ROD MCGUIRK | 05/28/10 06:21 AM | 
CANBERRA, Australia — Australia said Friday it will challenge Japan's whale hunting in the Antarctic at the International Court of Justice, a major legal escalation in its campaign to ban the practice despite Tokyo's insistence on the right to so-called scientific whaling.
Japan's Foreign Ministry called the action regrettable at a time when 88 member-nations of the International Whaling Commission were discussing a proposal that could allow some limited whaling for the first time in 25 years.
"We will continue to explain that the scientific whaling that we are conducting is lawful in accordance with Article 8 of the international convention for the regulation of whaling," said Japan's Foreign Ministry Deputy Press Secretary Hidenobu Sobashima. "If it goes to the court, we are prepared to explain that."
Japan, Norway and Iceland, which harpoon around 2,000 whales annually, argue that many species are abundant enough to continue hunting them. They are backed by around half of the whaling commission's members.
Australia has declared the southern seas a whale sanctuary and has long lobbied for an end to whaling there. The government says Japan's hunt is in breach of international obligations, but has declined to release any details of how it will argue its case before the court in The Hague.
The whaling commission has proposed a plan that would allow hunting without specifying whether it is for commercial or other purposes – but under strict quotas that are lower than the current number of hunted whales.
Commission Chairman Cristian Maquieira expressed optimism Thursday in Washington that the issue could be resolved at a meeting next month in Morocco. But senior U.S. official Monica Medina said the current proposal would allow the hunting of too many whales, signaling difficult negotiations ahead.
Australia could argue that Japan is abusing its rights under the whaling commission's 1946 Convention, which allows scientific whaling, said Don Anton, an international law professor at The Australian National University in Canberra. It could claim that the number of whales Japan kills each year is far more than necessary, that nonlethal research alternatives exist and that there is a commercial aspect to the scientific program.
Australia could also argue that Japan has failed to conduct an adequate environmental impact assessment before engaging in whaling.
A panel of lawyers and conservationists reported to the Australian and New Zealand governments last year that Japanese whaling in the Antarctic could be stopped if Japan were held accountable for dumping waste and for undertaking hazardous refueling at sea. The Canberra Panel claims that activity violates the 46-member Antarctic Treaty System, to which Japan belongs.
Australia will lodge its claim with the court next week. It is likely then to seek an international injunction to stop any Japanese whaling during the 2010-2011 whaling season, said Don Rothwell, an international law professor at ANU who chaired the Canberra Panel. An injunction ruling could take three to six months, and it could be another four to seven years before the case is settled, he said.
New Zealand Foreign Minister Murray McCully said his government will decide within weeks whether it will also file a case against Japan.
Sobashima and Australian Foreign Minister Stephen Smith said the dispute should not jeopardize the countries' overall good relations, with both governments treating the matter as an independent legal arbitration.
Australia's move also fulfills a 2007 campaign promise by Prime Minister Kevin Rudd's center-left Labor Party.
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Associated Press writers Kristen Gelineau in Sydney and Malcolm J. Foster in Tokyo contributed to this report.
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