A win for whales at the IWC

ClientEarth has been partnering with the Whale and Dolphin Conservation Society (WDCS) since spring 2010 to prove why apparent EU procedural blocks were legally wrong.

The supposed legislative obstacles (claimed, it seems, to exist by the European Commission) had previously stopped many EU efforts to oppose whaling. EU Member States were being told that if they could not all agree on a particular position, they all had to abstain in International Whaling Convention (IWC) votes. Because Denmark in particular (and a few other EU Member States) and other EU countries frequently find themselves on opposite sides in this regard, unanimity was impossible, which meant EU Member States were in danger of becoming completely ineffective members of the International Whaling Commission and a laughing stock.

ClientEarth produced a completely new legal take on the topic back in 2010: publicised and advocated via two landmark legal briefings. One clarified the rights and duties of EU Member States when voting in the context of international agreements – concluding that in the context of the IWC there is no legal justification for compelling member states to abstain from a vote about increasing whaling quotas. The other examined the EU’s legal framework for the protection of whales and how this could influence Member State’s positions at forthcoming IWC meetings. Together these legal briefings strongly and irrefutably countered the argument that Member States must abstain from voting in the IWC negotiations unless all EU member states agree unanimously (see : ‘EU voting rules: a whaling focus’ and ‘Whaling, the International Commission and the EU’).

Last week, one of the countries that is pro-whaling, Greenland (a Danish overseas territory), was seeking to increase the number of endangered fin and humpback whales it could hunt for the next six years – for the subsistence needs of its native people. Subsistence whaling is legal and allowed under the IWC’s rules and the EU’s ‘common position’ (agreed position on issues surrounding whaling and the IWC). However, WDCS’s undercover operation showed how Greenland has been actively undermining the IWC’s ban on commercial whaling by openly selling whale meat in the vast majority of its restaurants (to tourists) and also in supermarkets.

Once again, the EU seemed to struggled to come to a position due to ongoing confusion over its internal decision making processes. However, finally, through WDCS’s continued stalwart efforts and the incontrovertible force of the legal arguments we had made, the EU countries – historically – forced an internal vote on the Danish proposal. The relevant EU Member States (not all are parties to the International Whaling Convention) voted against the Danish proposal for an increase in quota for fin & humpbacks by qualified majority. The fact that Denmark (and one or two other Member States) did not agree with the majority made no difference – the EU countries had a position to vote for in the IWC. Moreover, this meant – as shown before by ClientEarth’s legal opinion – that all EU state parties to the IWC (except for Denmark) had to vote against Denmark’s proposal in the IWC negotiations – even the ones who were in favour!

So on the fourth day of the IWC meeting in Panama, last week, Greenland’s request to the IWC to be allowed to kill more whales for subsistence was put to the vote: the result was 25 in favour, 34 against, and 3 abstained. The EU Member State parties were part of the 34 that voted against. Had the EU once again abstained, or somehow fudged the issue, then the quota increase would have been allowed. This time that did not happen, not only because of excellent campaigning from a number of organisations including particularly WDCS, but amazingly also because of the effect of ClienEarth’s legal advice – which showed quite incontrovertibly what the real rules on voting were and how they needed to be applied.

In the end, not only were Greenland dis-allowed an increase in quota – they were refused any quota to kill whales – a surely unintended and unexpected outcome, as some subsistence whaling in Greenland does exist. In any case though, this kind of thing hasn’t happened since 1977. A real triumph, and a victory for conservation of humpback & fin whales, which is in no small way the result of the excellent partnership work of ClientEarth and WDCS.

Image: Kohane

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