The International Whaling Commission prepares for global emergencies by amending voting rights

The International Whaling Commission prepares for global emergencies by amending voting rights

(Disclaimer: A more detailed analysis of regime effectiveness and voting rights will appear in the December-issue of The Conservation & Livelihoods Digest)

Introduction

The COVID-19 pandemic has forced international environmental governance into a standstill. Only in 2022, the first in-person meetings have convened on a more regular basis again and will continue to do so until the end of the year. The International Whaling Commission (IWC) is currently meeting in Portorož, Slovenia, for the 68th time (IWC68) – the first time since IWC67 in 2018 in Florianópolis, Brazil.

Apart from the impacts of the pandemic on international organisations such as the IWC, it has also had drastic impacts on societies worldwide. In fact, during the opening session, the chair of the IWC, Andrej Bibič, held a minute of silence for all those having fallen victim to the pandemic. But moreover, it has caused tremendous additional spendings, which have proved to be particularly drastic for developing countries. As a result, many countries have not been able to pay their membership fees. In the case of the 88-member IWC, 15 Members have been in arrears for three or less years as a result of the pandemic, whereas 17 Members have been in arrears for more than three years.

Controversy

Annual membership contributions are a regular issue in international environmental governance – as, indeed, in any club. This means, Parties to a certain legal agreement are required to pay a certain sum of money each year in order to keep the organisation running by maintaining the Secretariat or by convening meetings (on the Bonn Convention, see Sellheim & Schumacher, 2022). Failure to acquire sufficient funds inevitably leads to a decrease in effectiveness of a convention. In order to prevent this from happening, organisations have put in place Rules of Procedure, which stipulate rules for membership fees and consequences for Members for not providing those.

In the case of the IWC, the Rules of Procedure (IWC, 2018) are clear in regard to annual contributions: After the budget has been approved, a request by the Secretary is sent to the Members to remit their contributions. These are to be paid in pound sterling within 90 days of the Secretary’s request or by the following 30 June, whichever is the later (IWC, 2018, E.2).

Failure to do so does not go unpunished. If three dates in relation to the due date have been missed, the Member loses its right to vote at the various Commission meetings:

• 3 months following the due date
• the day before the respective meeting if taking place within three months of the due date
• the date of a vote, if taking place within three months of the due date and if taken by postal or other means (IWC, 2018, F.2).

During a Virtual Special Meeting (VSM) of the IWC in September 2021, the issue of arrears became an issue of heated debate. Especially Antigua & Barbuda voiced its concern over the democratic legitimation of suspending voting rights. After all, legally, the rights of a Contracting Party are not tied to financial contributions. And in light of the COVID-19 pandemic, which has financially ravaged state budgets, arrears should not strip Parties of their right to vote.

Several states and Observers mirrored Antigua & Barbuda’s concern and if continued in the same manner, a colonial wind could be appearing to blow through the Commission: Those countries being able to deal better with the pandemic maintain their right to vote, while those not being able to deal with the pandemic lose their right to vote. In other words, richer countries can change the course of the IWC while poorer countries cannot.

During the VSM, no solution could be found since others argued that without such arrangement, the IWC would lose (some of) its effectiveness. It was therefore proposed that it should be the Commission to vote on the right to vote for those Members in arrears. But how can something be voted on if the controversy on the right to vote has not been resolved? Would those Members in arrears be able to vote on this issue? Without agreement on the substance, however, it was nevertheless agreed that this issue would be the first agenda item for IWC68.

Resolving the controversy and a preparation for emergencies

The issue was resolved by amending the Rules of Procedure through a so-called ‘private Commissioners’ meeting’ (PCM) prior to the begin on the plenary. All present Commissioners, i.e. representatives of IWC Member countries, came together to discuss voting rights. It was agreed, by consensus, that amendments to the Rules of Procedure would include two elements: short-term and long-term.

The short-term amendment directly affects voting rights at IWC68. For this meeting, all Members that have been in arrears for three years or less maintain their right to vote. This means, those 15 countries that have not paid their membership fees are eligible to vote on equal footing as those countries having done so. Seven of those Members in arrears are, however, not present, leaving eight Members benefitting from this arrangement at the present meeting. Those 17 countries in arrears longer than three years, however, still have their voting rights suspended.

The long-term amendment concerns the preparation for other situations of emergency. While, in principle, the financial arrangements remain in place – meaning, the due date should be kept in order to maintain voting rights – the amendments include the phrase “unless the Commission decides otherwise in the case of exceptional circumstances” on several occasions. This means that the financial arrangements are subject to a review by the Commission in case circumstances so require. This is particularly relevant in light of the three criteria for payment included in Section F.2 of the Rules of Procedure, outlined above, which can now be subject to such review.

A preparation for exceptional circumstances or another cause of controversy?

The chair of the meeting presented the outcome of the PCM as the first agenda item. No opposition to the amendments were voiced in the plenary and they were therefore adopted. It therefore seems as if concerns by Antigua & Barbuda, for example, could be eased. In situation like that of the COVID-19 pandemic, the financial status of a country is therefore not a determining factor for the voting arrangements at the Whaling Commission.

This said, the amended Rules of Procedure do not contain a definition of ‘exceptional circumstances’. While the chair noted that the COVID-19 pandemic is indeed such an ‘exceptional circumstance’, it remains in the dark whether this applies only to global events or whether Members to the Commission can refer to this provision in order to be able to avoid having to pay membership fees. For example, if a war-ridden country is in arrears for some time, can it ask the Commission to waive its fees since ‘exceptional circumstances’ have prevented it from paying its contributions?

A definition of the term ‘exceptional circumstances’ and its practical application was not discussed during the plenary. It therefore remains to be seen how the term will be applied and what repercussions it has on the way the International Whaling Commission functions. This said, the Working Group on Operational Effectiveness proposes a definition of criteria for what constitutes ‘exceptional circumstances’ and a process for decision-making.

At present (17 October 2022, 15:30 CET), 48 Members are able to vote:

1. Antigua and Barbuda	25. Kiribati
2. Argentina	26. Korea, Rep. of
3. Australia	27. Lao PDR
4. Austria	28. Lithuania
5. Belgium	29. Luxembourg
6. Benin	30. Mexico
7. Belgium	31. Morocco
8. Bulgaria	32. Nauru
9. Cambodia	33. Netherlands
10. Chile	34. New Zealand
11. Costa Rica	35. Norway
12. Croatia	36. Palau
13. Czech Republic	37. Panama (pending credentials)
14. Denmark	38. Peru
15. Dominican Republic (pending credentials)	39. Poland
16. Ecuador	40. Portugal
17. Finland	41. Slovenia
18. France	42. Spain
19. Germany	43. St. Lucia
20. Guinea	44. Sweden
21. Iceland	45. Switzerland
22. India (pending credentials)	46. United Kingdom
23. Israel	47. Uruguay
24. Italy	48. United States

References

IWC. (2018). Rules of Procedure and Financial Regulations as amended by the Commission at the 67th Meeting, September 2018. https://archive.iwc.int/pages/view.php?ref=3605&k=.

Sellheim, N. & J. Schumacher. (2022). Die Steigerung der Effektivität des Bonner Übereinkommens zur Erhaltung wandernder Tierarten. Natur & Recht 22, pp. 156-162.