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 world’s largest Antarctic territorial and maritime jurisdiction but has ‘one of the world’s most ambiguous legal systems for exploiting it’, O’Connell

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 Australia’s 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 Australia’s twin policies may no longer be kept in balance. • The case may haveforced Australia’s 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 Australia’s 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 Australia’s 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. Australia’s 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 Australia’s 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 1950’s of the Antarctic Treaty system While Australian’s 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 diminution…of any basis of claim…which 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 State’s 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 Antarctica…no new claim, or enlargement of an existing claim…shall 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 Societycase 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 Australia’s current policy of balance. Labor government asked Federal Court not to take account of the Attorney General’s views under the previous government. Government’s 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 Australia’s 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