Here's an article in the SMH that says the Rudd Government is going to make good on its election promise and sue Japan in the International Court over whaling.
Sources said the government decided to make good on its election promise in 2007 to take Japan to court.
The government has come under intense attack for putting its centrepiece environment policy - the emissions trading scheme - on hold until at least 2013, and for reneging on other election promises.
The Coalition and the Greens have demanded the government act on its consistent threats to take the legal action after Tokyo also rejected the ''peace deal'' put forward by the IWC on the basis that the cuts it proposed to Japan's ''scientific'' whaling program in the Antarctic were ''too drastic''.
The legal action would not stop Australia taking part in the international diplomacy before the IWC meeting in Morocco next month, where the ''peace plan'' to legitimise strictly limited whaling quotas will be debated.
In February the Prime Minister, Kevin Rudd, said Australia would take legal action in time to halt the start of the annual hunt in November. But if the ''peace plan'' succeeds and legitimises Japanese whaling, the basis of the court case would be undermined.
I'm wondering if the government really thinks it can win, or whether it's a kind of brinkmanship to see if Japan bends on a point it says it will not bend; and further to that if they should win, then Australia can claim whatever it likes about whaling but should it lose, it will have the option of ratcheting down the rhetoric. It seems to me if it is the latter then the Australian Government is sending delegates to the IWC in bad faith.
Just to go over some old bits and pieces, here are some things that Australia's going to have to argue in court.
The first thing they'll argue is that whales are endangered. Well, who has the numbers on that? Japan still does the most cetacean research in situ and it tables the findings each year at the IWC. They have a better track of numbers than most countries at the IWC when it comes to the Pacific Ocean, so it would be incumbent upon Australia to produce better data on the numbers to prove the species the Japanese are hunting are on immediate brink of extinction. The Japanese will be able to show they've been catching the minimum allowed by the agreement, so Australia's claim that it is "too drastic" is going to be a hard sell.
Australia will most likely argue the line about scientific research whaling being a disguise for commercial whaling on the basis that the whale meat ends up on the market. Except the scientific research whaling is sanctioned under the current regime. All whale captured for such research must be sent to the market under IWC rules. So by the rules of the IWC, it's both acceptable for Japan to conduct its research and sell the whale meat at its markets. It's going to be interesting to see which part of this rule and its applications with which Australia is going to take issue.
Then there's the territorial waters claim. Australia's case is going to the International Court on the basis of Australia's territorial claims to the oceans near the Antarctic. This is not a territorial claim that is not recognised by other nations, but it is this claim that will also get tested in the International Court. I imagine the average Australia likes to think of it is 'our' waters, in the same way the Tom Cruise was 'our Tom' during his decade long marriage to Nicole Kidman, but it's really more projection than fact.
Australia can also argue damages to its whale-watching tourism trade but they'd have to then prove the Japanese were hunting those particular whales. This one is going to be more of a red herring because the argument against Japanese whaling isn't a damages claim sort of thing; it's about the principle of it and all that metaphysical arguments to do with how whales are exceptional and therefore should not be hunted. It's going to interesting when Australia is going to get asked to produce the evidence that whales are indeed exceptional. Or even intelligent as claimed.
In contrast to the primates, cetaceans are particularly far-removed from humans in evolutionary time. Therefore, cognitive abilities generally cannot be claimed to derive from a common ancestor, whereas such claims are sometimes made by researchers studying primate cognition. Though cetaceans and humans (in common with all mammals) had a common ancestor in the distant past, it was almost certainly of distinctly inferior cognitive abilities compared to its modern descendants. The early divergence of the human—dolphin ancestry line creates a problem in what cognitive tasks to test for because human/dolphin brains have been naturally selected so differently, with completely different cognitive abilities favoring their very different environments. Therefore, an anthropomorphic problem is raised with exactly what cognitive abilities to test for, and how to test for them, because of the completely different evolutionary line and environment human and cetaceans have.
Australia is also likely to argue a line about environmentalism. It could walk into a minefield with that one. Australia's beef cattle industry isn't exactly the most environment friendly business, on top of which Australia's a major exporter of coal which is a major source of mercury poisoning in the world's marine life. So Australia would be getting up to argue a case against whaling on grounds of the environment when it could be on the receiving end of such a lawsuit. And need we remind ourselves that Australia didn't sign on to Kyoto and was a notable hold out for along time under the previous government. The world of international opinion may look at Australia's record on the environment rather differently to what Australia likes to think of itself.
So all in all, Australia's got its work cut out for it. But you never know. It would be interesting to see if Australia wins; and if it does, then if events leads to the gutting of the IWC because the International Court of Justice would essentially be overruling the IWC's own rules. If IWC rules aren't worth the paper they're written on then why would all the other whaling nations stick around to talk about it at the IWC? In a sense Australia is arguing to the International Court to invalidate another international institution.
It's ugly business but I'm going to enjoy how this all unfolds. It can only get worse for Japan and Australia's diplomatic relationship from here on in. It's amazing there's not a dissenting voice in either side of parliament.
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