Proposal for a COUNCIL DECISION establishing the position to be adopted on behalf of the European Union at the next five meetings of the International Whaling Commission including the related inter-sessional meetings with regard to proposals for amendments to the International Convention on the Regulation of Whaling and its Schedule
Date: 2011-08-25
Institutions: European Commission
Subjects: hunting regulations, international convention, international negotiations, protected species, whale

EUROPEAN COMMISSION 

Brussels, 25.8.2011 
COM(2011) 495 final 

2011/0221 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted on behalf of the European Union at the next five 
meetings of the International Whaling Commission including the related inter-sessional 
meetings with regard to proposals for amendments to the International Convention on 
the Regulation of Whaling and its Schedule 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. According to Article 191.1 of the Treaty on the functioning of the European Union, one of 
the  objectives  of  the  EU  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  Union  is 
committed  to  the  conservation  of  whales  and  other  cetaceans  and  has  put  in  place 
environmental legislation that ensures effective protection in this regard. 

2. The Habitats Directive1 lists all cetacean species in its Annex IV. This means that all whale 
species  are  protected  from  deliberate  disturbance,  capture  or  killing  within  EU  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  EU  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. 

3.  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  EU,  bans  the 
introduction of cetaceans into the Union 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 EU by fostering 
the overall objective of good environmental status of the EU oceans and seas. 

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

5. EU policy on whales will not be effective within EU 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. 

6. 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  ICRW  ('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 
EU  to  become  a  member  would  require  the  ratification  of  a  protocol  by  all  IWC  members. 

1 

2 
3 

4 

5 

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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The Commission adopted a proposal in 19926 to negotiate the accession of the Union to the 
Convention but the Council has not given any follow up to this proposal. However, the Union 
has observer status thereto. In the context of the current talks about the reform of the IWC the 
Commission  proposes  to  support  proposals  addressing  the  revision  of  the  Convention 
including the possibility for the EU to become a party to the IWC. 

7.  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. 

8. 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. 

9.  The  general  ban  on  commercial  whaling  decided  within  the  IWC  is  in  line  with  EU 
policies, as defined by the above-mentioned legislation. It is important that the IWC ensures 
that whales will be effectively protected worldwide. Therefore, the EU has to express at each 
IWC meeting its position on such proposals. 

10.  In  accordance  with  the  principle  of  sincere  cooperation  reflected  in  Article  4(3)  of  the 
Treaty on the European Union and the principle of the unity in the external representation of 
the EU, it is essential that Member States prepare 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  EU  should  be  expressed  by  the  Member  States  acting  jointly  in  the  interest  of  the  EU 
within  the  IWC.  It  is  also  important  that  the  two  remaining  Member  States  that  are  not  yet 
Parties to the IWC accelerate their accession procedure. Only acting together and developing 
EU position the EU 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: 
192 (environment policy) and Article 218 (9) for the purpose of establishing the position to be 
adopted  on  behalf  of  the  EU  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 Union should pursue in relation to the IWC at this juncture, Article 43 of 
the  Treaty  on  the  Functioning  of  the  European  Union  is  not  proposed  as  part  of  the 
operational legal basis of this decision. This is without prejudice to the exclusive competence 
of  the  European  Union  in  the  field  of  the  conservation  of  the  marine  biological  resources 
pursuant to the provisions of Article 3(1)(d) in conjunction with Article 38 and Annex I of the 
Treaty and thus of all living aquatic resources under the Common Fisheries Policy pursuant to 
Council  Regulation  (EC)  No  2371/20027.This  shall  not  create  a  precedent  for  any  future 

6 

7 

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. 
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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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 ratification8. 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  Union  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  Union  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 EU position 
for future IWC meetings. 

13. Furthermore, the Union should also support amendments to the Schedule aimed at setting 
up whale sanctuaries. 

14. This proposal for a Council Decision builds on the Council Decision that was adopted by 
the Environment Council 2 March 2009 on the basis of a proposal by the Commission9. The 
adoption of the Council Decision of 2009 allowed the Union to coordinate its position on a 
number  of  issues  during  three  annual  meetings  of  the  IWC  including  the  related  inter-
sessional meetings. 

In  view  of  the  above,  at  the  next  five  meetings  of  the  International  Whaling  Commission 
(IWC)  including  the  related  inter-sessional  meetings  the  Union's  position  shall  be  in 
accordance with the Annex to this Decision. 

8 

9 

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. 
COM(2008) 711 final 

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2011/0221 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted on behalf of the European Union at the next five 
meetings of the International Whaling Commission including the related inter-sessional 
meetings 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  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 191 (1), in conjunction with Article 218 (9), thereof, 

Having regard to the proposal from the European Commission10, 

Whereas: 

(1) 

Article 191.1 of the Treaty on the Functioning of the European Union states that one 
of  the  objectives  of  EU  environment  policy  is  the  promotion  of  measures  at 
international level to deal with regional or worldwide environmental problems; 

(2)  Within the Union, Directive 92/43/EEC on the conservation of natural habitats and of 
wild fauna and flora (the Habitats Directive)11 lists all cetacean species as species of 
EU 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 
protected from deliberate disturbance, capture or killing within EU 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,12  implementing  the  provisions  of  the  Convention  on 
International  Trade  in  Endangered  Species  of  Wild  Fauna  and  Flora  (CITES)  in  the 
EU,  bans  the  introduction  of  cetaceans  into  the  Union  for  primarily  commercial 
purposes13; 

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

10 
11 
12 
13 

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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(5) 

(6) 

(7) 

(8) 

(9) 

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. 
Currently,  twenty-five  Member  States  of  the  European  Union  are  parties  to  the 
IWC14.The European Union 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; 

Since the 60th annual meeting of the IWC in Santiago de Chile in June 2008 the IWC 
has  been  discussing  a  possible  reform  of  the  organisation.  Member  States  should 
endeavour  to  participate  constructively  in  all  discussions  taking  account  of  the 
objective to ensure an effective international regulatory framework; 

In  view  of  the  evolving  situation  within  the  IWC  and  the  consequent  need  for  the 
position  of  the  EU  to  take  account  of  new  developments,  the  Commission  will  put 
forward  further  proposals  to  introduce  modifications  to  this  Decision,  where 
appropriate; 

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  provides  for  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; 

(10)  Proposals for decisions to amend the Schedule adopted within the IWC may have legal 
effects and affect the achievement of the objectives of EU 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 an EU position; 

(11)  With  due  regard  to  the  essentially  environmental  objectives,  which  the  European 
Union  should  pursue  in  relation  to  the  IWC  at  this  juncture,  and  for  the  reasons  of 
expediency in the light of the related discussions that took place in 2008, Article 43 of 
the  Treaty  on  the  Functioning  of  the  European  Union  is  not  proposed  as  part  of  the 
operational  legal  basis  of  this  decision.  This  is  without  prejudice  to  the  exclusive 
competence  of  the  European  Union  in  the  field  of  the  conservation  of  the  marine 
biological resources pursuant to the provisions of Article 3(1)(d) in conjunction with 
Article 38 and Annex I of the Treaty and thus of all living aquatic resources under the 

14 

Austria,  Belgium,  Cyprus,  Czech  Republic,  Denmark,  Estonia,  Finland,  France,  Germany,  Greece,  Hungary, 
Ireland,  Italy,  Luxembourg,  Netherlands,  Poland,  Portugal,  Slovak  Republic,  Slovenia,  Spain,  Sweden,  UK, 
Romania. Bulgaria, Lithuania (April 2011) 

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Common Fisheries Policy pursuant to Council Regulation (EC) No 2371/200215.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)  Member States have a duty of sincere cooperation under Article 4 (3) of the Treaty on 
the  European  Union  and  cannot  take  on  obligations  outside  the  framework  of  EU 
legislation which might affect Union rules or alter their scope. It is essential that the 
Union  speaks  with  one  voice  on  the  basis  of  agreed  EU  positions  in  order  to 
effectively  pursue  Unions  interests  towards  third  parties.  The  credibility  of  the  EU 
depends on the ability to present a strong, coordinated EU position; 

(13)  The  European  Union  being  an  observer  at  the  IWC,  the  EU  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 Union; 

(14) 

In order to strengthen the Union's position in the context of the IWC a revision of the 
International Convention for the Regulation of Whaling (ICRW) signed in 1946 with 
the possibility for the EU to become a party to the IWC should be supported; 

(15)  At the next five meetings of the IWC including the related inter-sessional meetings the 
Union and the Member States should cooperate closely to ensure that any amendments 
to the ICRW and its Schedule are compatible with the Union's policy and law, 

HAS ADOPTED THIS DECISION:  

Article 1 

The  position  of  the  European  Union  at  the  next  five  meetings  of  the  International  Whaling 
Commission (IWC) including the related inter-sessional meetings 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 Union. 

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 an EU 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. 

15 

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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Done at Brussels, 

For the Council 
The President

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ANNEX 

1.  The  overarching  objective  of  the  European  Union  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  Union  shall  take  the  following 
position on proposals for decisions by the IWC at its next five meetings and the related inter-
sessional meetings: 

(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, unless such proposals involve only local consumption, ban international 
trade, guarantee a significant improvement in the conservation status of whales in the 
long term, ensure a central role of the Scientific Committee in determining additional 
conditions  for  such  whaling  activities  and  bring  all  whaling  operations  by  IWC 
members under IWC control; 

Support proposals for the creation of whale sanctuaries; 

Support proposals for the management of aboriginal subsistence whaling that ensures 
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 sustainable within the 
scope of subsistence needs for local use; 

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

Support proposals to specify a mechanism and timetable for addressing the revision 
of the International Convention for the Regulation of Whaling (ICRW) including the 
issues of scientific whaling, whaling under objections as well as new and emerging 
threats to cetaceans, to ensure that all whaling activities effectively come under IWC 
control.  The  proposals  for  the  revision  of  the  ICRW  should  also  include  a  reliable 
regular  review  and  compliance  mechanism  as  well  a  detailed  roadmap  for  the 
implementation of the revision; 

(g) 

Require  that  the  proposals  for  the  revision  of  ICRW  include  the  possibility  for  the 
EU to become of party to the IWC so that the EU can represent itself at the meetings. 

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