Tim Stephens

Originally published on The Drum on the ABC.

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One of the surprising things about the United States diplomatic cables released by WikiLeaks since late last year is just how unsurprising most of their contents have turned out to be.

Admittedly only a fraction of the cables have been published, but so far most WikiLeaks ‘revelations’ have been revelatory of little except the considerable creative writing skills of the US diplomatic corps.

So it is the case with many of the cables concerning Australia, which have contained astounding divulgences such as that the Foreign Minister, Kevin Rudd, is supportive of Israel.

Likewise, the cables concerning the Australian government’s efforts to shut down Japan’s ‘scientific’ whaling programme, which were parsed with much fanfare in the Fairfax papers this week, tell us nothing that is new or astounding.

I was invited to the launch of David Leary and Balakrishna Pisupati (eds), The Future of International Environmental Law (United Nations University Press, Tokyo, 2010) to offer a commentary on this new and important work.

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There is every indication that climate change is getting away from us.

The recent shelving of the Carbon Pollution Reduction Scheme in Australia shows how even in an advanced democracy, where there is widespread concern about climate change, the political will to take even the most modest of steps can be found seriously (and dangerously) wanting.

As temperatures rise, and irreversible positive feedback processes (such as the melting of the Greenland ice cap) are set in motion, attention will shift to what engineering solutions might be deployed to turn the Earth's thermostat down a few notches to make the place comfortable for a thriving human civilisation once again.

In fact there are already schemes afoot to engineer the Earth's climate, such as by placing many thousands of tonnes of sulphur and sulphur compounds in the upper atmosphere, in much the same way as volcanic eruptions can do.

In an excellent new essay, that develops themes from his recent book Requiem for a Species, Clive Hamilton explores the strange politics of geoengineering:

http://www.clivehamilton.net.au/cms/media/documents/articles/dr_strangeloves_return.pdf

Hamilton reveals the rather odd cast of characters working behind the scenes with financial support from Bill Gates and others on quite fantastical schemes, all based on the arrogant assumption that humankind's total domination of the global climate system is possible, let alone desirable.

The essay also makes clear the urgent need for an international legal framework to control potentially devastating experiments with the Earth's climate, an issue that is only just starting to attract attention in the literature (see, for instance, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1334625).

Earlier this year I was Rapporteur for the Canberra Panel of Independent International Legal and Policy experts which examined the legality of Japanese special permit whaling in the Southern Ocean in light of Japan's obligations as a party to the 1959 Antarctic Treaty and other instruments, including the 1991 Environmental Protocol, which make up the Antarctic Treaty System.

The Chair of the Canberra Panel, Professor Don Rothwell, and I have now co-authored a short piece for a new US journal - the Michigan State University Public Policy Journal - which explores several of the themes considered in the report of the Canberra Panel.

Abstract

In 2009, the 1959 Antarctic Treaty celebrates its fiftieth anniversary. Over its fifty-year existence the Treaty and the Antarctic Treaty System (ATS) built upon it, have promoted freedom of scientific research in Antarctica and the Southern Ocean. Despite the many successes of the Antarctic legal regime, there has been growing disquiet over the conduct by Japan, an Antarctic Treaty party, of its ‘special permit’ whaling program in the Southern Ocean. This program now has a lengthy history stretching back to the late 1980s, and has been undertaken purportedly in reliance on the 1946 International Convention on the Regulation of Whaling, which allows whaling for scientific purposes in limited circumstances. It has also been pursued on the assumption that the global whaling regime takes priority over the disciplines imposed by the regionally-focused Antarctic Treaty System which seeks, among other things, to promote scientific research in Antarctica and to protect the Antarctic ecosystem. The article examines the interaction between the Antarctic and whaling regimes and argues that the main environmental text in the ATS, the 1991 Environmental Protocol, imposes obligations upon Japan to minimise or eliminate the environmental risks of its burgeoning Southern Ocean whaling program.

You can find the full text of the article here.

Today we celebrate the official opening of the new law school building on the main University campus. I was asked to stand on a soap box with a megaphone to rant on whales. Here is what I said.

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Whales “Soap Box”
Opening of the New Law School Building
30 April 2009
Dr Tim Stephens
 
I am standing on a soap box to let rip on a subject close to my heart – how the law can save the mightiest and most intelligent non-human animals on Earth – the great whales.
 
Not so very long ago a soapbox like this one would have contained soap made from whale oil – well probably not really like this one because this is a faux soap box used by fashionable ranters in London’s Hyde Park, and was flown in especially for today. But soap is neither the beginning, nor the end of the cornucopia of products found in the floating supermarkets that we call also call whales.
 
Heathcote Williams in his poem Whale Nation reminds us that whales were the plastics of the 18 and 19th centuries. They spawned the consumer society. Obviously they didn’t do this literally – while whales like to sing we have no evidence that they have taken trips down to the Sony store to pick up the latest Karaoke kit complete with plasma screen, blue-tooth Madonna mikes and voice mixers so you can sound like Cher.
 
Rather they spawned our consumer society in providing an endless array of things to make modern life a breeze: fuel, for streetlamps and lighthouses, candles, springs for watches, umbrellas and toys, even the first springs in the first typewriter, glycerol for lipstick, nitro-glycerine for bombs, brushes and brooms, linoleum, sausage-skins, drum-skins, laces, surgical stiches, tennis racket strings, riding crops, chess pieces, buttons, wax crayons, golf bags, engineering coolants, varnishes, parchments, insecticides, paints, skin-creams, stock-cubes, mah-jong counters, iodine, liver-oil, insulin, gelatine for jelly and glue, gussets, bodices and corsets, fish-bait, cattle meal, dog food and cat food, antifreeze, cooking fat, hair treatments, bath salts, pipes, piano keys, ear-rings, brooches and cuff links, cigarette holders, shoe-horns, car-wax, shoe polish and fishing rods.
 
I suppose the range of uses to which whales have been put by past generations, from cosmetics to musical instruments, surgical implements to sports equipment, typewriters to armaments is something of a compliment to these sea creatures, in a perverse kind of way. In the same way I guess that felling a giant redwood or eucalyptus for fine furniture, or bagging a mighty lion for the taxidermist to work his tricks so the dead beast’s head can feature on a living-room wall, is a weird tribute to nature’s grandeur.
 
But if so then our treatment today of the David Jones of the oceans is a profound insult, because we shop only now in the Food Hall for sperm whale sashimi rather than heading upstairs for make-up from minkes, hair treatments from humpbacks, or bodices from blue whales.
 
The minke whale’s gallon sized testicles are dumped into the sea from factory ships rather than finding their way into cosmetics, as is whale offal which is no longer used for drum skins. The best the whaling nations can now do is to carve off some select whale cuts for fancy restaurants in Oslo, Reykjavik and Tokyo.
 
However tastes here are also changing. A few years ago whale burgers featured in some fast-food restaurants in Japan, but were soon dropped when pimply-faced Japanese school kids showed no interest in the salty red meat. So most dead whales today are on ice – thousands upon thousands of tonnes in deep freezers, mainly in Japan. Their only realistic use today for chunks of whale meat is as Esky coolers for your six pack of Asahi Extra Dry. There are, thankfully, no iPhones clad in whale skin, nor any other twenty first century whale bling. Because the reality is we don’t need to use whales any more.  
 
Nor should we as a matter of principle. In 1982 the International Whaling Commission brought in a moratorium on commercial whaling that has stood to this day, even though it is flouted by a few countries who delight in performing endless autopsies on whales, perhaps inspired by crime series such as CSI, Silent Witness and their ilk that have clearly been a boon for very tired and homeless actors who would otherwise be unemployed.
 
It is often said that whaling is no different from killing other large mammals such as cows or pigs – but is this really a fair comparison? Again to quote Heathcote Williams, whales do not work to eat, they play to eat, that make music to entertain and to communicate, in a songful submarine language with manifold dialects, structures, cadences and rhythms. Like us, whales are very special animals.
 
When did you last hear Buttercup have a sing-song with her mates? Sure some cows use bells to accompany their plaintiff mooing across the valley, but it’s just not the same as the ethereal call of the humpback carrying endlessly through the sea. And as for pigs, well we know they are smart, and frankly fed up with being eaten, hence their latest cunning plan to wipe us from the face of the planet.
 
A further difference, surely, is that Buttercup and Babe can be dispatched from this world and on to the dinner plate with some semblance of humanity (or should that be animality?). There is no way to put Moby Dick down without terrible suffering – harpooned whale seldom dies instantly and can take up to an hour to bleed to death, while flailing helplessly against the pull of the whale line.
 
And whereas there is no danger that farm animals will go the way of the Dodo, the same cannot be said for the great whale species, numbers of which remain perilously low, even though commercial whaling came to an end two decades ago. And whales also face new threats at our hands, especially as we pump carbon into the atmosphere which warms and acidifies the oceans.
 
The practical and ethical arguments against whaling are clear and convincing, and international law has given them teeth. But we must ensure that we don’t take our mammalian friends in the seas for granted, nor forget that they were recently on the brink of extinction. [Heckling from Professor Mark Finlay and Associate Professor Luke Nottage - "kill the whales, we need them for scientific research!!"]. I say harpoon the Professors for research, not the whales!

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