Negotiating and voting on whale protection within the International Whaling Commission (IWC)

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1 26 April 2010 Negotiating and voting on whale protection within the International Whaling Commission (IWC) Prof. Dr. Ludwig Krämer, Derecho y Medio Ambiente Summary: EU co-ordination at the IWC formally started in 2008 with a Council Decision establishing objectives of ensuring a significant improvement in the conservation status of whales in the long term and bringing all whaling operations under IWC control, but with no specific procedures regulating joint participation. Negotiations on the future of IWC have led to a draft proposal from the Chair intended for a consensus decision at the IWC annual meeting in June The proposal envisages a new type of whaling, not currently in the Convention, which is not for local consumption and does not include catch limits based on scientific advice. The proposal explicitly does not address the long term, being limited in its effect to 10 years and so cannot guarantee long term conservation benefits. The EU common position requires member states to oppose new types of whaling unless these involve only local consumption, guarantee long term conservation benefits and incorporate scientific advice. If EU Member States cannot agree a common position on the Chair s proposal, the Treaty of Lisbon nevertheless requires Member States to refrain from any measure which could jeopardise the EU objectives and would lower the degree of whaling protection which exists within the EU. In addition, by virtue of Articles 193 and 191(4) TFEU, Member States may negotiate and vote in favour of more stringent protection measures for whales, independently of whether there is an agreed EU negotiating position or not. Since the IWC does not cover matters under EU exclusive competence there is no requirement for a collective abstention from voting in the case of internal disagreement within the EU, but member states are allowed to oppose the Chair s proposal on an individual basis. (1) EU competence for whale issues Issues concerning whales (cetaceans) do not come under the EU fisheries policy. In fisheries policy, the EU has exclusive competence for the conservation of marine biological resources under the common fisheries policy (Article 3(d) Treaty on the Functioning of the European Union (TFEU)). However, whales are marine mammals, and marine mammals are not agricultural or fisheries products that are regulated by the provisions of the common fisheries policy, as laid down in Articles 38 to 44 TFEU. This follows from Article 38 and Annex I to the TFEU.

2 2 This Annex I lists the products which come under the common (agriculture and) fisheries policy. Chapter 3 of the Annex lists Fish, crustaceans and molluscs, but does not mention marine mammals. It is not either possible to consider this to be an omission. Indeed, Chapter of Annex I lists Fats and oil, of fish and marine mammals, whether or not refined. This enumeration clarifies that the authors of the Treaty were well aware of the difference between marine mammals and fish. In EU law, whale issues are part of environmental issues, for which there is shared competence, Article 4(2)(e) TFEU. This corresponds to EU secondary legislation as well as to the practice of the EU institutions. Council Regulation 348/81 of 20 January 1981 on common rules for imports of whales or other cetacean products 1 was based on Article 235 EC (now Article 352 TFEU), the provision which was normally used for environmental measures, as in 1981, no provision on environmental policy existed yet in the EC Treaties. Whales were, furthermore, regulated by - the Berne Convention of 19 September 1979 on the conservation of European wildlife and natural habitats which the EU concluded by Decision 82/72, based on Article 235 EC Treaty 2 ; - the Bonn Convention of 23 June 1979 on the conservation of migratory species of wild animals, which the EU concluded by Decision 82/461, based on Article 235 EC Treaty 3 ; - Directive 92/43 on the conservation of natural habitats and wild fauna and flora 4 ; this Directive was based on the environmental provision of Article 130s EC Treaty (now Article 192 TFEU); - Regulation 338/97 on the protection of species of wild fauna and flora by regulating trade therein, based on article 130s EC Treaty (now Article 192 TFEU) 5. At no moment was there either any question of whale (cetacean) issues or trade in whale products being part of the EU s commercial policy for which the EU has exclusive competence. The legal basis of commercial policy now Article 207 TFEU (ex Article 133 EC Treaty) was never used or even quoted in any of the legal acts mentioned above. Where EU provisions under common fisheries policy mentioned whales, this was, without exception, with the purpose to conserve and protect whales 6. Furthermore, the 2009 Council s Decision establishing the common position to be adopted on behalf of the EU at the IWC 7 makes it clear that Article 37 (now Article 43) of the Treaty on the Common Fisheries Policy is not proposed as part of the operational legal basis of this decision 8 and the legal 1 Regulation 348/81, OJ 1981, L 39, p.1. 2 Decision 82/72, OJ 1982, L 38, p.1. 3 Decision 82/461, OJ 1982, L 210 p Directive 92/43, OJ 1992, L 206, p.7. 5 Regulation 338/97, OJ 1997, L 61, p.1; this Regulation replaced an earlier Regulation, 3626/82, OJ 1982, L 384 p.1, which had also been based on Article 235 EC Treaty (now Article 352 TFEU). 6 See, for example, Regulation 973/2001, OJ 2001, L 137, p.1; Regulation 1936/2001, OJ 2001, L 263, p.1; Regulation 1967/2006, OJ 2007, L 36, p.6. 7 Council s Decision 9818/2008 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 (hereafter 2009 Council s Decision), based on a proposal from the Commission COM(2007) 821 final, 19 December In 2009, the Council s Decision was replaced by Council Decision 7146/09 based on COM(2008)711 final. 8 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

3 3 basis for the EU action at the IWC are Article 175 (now Article 192 TFEU) on the Environmental Policy, which provide for shared competences. (2) The EU s global commitment to whale conservation The Bonn Convention, mentioned above, is an international convention which applies globally. As the European Union has adhered to it, its provisions are binding upon the institutions of the Union and on the EU Member States 9. Practically all whales (cetaceans) are listed in either Appendix I to the Convention which lists migratory species that are endangered, or Appendix II which lists migratory species which have an unfavourable conservation status. Article II of the Bonn Convention states: 1. The Parties acknowledge the importance of migratory species being conserved and of Range States agreeing to take action to this end whenever possible and appropriate, paying special attention to migratory species the conservation status of which is unfavourable, and taking individually or in co-operation appropriate and necessary steps to conserve such species and their habitat. 2. The Parties acknowledge the need to take action to avoid any migratory species becoming endangered. While paragraph 1 of this Article II might be unclear in the English version, the French version clarifies that action in favour of the migratory species that are covered by the Convention, is not only required by Range States, but by all parties to the Convention 10. Thus, under existing EU law, the EU member States are obliged to take measures in order to conserve whales, nationally, at EU level, and internationally. 3. The specificity of environmental provisions in EU law Unlike the majority of other areas of EU policy such as agriculture, fisheries, transport, trade policies EU environmental policy has a specific feature which significantly distinguishes it from these other sectors, and which influences international negotiations. Indeed, Article 193 TFEU states: The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission. It follows from this provision that EU measures which are adopted under the environmental provision of Article 192 TFEU, do not establish a final EU acquis, by which the Member States are bound. Rather, Member States remain competent to adopt more stringent provisions at national level. Thus, EU environmental law which is adopted on the basis of Article 192 TFEU only fixes a common denominator, but is open for more stringent national measures. 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 [...] under the Common Fisheries Policy[..].This shall not create a precedent for any future negotiations about the conservation and management of living aquatic resources falling under the said regulation (Para 10). 9 See Article 216(2) TFEU. 10 Les Parties.. accordent une attention particulière

4 4 As the EU cannot prevent Member States from adopting more stringent national measures in order to protect the environment, it also cannot prevent Member States, from negotiating, with other States or at international multilateral level, agreements which provide for more environmental protection than an EU measure. This is expressly laid down in Article 191(4) TFEU which reads: Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned. The previous subparagraph shall be without prejudice to Member States competence to negotiate in international bodies and to conclude international agreements Negotiating and voting rights of individual Member States in the IWC The discussions in the International Whaling Commission (IWC) deal with whaling issues which are, seen from an EU perspective, an environmental issue. Article 218 TFEU provides for the Council to authorise the opening of negotiations and nominate an EU negotiator. The Council may also address directives to the negotiator and may appoint a special committee to follow the negotiations. It appears appropriate to differentiate hereafter the cases, where no EU negotiating position exists, where there is an agreed EU negotiating position and where an IWC proposal is contrary to the EU position/eu acquis. 4.1 Absence of an EU negotiating position Where no directives have been given to the EU negotiator, the negotiator may lead the negotiations at his discretion, taking, of course, fully into consideration the existing EU primary and secondary law. The provision of Article 218 TFEU does not supersede, though, the provisions of Articles 191(4) and 193 TFEU which were mentioned above. Rather, these environmental provisions are lex specialis to the provisions of Article 218 TFEU, as they are targeted for a specific kind of international negotiations, i.e. environmental negotiations. This means that Member States are allowed to also negotiate in the context of the IWC. This is in particular the case - such as for the negotiations within the IWC -, where the Council neither appointed a negotiator nor a Union's negotiating team. It is self-evident, though, that the principle of sincere cooperation, laid down in Article 4(3) TFEU, requires Member States which negotiate, to take full account of existing EU law. Member States are therefore obliged to defend the "EU acquis" as regards the protection of whales, and may only negotiate in view of an even better environmental protection. The objective in this regard, should be to make the EU appear to be coherent and speaking with one voice. When it comes to voting within the IWC, the EU s first objective again is to speak with one voice which means that all EU Member States vote in the same way. This voting is normally prepared by 11 Emphasis added.

5 5 the special committee, mentioned in Article 218(4) TFEU, where all Member States and the Commission are represented. The question is what happens, if no consensus or a majority or a qualified majority - can be reached as to the voting attitude of the EU. In this case, one could consider that either the EU Member States abstain, or that they vote individually. However, abstention would not in all cases be compatible with the individual Member State s rights which flow out of Articles 193 TFEU and 191(4) TFEU. Indeed, under these provisions, any Member State is entitled to negotiate and conclude international agreements which allow it to maintain or adopt more stringent national environmental provisions. This right would be affected, if an abstention in voting would lead to the adoption of IWC decisions that weaken the EU and/or national conservation standards for whales. Indeed, the credibility of national (EU) conservation policy is affected, where an abstention in voting allowed the IWC to adopt decisions that weaken the protection status of whales 12 ; and in particular in the eyes of the public, within the EU and within each individual EU Member State, the success of nature conservation measures very largely depends on the coherence of the measures taken. One cannot reasonably relay the message to the public within the EU or within a Member State that whales require protection, but that an abstention within the IWC enabled this protection to be weakened. This is the reason, why it cannot be argued that an abstention of the individual Member State would allow the EU as a whole and that individual Member State to maintain the EU acquis of whale conservation measures. The environment knows no frontiers, and it was in order to ensure an effective conservation policy for whales that the EU deemed it important, in the past, to adopt measures that protect whales worldwide, also where they live outside areas of EU jurisdiction. It follows from this that individual EU Member States are allowed within the IWC, in the absence of a voting position of the EU, to vote in favour of measures which correspond to or which grant a better environmental protection to whales than the existing national or EU measures. This conclusion does not violate the principle of sincere cooperation. Indeed, individual Member States are only able to vote in favour of the existing EU acquis or in favour of more stringent conservation measures. They would not be allowed to vote in favour of less stringent international measures, as this would be against the EU acquis and would, furthermore, lower the conservation standards which the EU decided to wish to have applied globally. It must also be taken into consideration that the principle of sincere cooperation which was reformulated in the Lisbon Treaty, did not lead to a deletion of Articles 191(4) and 193 TFEU. This can only mean that the authors of the Lisbon Treaty considered the provisions of these two Articles to be compatible with the principle of sincere cooperation. Finally, one has to be aware that the need of the EU to have a uniform position in international forums, might well require different interpretations of the relationship between this principle and other substantive provisions of the treaties. Indeed, in all trade-related and commercial areas, there might be a greater need to speak, internationally, with one voice, because it is necessary to establish and maintain a level playing field. In contrast, EU environmental law is based on the consideration 12 See also Commission, COM(2007)821, p.3: EU policy on whales will not be effective within Community waters, if it is not backed by coherent worldwide action.

6 6 that environmental protection should be optimised 13. Neither within the EU nor internationally is there a need to have uniform standards or a level playing field which is proven by the very existence of Article 193 TFEU 14 ; this means with regard to the international voting procedures that there is less need for all EU Member States voting in the same way. 4.2 The EU has adopted a negotiating position Where the EU adopted, according to Article 218 TFEU, a negotiating position, the individual Member States are, in principle, bound by it. This also includes those Member States which internally opposed the EU position, 15 as otherwise the rule of majority voting would be voided of its effect. There is some uncertainty, though, as regards the decision-making procedure with regard to the common negotiating position of the EU. Article 218 (3) TFEU does not specify in which form the directives to the negotiator shall be adopted by the Council; this is in contrast to Article 218(5) TFEU, where the Council shall adopt a decision which authorises the signing of the international agreement. However, the flexibility of Article 218(3) TFEU in view of the negotiating directives is the only realistic one, as it is normal that in international negotiations new proposals are tabled during the negotiations which require a speedy reaction from the EU and the other contracting parties; it is thus impossible to obtain each time a formal decision by the Council. And the special committee, mentioned in Article 218(3) TFEU which is composed of Member States representatives, is the appropriate body to reach an EU position as reaction to any negotiating proposal which is tabled. This means that the form in which the EU position is agreed, is not relevant. The establishment of an EU position whether it is on the basis of the Council directives under 218(3) TFEU, a consensus, a majority voting or a qualified majority voting within the special committee -, does not normally allow Member States to deviate from this position. However, this brings in once more the application of the provisions of Articles 193 and 191(4) TFEU and raises thus the question, whether in such a case, the principle of sincere cooperation or whether these two provisions prevail. The answer to this question flows from the very objective of Articles 193 and 191(4) TFEU. Indeed, where there is question of an environmental measure which applies within the EU only, the Council and the European Parliament cannot take away the right of an individual Member State under Article 193 TFEU, to maintain existing or adopt new more stringent environmental measures. This even applies in the cases of Article 192(2) TFEU, where the Council adopts EU measures at unanimity. The right of the individual Member State which flows out of Article 193 TFEU, is thus a very strong one and even prevails over unanimous EU decisions. The simple establishment of an EU negotiating position for international negotiations which is normally not even adopted by a formalised Council decision cannot take away this specific right of individual Member States that flows out of Article 193 TFEU. When the right of a Member State to 13 See, apart from Article 193 TFEU, also Article 114(4) and (5) TFEU. 14 See also the wording of Article 191 TFEU which refers at two occasions to the diversity of environmental situations within the EU. 15 However, in accordance with Declaration 25 annexed to the Final Act of the Maastricht Treaty, Denmark however, is allowed to take a different position on behalf of its overseas territories of Greenland (and Faeroe Islands), but only as far as aboriginal subsistence whaling is concerned.

7 7 recur to Article 193 TFEU even exists in the case of unanimous Council decisions, then it must also apply to negotiating and voting procedures at international level. This right must also prevail over the principle of sincere cooperation. The result is all the more justified, as the individual Member State may only negotiate and vote, in order to see more stringent environmental measures adopted at international level; Articles 193 and 191(4) TFEU would not allow that individual Member State to negotiate or vote in favour of lowering the standard of environmental protection which was reached at EU level. 4.3 IWC proposal is contrary to the EU position/eu acquis The principle of sincere cooperation would also apply where the IWC proposal is contrary to the EU acquis. In this case, both the EU Institutions and individual Member States have to defend the EU acquis. Member States are therefore obliged, under the principle of sincere cooperation, to vote against proposals which would lead to a lowering or weakening of the EU acquis. An abstention by individual Member States would be contrary to the principle of sincere cooperation, because it would make possible or at least facilitate the adoption of an IWC decision which lowers the EU standard and the EU commitment to ensure a global conservation of whales. This seems to be the case of the Chair proposal on the future of the IWC. According to the Council s decision establishing the position to be adopted on behalf of the EU at the IWC [t]he 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. The Decision requests Member States to Oppose any proposals regarding new types of whaling, currently not envisaged in the Convention, unless such proposals involve only local consumption and foresee a role for scientific advice by the IWC, while at the same time guaranteeing a significant improvement in the conservation status of whales in the long term and bringing all whaling operations by IWC members under IWC control (Annex I, Para (b) and to Support proposals aimed to end the conduct of "scientific whaling" outside IWC control (Annex I, Para (e). However, the Chair s proposal from April does envisage a new type of whaling without limiting it for local consumption. In addition, serious concerns have been raised about the lack of a role for scientific advice in setting catch limits. For example the UK comments 17 note that the proposal discards the progress made by the IWC towards scientifically based approaches to conservation and management, in favour of arbitrary catch limits based on political compromise. These catch limits would, for all practical purposes, be locked in place for 10 years regardless of the scientific information on the state of the populations. This would represent a reversal of the precautionary principle, to which our governments are firmly committed, both nationally and as EU members. The Council s Decision, therefore, could be interpreted to require opposition to the Chair s proposal. 16 Document IWC 62-7 'Consensus Decision to Improve the Conservation of Whales' proposed by the Chair and Vice Chair, available at March Letter to Secretary of IWC from UK IWC Commissioner Richard Cowan.

8 8 5. Conclusion The conclusion is that in cases, where a common EU negotiating position on a specific IWC proposal is not reached, Member States are not obliged to abstain, but are entitled to negotiate and vote in favour of the EU acquis or of more stringent protective measures. In questions of the conservation of whales within the IWC, individual Member States are normally asked to follow the negotiating directives adopted by the Council and the common EU position which was adopted during the negotiation stage. They are allowed, by virtue of Articles 193 and 191(4) EU Treaty, to negotiate and vote in favour of more stringent protection measures for whales, independently of whether there is an agreed EU negotiating position or not. They are obliged to oppose and vote against proposals made within the IWC which would lower the degree of whaling protection which exists within the EU. This seems to be the case of the Chair proposal for the future of the IWC which appears to be contrary to EU legislation on the protection of whales and the EU common position as established in the 2009 Council s Decision. The Council s Decision, indeed, can be interpreted to require opposition to the Chair s proposal, which envisages a new type of whaling, not currently in the Convention, which is not for local consumption, does not forsee a role for scientific advice by the IWC, and does not guarantee a significant improvement in the conservation status of whales in the long term since it explicitly does not address the long term, being limited in its effect to 10 years.