Theatre sports in the Southern Ocean: engagement options for Australia in whale research protest action

Abstract

In the great whaling debate, fuelled twice yearly by the annual International Whaling Commission meeting and the departure of the Japanese research fleet for the Southern Ocean, silliness knows no bounds. 2008 was no exception, as the Southern Ocean again became the location of protest action (sometimes provocative and potentially life-threatening) against Japanese scientific research vessels. The Japanese are accused of ‘whaling’ in a whale sanctuary off the Australian Antarctic Territory, yet this claim to sovereignty is not legally proven and therefore not universally accepted. The Rudd Labor Government bowed to significant pressure and sent its Customs vessel, the Oceanic Viking, to spy on the Japanese fleet and gather evidence for a possible ‘world court’ action. This paper examines what options were available to Australia to intervene in the protest action, to monitor the Japanese research and to take legal action in an international forum within the constraints of internationally defined diplomatic and legal boundaries. It concludes that the risk of attracting the wrath of the Japanese government and other Antarctic Treaty countries is great indeed and the Australian government must be careful not to step too far outside these boundaries.

Notes

1. In his original judgment in 2005, Justice Allsop noted that there appeared to be a clear prima facie case of contravention of the Environment Protection and Biodiversity Conservation (EPBC) Act but dismissed the application by HSI on the basis that any injunction granted would be ineffectual (Rothwell and Scott 2007: 17–18; Stephens and Boer 2007: 66–69; Jabour et al. 2007: 137–139).

2. The term ‘Antarctic waters’ refers to waters south of 60° South in accordance with the Antarctic Treaty Article VI. The waters around Heard Island and McDonald Islands are also declared EEZ and are part of the Australian Whale Sanctuary but they are not within the ambit of the Antarctic Treaty. The deployment of vessels to combat illegal fishing in these sub-Antarctic waters is, therefore, a different matter (Lugten 2007).

3. For example, Australia led the small group that eventually succeeded in ousting the Convention on the Regulation of Antarctic Mineral Resource Activities (Wellington, 2 June 1988) in 1989 in favour of an environmental protocol to the Antarctic Treaty (Madrid, 4 October 1991), which contained a prohibition on minerals activity (Article 7). See Bergin (1991: 216) for more information on the domestic aspects of this action.

4. In 2002 Australia proposed listing the Patagonian toothfish on Appendix II of the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES), thereby trying to secure greater protection for it. Its proposal was presented to the 21st meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) in Hobart, and was discussed briefly in several committees before being referred by the parties to the Commission plenary. An unprecedented 75 paragraphs of the CCAMLR XXI Final Report are devoted to the negative reaction the Australian proposal received. Never before in the history of CCAMLR meetings had a single issue raised such a level of opposition as this, with only New Zealand speaking in support of the proposal (CCAMLR XXI 2002).

5. For example, in its submission to the UN Commission on the Limits of the Continental Shelf, Australia expressly asked that the CLCS disregard for the moment data pertaining to the Antarctic (Jabour 2006).

6. It is useful to recall here that five of the 12 states attending the preparatory meetings and the final conference that adopted the Treaty in 1959 (Japan, Belgium, the former Soviet Union, South Africa and the US) were not claimants to Antarctic territory and logically would not have accepted the drafting of articles that prejudiced their position in any way.

7. The text of CCAMLR is available from the CCAMLR official website, at <http://www.ccamlr.org> and the Madrid Protocol, from the Antarctic Treaty Secretariat official website, at <http://www.ats.aq> (22 January 2008). See CCAMLR Article VI: ‘Nothing in this Convention shall derogate from the rights and obligations of Contracting Parties under the International Convention for the Regulation of Whaling and the Convention for the Conservation of Antarctic Seals’; and Madrid Protocol Article 4.2: ‘Nothing in this Protocol shall derogate from the rights and obligations of the Parties to this Protocol under the other international instruments in force within the Antarctic Treaty System [.ie. CCAMLR]’.

8. To the best of our knowledge, recognition has never been sought by a show of hands, therefore it is known only that the UK, New Zealand, France and Norway have accepted Australia's sovereignty.

9. A Google search for the words ‘Sea + Shepherd + hostages’ revealed 1555 sites under just one website heading alone. Among them was this on the Sea Shepherd website: ‘Sea Shepherd crew continue to be held hostage by Japan’, http://www.seashepherd.org/news/media_080116_1.html; and this on the Sydney Morning Herald website: ‘Stalemate over whale “pirate-hostages”’, <http://www.smh.com.au/news/whale-watch/stalemate-over-whale-piratehostages/2008/01/16/1200419869014.html> (accessed 17 January 2008).

10. The name was chosen to reflect Sea Shepherd's approach of aggressive, yet non-violent confrontation.

Additional information

Notes on contributors

Julia Jabour

Dr Julia Jabour is Senior Lecturer at the Institute of Antarctic and Southern Ocean Studies. Her research interests are eclectic and she has published in a variety of fields including Antarctic tourism, international law, environmental law, threatened species conservation, international marine management, and whaling

Mike Iliff

Mr Mike Iliff is in the final year of a PhD candidature at the Institute of Antarctic and Southern Ocean Studies. His research investigates the International Whaling Commission during the period 2005–2009 and he has published a number of manuscripts from his research to date