Japanese Whaling -the sovereignty puzzle

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Japanese Whaling -the sovereignty puzzle

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Australian Antarctic Territory

• Australian policy in Antarctica reflects the
  strengths and weakness of its claim to
  sovereignty
• Australia claims the worlds largest Antarctic
  territorial and maritime jurisdiction but has
  one of the worlds most ambiguous legal systems
  for exploiting it, OConnell

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The problem

• How can whaling be regulated in areas beyond
  national jurisdiction?
• Some basic principles
• States, acting jointly through multilateral
  treaties, can impose whaling laws upon other
  state parties on the high seas, Art 65 UNCLOS
• State parties to treaties cannot enforce laws
  against non-party states which have the right to
  freedom of fishing, subject to UNCLOS with
  respect to the marine environment.
• States acting unilaterally can enforce their
  domestic laws against non-nationals within
  national maritime waters including the Exclusive
  Economic Zone
• BUT what if most states and international law do
  not recognize the validity of the claim to
  territorial sovereignty upon which the maritime
  jurisdiction is claimed?

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Japanese challenge to Australian Sovereignty in
Antarctica.

• Japan argues that Australia does not have a valid
  claim to territorial sovereignty in Antarctica
  and thus the assertion of jurisdiction over a
  non-national in Australias Exclusive Economic
  Zone is invalid at international law
• The Humane Society case, brought by an NGO with
  locus standi has sparked a flash point at which
  Australias twin policies may no longer be kept
  in balance.
• The case may have forced Australias hand as it
  must defend its claim to sovereignty in
  Antarctica, possibly before an international
  tribunal
• Decision exposes weaknesses in the Antarctic
  Treaty System and poses risks of instability for
  future

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Tension between international law and national law

• Perfectly valid under Australian law for the
  Federal Court to issue a Restraint Order against
  a non-national in the EEZ of the AAT, because the
  Environment Protection and Biological
  Conservation Act (Cth) allows it to do so.
• Equally possible that the Restraint Order
  violates international law, if that law does not
  recognize the validity of the territorial claim
  upon which the Order is based.
• In short, the application of the EPBC Act against
  a non-national is a question of international
  law.
• At international law, Japan could complain, for
  example, to an international tribunal such as the
  ICJ, ITLOS or an arbitral body, that the
  assertion of legislative jurisdiction by
  Australia is invalid at international law and
  that its domestic legislation (EPBC Act) cannot
  justify a breach of the international rule.

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Australian Antarctic Policy

• Policy has been to
• Maintain its sovereignty claim in Antarctica and
  to act consistently with that claim
• Actively support the Antarctic Treaty System in
  achieving national policy and strategic
  objectives such as the moratorium on minerals
  exploitation and environmental protection.
• Complexity created by support of Australian body
  politic for an anti-whaling policy favoring
  enforcement of Australian legislation in the
  Australian Antarctic Territory

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How is whaling regulated at the international
level?

• International Convention on the Regulation of
  Whaling 1946
• 1973 Conv. Intern. Trade in Endangered Species
  CITES
• 1982 UN Convention on the Law of the Sea Art 65
• Convention on Biological Diversity 1992
• Antarctic Treaty 1959 did not affect High Seas
  rights, Agreed Measures 1964 explicitly except
  whales, whales are covered by CCAMLR as part of
  the biomas, 1991 Madrid Protocol
• Heavy reliance by these treaties on a national
  assertion of jurisdiction within competence to
  avoid sovereignty issue.

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Validity of Australias Antarctic Sovereignty

• International law of territorial sovereignty
• discovery of terra nullius, consolidated by acts
  of effective occupation and an intent to act as
  sovereign
• Island of Palmas
• (US/Netherlands) Judge Huber 1928
• sovereignty cannot be exercised in fact at every
  moment on every point of a territory

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Australian sovereignty

• Acts of effective occupation may be evidenced by
• Establishment and maintenance of bases
• Appropriate legislation and enforcement
• Scientific research
• Political acts continental shelf submission by
  Australia in 2004 to UN Commission on the limits
  of the Continental Shelf asks it not to consider
  the Antarctic delineations for the present (
  April 2008, recommendations accepted increasing
  continental shelf by 29 or 1/3rd the size of
  Australias mainland)
• Protection of the marine environment

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Australian sovereignty in AAT

• UK transfer to Australia accepted by the
  Australian Antarctic Territory Act 1933
• Australian Antarctic Territory Act 1954 (Cth)
  established the basic law for Antarctica, that
  is, it applies the laws of the ACT and Jervis Bay
  where they are applicable (possibly only 20 are
  relevant)

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Commonwealth legislation usually does not extend
to AAT

• Exceptions
• Antarctic Treaty Act 1960 (Cth) excludes certain
  foreign nationals
• Antarctic Treaty (Environment Protection) Act
  1980 (Cth) ( gives effect to the Madrid Protocol,
  Convention on Seals and CCAMLR) excepts
  non-nationals acting under a foreign granted
  Madrid Protocol permit
• Environment Protection and Biodiversity
  Conservation Act 1999(Cth) establishes the
  Australian Whale Sanctuary and applies to
  non-nationals
• Three ordinances have been passed with respect to
  the AAT (migratory birds, criminal procedure and
  weapons) each applying to non-nationals on a
  territorial basis.

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Australias maritime claims off the AAT

• 12 nm territorial sea November 1990 (extends 3nm
  proclamation in 1973)
• Continental shelf claim 1953, (coordinates
  accepted by UN to be proclaimed in September
  2008)
• 200nm fisheries zone 1979, excepts waters of AAT,
  thus foreign fishing is permitted in waters
  beyond the 3nm territorial sea, Fisheries
  Management Act 1991
• 1994 EEZ declared for the AAT, excludes the
  Australian Fisheries Zone
• EPBC Act, s. 225, establishes the Australian
  Whales Sanctuary to the 200nm limit of the EEZ
  and includes conservation of whales
• Antarctic Marine Living Resources Conservation
  Act 1981 (Cth) does not apply to non-nationals in
  the fishing zone of the AAT EEZ

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Australian legislative activity in AAT

• Legislation reflects twin policy objectives
• Assert, maintain and consolidate Australian
  sovereignty in AAT
• Support Antarctic Treaty System
• Australian legislation may technically apply to
  AAT, but often
• excludes non-nationals
• is not enforced in practice against non-nationals
  
• seldom enforced against nationals

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What is the legal strength of Australias claim
to sovereignty in Antarctica?

• Probable that a credible claim can be made to the
  permanent bases in Mawson, Casey, Wilkes and
  areas of significant scientific exploration
• The sector claim, as such, is not valid at
  international law
• Failure to gain recognition within the
  international community is legally significant,
  but not necessarily fatal, to title as
  non-recognition can be explained by negotiation
  in late 1950s of the Antarctic Treaty system
• While Australians twin policy may be justified
  in the interests of maintaining the Antarctic
  Treaty system, it could be construed as a weak
  commitment to territorial sovereignty, BUT

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Antarctic Treaty December1959

• Article IV
• Nothing contained in the present treaty shall be
  interpreted as
• A renunciation of previously asserted rights of
  or claims to territorial sovereignty
• A renunciation or diminutionof any basis of
  claimwhich it may have as a result of its
  activities in Antarctica
• Prejudicing the position of any Contracting Party
  re recognition or non-recognition of any other
  States rights etc in Antarctica
• Australian legislative practice is protected at
  international law because
• Art IV (1) of the Antarctic Treaty provides that
  acts are not to be interpreted as a renunciation
  of a claim
• Australian policy is arguably an exercise in
  sovereignty

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Article IV

• 2. No acts or activities taking place while the
  Treaty is in force shall constitute a basis for
  asserting, supporting or denying a claim to
  territorial sovereignty in Antarcticano new
  claim, or enlargement of an existing claimshall
  be asserted while the present Treaty is in force.

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Validity of proclamation of an EEZ by an
Antarctic Treaty Party

• Is the EEZ in violation of Article IV (2)?
• Enlargement of a territorial claim is not the
  same thing as claiming rights under UNCLOS to
  exercise rights of exploitation, conservation,
  management, control and enforcement
• Japan argues that the AAT EEZ is high seas and
  not subject to Australian jurisdiction.

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Enforcement of the Humane Society case Restraint
Order

• Contempt proceedings?
• Intercept and seize Kyodo ships operating in the
  AAT EEZ?
• Either strategy would force a dramatic and
  potentially damaging change to Australias
  current policy of balance.
• Labor government asked Federal Court not to take
  account of the Attorney Generals views under the
  previous government.
• Governments request for legal advice re
  application against Japan in the ICJ or ITLOS

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Future

• Important to avoid a direct judicial challenge to
  the validity of Australias claim to the
  Australian Antarctic Territory as it may lose
  credibility or achieve little, thereby losing a
  strategic advantage in maitaining its sovereignty
  claim.
• Better to continue to support the multilateral
  approach through the Antarctic Treaty System or
  International Whaling Convention
• More effective to focus on the problem- whaling-
  than to expose Australia to a weakening of its
  strategic position
• Diplomacy or multilateral enforcement are
  preferable strategies in the longer term