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Humpback whale underwater

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The EU Commission admits WDCS is right but throws up a procedural block to doing the right thing

After two and half years of campaigning on the issue of voting as a block at the IWC, the EU Commission finally agreed with WDCS that our interpretation of the rules was correct.

Hurrah! WDCS should be celebrating all the good work done in partnership with Sandy Luk of Client Earth who have gone out of their way to cooperate on this campaign.

The result of this acknowledgement by the Commission should have paved the way for Denmark to vote for its Greenland proposal, but then allowed for the rest of the EU members to seek to amend the proposal or even vote against it in its current form because of its commercial whaling elements that the EU cannot legally support.

At the last moment, the EU Commisison has insisted that all decisions that need to be voted on using the EU’s Qualified Majority Voting (QMV) have to be reported back to Brussels for a decision to take place there with the whole EU. This proposal means that the EU has to seek to delay all decisions at the IWC to allow it to coordinate its response and then potentially ask for a 12 – 24 hour delay while all members of the EU, two of which are not members of the IWC, decide how the 18 (sorry 17 as Denmark is going to ignore what the EU says anyway unless they agree with it) get to vote.

Not only is this practically not possible, it’s actually potentially illegal. The EU is governed on this issue by an agreed common position that states,

‘Where the position referred to in Article 1 is likely to be affected by new scientific or technical information presented before or during the meetings of the IWC or where proposals are made on the spot on matters which are not yet the subject of an EU position, a position shall be established on the proposal concerned through co-ordination, including on the spot, before the proposal is put to a vote.’ [Emphasis added]

Therefore, Article 2 allows for decision-making ‘through co-ordination, including on the spot’.

Once the IWC meeting is underway, at no time does the Common Position invoke the whole of COREPER as the decision making body for the EU Member states who are also members of the IWC, and indeed, the Common Position clearly allows for decisions to be undertaken ‘on the spot’. Implicitly this can only be by those Member States who are present.

We would note that the Common Position was written in the full knowledge that only 25 of the 27 Member States would potentially attend the IWC (in fact only 18 have attended), so the language of how decisions could be made demonstrates the intent of the Council in agreeing the Common Position that it was never meant to be decided on by the whole of the EU for ‘on the spot’ decisions.

WDCS therefore believes it is both legal and practical for EU Member States to co-ordinate and decide on issues at the IWC meeting itself.

Indeed, it should be remembered that,

…the EU Member States are not voting as the EU, but as IWC Parties who are Members of the EU and who have chosen to have a coordinated position.

As the Common Position is part of EU law and clearly lays out how ‘on the spot’ coordination can take place, then any insistence on a process that causes delay in making a decision and so affects Member States’ ability to vote and so uphold EU law at the IWC meeting, could in itself be found to be an offence.

Will the EU representation at the IWC meeting actually act on this, – we wait with baited breath.

WDCS expects the EU Member States to uphold EU law as agreed in the common position and NOT permit a further blurring of the lines between ASW and commercial whaling.  Greenland has thrown down the challenge that this IS commercial whaling, so the EU has only two choices, which is to either seek to amend the Greenlandic proposal to prevent sales to tourists, or to vote against the proposal.

Nothing less is acceptable at this stage.