Thursday 19 Jul 2018 | 03:51 | SYDNEY
Thursday 19 Jul 2018 | 03:51 | SYDNEY

Whaling in 'Australian territory'

8 June 2010 09:03

Donald Anton is a Senior Lecturer at the Australian National University College of Law. He was a Visiting Professor at the University of Michigan Law School from 2008-2010.

Over the last thirty years, Australia has opposed commercial whaling in the Southern Ocean on two alternate tracks: one is unilateral, domestically robust, but fraught; the other is international, less certain and more dependent on cooperation.

The unilateral track includes a series of Commonwealth laws that culminate in the establishment of the Australian Whale Sanctuary (AWS), in which killing whales is an offence. Controversially, the AWS includes the exclusive economic zone proclaimed by Australia adjacent to the Australian Antarctic Territory, which is recognized by neither Japan nor most of the world. 

Nevertheless, the natural resources of a large segment of the Southern Ocean — including whales — are under asserted Australian jurisdiction and, according to the Federal Court of Australia, the Commonwealth has the power to prevent and punish Japanese whaling in the Antarctic AWS. 

To its credit, the Federal Government has refrained from such action. As I have written elsewhere, this sort of unilateral exercise of jurisdiction over non-nationals in Antarctic waters will antagonize many states and undermine the stability of the Antarctic Treaty System (ATS) – a pillar of both international peace and security in the region and broader environmental protection. In the long run, it also has the potential to promote a scramble for important and scarce resources. Such outcomes are surely against Australia's long-term interests and jeopardize its Antarctic claim.

Australia's international track of whale protection has been mostly played out multilaterally in the International Whaling Commission (IWC). Cooperation has been in short supply in the IWC and it has been unable to reconcile the competing interests of whaling and anti-whaling states.

Recent hopeful negotiations over compromise have resulted in a proposal that creates yet another impasse and last week Australia finally instituted proceedings against Japan in the International Court of Justice over its 'scientific research whaling'.

Australia's application eschews any reliance on its Antarctic claim or potential Japanese breaches of obligations arising under the treaties of the ATS. Instead, Australia alleges Japan has breached the International Convention on the Regulation of Whaling, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Convention on Biological Diversity, and customary international law. In this way, the action is entirely about Japanese actions in relation to Japanese obligations. 

It is still difficult to determine the precise contours of these alleged breaches because the application does not set out the underlying facts. It is certain, however, that the action does not touch and will not raise arguments about the validity (or not) of Australia's Antarctic territorial claim. It is, indeed, what has been called 'sovereign neutral'.

While we can be sanguine about this aspect of the case, the prospect for success on the merits is by no means certain. That's the subject of my next post.

Photo by Flickr user pratt, used under a Creative Commons license.