This is a measured editorial that looks at the international legal ramifications of Sea Shepherd’s attacks on the Japanese whalers in the Antarctic. But the illegal whale hunt provokes an unmeasured response in us. The thousands of whales that would be killed over the next several years while international law grinds its way through the system is too high a price to pay. As the Japanese have shown no interest in real conservation or sustainable fishing or even stopping the Taiji dolphin slaughter, we aren’t hopeful they will abide by any international treaties. We feel Sea Shepherd must keep up the pressure and continue to hurt the whaling fleet economically and have invited them to respond. What do you think? – Global Animal
The Sydney Morning Herald, By Donald Rothwell
The annual ritual of high seas clashes between the Japanese whaling fleet and the Sea Shepherd Conservation Society have resumed again in the Southern Ocean. As always they are characterised by claim and counter-claim as the Sea Shepherd vessels – the Steve Irwin, Bob Barker, and Gojira – pursue the Japanese whalers in their efforts to disrupt Japan’s annual whale hunt. The latest claims include allegations that Sea Shepherd has resorted to lobbing stun grenades, also known as ”flash bangs”, onto the Japanese whaling vessels. Sea Shepherd has furiously rejected those claims and will admit only to the use of smoke and stink bombs.
While all of the rhetoric associated with the annual Japanese whale hunt may be familiar, the current season can be distinguished from those in the past on three grounds. First, last January a serious collision occurred between the Japanese whaler Shonan Maru No. 2 and the Sea Shepherd’s New Zealand-flagged Ady Gil. While there have been many previous clashes between the Japanese whalers and protest vessels, the January 2010 collision was notable for its violence, which resulted in 3.5 metres of the Ady Gil’s bow being sheared off. It remains something of a miracle no lives were lost, though the Ady Gil was so severely stricken that it was ultimately scuttled in the Southern Ocean. While maritime inquiries in Australia and New Zealand were inconclusive, the loss of the Ady Gil highlighted the risks at stake during Southern Ocean protests and it is unsurprising that both the Australian and New Zealand governments have in recent weeks called for responsible behaviour from all sides. Given the distances involved, there is no guarantee of a quick ocean rescue following a maritime disaster, a point underlined by Prime Minister Julia Gillard this week.
Second, for the first time one of the Sea Shepherd vessels, the Gojira, is registered in Australia. Sailing under the Australian flag not only directly heightens the level of Australian interest in Sea Shepherd’s activities, but it also creates a much stronger legal link with Australia, which extends to the application of Australian law to not only the operation of the Gojira but also to its crew. This is an issue of some significance, especially following Japanese complaints in both 2009 and 2010 that resulted in the Australian Federal Police conducting investigations aboard Sea Shepherd vessels upon their return to Hobart.
Those investigations were conducted under the provisions of the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, an anti-terror treaty adopted following a 1985 terrorist attack in the Mediterranean. While the 2009 and 2010 investigations proved inconclusive, the Australian-flagged Gojira opens the door for Australian Federal Police initiated investigations with respect to possible criminal acts occurring during Southern Ocean protests, in particular with respect to incidents covered by the Commonwealth Crimes at Sea Act.
Third, and perhaps most significantly, on May 31, 2010, Australia began proceedings in the International Court of Justice to halt Japan’s Southern Ocean whaling operations. The legal claim is at a very early stage with detailed written legal submissions to be made by both Australia and Japan in 2011 and 2012. There is every prospect that following oral submissions a judgment may not be delivered until 2015. As the wheels of international justice grind on, Australia must be careful its position is not compromised by the actions of Sea Shepherd.
One revealing aspect of some WikiLeaks cables released this month is the level of concern the Japanese government has had with respect to Sea Shepherd’s actions and the efforts Japan has taken to raise those concerns with a number of other governments, including the US. Until now, Australia has been somewhat at arm’s length from those concerns as Sea Shepherd ships were registered elsewhere, often in the Netherlands. However, the legal link now clearly exists because of the Australian flagging of the Gojira, a point reiterated this week by the Japanese Institute for Cetacean Research, which noted that Australia is ”the virtual home port” of Sea Shepherd vessels and should ”take every means to restrain them”.
Why might this prove to be such a headache for Australia? One reason is that Australia would be anxious to avoid being subject to a counterclaim by Japan before the International Court asserting that it was failing to meet its international legal obligations under the 1988 Maritime Navigation Convention. If Sea Shepherd continue with their protest actions in the Southern Ocean and endanger the Japanese whaling vessels and the lives of their crew, then certainly a strong argument can be made that Australia should act at a minimum to control the actions of the Gojira.
If not, Australia’s international legal claim against the legitimacy of Japan’s whaling program could be compromised. The time may fast be approaching when Australia needs to choose between a game of high-seas cat and mouse, and considered legal argument in the international courts.
Donald Rothwell is Professor of International Law at the ANU College of Law, Australian National University