, the Commission is proposing a decision to the Council with the 
legal bases: 175 (environment policy) and Article 300 (2) (2) for the purpose 
of  establishing  the  position  to  be  adopted  on  behalf  of  the  Community  in  a 
body set up by an agreement when that body will adopt decisions with legal 
effects.  With  due  regard  to  the  essentially  environmental  objectives,  which 
the  European  Community  should  pursue  in  relation  to  the  IWC  at  this 
juncture,  Article  37  of  the  Treaty  is  not  proposed  as  part  of  the  operational 
legal  basis  of  this  decision.  This  is  without  prejudice  to  the  exclusive 
competence of the European Community in the field of the resources of the 
sea  pursuant  to  the  provisions  of  Article  3(1)(e)  in  conjunction  with  Article 
32 and Annex I of the Treaty and thus of all living aquatic resources under the 
Common  Fisheries  Policy  pursuant 
to  Council  Regulation  (EC)  No 
2371/20028.This shall not create a precedent for any future negotiations about 
the  conservation  and  management  of  living  aquatic  resources  falling  under 
the said regulation. 

(12)  The  IWC  decisions  to  amend  the  Schedule  to  the  Convention  have  legal 
effects as they become effective within a prescribed period without the need 
for ratification9. In virtually all IWC meetings since the entry into force of the 
ban, Japan has proposed amendments to the 'Schedule' to the Convention to 
authorise whaling under certain conditions and de facto lift the ban for certain 
stocks.  It  is  not  possible  for  the  Community  to  initiate  and  complete  its 
internal  procedures  to  establish  its  position  only  after  other  IWC  Members 
have  tabled  amendment  proposals  as  these  can  come  until  60  days  before 
each IWC meeting. In addition, as the proposed objective of the Community 
is  to  support  the  development  of  a  comprehensive  international  framework 
covering all whaling activities and to oppose in general initiatives to lift the 
moratorium  on  commercial  whaling,  the  Council  can  already  establish  the 
Community position for future IWC meetings. 

(13)  Furthermore,  the  Community  should  also  support  amendments  to  the 
Schedule  aimed  at  setting  up  whale  sanctuaries  and  oppose  proposals  to 
amend  the  rules  of  procedure  of  the  IWC  to  broaden  the  scope  of  secret 
ballots, as this would be contrary to the objectives of the Aarhus Convention, 
to which the Community and its Member States are Parties, and particularly 
its Article 3(7).  

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Council  Regulation  (EC)  2371/2002  of  20  December  2002  on  the  conservation  and  sustainable 
exploitation of fisheries resources under the Common Fisheries Policy, OJ L 358, 31.12.2002, p. 59-80 
See  Article  V  of  the  Convention.  Under  paragraph  3,  Parties  become  bound  by  amendments  to  the 
Schedule within ninety days unless they present an objection. 

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(14)  This proposal for a Council Decision builds on the Council Decision that was 
adopted by the Environment Council 5 June 2008 on the basis of a proposal 
by  the  Commission10.  The  adoption  of  the  Council  Decision  allowed  the 
Community  to  coordinate  its  position  on  a  number  of  issues  during  the  60th 
annual meeting of the IWC in June 2008 in Santiago de Chile. 

10 

COM (2007)821 final 

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Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted on behalf of the European Community with 
regard to proposals for amendments to the International Convention on the Regulation 
of Whaling and its Schedule 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
175(1), in conjunction with the second subparagraph of Article 300(2) thereof, 
Having regard to the proposal from the Commission11, 

Whereas: 

(1) 

Article  174.1  of  the  EC  Treaty  states  that  one  of  the  objectives  of  Community 
environment  policy  is  the  promotion  of  measures  at  international  level  to  deal  with 
regional or worldwide environmental problems.  

(2)  Within  the  Community,  Directive  92/43/EEC  on  the  conservation  of  natural  habitats 
and  of  wild  fauna  and  flora  (the  Habitats  Directive)12  lists  all  cetacean  species  as 
species of Community interest and requires Member States to maintain these species 
in, or restore them to, a favourable conservation status in those parts of their territory 
to  which  the  Treaty  applies.  All  cetaceans  are  listed  in  its  Annex  IV.  Therefore,  all 
whale  species  are  strictly  protected  from  deliberate  disturbance,  capture  or  killing 
within  Community  waters.  The  same  Directive  also  prohibits  the  keeping,  transport 
and sale or exchange, of specimens taken from the wild. 

(3) 

Council Regulation 338/97/EC on the protection of species of wild fauna and flora by 
regulating  trade  therein,13  implementing  the  provisions  of  the  Convention  on 
International  Trade  in  Endangered  Species  of  Wild  Fauna  and  Flora  (CITES)  in  the 
EC, bans the introduction of cetaceans into the Community for primarily commercial 
purposes14. 

(4)  Whales  are  migratory  species.  Consequently,  EC  policies  and  legislation  relating  to 
whales  will  be  more  effective  within  Community  waters  if  it  is  backed  by  coherent 
worldwide action. 

(5) 

The  International  Whaling  Commission  (IWC)  is  the  competent  international 
organisation  regarding  the  conservation  and  management  of  whale  stocks  at  global 
level and was set up under the International Convention for the Regulation of Whaling 
(ICRW)  signed  in  1946.  Membership  of  the  IWC  is  only  open  to  governments.21 

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OJ C , , p. . 
OJ L 206, 22.7.1992, p. 7. 
OJ L 61, 3.3.1997, p. 1. 
In  addition,  Council  Regulation  (EEC)  348/81  on  common  rules  for  imports  of  whales  and  other 
cetacean products only allows imports of listed products if they are not used for commercial purposes. 

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(6) 

(7) 

(8) 

(9) 

Member  States  of  the  European  Union  are  parties  to  the  IWC15.The  European 
Community has observer status at the IWC and it is represented by the Commission. 

Commercial whaling was suspended in 1986 as a result of a moratorium agreed by the 
majority  of  countries  represented  in  the  IWC.  Leading  pro-whaling  States  have 
consistently  contested  the  moratorium  and  still  carry  out  whaling  for  what  they  call 
scientific purposes or under other exceptions.  
At the 60th annual meeting of the IWC in Santiago de Chile in June 2008 an important 
process  for  determining  a  way  forward  for  the  IWC  was  launched.  Member  States 
should endeavour to participate constructively in all discussions taking account of the 
objective to ensure an effective international regulatory framework. 

The  IWC  works  on  the  basis  of  a  Schedule  that  governs  the  conduct  of  whaling 
throughout the world. The Schedule is annexed to the Convention and is defined as an 
integral  part  of  it.  It  is  binding  on  Parties  and  provides  detailed  whaling  regulations 
with respect to the conservation and utilization of whale resources. Its provisions and 
amendments  thereto  are  binding  on  Parties  unless  a  Party  formally  objects  to  an 
amendment in accordance with Article V (3) of the ICRW. 

Proposals for decisions to amend the Schedule adopted within the IWC may have legal 
effects  and  affect  the  achievement  of  the  objectives  of  Community  policies  and 
legislation  in  relation  to  cetaceans.  Some  of  the  proposals  regularly  put  forward  for 
decision  at  meetings  of  the  IWC  aim  at  authorising  whaling  activities,  through  the 
establishment of quotas and the application of management measures, or at the setting 
up of whale sanctuaries, and require the establishment of a Community position.  

(10)  With  due  regard  to  the  essentially  environmental  objectives,  which  the  European 
Community  should  pursue  in  relation  to  the  IWC  at  this  juncture,  Article  37  of  the 
Treaty  is  not  proposed  as  part  of  the  operational  legal  basis  of  this  decision.  This  is 
without prejudice to the exclusive competence of the European Community in the field 
of the resources of the sea pursuant to the provisions of Article 3(1)(e) in conjunction 
with  Article  32  and  Annex  I  of  the  Treaty  and  thus  of  all  living  aquatic  resources 
under  the  Common  Fisheries  Policy  pursuant  to  Council  Regulation  (EC)  No 
2371/200216.This  shall  not  create  a  precedent  for  any  future  negotiations  about  the 
conservation  and  management  of  living  aquatic  resources  falling  under  the  said 
regulation. 

(11)  Member States have a duty of loyal cooperation under Article 10 of the EC Treaty and 
cannot  take  on  obligations  outside  the  framework  of  Community  legislation  which 
might affect Community rules or alter their scope. 

(12)  The Community being an observer at the IWC, the Community position in relation to 
matters within its competence should be decided by the Council and expressed by the 
Member States acting jointly in the interest of the Community.  

(13)  At IWC meetings the Community and the Member States should cooperate closely to 
ensure  that  any  amendments  to  the  ICRW  and  its  Schedule  are  consistent  with  the 
objectives of Community policies and legislation on whales. 

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Austria, Belgium, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, 
Luxembourg, Netherlands, Portugal, Slovak Republic, Slovenia, Spain, Sweden, UK, Romania. 
Council  Regulation  (EC)  2371/2002  of  20  December  2002  on  the  conservation  and  sustainable 
exploitation of fisheries resources under the Common Fisheries Policy, OJ L 358, 31.12.2002, p. 59-80 

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HAS DECIDED AS FOLLOWS: 

The  position  of  the  Community  at  the  meetings  of  the  International  Whaling  Commission 
(IWC) shall be in accordance with the Annex to this Decision and shall be expressed by the 
Member States acting jointly in the interest of the Community. 

Article 1 

Article 2 

Where  the  position  referred  to  in  Article  1  is  likely  to  be  affected  by  new  scientific  or 
technical information presented before or during the meetings of the IWC or where proposals 
are  made  on  the  spot  on  matters  which  are  not  yet  the  subject  of  a  Community  position,  a 
position  shall  be  established  on  the  proposal  concerned  through  co-ordination,  including  on 
the spot, before the proposal is put to a vote. 

Done at  

For the Council 
The President 
[…] 

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ANNEX  

(1) 

The  overarching  objective  of  the  European  Community  in  relation  to  the  IWC  is  to 
ensure  an  effective  international  regulatory  framework  for  the  conservation  and 
management  of  whales  guaranteeing  a  significant  improvement  in  the  conservation 
status  of  whales  in  the  long  term  and  bringing  all  whaling  operations  under  IWC 
control. 

(2) 

The  Member  States  acting  jointly  in  the  interest  of  the  Community  shall  take  the 
following position on proposals for decisions by the IWC: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

Support  the  maintenance  of  the  moratorium  on  commercial  whaling  in  the 
Schedule; 

Oppose any proposals regarding new types of whaling, currently not envisaged 
in the Convention, that could undermine the maintenance of the moratorium on 
commercial  whaling,  unless  such  proposals  would  guarantee  a  significant 
improvement in the conservation status of whales in the long term and bring all 
whaling operations by IWC members under IWC control;  

Support proposals for the creation of whale sanctuaries according to the IWC 
rules;  

Support  proposals  for  the  management  of  aboriginal  subsistence  whaling,  on 
the condition that the conservation of the relevant stocks is not compromised, 
having  due  regard  to  the  precautionary  principle  and  the  advice  of  the 
Scientific  Committee,  and  that  whaling  operations  are  properly  regulated  and 
catches remain within the scope of documented and recognised needs; 

Support  proposals  aimed  to  end  the  conduct  of  "scientific  whaling"  outside 
IWC control; 

Oppose any proposals to amend the rules of procedure of the IWC to broaden 
the scope of secret ballot.  

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