Saturday, January 09, 2010

Saturday Morning Musings - difficulties with whales

The current imbroglio over whaling in the Southern Ocean between the Sea Shepherd and Japanese whalers provides drama and some great visuals. My only difficulty is that I don't think that you can believe a word either side says.

The current Australian Government is in a difficult position on whaling, as was the Howard Government before it. It is opposed to whaling, as is majority Australian popular opinion.

Internationally, Australia appears to have have limited options. Because I did not understand the structure of the International Whaling Commission nor its history, I spent a little while pursuing it and the history of the Antarctic Treaty through various Wikipedia entries.

As best I can work out,  Australia may be able to mount a legal international challenge to Japan's scientific whaling program. However,  It would appear that all Japan has to do to legitimise its position and move to full commercial whaling is to withdraw from the IWC and, possibly, the Antarctic Treaty as well since this limits Antarctic activities to scientific ones.  Norway, which carries out commercial whaling, remains a member of the IWC but is able to whale in Northern waters because it previously lodged a formal objection to the actions limiting commercial whaling. 

The domestic position is more interesting from a legal perspective, in part because it involves a continuing outcrop of Empire.

Australia lays the greatest territorial claims to Antarctica of any nation.

In 1933 a British Imperial Order transferred claimed Antarctic territory to Australia, a transfer accepted by an Australian Act of Parliament in that same year. Since then, Australia has consistently maintained its formal ownership claim, and thus the formal application of Australian law to Australia's Antarctic Territory.   This was recognised by a January 2008 Federal Court ruling that Japan's so-called scientific whaling program in the Southern Ocean violated Australian law.

Australia's problem is that only four countries - New Zealand, UK, France and Norway - recognise Australia's claim. More countries including Japan do not. The 1961 Antarctic Treaty to which Australia is a signatory essentially did not deal with territorial claims. This means that while Australian law formally applies, the capacity of Australia to practically enforce any domestic court decisions is limited. Further, any attempt to do so risks significant damage to other Australian interests.

All this means that while oppositions may pontificate, all Australian Governments are likely to continue to temporise to some degree, no matter what the strength of public opinion within Australia. 



daniel said...
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Anonymous said...

Thanks, a very interesting commentary on the legal issues surrounding whaling. My feelings are: (1) claims that the Japanese whaling is 'illegal' are spurious, as your post suggests (2) regarding the latest incident, it seems very unlikely that it would be possible for the Japanese ship to have deliberately rammed the much faster and more manoeuverable anti-whaling boat - it seems to be an incident deliberately manufactured by the anti-whaling group (3) as you say, a majority of the Australian public is probably against whaling. For them it is a motherhood issue. However the underlying ethical issue is whether humans are justified in killing and eating mammals. If Hindus started picketing Macdonalds stores and demanding an end to the killing and eating of cattle in Australia, the reaction would be rather different.

Jim Belshaw said...

Thanks, Anon.

We humans are always inconsistent in our views as to what we kill to eat or just to hunt for that matter. Part of the argument in the case of whales is the nature of the death - often slow.

Anonymous said...

Perhaps attempting to bring the commercial killing of whales more in line with modern slaughterhouse standards through the IWC negotiations is a more sensible tactic than confrontational publicity stunts aimed at ending whaling altogether.

Such stunts may increase public pressure on governments like Australia's but are ultimately pointless if, as you suggest, these governments are largely powerless to prevent other governments' commercial whaling activities.

Jim Belshaw said...

If whaling is to continue, anon, then the issue raised in your first para needs to be addressed.