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Whaling case worth the gamble

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Hobart correspondent for Fairfax Media

View more articles from Andrew Darby

When Australia first went to court against Japan over whaling, it was against clear warnings from anti-whaling allies.

The US commissioner at the International Whaling Commission, Monica Medina, called it a ''bet the whales'' case - an uncertain gamble on whales' lives.

If defeated, it would make all conservation-minded countries losers, Ms Medina said.

New Zealand's former prime minister, Sir Geoffrey Palmer, also opposed it.  A wily diplomatic negotiator, Sir Geoffrey said the case could do more harm than good, and warned Wellington to tread carefully in any involvement.

But even as these key figures were speaking, it was clear that their own hard-fought attempts at a negotiated settlement with whaling countries were exhausted.

Australia went a long way, too, in those IWC talks trying to agree with Japan on a phase-out of its Antarctic hunt. Eventually Canberra could go no further.

So on Wednesday, three years after the case was lodged, we meet our otherwise good friend in the International Court of Justice at The Hague.

The stakes are clearly high.  If Australia wins, Japan must be counted on to stop all Antarctic whaling. If Australia loses, Japan could claim its whaling has an over-riding legitimacy it now lacks.

Why is this case worth the risk?

Back when he was environment minister in the Howard government, now Coalition communications spokesman Malcolm Turnbull talked about this disagreement between friends.

Friendship had many obligations, Mr Turnbull said. ''And one obligation of friendship is to be honest with each other.''

Australia says that such a conspicuous abuse of international law as Japan's scientific whaling is dishonest. Successive governments and ministers have held to this line.

Most recently Environment Minister Tony Burke called Japanese Fisheries Minister Yoshimasa Hayashi's claim, that whaling was a question of food security, a concession that the hunt had nothing to do with science.

''It's significant for them to have abandoned any pretence of a so-called scientific reason,'' Mr Burke said.

As the case is argued over the next four weeks, Australia will ask the ICJ's 16 judges to find Japan wrong too. Australia will argue that Japan is contravening the intent and practice of the lethal hunt rule in the global treaty on whaling; it is instead conducting commercial whaling in a whale sanctuary.

Japan's response is expected to be an attempt to throw the case out - to say that it's beyond the ICJ's jurisdiction.

Japan is likely to argue that as long as the whalers use scientific research methods, the number of whales killed is justified. (Never mind repeated IWC majorities rejecting the science and calling on Tokyo to stop.)

Should Australia fail, not only would more minke and fin whales face the harpoon, but it may be pointed at humpback whales too.

For six years Japan has had humpbacks on its list, though this quota is officially ''suspended''.

Today these whales are on their annual winter migration along our shores. To most Australians it is unthinkable that they might be targetted, instead of celebrated.

Already conflict in the Antarctic between whalers and conservationists is escalating every whaling season.

A humpback hunt would galvanise greater backing for Sea Shepherd Australia, and this conflict would significantly worsen.

The great risks associated with shipping clashes in the Antarctic would exponentially increase. So would the damage to Antarctica's place as the world's land of peace and science.

Having exhausted diplomacy, the ICJ is the only alternative open to the Australian government.

It has much to lose, but more to gain.

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