This last week I’ve been on tour – not your average crazy, riotous, road trip, rather an international legal tour with noted Australian law professor, Donald Rothwell, from Australia National University on the international legal solutions to whaling.

He’s got some great ideas for international legal solutions looking forward. Whaling is a big, troublesome global issue and its very important because, by the time you read this, one of the most important International Whaling Commission (IWC) meetings in a decade will be underway.

NZ has a proud history of saving the whales but has for a much longer part of its history been a whaling nation. We’ve renounced whaling and now NZ is one of the staunchest anti-whaling nations and voices for whale conservation.

Looking to the future of the whales and in particular the body tasked with dealing with the issue, the IWC in 2010 faces many challenges, the number one being continued whaling against the spirit of the moratorium by three nations: Norway, Iceland, but primarily Japan.

Whaling must be one of the most vexed international policy problems. A major challenge is the now intractability of the debate. The whaling conservation side within the IWC are accused of using conservation as a cover for their ideological opposition to whaling itself, whereas they accuse Japan’s scientific whaling as being a cover for commercial whaling. Add into the mix cultural arguments and you have a potent mix.

Next week in Agadir, Morocco a reform proposal is on the table at the IWC, attempting to reach a consensus compromise between whalers and conservationists which former NZ Prime Minister Sir Geoffrey Palmer has chaired. The ‘reform proposal’ has some good features like the creation of a further sanctuary and a reduction of the numbers of whales killed currently through loopholes, but there are considerable negative features such as it arguably brings back commercial whaling, or at least it legitimates whaling, outrageously in the Southern Ocean Whales Sanctuary, and the hunting of endangered Sei and Fin whales. Compromise isn’t bad – but I believe it is out-of-order to compromise on principles and favour conservation of whaling, not whales.

Whilst our Government has said some features are “unacceptable” they haven’t clearly said what they are prepared to give away to the whalers to keep a compromise process on the cards, or to keep Japan in the IWC. One tactic the Government has been luke-warm on is the opportunity of taking a case to the International Court of Justice (ICJ), in The Hague.

This is what my tour with Professor Rothwell has been about – learning from his expertise and raising the idea that diplomacy can be advanced by having a legal option working in tandem and that New Zealand should investigate it.

He points to three possible legal cases available but believes the most likely option to halt whaling comes from joining Australia who has announced its support of taking a case to the ICJ in November. NZ and Australia have a long history of working together on an international legal stage, including challenging French nuclear tests and Japan before the International Tribunal for Law of the Sea on Southern Bluefin Tuna issues.

The major benefit I believe of taking a case to the ICJ is the space it allows for a less heated debate. At the moment the discourse is framed as the annual battle between Sea Shepherd and Japan in the Southern Ocean. Letting the lawyers have a go will take the emotional battle out of it, and we have the option of applying for an immediate injunction – this would potentially stop whaling for a few years. An injunction is likely to be respected by Japan, who has a great deal of stake in supporting the international legal environment – they aren’t a rogue state, who will flaunt an ICJ ruling.

The major risk raised by our Foreign Minister in opposition to the idea is ‘what if the case looses?’ All legal cases face failure, as did the nuclear testing case, but it needs to be stressed – this would challenge one aspect, Article VIII, not whaling in general. If the case failed all we’d find out is that Japan has legally used this loophole of scientific whaling; this wouldn’t then open up the door to commercial whaling.

An ICJ case could give the world the breathing space to reach an agreeable and timely phase out of whaling. The case and especially the injunction could see whaling become uneconomic in Japan, which is dependant on direct and indirect Government subsidies (estimated by WWF to be at $150 million), that has decaying whaling infrastructure, a product with falling demand and over supply (it is estimated there are 40,000 tonnes of whale meat in storage in Japan), and demographic trends that are seeing young people refuse to eat it.

An ICJ case could give support to the domestic Japanese conservation movement and stir a political change of heart, without the high-drama, high-emotion annual high seas battle. Political change in Japan in 2009 and the long-awaited defeat of the Liberal Democratic Party ushered in new hope, however, Foreign Minister Katsuya Okada said whaling would receive support as a matter of policy. Japan is open to world wide pressure – in 2007 Kyokuyo and Maruha, two of Japan’s four largest fishing companies decided to end selling whale meat because of pressure internationally, but particularly from the U.S.

A legal case may show just how economically unfeasible whaling is. The flipside’s also true. In 2008 whale watching in 119 countries and territories generated more than NZ$2 billion and it’s estimated there are 3,300 whale watch operators employing 13,200 people globally.

We’ll find out soon how diplomacy fares in saving the whales but I’ll keep raising the international legal options as well. Whilst the whaling issue may seem intractable and maybe impossible, I believe we could see an end to whaling in a realistic time frame.