Yesterday, the Federal Court ordered the Japanese government-backed company Kyodo Senpaku Kaisha out of the Australian Whale Sanctuary. The sanctuary, in the Australian Antarctic Territory, is not recognised by Japan.

Indeed, Australia claims about 50% of Antarctica, a claim which is not recognised by most other nations. Further, Australia is a signatory to the Antarctic Treaty and any enforcement action may be seen as a breach.

The decision may have unintended consequences.

For Australian courts to have jurisdiction, there must be an implicit finding that Australian Antarctic Territory is indeed Australian territory.

First, the decision is unenforceable as such. Australia has not (yet) chosen to take the matter to an international court. This matter has been litigated before a domestic court. Japan does not recognise Australia’s claim to sovereignty and will certainly not recognise the Federal Court decision. It is unthinkable that Australia would seek to protect the integrity of its purported Territory by naval action – our armed forces would rapidly be defeated by the Japanese Defence Force.

Any court decision which is unenforceable is a decision made of straw. It is judicial window-dressing.

Second, the Rudd Government must do something. One of its core electoral mandates is whale-saving. Also it must protect the legality of both the Australian Antarctic Territory and the integrity and status of Australian courts. The only course here is strong action at a diplomatic level. The Japanese Ambassador must be called in and told to toe the line and obey Australian law. But obviously he will ignore it. It is not consistent to Australia’s claim to the Territory that vessels using it do not obey Australian law in general and court injunctions in particular.

The consequences are these: the whole issue of the validity of Australia’s claim to its Antarctic Territory may be examined further. Also we are facing a significant rift with Japan.

Perhaps the best practical solution is to send the very tall Minister Garrett to Japan to literally stand over them.