Speaking at the Pirates of the Southern Seas forum at the Australian National University last week, leading international law academics came together to discuss legal, political and diplomatic issues surrounding Australia's stance on Japan's whaling policy.

Speaking to Lawyers Weekly, ANU Professor Donald Rothwell said the Australian Government should steer clear of seeking legal action under domestic laws, and instead take their case to either the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea (ITLOS).

"The first option the Government would seek to pursue is to obtain provisional measures, in other words an international injunction, from the courts," he said.

"The chances of success for such an injunction ... would seem to be very high in this case. All you need to [prove] are two things: that the court has prima facie jurisdiction - and that would certainly be the case here - and that there is an urgency about the issuing of the provisional measures."

Considering that decisions in the ICJ can take between five and seven years to be handed down, Rothwell believes it's likely that provisional measures would be granted to prevent Japan from continuing with the program while its legality is questioned.

However, according to Rothwell, whether a substantive victory would be secured is less certain.

"The grounds for the issuing of provisional measures are particularly strong [but] the chances of success ultimately depend on the legal grounds on which Australia would seek to frame its case before the court," he said.

"All one can really do is speculate upon that, because the Australian Government hasn't given any clear indication as to how it might seek to frame the argument."

While numerous experts at the forum queried the "diplomatic wisdom" of Australia taking Japan to the international courts on such a sensitive issue, it was acknowledged by many that future legal action is more likely than not.

"The Australian Government may well have backed itself into a corner as a result of threatening to take legal action in that it is now left with little option but to do so, unless some of its conditions or demands have been met," said Rothwell.

Numerous decisive factors are still in play, however, including reformation of the International Whaling Committee (IWC) which is set to hold its next meeting in Morocco in June this year.

"The situation is now so fluid with respect to the ongoing reform of the IWC that much will depend upon the next meeting," he said.

"Subject to any agreements that are reached there, we should have a much clearer sense as to how the Australian Government might choose to proceed."

Claire Chaffey