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Time to bridge deep divide

23 Jun, 2008 11:46 AM
Australia is about to head into its biggest international meeting with a clear agenda on the line for the first time since the election of the Rudd Government.

The International Whaling Commission begins its 60th annual meeting this week in Santiago, Chile, and the focus will once again be on Japan's position towards its so-called ''scientific whaling'' program under the International Convention for the Regulation of Whaling.

This meeting will be the biggest diplomatic test so far for the Rudd Government's policies on whaling.

It will also place Environment Minster Peter Garrett in the international spotlight as he heads the Australian delegation at the Santiago meeting.

Following Kevin Rudd's recent visit to Japan where there was little headway in Australia's current whaling dispute with Japan, there is an expectation that this IWC meeting may prove pivotal in Australia's push to halt Japan's whaling program. Is this a realistic expectation?

IWC meetings in recent years have turned into something of a shouting match between the 79 members. They are sharply divided between the pro-whaling nations headed by Japan and Iceland along with scattered support from Caribbean and African nations, and the conservation nations headed by Australia, New Zealand, Britain and the United States with support from other European and South American members.

The meetings have been characterised by undiplomatic language and claims and counter-claims about vote buying by the two differing factions.

This has resulted in not only volatility within the meeting room but also in the voting patterns on key resolutions.

In 2005, Australia and its pro-conservation allies won a narrow vote condemning Japan's whaling actions while in 2006 that margin was reversed by a single vote in favour of the pro-whalers.

Last year in Anchorage, the vote was spectacularly in favour of the pro-conservationists after Japan and its supporters refused to participate in a vote which called for the suspension of Japan's scientific whaling program.

However, it may be that the 2007 Anchorage meeting was a low point for the commission as since then there has been a gradual realisation that unless action is taken to return to something approaching normal diplomatic discourse, the IWC is doomed.

As a result, an extraordinary intersessional meeting of the commission was held in March in London where delegates were lectured as to how they should behave.

There was also some preliminary consideration of proposals for reform of the IWC, including some important options sponsored by Australia. Australia has been one of the few countries to put forward concrete proposals for IWC reform. Garrett will have the key responsibility in Santiago of arguing Australia's position for reform which includes closing the loophole in the convention which permits Japan's unilateral scientific whaling program.

The Australian position is that all scientific research conducted under the convention should be linked to priority research needs which are coordinated to address knowledge gaps and scientific questions that need urgent answers.

Importantly, such scientific research could be non-lethal, thereby dramatically reducing the numbers of whales which could be killed annually in the name of science. In addition, Australia proposes criteria under which scientific research could be conducted, including only with the prior approval of the IWC.

In effect, Australia supports something akin to a rigorous environmental impact and scientific justification process before whales could be taken by lethal methods in the name of science.

All of these are important and constructive proposals, however it is questionable whether they will meet with much support. While reform of the IWC has gathered momentum over the last two years, the problem is that reform means one thing to countries like Australia and something very different to Japan.

Australia's proposals would place significant constraints upon scientific whaling activities, while Japan would prefer to see the commission move back towards some form of commercial whaling. Unless there are compromises on both sides, it is unlikely that much progress will be made in the reform debate.

That is not to suggest that compromise is impossible. Under considerable international pressure, Japan dropped its plans to take 50 humpback whales during its most recent Southern Ocean hunt in December.

That Japan was prepared to make that concession was an important sign of a possible shift in its position. The onus will now be upon Australia and its friends to return the favour.

One long-standing source of Japanese grievance within the IWC has been its repeated refusal to agree to a small-scale take of whales by Japanese coastal communities. If Australia was to concede on this point, that may be the breakthrough required to get past the scientific whaling impasse.

Such a concession by Australia would, however, be a big departure from long-standing Australian Government policy to not support any form of commercial whaling and would be met by significant opposition from mainstream environmental organisations.

How reform of the IWC could legally occur is also up for debate. The United States has suggested the adoption of a new protocol for the convention, which while technically possible, would ultimately have little impact if there was no consensus support for its adoption.

It is also likely Australia will be criticised in Santiago for its implicit support of the environmental organisation Sea Shepherd.

Notwithstanding government assurances that the actions of two crew members from the Sea Shepherd ship Steve Irwin, who boarded one of the Japanese whaling ships in the Southern Ocean in January, would be subject to a Federal Police investigation, the matter seems to have quietly been forgotten. Japan will no doubt seek to remind the IWC about this event and recall the passage of a 2007 resolution condemning the actions of the environmental protesters which were referred to as ''environmental terrorists'' by some commission members.

The Rudd Government has so far committed itself to a diplomatic course of action in dealing with the whaling issue and its proposals for IWC reform are a legitimate part of that process.

But if diplomacy fails in Santiago, then pressure will build upon the Government to pursue its international legal case against Japan in the international courts.

Notwithstanding some reported ambivalence on the part of the Government towards the legal option, both Rudd and Garrett have recently put it squarely back on the table.

Pursuing diplomatic options make good sense for a newly elected Government.

The last thing Rudd would have wanted to do was immediately after his election, race off to an international court and challenge one of Australia's largest trading partners to a legal stoush.

However, the history of whaling diplomacy is chequered and notwithstanding the current moratorium on commercial whaling, the reality is that Japan has gradually been increasing its take of whales under the guise of ''scientific whaling'' for nearly 20 years.

Recent opinion polls suggest widespread support in Australia for legal action.

If diplomacy fails in Santiago, Australia may well be left with no other option but the international courts.

Donald R.Rothwell is professor of international law at the ANU College of Law, Australian National University, and in 2006 chaired the Sydney Panel of Independent International Legal Experts reviewing Japan's ''special permit'' scientific whaling.

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