Japan has been engaged in ‘scientific’ whaling since 1986 — in fact the ink had barely dried on the International Whaling Commission’s  agreed moratorium on commercial whaling that came into effect during the 1985/86 season.

It conducts most of this whaling in the Southern Ocean — a vast expanse of water that, save for some exceptions, is considered by the international community to be international waters. The exceptions are the small pockets of coastal state waters adjacent to sub-Antarctic islands such as Australia’s Heard, MacDonald and Macquarie islands.

The practical upshot of being international waters is that the principles of the freedom of the high seas and flag state authority apply. One such principle is the freedom to fish without regulation. Compliance with regional or international regulations is based upon state consent.

If Australia were to approach a foreign-flagged ship in an area generally agreed to be the high seas and attempt to interfere with that ship’s legitimate exercise of its high seas freedoms, then Australia should expect a forceful response from the flag state. In 1995, the Canadians provoked an international incident when they boarded the Spanish-flagged Estai on the  high seas just outside the Canadian fishing zone. That case involved a dispute over fish and access rights.

Australia would be courting international opprobrium if it sent warships to intercept Japanese whaling vessels in the Southern Ocean. A number of Antarctic Treaty parties have already expressed disquiet in relation to Australia’s declared maritime zone off the Australian Antarctic Territory.

The balance of legal opinion is that there is no basis under international law for Australia to assert sovereignty over the waters adjacent to the Antarctic continent. No matter how environmentally reprehensible the Japanese whaling program seems, direct enforcement action is not the preferred option; indeed, it is not an option at all.

However, Labor does have a point. Something more must be done. Harvesting 800-plus whales is not a scientific endeavour no matter what tune you dance to. Over 40 IWC resolutions rejecting the Japanese whaling program indicate that, perhaps, diplomacy needs a firmer hand. Options for pursuing international action against Japan warrant further investigation.

Duties to act in good faith and to cooperate in the management of marine resources are applicable. Issues of environmental harm and attendant liabilities might be further explored. There are risks associated with international litigation as evidenced in the Southern Bluefin tuna arbitration. However, these risks are not as great as those incurred through direct confrontation.

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Peter Fray

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Peter Fray
Editor-in-chief of Crikey