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Harpooning ourselves in the foot

By Brendan O'Reilly - posted Monday, 29 July 2013

If you want to create lasting animosity, a good way of going about it is to take someone to Court.  If you want to "shoot yourself in the foot" for good measure, you could target such legal action against someone you depend on, like one of your best customers.  You could go still further in getting them offside by also throwing in some hypocrisy, cultural insensitivity, and tolerance of criminal behaviour against them.  And if you really want to cap it off and be totally stupid about it, you could choose to litigate an issue where, even if you did win, the legal outcome could not be enforced.

This all describes Australia's dispute with Japan (our second largest trading partner) over "scientific whaling" in the Southern Ocean, which has been allowed to develop from a war of words into skirmishing on the high seas, and now into a major case at the International Court of Justice.  Australia is asking the Court to ban the whale hunt, which Japan has been undertaking in the Antarctic since the global moratorium on commercial whaling came into force in 1986, and which involves a relatively small number of (largely not endangered) whales.  A decision is expected about December.

Japan has expressed extreme annoyance with Australia, and has indicated that if it loses it will simply leave the International Whaling Commission (IWC) in order not to be bound by its rules.  Japan's Fisheries Minister has vowed that Japan would never stop hunting whales because of their importance to Japanese culture.  Thus the only real direct losers would Japanese pride and the authority of the IWC. 


At the outset I wish to make it clear that I see a key issue to be Japan's right or otherwise to harvest a limited number of whales for human consumption, that does not threaten the recovery of the various whale species.  I happen to agree that the so-called "whaling for purposes of scientific research" has always been a pretext, but will leave it to the lawyers to argue the technical aspects of its legality under the Whaling Convention. 

What I am also getting at is that Australia's legal action, while it might have both a factual and legal basis, is hypocritical, driven by unbalanced views, and likely to be ineffective and self-damaging.  (That is not to say that Japan has been a model citizen either, when it comes to maritime species conservation.) 

Australians, in common with citizens of most developed countries, seem to have multiple standards in respect of animals.  We are very concerned about the welfare of companion animals (dogs, cats), animals regarded as intelligent (monkeys, horses), and other animals that remind us of humans (generally with eyes in the front of their head, such as seals).   At the other end of the spectrum nobody seems to care greatly about animals such as mice, rats, snakes, and probably most reptiles.  As far as the marine world is concerned, the creatures we go dotty about are whales, dolphins and seals, probably because they are perceived as intelligent, large, and generally not threatening to humans.

Most Australians are aware of our whaling past but generally don't appreciate the degree of its importance, particularly to the early colony.  Whaling can be traced back to as early as 1791.  The export of whale oil and bone was one of Australia's first major industries, and sealing and whaling are said to have contributed more to the colonial economy than land produce until the 1830s.  The demise of the industry in Australia was largely linked to petroleum replacing whale oil, and competition with the gold industry for labour, rather than to conservation concerns.  The last remnants of our whaling era ceased in the late 1970s, when declining stocks and a Greenpeace campaign contributed to the closure of our last whaling station at Albany. 

Anecdotal evidence suggests that whale populations, especially humpbacks, have been steadily increasing in Australian waters since the end of whaling. There are regular beachings of whales on our coastline, particularly of pilot whales and sperm whales.  This generally attracts enthusiastic but generally unsuccessful "rescue" attempts, and the whale carcases are generally left go to waste.

While Australia decries Japan's current whale harvest, we ourselves engage in equivalent behaviour.  In particular, (under section 211 of the Native Title Act 1993) our indigenous people are still allowed to hunt dugong (a species vulnerable to extinction) and marine turtle, with some of the methods used being widely described as cruel.  Had whale hunting been part of our aboriginal culture, I have little doubt that we would support limited subsistence whaling in this country.  Significantly, indigenous hunting has been claimed to be largely responsible for the decline in our dugong numbers during the past thirty years.


A significant consideration in our dispute with Japan is Australia's little recognised claim to about one third of the Antarctic landmass.  In 1994 this claim was extended to a surrounding 200-nautical-mile exclusive economic zone, which also includes part of the International Whaling Commission (IWC) Southern Ocean Whale Sanctuary.  In Australian law, our anti-whaling legislation applies to this exclusive economic zone but such jurisdiction is recognised by only four countries, not including Japan.  Our Antarctic claims likely were a consideration in Rudd Government plans announced in December 2007 to monitor Japanese whalers in these waters in order to gather evidence for a possible international legal challenge. 

An Australian organisation, Sea Shepherd Australia, operates freely out of Australian ports harassing the Japanese whaling fleet on the high seas with the stated objective of "sinking the Japanese whaling fleet economically".  Australian authorities have turned a blind eye to incidents bordering on piracy, and to flagrant breaches of basic rules of safety in navigation (which, inter alia, require ships to keep a safe distance from other vessels) on the part of Sea Shepherd.  It seems that Australia is being selective in enforcing its laws in our claimed Antarctic waters.  Japan is being pursued for breaking anti-whaling laws but Sea Shepherd can break other maritime laws with impunity.

In response to extreme provocation by Sea Shepherd, the Japanese whaling fleet responded with great restraint but has been given little public credit.  There is little question that fishing fleets from other major maritime nations (e.g. the Chinese or Russians) would react much more forcefully if their vessels had been accosted in a similar manner.  Had a container ship been subject to the same harassment as the Japanese whaling fleet, I have no doubt that the our authorities would have been spurred into action.   

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About the Author

Brendan O’Reilly is a retired commonwealth public servant with a background in economics and accounting. He is currently pursuing private business interests.

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