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ENVIRONMENT: Australia Stands Firm on Anti-Whaling Move vs. Japan

Neena Bhandari

SYDNEY, Jun 2 2010 (IPS) - Deep rift continues between pro and anti-whaling members of the International Whaling Commission (IWC) as Australia Tuesday lodged legal action in the International Court of Justice (ICJ) against Japanese ‘scientific’ whaling, calling for a permanent end to all whaling in the Southern Ocean, an established whale sanctuary and a critical feeding ground for the mighty mammals.

In separate statements issued earlier this week to the media, Japan has expressed its disappointment over Australia’s move while two of the anti- whaling countries, the United States and New Zealand, said a diplomatic channel would have been a better option than hoping for a favourable litigation outcome to save the whales.

But as the countdown begins to the IWC’s 62nd annual meeting, the Australian government has reiterated, in a statement, that it remains “resolutely opposed to commercial whaling and unilateral ‘scientific’ whaling, and strongly supports the global moratorium on commercial whaling.”

The IWC meeting in Agadir, Morocco from June 21 to 25 will tackle a controversial compromise proposal that would allow countries to resume commercial whaling provided they abide by strict quotas that will be reduced over the next 10 years.

Despite the 1986 global moratorium on commercial whaling, about 1,600 whales are killed annually, according to the IWC. Since the moratorium, over 33,000 whales have been killed under Article VIII of the 1946 International Convention for the Regulation of Whaling (ICRW), which allows any contracting government to grant “any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research.” Australia claims that Japan has abused its right to scientific research whaling under Article VIII of the ICRW. In 2008-09 Japan killed 1,004 whales, including 681 in the Southern Ocean, in the name of ‘scientific’ whaling, based on data from the IWC.

In his statement to the media, Foreign Minister Stephen Smith said “that the action we have taken is the best action to advance our policy objective, which is to see Japan cease whaling in the Southern Ocean.”

“Australia also asserts Japan has breached its international obligations under the 1973 Convention on International Trade on Endangered Species of Wild Fauna and Flora by hunting whale species listed as endangered,” Donald Anton, a senior lecturer in international environmental law at the Australian National University, told. IPS.

“Australia has probably lodged the application now because it appears that a compromise might be reached on the resumption of whaling in exchange for greatly reduced catches,” said Anton.

He added that Australia also invoked Article 3 of the1992 Convention on Biological Diversity “in claiming that Japanese whaling is causing harm beyond national jurisdiction in the Southern Ocean.”

Australia’s whaling case against Japan is likely to proceed in two phases, said Anton. First, Australia will probably request an injunction that will restrain Japan from all scientific and other whaling activities until the case is decided or the health and size of the whale stocks are established to the satisfaction of the court.

“Australia will push towards getting an injunction for the 2010-11 whaling season in the Southern Ocean,” he said.

The second or the merit phase will determine whether Japan has breached its international obligations, as asserted by Australia, said Anton. This could take anywhere between three and 10 years, “so it will be a long process before the case is resolved in toto.”

Anton expects Japan to contest the case by citing Article VIII, which allows states to issue special permits for scientific research whaling on the conditions each state “thinks fit,” he stressed. “This very wide discretion makes the argument about an abuse of rights difficult.”

Once the case is resolved, the international community will have a definitive legal view about the interpretation and application of the ICRW. That is, at what level does scientific research whaling become a pretext for commercial whaling, which has been the crux of dissension between pro and anti- whaling countries? Politically, whaling has been an eyesore in the broader Australia-Japan bilateral relations. In a recent survey by the Sydney-based Lowy Institute for International Policy, Australians gave the government a mere 4 out of 10 on its policy on Japanese whaling.

This being an election year, Australian Prime Minister Kevin Rudd has come under pressure to honour a 2007 election pledge to ban whaling in the Southern Ocean Whaling Sanctuary, a 50-million-square-kilometre area surrounding the continent of Antarctica, where the IWC has banned all types of commercial whaling.

“The move by the Australian government to finally initiate legal action comes three years and 2000 slaughtered whales too late. Australia should seek an injunction to prevent any whale kill until the judgment is made,” Bob Green, leader of Australian Greens Party, which has seen a record high surge in support in recent weeks as voters turn away from the two main political parties, told IPS.

Some environmental groups in Australia said the government should not rely on litigation alone to save whales, but must remain focused on negotiating a deal for phasing out whaling.

Whaling should be phased out within three years, said Greenpeace Australia’s Whaling Campaigner, Reece Turner.

“As the litigation may take many years to conclude, we want Australia to ensure that the deal in Agadir doesn’t include the controversial proposal that would allow commercial whaling at a reduced quota over the next decade. This would only legitimise whaling in the Southern Ocean Whaling Sanctuary and undermine the legal case,” he said.

In a statement released earlier this week, the World Wildlife Fund, an international organisation promoting conservation of wildlife and endangered species, has called on the IWC members to ensure any deal must also prohibit international trade in whale products.