Sue Arnold: Self-righteous talk won't save whales

Witnessing the battle taking place in the chilly Antarctic waters, many people are asking why the struggle to protect whales from Japanese ships is being left to Greenpeace and Sea Shepherd.

Some expert legal advice suggests that Japan's so-called scientific whaling programme, Jarpa 2, violates provisions of the Law of the Sea (UNCLOS), the Convention on Conservation of Marine Living Resources (CCAMLR), the Antarctic Treaty, the Madrid Protocol and the Convention of Migratory Species.

The advice concludes that Japan is abusing its rights under the International Convention for the Regulation of Whaling (ICRW). Yet the focus of the developing war in Antarctica has not been placed on Japan's illegal actions, or the pathetically weak response by governments with strong anti-whaling policies despite the fact that only governments can take action to stop Japan exponentially increasing its killing spree.

In the past, trade sanctions against Japan and Norway have been threatened by the United States, but under the Bush Administration sanctions are no longer an acceptable means of enforcing the ICRW.

The Howard Government's obsession with concluding a Japan-Australia free-trade agreement has ensured that trade takes priority over whale conservation.

It is rumoured that Japan may send troops to the Southern Ocean Sanctuary to protect the whaling fleet. That would increase pressure on the Australia and New Zealand Governments to act. But which way would they go?

Internationally, people who care about whales look to New Zealand and Australia as nations who will take the lead to stop the slaughter. There's a genuine expectation that these two, whose anti-whaling policies were stridently articulated at the June meeting of the International Whaling Commission in South Korea, will do something. At that meeting, the most articulate and uncompromising advocate for whales was the Minister for Conservation, Chris Carter, who has had access to legal advice outlining a selection of options available to New Zealand and Australia.

My group, Australians for Animals International, an IWC non-governmental organisation, commissioned legal advice from three experts on steps governments could take.

These experts included Professor David Bederman, Emory Law School, Atlanta, who specialises in Antarctic Treaty law, Professor Jon Van Dyke, University of Hawaii, specialising in the law of the sea, and Professor Don Rothwell, Challis Professor of International Law, Sydney University.

Bederman says the most obvious and direct route to decisive action against Jarpa 2 is available within certain provisions of the Convention on Conservation of Marine Living Resources, which is ratified by Japan, New Zealand and Australia.

Bederman considers that New Zealand has an obligation under this convention to make efforts to prevent others from activities that harm Antarctic life and to notify the commission of harmful activity and that this requirement "seems to impose an affirmative duty on contracting parties to loudly protest Jarpa 2".

Bederman also says that under the Madrid Protocol, which governs the Antarctic Treaty System, Japan is required to complete an environmental assessment on Jarpa 2.

Provisions within the protocol prevent Japan from creating an assessment that would simply declare that the impact of Jarpa 2 is minor or transitory. The protocol provides for dispute settlements by peaceful means.

But at the recent Convention on Conservation meeting in Hobart, neither New Zealand nor Australia nor other contracting Governments with strong anti-whaling policies agreed to put the Japanese "scientific whaling" programme on the agenda.

It is considered bad form to criticise Japan within the Antarctic Treaty System. No one seems to know why.

Convention on Conservation meetings censor whales out of any discussion of the Antarctic marine ecosystem - a situation that can only be described as environmental lunacy.

Only one non-government organisation is allowed to monitor the meetings and journalists can cover only the opening ceremonies.

Carter has an obligation to explain why New Zealand is not taking decisive action and needs to explain why the Government is ignoring the legal advice provided to him, as minister, in good faith.

In relying on diplomacy - which thus far has resulted only in increased quotas by Japan - and refusing to take action under the Law of the Sea or the Antarctic Treaty System, any government purporting to be pro-whale is in effect weakening the international conventions that protect the marine environment.

The collective failure to take action will allow precedents to be created which are likely to see other nations granting themselves "scientific" quotas in the Antarctic.

The status of the Southern Ocean Sanctuary continues to be meaningless unless signatories to the Antarctic treaties use their powers under the conventions.

There has never been a more serious moment in history for the survival of whales. It is time to walk the talk.

* Sue Arnold is co-ordinator of Australians for Animals International, based in Byron Bay, NSW.