Let’s be clear about it: Australia is not going to declare war on Japan over whaling.

This is probably just as well for everyone concerned, including the whales; it was the last war with Japan that gave us the problem in the first place.

Shortly after the Japanese surrendered, Douglas MacArthur, the American supremo overseeing the allied occupation, was faced with a major food shortage and suggested that whale meat might be a useful supplement. The Japanese, forbidden by the terms of surrender from keeping a navy or any other kind of defence force, jumped at the chance to get back on the high seas and the rest, as they say, is history.

So much for the great Japanese tradition of killing and eating whales; it was supposed to be a short-term expedient for a starving nation. Even now, most Japanese, like people everywhere, prefer beef, lamb or other types of seafood; the latter diet has its own conservation issues, but none as emotive as whaling.

Before 1945 whales were indeed hunted by some native communities, but the hunt was small, local and sustainable. Now it has become an issue of national pride, and while the Japanese might neither need nor savour the product, they are not about to give it up because some ockers tell them to. So just what can the ockers do about it, apart from screaming until they go blue in the face?

Some excitable souls have suggested a boycott of Japanese goods but boycotts can work both ways. China has just overtaken Japan as Australia’s biggest trading partner, but Japan remains a huge and massively important customer. An end to trade would effectively kill off the Australian economy almost overnight. So forget about that one.

Diplomacy has always been the course preferred by government, but it has not achieved much so far, and in any case has been compromised by what the Japanese see as Australia’s covert support for sabotage operations by organisations such as Sea Shepherd. There is no doubt that Sea Shepherd has been effective in harassing the whalers and limiting their catch; the violent and potentially homicidal response makes that clear enough. But it has only strengthened the Tokyo government’s resolve to press on; again, national pride is involved.

So if war is not an option, economic sanctions would be counterproductive and diplomacy has proved ineffective, what is left? Only what the Rudd government obviously regards as the weapon of last resort, the legal action that was so fiercely promised two-and-a-half years ago. Environment Minister Peter Garrett insists that it is still a serious and genuine threat if nothing comes of the latest round of talks through the International Whaling Commission, but he is clearly reluctant to implement it; and with good reason.

Any legal action by Australia would have to be based on one of two grounds. The first is that the Japanese are trespassing in Australian waters against Australian law, a proposition that has already been upheld in the Australian Federal Court. This relies on the validity of Australia’s claim to a large slice of Antarctic Territory and on the surrounding seas up to the 200 mile (320 kilometre)  limit. Japan does not recognise this claim; well, Japan wouldn’t, would it? But nor does almost anyone else.

The modern international consensus is that Antarctica should belong to the world at large and not be exploited by individual nations, and the same applies to the waters around it. Australia’s claim to sovereignty is therefore seen as old-fashioned nationalism, even neo-colonialism. And, of course, it is unenforceable; there is no way that Australia could ever defend or even police the area.

There is certainly a view held by many, though not all, countries that Antarctic waters should be a sanctuary, especially for endangered species of whale, but again no one is going to go to war to protect them. It is hard to see an international court accepting that Australia has the legal right to throw out the Japanese.

But aren’t the Japanese there under false pretences, the absurd fiction that their whaling is for the purposes of scientific research? Sure they are; everyone knows it, and in recent times even Tokyo has gone very close to admitting it. The Environment Minister in the new government, Sakihito Ozawa, in a recent justification for the annual hunt, spoke not of research but of Japan’s right to eat whale meat. And the IWC has a moratorium on all forms of commercial whaling; so surely Japan is in breach of it?

Yes, beyond any reasonable doubt; but prove it. In 2008 Australia sent the Oceanic Viking to collect evidence of Japanese activities for its potential court case, and the Viking duly returned with videos of Japanese killing whales. But this was never in dispute. What the videos don’t and can’t show is the Japanese not doing scientific research on the remains. And even if they somehow managed to prove this negative, it is not clear that it would be a matter for the International Court of Justice: the moratorium is simply an agreement between the members of the IWC. Japan could easily claim that it is not a legally enforceable contract, and that therefore Japan is not bound by it.

As always, litigation would be a morass, and the government is sensible to steer clear of it for as long as possible. But time is running out; if there is no progress in the next few months, Rudd will have to take the risk, if only to maintain his own political credibility. It may not help the whales much, but they are not the only creatures endangered in the current brawl.

Peter Fray

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