Antarctic Treaty Seemingly Not for Whales’ Sake

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In recent weeks, the Australian Government has engaged in a carefully choreographed piece of diplomatic and political chest beating over Japan’s so called “scientific whaling,” which has amounted to absolutely nothing.

In a string of media interviews, the Environment Minister Tony Burke has repeatedly called the Japanese behavior “wrong” even outright “illegal,” but has stopped short of doing anything about it.

Burke’s argument is that while the activities of the Japanese fleet were occurring in Australian territorial waters off the coast of the Antarctic, the sacrosanct Antarctic Treaty System would be undermined if Australia actually intervened or even monitored the situation with its own vessels, opening the continent to much more harmful mining exploitation.

The Treaty itself was signed in 1961 by twelve countries including Australia and Japan, and entered into force two years later. Today more than 50 countries are party to the Treaty.

At the time, many countries were primarily worried about the militarization of the only continent without a native human population; particularly for use as a nuclear test site or as a base designed to ensure safe passage around Cape Horn for vessels crossing from the Atlantic to Pacific Oceans if the Panama Canal became unnavigable for whatever reason.

However, in recent years the real risk of any Antarctic competition has come in the form of an economic rather than strategic imperative, with its high-value natural resource deposits and, to a lesser but more bloody extent, ocean stocks such as whales.

Therefore, it is important to note that in an impressive act of foresight the Treaty went beyond such strategic considerations and established the continent as a scientific and natural reserve.

But this factoid seems to have been forgotten somewhat conveniently by the Australian Government, which seems to believe that a peaceful and temporary military presence to curb natural exploitation will be seen as violating the treaty and open the country up to commercial exploitation.

Burke’s argument presumably rests in isolation on Article I of the Treaty, and even then only on the part that deals with military activity on the continent, mentioning explicitly the example cited earlier of nuclear testing. However, the Article does go on to endorse military activity on the continent so long as it is for “scientific research or any other peaceful purpose.”

And of course this says nothing of the remaining 13 Articles, which are designed to uphold the basis of the continent’s scientific and natural reserve that are now being broken to varying degrees by the Japanese (including, for example, accusations that they are also using heavy fuel oil below the 60 degree line of latitude).

Japan’s ludicrous defense of course is that their activities are merely “scientific research,” utilizing a loophole that dates back to the 1946 establishment of the International Whaling Commission when the industry became heavily commercialized and a subsequent 1986 moratorium, both of which included the scientific exception for whaling alongside small amounts for indigenous populations and other cases.

However, a 2006 ABC investigation found that only four academic papers had been published by the Japanese that required fatal whaling practices, in contrast to an estimated 6,800 whale deaths in the previous 16 years. In other words, one academic paper per 1,700 whales killed.

Therefore it is little wonder populations around the world remained horrified by Japan’s activities.

A 2008 poll by The Lowy Institute found 58 percent of Australians held the most uncompromising view of whaling, and believed their country should do more to stop it even if it risked hurting economic relations with Japan. In contrast, only 4 percent argued Australia’s economic relations should be held in higher esteem, with 3 percent not wanting whaling stopped regardless, and 33 percent believing the then more activist approach of the Rudd Government to whaling was about right.

Indeed, during the 2007 election, then-Opposition Leader Kevin Rudd threatened to take Japan to the International Court of Justice (ICJ) and, following his election, deployed the Customs vessel, Oceanic Viking, to the same waters in January 2008 on a twenty-day mission to track and monitor the Japanese whaling fleet and record evidence for such a legal challenge. The move was almost universally applauded and in May 2010 a formal case was lodged with the ICJ in The Hague, which is still pending.

Since then, Australia’s activism has been gradually stepped down in all corridors, particularly given the sensitivities that emerged in the bilateral relations with Tokyo in early 2008 over perceived neglect vis-à-vis China and a Mandarin-speaking Prime Minister. However, other countries including New Zealand have increasingly become interested in and attracted to Australia’s ICJ approach. And while WikiLeaks cables revealed the Australian Government itself was hesitant to take legal action, there is little doubt this sort of professional diplomacy is likely where a long term impact will be made; especially if Australia can build a coalition of supportive countries and seek to influence the new Japanese leadership.

For their part, the Opposition recently called on the Government to deploy a vessel to our Antarctic waters and they should have done so.

However, Burke asserted that this would only “make the situation so much worse” when the vessel would implicitly be forced to condone the activity by having to “watch and do nothing.” But the reality is that this is exactly what the Government was already doing, albeit to a greater degree by being more than 2,000 kilometers away.

All this says nothing of course of the danger in the way the situation was being handled. If the current trajectory is allowed to continue it is likely only a matter of time until a member of the Japanese fleet or the Sea Shepherd is injured or even killed, and when that time comes it will be Australia’s Maritime Safety Authority that will be responsible for managing the incident if it occurs in national waters. With reports of collisions between vessels as recently as last month, the threat of an oil spill remains a real and present danger. .

At the end of the day, by sending a ship to the waters Australia would not be asserting itself against one nation, but rather asserting international law and standing up for the values it presumably holds to be true. And while deploying a vessel might not stop the whaling, it will at least show the Japanese that Australia is watching and bring a needed dose of caution to the situation.  

So all this begs the question: what is the point of having a treaty if countries do not defend it and the values they believe in?

Thom Woodroofe is an associate fellow of The Asia Society. Follow on Twitter @thomwoodroofe.

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