1983 the European Communities (the predecessor of the EU) banned the trade in
products stemming from seal pups. In 2009, the EU banned the trade in seal products
generally. For whales, several EU-wide regimes are in place that prohibit the
deliberate disturbance (which includes the killing) of whales in EU waters and
which prohibits the importation of whale products taken from the wild.
The basis for the EU’s environmental policy can be found in the Treaty on the
Functioning of the European Union (TFEU), one of the core treaties of European
cooperation.
16 The TFEU requires EU member states to work together on global
environmental problems, which includes the effective protection of species worldwide. To follow this doctrine, the EU is furthermore required to harmonise its
rules concerning species protection. At the core of EU whale protection stands,
therefore, the Habitats Directive, which was adopted in 1992.
17 The objective of the
Habitats Directive is the contribution to biodiversity protection through both the
conservation of natural habitats and through the protection of specific species. While
the Directive aims at comprehensively managing specific areas, it furthermore lays
down prohibitions for species listed in its Annex IV, including capture, killing and
disturbance. Here, also the prohibition of importation of species taken from the wild
is stipulated. All cetacean species are listed in this Annex. With this strict protective
legal framework in place, it is not surprising that EU-members of the IWC apply a
strict no-use approach to whales. However, we must bear in mind that the Directive
does not provide for any criteria for the listing or de-listing of species onto the
Annexes. Although the Directive recognises that scientific and technological knowledge is crucial for its implementation, it does not require science to be the basis for
species listing. In other words, the listing of cetaceans can be purely political.
A second core regime is the regulation which implements CITES, Council
Regulation 338/97/EC on the protection of species of wild fauna and flora by
regulating trade therein.
18 Without the need to go further into detail it suffices to
say that the regulation directly takes over the provisions of CITES, including its
Appendices. Therefore, also whale species are banned from the EU’s internal
market. However, the regulation goes somewhat further than CITES: although
CITES lists some whale species in Appendix I and II, the regulation lists all
cetaceans in Annex A, which corresponds to Appendix I of CITES. By doing so,
the EU has underlined its no-use approach to whales.
While the above refers to the European Union and its member states, the heading
of this section is entitled ‘Europe’. This means that there are also other regimes in
place that are relevant not only for the European Union, but for countries that are
located on the European continent, but that are not necessarily EU members.
16 Consolidated version of the Treaty on the Functioning of the European Union, OJ C
326, 26.10.2012, pp. 47–390.
17 Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild fauna and Flora, OJ L
206, 22.7.1992, p. 7.
18 Council Regulation 338/97/EC on the protection of species of wild fauna and flora by regulating
trade therein, OJ L 61, 3.3.1997, p. 1.
68
4 The Global Framework for the Environment and Marine Mammals
products stemming from seal pups. In 2009, the EU banned the trade in seal products
generally. For whales, several EU-wide regimes are in place that prohibit the
deliberate disturbance (which includes the killing) of whales in EU waters and
which prohibits the importation of whale products taken from the wild.
The basis for the EU’s environmental policy can be found in the Treaty on the
Functioning of the European Union (TFEU), one of the core treaties of European
cooperation.
16 The TFEU requires EU member states to work together on global
environmental problems, which includes the effective protection of species worldwide. To follow this doctrine, the EU is furthermore required to harmonise its
rules concerning species protection. At the core of EU whale protection stands,
therefore, the Habitats Directive, which was adopted in 1992.
17 The objective of the
Habitats Directive is the contribution to biodiversity protection through both the
conservation of natural habitats and through the protection of specific species. While
the Directive aims at comprehensively managing specific areas, it furthermore lays
down prohibitions for species listed in its Annex IV, including capture, killing and
disturbance. Here, also the prohibition of importation of species taken from the wild
is stipulated. All cetacean species are listed in this Annex. With this strict protective
legal framework in place, it is not surprising that EU-members of the IWC apply a
strict no-use approach to whales. However, we must bear in mind that the Directive
does not provide for any criteria for the listing or de-listing of species onto the
Annexes. Although the Directive recognises that scientific and technological knowledge is crucial for its implementation, it does not require science to be the basis for
species listing. In other words, the listing of cetaceans can be purely political.
A second core regime is the regulation which implements CITES, Council
Regulation 338/97/EC on the protection of species of wild fauna and flora by
regulating trade therein.
18 Without the need to go further into detail it suffices to
say that the regulation directly takes over the provisions of CITES, including its
Appendices. Therefore, also whale species are banned from the EU’s internal
market. However, the regulation goes somewhat further than CITES: although
CITES lists some whale species in Appendix I and II, the regulation lists all
cetaceans in Annex A, which corresponds to Appendix I of CITES. By doing so,
the EU has underlined its no-use approach to whales.
While the above refers to the European Union and its member states, the heading
of this section is entitled ‘Europe’. This means that there are also other regimes in
place that are relevant not only for the European Union, but for countries that are
located on the European continent, but that are not necessarily EU members.
16 Consolidated version of the Treaty on the Functioning of the European Union, OJ C
326, 26.10.2012, pp. 47–390.
17 Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild fauna and Flora, OJ L
206, 22.7.1992, p. 7.
18 Council Regulation 338/97/EC on the protection of species of wild fauna and flora by regulating
trade therein, OJ L 61, 3.3.1997, p. 1.
68
4 The Global Framework for the Environment and Marine Mammals