Title: Japanese Whaling -the sovereignty puzzle
1Japanese Whaling -the sovereignty puzzle
2Australian 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
3The 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?
4Japanese 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
5Tension 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.
6Australian 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
7How 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.
8Validity 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
9Australian 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
10Australian 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)
11Commonwealth 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.
12Australias 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
13Australian 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
14What 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
15Antarctic 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
16Article 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.
17Validity 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.
18Enforcement 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
19Future
- 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