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Japanese Whaling -the sovereignty puzzle

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Title: Japanese Whaling -the sovereignty puzzle


1
Japanese Whaling -the sovereignty puzzle

2
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

3
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?

4
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

5
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.

6
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

7
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.

8
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

9
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

10
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)

11
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.

12
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

13
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

14
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

15
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

16
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.

17
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.

18
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

19
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
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