The IWC Proposed Consensus Decision and EU law duties regarding whales

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1 The IWC Proposed Consensus Decision and EU law duties regarding whales Prof. Dr. Ludwig Krämer Senior Counsel, ClientEarth; Sandy Luk Senior Lawyer, Marine Programme, ClientEarth; Rowan Ryrie Marine Biodiversity Lawyer, ClientEarth Summary On whaling issues, EU Member States are required to support: EU legislation on the protection of whales and of the environment; The 2009 EU Common position on IWC negotiations; and EU international law obligations relating to whales. EU Member States must not support any IWC proposal that undermines the protection that whales are granted under these instruments or other fundamental EU environmental principles. If the Proposed Consensus Decision or any other proposed changes to the International Whaling Convention or its Schedule provide lesser environmental standards and less protection for whales than existing EU legislation and if they do not comply with the objectives set out in the 2009 Common Position, such changes would, if adopted, place EU Member States who are members of the Whaling Commission in breach of EU law and at risk of infringement proceedings in the EU, unless they lodge objections to the changes. Such a situation would not only reflect badly on the EU, but also on the entire IWC. Therefore, voting against such changes in the first place would not only satisfy EU Member States duties to defend and promote EU law and policy, but it would also reflect better on the EU and the IWC, as well as being more democratic, transparent and clear. Examples of issues in relation to which conflicts between existing or potential IWC proposals may exist or arise in the negotiations are set out at the end of this briefing. Background This briefing explains the duties and obligations that EU law imposes on EU Member States with regard to whales in the context of the IWC Proposed Consensus Decision to Improve the Conservation of Whales from the Chair and Vice-Chair of the Commission (the Proposed Consensus Decision ). In particular, this briefing sets out why the EU s ban on the deliberate capture and killing of whales under Article 12 of the Habitats Directive prohibits the introduction 1

2 of whaling quotas under the Proposed Consensus Decision. It also sets out other EU environmental law requirements which EU Member States must comply with. EU Member States therefore need to consider whether these requirements are satisfied by the Proposed Consensus Decision when deciding how to vote in relation to the proposal. EU intention to support ban on commercial whaling In the Commission press release IP/08/200 dated Brussels, 08 February , the Commission stated, European Union law on whaling is very clear. It is not allowed in EU waters Whales are highly migratory species. If whaling is only banned in EU waters but not everywhere else in the world then such a ban can have only a limited effect on the well-being of whale species. This is why the international ban on commercial whaling must stay and why all EU Member States party to the IWC must oppose any move seeking to lift it. We need to move towards more international protection of whales rather than less. [Emphasis added]. This statement is a clear attempt by the EU to reassure the public that the EU would work to maintain and strengthen the existing moratorium on commercial whaling. As a press release this is clearly not binding but it is important to bear in mind the intention to support the ban on commercial whaling when considering the legal framework set out below. The law in brief There are a number of strict EU law requirements in relation to whaling. In particular: Article 2(2) of the Habitats Directive 2 requires EU Member States to maintain or restore whales at favourable conservation status ; Article 12(1) of the Habitats Directive requires EU Member States to take the requisite measures to prohibit all forms of deliberate capture or killing of whales in their natural range 3 ; Article 12(2) of the Habitats Directive and Regulation 338/97/EC on trade in species of wild flora and fauna both prohibit trade in whales/whale products; Article 12(4) of the Habitats Directive requires EU Member States to take measure to ensure that the incidental capture and killing of whales does not have a significant negative impact on the species. Guidance on the Habitats Directive states that even if a species has a favourable conservation status and is likely to have this in the foreseeable future, Member States should... [prohibit] the 1 Available at: 2 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora 3 The Habitats Directive allows derogations from Article 12 in certain circumstances, for example for research or for reasons of overriding public interest (see Article 16, Habitats Directive), but these are only allowed if there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range. In the case of the Proposed Consensus Decision, there are obvious satisfactory alternatives (e.g. the status quo), and it is questionable whether relevant derogations could be applied in any case. 2

3 activities indicated in Article This means that even species of whales not currently endangered should be protected by the EU Member States by restricting killing of whales or trade in whale products. The Guidance also makes clear that the Habitats Directive is intended to help the EU achieve its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Berne Convention, the Bonn Convention and the Convention on Biological Diversity. 5 In addition to complying with these provisions of EU law, the reform proposal must also comply with international environmental legal obligations such as those contained in the Bonn and Berne Conventions. As the EU is a signatory to both Conventions, they are both automatically binding EU law (under Article 216(2), TFEU). Any conflict between the IWC proposal and the provisions of the Bonn or Bern Conventions would place Member States who are members of the International Whaling Commission in conflict both with their international legal obligations under these Conventions, but also, more significantly, with EU law. The incorporation of the Bonn Convention into EU law through the operation of Article 216(2) directly and through the incorporation of Bonn Convention principles into the Habitats Directive (see paragraph on EU Guidance above), show that EU law in relation to whales applies internationally and not just within EU territory. The 2009 Common Position The 2009 EU Common Position requires the EU to: a) support the maintenance of the moratorium on commercial whaling; b) oppose new types of whaling (unless they are restricted to local consumption, guarantee a significant improvement in conservation status, are based on scientific advice and only if all whaling operations by IWC members are brought under IWC control); c) support the creation of whale sanctuaries; d) support aboriginal subsistence whaling management proposals under the condition that stock conservation is not compromised, the precautionary principle is applied and the advice of the Scientific Committee is respected, that whaling operations are properly regulated and all whaling catches remain sustainable within the scope of subsistence needs for local use; and e) support proposals to end scientific whaling outside IWC control. EU Treaties In addition, the EU Treaties (see Article 3(3), TEU, Article 191, TFEU and Article 37 of the Charter of Fundamental Rights of the European Union (the Charter)) set down high binding standards for environmental law and policy, including in the international sphere (see Article 191(1), TFEU and Article 21(2)(f), TEU). These focus on: 4 Guidance on Habitats Directive; II.2.3 paragraph 21; available at: 5 Guidance on Habitats Directive, I.1.2 3

4 a high level of environmental protection (Article 3(2), TEU, Article 37, Charter and Article 191, TFEU); the preservation, protection and improvement of the quality of the environment (Article 191, TFEU); a focus on sustainable management and sustainable development and the prudent utilisation of natural resources (Article 3(3) and 21(3)(f), TEU, Article 37, Charter and Article 191, TFEU) the application of the precautionary principle and the principles of preventive action (Article 191(2), TFEU). Potential conflict between national and EU law Both the EU and its Member States must comply with all of these EU laws and requirements. Article 193, TFEU allows Member States to maintain or introduce more stringent environmental protective measures as long as they are compatible with the Treaty. However, Member States are not allowed to introduce national measures that are weaker than existing EU law. Doing so would amount to an infringement of EU law. The EU is not a signatory of the International Whaling Convention, but 25 of its Member States are. This means that any decisions validly made by the International Whaling Commission will be binding on those 25 Member States as a matter of international law, but will not be binding on the EU as a matter of EU law, and will not affect EU law directly. Therefore, EU law and the requirements it makes of EU Member States will not change as a result of any changes to the International Whaling Convention or its Schedule. However, the same is not true for EU Member States, who are signatories to the Convention; their national laws may be affected and they will be bound by any changes. This means that, if the Proposed Consensus Decision introduces weaker protective provisions than are currently found in EU law, Member States who are signatories to the Convention will be in breach of EU law if the new provisions become part of their national laws. To avoid this, EU Member States would need to lodge an objection to the new rules or risk infringement proceedings in the EU. It is important to note that the current provisions of the IWC Schedule, with the moratorium in place, are compatible with EU law. Member States should carefully assess any proposed changes to ensure they do not place themselves in a position in which their national laws are in conflict with EU law. It should also be noted that if the Proposed Consensus Decision was adopted in spite of the EU Member States opposition (i.e. because over 75% of IWC members present at the meeting voted in favour), and the Proposed Consensus Decision was contrary to EU law principles, then EU Member States would still need to lodge objections. Rejecting the amendments If 25 IWC members were to officially object to the new amendments (as they would be bound to do under EU law if the changes are in breach of EU rules), this would completely undermine the purpose of the Proposed Consensus Decision and in fact the entire IWC. In such a situation (where the new proposed rules are in breach of EU law), it would be more open, transparent and democratic to vote against the proposals in the first place. 4

5 The appropriate legal base and issues of EU competence We have already set out in an earlier briefing 6 the legal reasons why the protection of whales is a matter of EU environmental law (and therefore subject to shared competence), rather than of fisheries conservation (which would be subject to EU exclusive competence). Because this issue is of such fundamental importance, we have re-annexed the main arguments on this matter to this briefing again. In summary, the deciding fact is that, no matter what the International Whaling Convention has as its objectives (i.e. conservation as well as exploitation), under EU law whales are not and have never been marine biological resources under the Common Fisheries Policy (which would bring whaling issues within Article 3(1)(d), TFEU and make it a matter of EU exclusive competence). Whales are not referred to as fisheries products in Annex I, Chapter 3 of the Treaty (which lists fish, crustaceans and molluscs). They have never been managed as a resource under the CFP. Instead, EU legislation on whales is entirely environmental. The underlying purpose of EU legislation on whales is their conservation and protection. Therefore, the legal base for such legislation has always been the Environment Chapter of the Treaty, rather than agricultural policy. This is confirmed by the 2009 EU Common Position. Therefore, in ClientEarth s view, it is absolutely clear from a legal point of view that whaling in the EU law context is an environmental issue, rather than a fisheries issue. The fact that for Japan, Norway and Iceland whaling may be a fisheries issue has no effect on EU law. It is the EU s and all its institutions duty to protect and defend the aquis communautaire on the environment and on whaling (i.e. the duty to conserve and protect whales and prevent them from being killed), not to jeopardize it. Despite the International Whaling Convention being an international agreement, whaling does not become an issue of exclusive competence under Article 3(2), TFEU, as the EU is not a member of the International Whaling Commission, and, as already explained above, changes to the International Whaling Convention and its Schedule do not affect the common rules (as required by Article 3(2), TFEU). In addition, the Treaty on the Functioning of the European Union (TFEU) expressly states that the EU s competence to engage in international agreements and negotiations in environmental matters shall be without prejudice to Member States competence to negotiate in international bodies and conclude international agreements (Article 191(4), TFEU). This means that EU Member States have competence to negotiate and vote in the IWC proceedings. They cannot be required to abstain. 6 See: 5

6 The Proposed Consensus Decision contains a number of provisions that may place it in conflict with EU law. Examples include: 1. By establishing general catch quotas, the Proposed Consensus Decision allows the deliberate capture or killing of whales outside permitted derogations, such as research. Article 12, Habitats Directive prohibits the deliberate capture or killing of whales in their natural range. These provisions are clearly contradictory. 2. The Proposed Consensus Decision introduces catch quotas which are not applied for scientific research, under objection or for aboriginal subsistence whaling. No restrictions on commercial trading are made in the Proposed Consensus Decision. Paragraph 38 on domestic use is not only in square brackets (therefore likely to be removed), but it does not actually prohibit commercial (if domestic) trade. In addition, the Proposed Consensus Decision contains a provision that stipulates that any provisions proposed by the Consensus Decision are to prevail over existing provisions in the Schedule, which includes the provision for a moratorium on commercial whaling (see para 32 of the Proposed Consensus Decision). Therefore, the new catch quotas which are not linked to any limitation on the type of whaling allowed will override the provision for a moratorium on commercial whaling. EU laws (e.g. the Habitats Directive and Regulation 338/97/EC) restrict/prohibit trade in whales and the Common Position requires support for the maintenance of the moratorium on commercial whaling. The Proposed Consensus Decision does not either guarantee a significant improvement in the conservation status of whales or bring all whaling operations under IWC control. These are two of the overarching objectives of the EU in relation to the IWC as set out in the 2009 Common Position. It is also worth noting that the current version of the Proposed Consensus Decision does not suspend whaling under special permits (Article VIII) or objections (Article V), it simply gives quotas to those nations that are whaling under objection (Norway), pursuing whaling through Article VIII (Japan), or whaling despite the Moratorium (Iceland). 3. To comply with EU law, any amendments to the Schedule to the Convention should be based on sufficient scientific reasoning. Amendments should apply the precautionary principle and the principle of preventive action and should improve the conservation status of whales. These are requirements, for example, of the Treaty, the Habitats Directive and the Common Position (for example in relation to aboriginal subsistence whaling). These examples are used for illustration only. The Proposed Consensus Decision contains other examples of provisions which could cause conflict with EU law. ClientEarth, 07 June

7 Annex Extract from ClientEarth Briefing dated 20 May on the proposed reform of the International Whaling Convention and EU voting rules The question of competence Under EU law, the protection of whales is, and always has been, strictly a matter of EU environmental law. EU environmental law, including measures relating to the protection of whales, is subject to the shared competence of the EU and its Member States. The environmental protection objectives and principles set out in Articles 191 and 192, TFEU therefore apply to whaling issues. This is particularly clear in relation to the preservation and protection of the quality of the environment, the prudent and rational utilisation of natural resources, the promotion of measures at international level to deal with regional or worldwide environmental problems (all Article 191(1), TFEU)) and the application of the precautionary and prevention principles (Article 191(2), TFEU). Moreover, EU laws which prohibit whaling or trading in whale products, are all based on the Environmental Chapter of the Treaty (now Article 192, TFEU), rather than trade, commercial or fisheries policy. All the following instruments, for example have an environmental policy legal base: Regulation 348/81 establishing common rules for imports of whale products for noncommercial purposes would now be an environmental legal base, though it did not yet exist as a separate legal base at the time); 7 the Habitats Directive (specifically Article 12 (and Annex IV)); the Wildlife Regulations 9 ; the EU decisions concluding the Berne and the Bonn Conventions (would now be an environmental legal base, though it did not yet exist as a separate legal base at the time 10 ). This is further underlined by the fact that the EU s Common Position 11 in relation to proposals for amendments to the International Whaling Convention and its Schedule was agreed by the Environment Council and has an environmental legal base Regulation 348/81 was passed under Article 235 of the Treaty (now Article 352, TFEU) before there was a separate legal basis for environmental policy. At that time environmental laws were generally passed under Article 235. Now, this Regulation would be passed under Article 192, TFEU. The Regulation itself provides for qualified majority voting in the Council in relation to matters covered by it. 8 Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive). 9 Council Regulation 338/97/EC of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (implementing CITES in the EU) and related regulations. 10 The Berne Convention 1979 on the conservation of European wildlife and natural habitats, concluded by Decision 82/72/EEC. The Bonn Convention 1979 on the conservation of migratory species of wild animals, concluded by Decision 82/461/EC. Both were passed under Article 235, TEC, see footnote [1] above. 11 EU Council Decision 7146/09 of 3 March

8 In addition, in the context of the IWC, the following points regarding competence are also relevant: Under Article 21(2)(f), TEU the Union s external action covers international environmental measures, including in relation to the sustainable management of global natural resources. However, this does not mean that the Union s competence is exclusive (see following bullet points). Protocol 25 of the Lisbon Treaty 13 specifically states that when acting in an area for which the Union and Member States share competence, when the Union has taken action..., the scope of the Union s exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area. 14 As it is not a signatory of the Convention or an IWC member, the EU is not bound by the Convention or its Schedule and the Convention and Schedule are not automatically a part of EU law. Consequently, changes to the Convention and its Schedule will not directly affect EU law, and will therefore remain within Member States competence. This is subject to the caveat that it is not possible for EU Member States to support measures that would be weaker than existing EU law requirements. Article 191(4) introduces an additional layer of Member State competence in relation to international environmental negotiations and agreements by making Union competence relating to international cooperation and agreements on the environment without prejudice to Member States competence to negotiate in international bodies and to conclude international agreements. This means that Member States have competence to negotiate and vote in the IWC context. Unlike situations where the EU has exclusive competence, there is no automatic requirement to abstain in votes if there is no Common Position. However, Member States still have to comply with their general EU law obligations. They could never vote for provisions which would weaken EU environmental law, and should vote for proposals which would support or strengthen EU environmental principles. Contact details: Sandy Luk, Senior Lawyer Rowan Ryrie, Marine Marine Programme Biodiversity Lawyer t +44 (0) t +44 (0) m +44 (0) m +44 (0) e sluk@clientearth.org e rryrie@clientearth.org 12 See Recital Protocol (No 25) on the exercise of shared competence (2007). 14 See Article 51, TEU. 8