Australia has got itself into a very uncomfortable position over the Japanese whaling in Antarctic waters.
Pretty clearly, despite the ALP promising before the election to take international legal action against Japan, it has been advised that there would be no hope of succeeding. I guess the legal advice would be privileged and not available on FOI. Does anyone know?
The case of HSI v Kyodo Senpaku Kasha in which the Federal Court upheld the legislation establishing the Australian Whale Sanctuary means nothing outside Australia. The court said that the question of Australia’s sovereignty over the area could not be questioned in an Australian court. As we know, only four other countries (Japan is not one of them) recognise our claim and they do so because they have similar claims over other bits of the Antarctic.
Taking it to an absurd (but still I believe correct) stage, if Australia declared sovereignty over Tokyo and ordered all Japanese to leave, an Australian court should make an appropriate order. It could not question the clam of sovereignty. On this, I am open to correction from those whose law is more up to date than mine.
But because the country has made the claim of sovereignty over the Antarctic, it does imply a duty to take some responsibility for what happens there. I choose these words carefully – I suspect it is a fairly low level of responsibility. Again, I am open to correction on this from a superior mind.
That responsibility would probably cover prevention of piracy. Committing an act of piracy is as bad as you can get on the seas.It does seem to me that the activities of the Sea Shepherd and friends do amount to piracy, under almost any definition of the term, Arguably Australia also has a duty to enforce the rules of the IWC though Japan’s breach of those is much less clear than the evidence of piracy by SS.
My broad argument is that sovereignty carries responsibilities. Australia must do more than huff and puff. Of course if Australia sends a gunboat, as it probably should, the captain would want clear terms of engagement. Who does he fire at first?
If I am right, the government is now wondering how the heck they can get out of this mess.
