If the past few years are anything to go by, things will hot up in the Southern Ocean over the coming weeks and it will have little to do with climate change.
It has become something of a summer ritual that clashes occur in the Southern Ocean between the Japanese whaling fleet and the Sea Shepherd Conservation Society.
Since 2006, the protest activities of Sea Shepherd have been on the rise, attracting more and more attention from the media, and also the Japanese and Australian governments.
In mid-December, Australia - along with the Netherlands, New Zealand and the US - issued its regular exhortation of concern that protest activities in the Southern Ocean could lead to a loss of life among protesters and whaling crews. These calls are made against the backdrop of the January 2010 collision between the Sea Shepherd trimaran Ady Gil and the whaler Shonan Maru 2, resulting in the Ady Gil losing its bow and eventually being scuttled.
The current whaling season again promises to be contentious. Emboldened by the whalers' declaration that they were ending their 2010-11 hunt early as a result of protest activities, Sea Shepherd has declared its aim is to prevent the Japanese taking a single whale.
The whalers, on the other hand, have reportedly enhanced their security capability to further rebuff Sea Shepherd's protests. Given the determination of both sides, this is a volatile mix in a treacherous maritime environment.
Though this season's whaling clashes will occur within the Australian search and rescue zone in the Southern Ocean, the Australian Maritime Safety Authority has previously admitted its capacity to respond to a maritime disaster in the region is limited due to the remoteness of the region and availability of assets.
This season is also the first time since the Ady Gil incident that the Japanese have been whaling in the Australian search and rescue zone. In the interim, Australia has taken Japan to the International Court of Justice challenging the legality of its whaling program. However, the wheels of international justice move slowly and it may not be until 2014 that Australia has its day in court.
Australia does have the option of going to court early and asking for provisional measures. This is a form of international injunction that, if issued, would halt all whaling until the court gave a final judgment. However, to date, the Australian government has shown no interest in pursuing that option.
Is Australia, then, just a spectator as the Japanese whalers and Sea Shepherd head for more high-stakes clashes? As was highlighted in 2010, Australia can very quickly become a part of any Southern Ocean incident because of its search and rescue responsibilities. Australia's capacity to respond is limited - but it does have at its disposal a purpose-built ship capable of patrolling the Southern Ocean. The Australian Customs Vessel Ocean Protector has been given the task of patrolling the area as part of the Southern Ocean Maritime Patrol and Response Program. The Ocean Protector is capable of being deployed to maintain a watching brief on clashes between the whalers and Sea Shepherd. However, Environment Minister Tony Burke has ruled out this option.
Such a course of action would be prudent and also provide Australia with possible legal cover against Japan. In recent years, Australia has come under increasing Japanese pressure to inspect Sea Shepherd vessels on their entry into Australian ports. In the three years to 2011, the police boarded the Sea Shepherd fleet upon their return to Hobart in compliance with a Japanese request under an international maritime terrorism convention. While no prosecutions have arisen, they highlight the increasing Japanese agitation over the impact of Sea Shepherd's activities.
Mindful that it would not want its actions to compromise its international court case against Japan, Australia may see value in deploying the Ocean Protector not only to watch over the whalers and Sea Shepherd, but also to demonstrate to Japan its commitment to the safety of life at sea and the suppression of maritime terrorism.
This would allow Australia to remain neutral in the whaling clashes, but retain a capacity to provide assistance and not compromise its prospects in the International Court.
Donald R. Rothwell is Professor of International Law at the Australian National University's College of Law.
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