Our Claytons sovereignty gives whales no sanctuary

Posted February 27, 2013 11:23:41

Australia condemns Japan's whaling actions but enforcing Australian law against the whalers could undermine the Antarctic Treaty and expose Australia's Antarctic claim to international scrutiny, writes Don Rothwell.

Recent clashes between the Japanese whaling fleet and Sea Shepherd highlight the Antarctic legal dilemma Australia faces.

Relying on territorial claims originally asserted by Britain but also claims made on behalf of Australia by Sir Douglas Mawson during the 1930s, Australia claims approximately 42 per cent of the Antarctic continent.

However Australia's claim to the 'Australian Antarctic Territory' (AAT) is not widely recognised. In fact only France, New Zealand, Norway and the United Kingdom officially recognise Australia's claim, while prominent allies such as Japan and the United States reject the claim.

This fundamental weakness in Australia's Antarctic claim is not widely understood and is rarely publicly articulated. Last week Environment Minister Tony Burke alluded to it when he was asked about why Australia is so reluctant to enforce Australia's anti-whaling laws in Antarctica.

Burke noted the Antarctic Treaty places constraints on Australia's ability to enforce Australian law in Antarctica and he was right.

Partly as a device to shore up Australia's Antarctic territorial claim over the AAT, Australia was an enthusiastic supporter of the 1959 Antarctic Treaty. The treaty contains a unique provision in Article IV which states that by entering into the treaty no country will be considered to have renounced their Antarctic claim, or to have recognised any of the territorial claims that had been made over Antarctica, or have compromised their capacity to assert a territorial claim in the future.

In this respect Article IV effectively sought to set aside ongoing diplomatic stoushes over territorial claims and allow Antarctica to be used for peaceful scientific research. Article IV also limited the capacity of the treaty parties from asserting any new territorial claims or enlarging any of their claims. Treaty parties also agreed to limit their exercise of jurisdiction to their nationals, meaning that they could not apply their national laws to foreigners.

By and large these provisions of the treaty have worked well for over 50 years, including more recent comprehensive environmental protection measures, such as a ban on mining.

However, in the past decade some cracks have begun to appear in the Antarctic pact and this has arisen primarily as a result of sovereignty and associated tensions over resource management. Australia has been at the centre of these tensions and its efforts to regulate whaling in the Southern Ocean have exposed some considerable weaknesses in Australia's policy and legal position.

In 1999 the Howard government enacted the Environment Protection and Biodiversity Conservation Act (EPBC Act) which declared an 'Australian Whale Sanctuary' prohibiting all whaling within the sanctuary offshore Australia including waters offshore the AAT in the Southern Ocean.

Importantly the act applied not only to Australians but also to other nationals. Japan, which had been regularly conducting its so-called 'scientific whaling' operations in the Southern Ocean offshore the AAT since the late 1980s, ignored the new law and continued whaling and Australia made no effort to enforce the EPBC Act in the Southern Ocean.

In 2004 an environmental NGO, Humane Society International, commenced legal proceedings against the Japanese whalers in the Australian Federal Court and in 2008 secured a ruling that the actions of the Japanese were contrary to the EPBC Act.

However those court orders have proven to not be enforceable because of Japan's non-recognition of Australian sovereignty over the AAT, and because the Japanese whaling fleet do not enter Australian ports where they could be subject to direct enforcement of the court orders.

As such, the Japanese have continued their whaling activities in the Australian Whale Sanctuary. The Gillard Government is also fully aware that enforcing the Federal Court ruling would see Japan immediately seek to challenge Australia's Antarctic claim before an international court.

Hence, Australia's legal dilemma. Australia has been attempting to balance its ongoing assertion of Australian sovereignty in Antarctica and the AAT with its obligations under the Antarctic Treaty. It therefore has had to steer something of a middle course between upholding the treaty and supporting the multiple mechanisms that it has fostered for environmental protection, such as the prohibition on mining, while at the same time taking a somewhat independent position as an Antarctic claimant with all of the normal rights that would follow for any country which believes that it has sovereignty over territory.

Australia has therefore ended up in something of a 'no man's land' with respect to its regulation of whaling. Whaling is prohibited in the Australian Whale Sanctuary under law duly enacted by the Australian Parliament yet every year Japan sends its whaling fleet into the Sanctuary.

Australia condemns Japan's actions, yet it knows that it cannot enforce Australian law or send the Navy to arrest the Japanese whalers without undermining the Antarctic Treaty and throwing the spotlight on Australia's Antarctic claim.

This is ultimately why in 2010 the Rudd government took the decision to challenge the legality of Japanese whaling in the International Court of Justice. Australia's legal case revolves around international law and not Australian law and as such circumvents the limitations created by the Antarctic Treaty including the weakness of Australia's territorial claim.

The case is expected to be argued later this year with a decision now likely sometime in 2014. Only then may there be some legal settlement over Japan's whaling in the Southern Ocean which will also have implications for the now annual clashes between Sea Shepherd and the whalers.

Donald R Rothwell is Professor of International Law at the ANU College of Law, Australian National University and a specialist in polar law. View full profile here.

Topics: whaling, environment, conservation, government-and-politics, foreign-affairs, international-law, law-crime-and-justice