Documents considered by the Committee on 13 November 2017 Contents

36International Whaling Commission

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny; further information requested

Document details

Proposal for a Council Decision on the position to be adopted, on behalf of the European Union, at the next three meetings of the International Whaling Commission including related inter-sessional meetings and actions

Legal base

Articles 191(1), 218(9) TFEU

Department

Environment, Food and Rural Affairs

Document Number

(39005), 11894/17 + ADD 1, COM(17) 463

Summary and Committee’s conclusions

36.1The International Whaling Commission (IWC) is the decision-making body for the International Convention for the Regulation of Whaling (ICRW), which ensures both the conservation and the sustainable management of whales at a global level. There are 87 Contracting Parties including the UK and 25 EU Member States.566 The European Union has observer status.

36.2The proposed Council Decision establishes the broad position to be adopted on behalf of the European Union at the next three biennial meetings of the IWC (2018, 2020 and 2022), including related inter-sessional meetings. As the EU is not a Party to the ICRW, the position would be expressed by the Member States acting jointly in the interest of the EU.

36.3The proposed EU position is set out below. It includes EU support for the general ban on commercial whaling and for the position that the “scientific” whaling exemption should not be used to justify what is primarily commercial whaling

36.4The Minister of State for Agriculture, Fisheries and Food (George Eustice) indicates strong UK support for the proposed EU position. He notes that, on leaving the EU, the UK will be free to decide and vote independently on matters within the IWC. This, he says, is likely to include forming coalitions with other like-minded countries. The UK will use this opportunity, he adds, to extend its influence to shaping global coalitions in favour of whale conservation.

36.5The Minister also highlights a need to amend the legal base. While the proposed Article 191(1) TFEU sets out broad environmental policy objectives, it is Article 192(1) TFEU, he says, which is more appropriate as it provides for the Council to decide on EU action to achieve Article 191 objectives.

36.6As the proposal relates to the environment and matters in which both the EU and Member States have competence, the Government considers the draft Decision should clarify that it relates to “matters falling within EU competence”.

36.7On the UK’s withdrawal from the EU, we note the Minister’s expectation that, on leaving the EU, the UK will “extend its influence to shaping global coalitions in favour of whale conservation”. We would welcome confirmation that the UK is already using its IWC membership to work with non-EU countries to boost whale conservation, but that the extent of that work is constrained by the need to respect the overall EU position.

36.8In her Florence speech, the Prime Minister expressed support for a post-Brexit implementation period of around two years during which the UK would respect the EU’s rules and procedures. Does the Minister envisage that the principle of sincere cooperation reflected in Article 4(3) TEU—and thus forming part of the EU’s rules and procedures—would apply to the UK during the implementation period? If so, how would that impact on the UK’s ability to decide and vote independently on matters at the IWC’s 2020 meeting and at related inter-sessional meetings?

36.9We agree with the Government that the substantive legal base for the proposal should be Article 192(1). However this would not affect the procedure. We agree too that greater clarity around the competence being exercised by the EU would be desirable, and that this should be set out in the Council Decision. The Government referred only to “matters falling within EU competence”, without distinguishing between shared and exclusive competence. In future, we expect the Government to be specific.

36.10We understand that the proposal is likely to come forward for agreement imminently. In that light, we are content to release the document from scrutiny, but we look forward to the Minister’s responses to the issues highlighted above and confirmation of the Government’s success or otherwise in amending the legal base and inserting a statement of competence.

Full details of the documents

Proposal for a Council Decision on the position to be adopted, on behalf of the European Union, at the next three meetings of the International Whaling Commission including related inter-sessional meetings and actions: (39005), 11894/17 + ADD 1, COM(17) 463.

Background

36.11The International Convention for the Regulation of Whaling (ICRW) signed in 1946 ensures both the conservation and the sustainable management of whales at global level. The competent body governing the implementation of the Convention is the International Whaling Commission (IWC) which meets every two years. The IWC exercises its basic responsibilities for both sustainable management and conservation by making amendments to the Schedule to the ICRW in response to requests from Contracting Governments. Amendments have to be carried by a three quarters majority of voting IWC members.

36.12Over time, the IWC has considerably evolved and has become the international organisation of reference for all aspects related to whales and whaling, undertaking activities such as field research programmes, population modelling, conservation plans, threats knowledge and management.

36.13Decisions to amend the Schedule adopted within the IWC may affect the achievement of the objectives of EU policies and legislation in relation to cetaceans. According to Article 191 (1) of the Treaty on the Functioning of the European Union (TFEU), 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 and other cetaceans, and the European Union has put in place environmental legislation that promotes their effective protection through extensive harmonisation of rules at EU level. These include:

The proposed EU position

36.14The proposed position includes:

The Minister’s Explanatory Memorandum of 6 October 2017

36.15The Minister expresses strong support for the proposed EU position. He says that the EU principles are well aligned with UK views (including UK civil society organisations) on the conservation and management of cetaceans in the IWC and bring with them no financial burdens for the UK. The Minister considers that the proposed Council Decision will ensure a strong, clear, and unified position is adopted by the EU and expressed by Member States operating in the IWC.

36.16Regarding the UK’s withdrawal from the EU, the Minister says:

“On leaving the EU, the UK will be free to decide and vote independently on matters within the IWC. This is likely to include forming coalitions with other like-minded countries, including those EU countries that share the UK’s views. The UK will extend its influence to shaping global coalitions in favour of whale conservation.”

36.17Concerning the legal base, the Minister explains:

“The European Commission proposes a substantive legal base of Article 191(1) of the Treaty on the Functioning of the European Union (TFEU) in conjunction with a procedural legal base of Article 218(9) TFEU.

“Article 191(1) TFEU sets out broad environmental policy objectives. It is Article 192(1) TFEU which provides for Council to decide on EU action to achieve Article 191 objectives. So, the correct substantive legal base for this Council Decision is Article 192(1).

“Article 192(1) was the substantive legal base used for the 2011 Council Decision. It is also standard practice to use this legal base in similar Council Decisions relating to other multilateral environmental agreements.”

36.18On competence, the Minister adds:

“As the proposal relates to the environment and matters in which both the EU and Member States have competence, Defra considers the draft Decision should clarify that it relates to matters falling within EU competence. “

36.19In terms of timing of adoption, the Minister explains that the dossier is expected to be agreed within the Working Party on International Environmental Issues dedicated to considering the IWC (WPIEI Whaling). It is the UK’s understanding that the intent of the Council Secretariat and Commission is to have agreed this Council Decision by the end of the year in order to allow sufficient time for Member States to prepare for the next IWC meeting in September 2018.

36.20It has subsequently become clear that adoption is likely to be swifter than originally expected by the Minister.

Previous Committee Reports

None.


566 Greece is no longer a Member and Malta and Latvia are yet to join. A further three Member States have had their voting rights suspended as a result of failures to pay their contributions on time.

567 Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora

568 Directive 2008/56/EC establishing a Framework for Community Action in the field of Marine Environmental Policy

569 Council Regulation 338/97/EC on the protection of species of wild fauna and flora by regulating trade therein




20 November 2017