AUSTRALIAN WHALING OPTIONS DWINDLING

C O N F I D E N T I A L CANBERRA 001086


NOFORN

STATE FOR OES/OA DALTON, COMMERCE FOR NOAA

E.O. 12958: DECL: 10/29/2018
TAGS: EFIS SENV ECON AS
SUBJECT: AUSTRALIAN WHALING OPTIONS DWINDLING

REF: A. CANBERRA 1042

B. CANBERRA 996

Classified By: Economic Counselor Edgard Kagan, Qasons 1.4(b)(d)


1. (C/NF) Summary: Australian Whaling Envoy Sandy Hollway
is returning to Japan NLT October 30, despite Japanese
signals that no deal is possible this year. Hollway hopes to
secure some agreement from Japan to reduce the number of
whales taken in the upcoming Japanese scientific whaling
season. In anticipation of failure, however, the GOA
continues to hone their international legal case, even though
they understand the problems inherent in launching such an
effort. PM Rudd may view international legal action as the
least damaging politically of his limited choices in dealing
with public anger over whaling. End Summary.

LEGAL CASE CLOSE TO FINALIZED?
--------------


2. (C/NF) Australia is very close to moving forward with
international legal action against Japan. Department of
Foreign Affairs and Trade director for Environment Strategies
David Dutton (protect) told Econ Counselor and Econ Officer
in separate discussions October 23 and 26 that DFAT and the
Attorney General's Department (AGD) had long shared the view
that international legal action against Japan's whaling
program has a limited chance of success. Dutton said AGD has
recently done an about face to argue that the prospects for
success at the International Court of Justice are high enough
to justify taking action. Dutton said his analysis is that
the only effective basis for action is that Japan's whaling
hunt in the Southern Ocean violates Article VIII of the
International Whaling Convention because it does not
accomplish substantive scientific outcomes. DFAT continues
to believe that such a challenge will either fail completely
or, at best, set up the Japanese to simply make changes to
their program to improve the science. Either option would
legitimize Japanese claims while destroying any chance of
progress in the International Whaling Commission small
working group format.


3. (C/NF) The AGD executive responsible for formulating the
case, Bill Campbell, told econoff on October 27 that he was
unwilling to discuss any possibility of legal action or the
basis for their case. In the event that a decision to take
legal action became clearer, Campbell said, then he might be
able to discuss their thinking, but not until then.

HOLLWAY BACK TO JAPAN THIS WEEK
--------------


4. (C/NF) Hollway is preparing to follow up his October 22
letter to Deputy Foreign Minister Kohno with a second visit
to Tokyo this week, accompanied by DFAT Assistant Secretary
for Environment Greg French. Dutton told econoff that the
Japanese Foreign Ministry had indicated privately to DFAT
that they were willing to receive and listen to Hollway, but
were "confused" over what Australia hopes to accomplish, as
Japan had already made clear during his first visit that
there were no plans to reduce or roll back plans for this
whaling season. Dutton said that when Hollway returns, the
GOA will be considering future action on November 5. Dutton
said that Hollway has personally briefed Rudd twice on his
efforts since being publicly rolled out in mid September, and
efforts since being publicly rolled out in mid September, and
Dutton believes that if Hollway took a position against legal
action in front of the PM, it might have some affect on the
final process. Dutton said that both FM Smith and Trade
Minister Crean had made clear their opposition to an
international legal challenge, but opined that, in his
opinion, DFAT and by extension FM Smith had ceased to have
much relevance in influencing the PM's office on this issue.


5. (C/NF) Comment: The brush off we received from AGD's
raises our suspicions that the GOA is close to presenting a
final case against Japan to Rudd. Given the likelihood that
Hollway and DFAT will end up empty-handed, Rudd is
increasingly worried that the Japanese will forge ahead
despite Australian concerns. In the face of a divided
cabinet, the final call will be made by Rudd, with a clear
view to responding to an electorate which views the Labor
government as slipping on environment and conservation
issues. While Rudd may recognize the risk of legal action,
aggressive posturing last year (air and sea monitoring of
whale kills for "evidence") may have pushed him into a corner
from which such a course seems the only reasonable response
absent movement by Japan. End Comment.

MCCALLUM