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WHALING IN THE 21ST CENTURY: ARE AUSTRALIAN & INTERNATIONAL LAWS & POLICIES SUFFICIENT IN PROTECTING WHALES IN THE SOUTHERN OCEAN FROM EXPLOITATION?

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Introduction

Topic #1 Using the issues raised in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd series of cases as a central reference point, discuss the difficulties faced by Australia, and others, in trying to protect whales in the Southern oceans from exploitation. WHALING IN THE 21ST CENTURY: ARE AUSTRALIAN & INTERNATIONAL LAWS & POLICIES SUFFICIENT IN PROTECTING WHALES IN THE SOUTHERN OCEAN FROM EXPLOITATION? I INTRODUCTION The exploitation of whales in the Southern Ocean has been a contentious issue in international maritime law for a number of years.1 The primary point of contention being the controversial continuation of whaling under scientific permits by Japan, in particular within the areas claimed by Australia as part of its Antarctic Territory.2 Australia's claim to sovereignty over certain areas in Antarctica is not recognised by Japan, and this has lead to escalating tensions between the two countries. There are a number of international treaties and protocols that inform the governance, management and protection of marine living resources. These have in-turn influence an array of Australian legislation that govern the marine environment.3 The complexity of the whaling argument brings to the forefront of the debate the difficulties of applying national and international laws in relation to marine animal protection. This essay focuses on the issues surrounding whaling in the Southern Ocean, particularly focusing on the issues raised in the case of Humane Society International Inc v Kyodo Senpaku Kaisha Ltd4 and the impact the outcome has on Australian an international law. These issues are quite complex and controversial with regards to whether the international policies that are in place are adequate in protecting whales from over-exploitation in the Southern Ocean. There is unremitting debate regarding whether the provisions outlined in the International Convention for the Regulation of Whaling 1946 (ICRW)5 are adequate in their role for preserving whale stocks and in turn decreasing over-exploitation. In addition, the political complexities surrounding the issue contribute significantly to the absence of any intervention on the implementation of domestic and international ...read more.

Middle

and the broader environmental value it serves.61 Due to the 'dysfunctional' whaling regime, in addition to most countries viewing this type of Australian litigation as an unlawful exercise of Australian jurisdiction in the Southern Ocean, there may be a real prospect that any whaling disputes may have a detrimental ripple effect on the ATS, and perhaps even beyond those who are signatories to the Treaty.62 The danger is that the issue of whaling might distort and obscure the larger environmental picture in Antarctica. Moreover, Australia's exercise of jurisdiction over non-nationals and resources in the AWS has the potential to threaten other jurisdictional claims over resources. This in turn, would certainly lead not to the conservation and protection of those resources, but to an increase in over-exploitation of marine resources and environmental harm in the Antarctic.63 On the positive side, while the HSI64 case was an extremely difficult case in terms of its implication for international law and international relations, the decision has a number of important constructive implications in relation to marine animal protection law in Australia. Firstly, from a practical perspective for protecting whales from exploitation, the decision proves that Australian legislation, mainly those provisions found in the EPBCA,65 can be enforced in prohibiting whaling in the massive tract of water adjacent to Antarctica that Australia holds sovereignty over. Secondly, from a private international law perspective, the case confirms that diplomatic and political issues are not relevant to grant leave to serve process outside jurisdiction for proceedings. In addition, to do so should not infringe the principles of international comity, and that these matters can now be resolved without reference to any non-justicible issues.66 Lastly, from an environmental law perspective, another encouraging aspect that emerged from the case is undoubtedly the appeal Judges' emphasis on the principles for allowing interested parties such as NGOs and environmental activists to file for public interest injunctions pursuant to section 475 of the EPBCA.67 The decision of the Full Court, followed by the injunctions issued by Allsop J, could well be seen as reinforcing demands that Japan cease its scientific whaling program in Antarctic waters. ...read more.

Conclusion

44 N Hughes and N Klein, above n 26, 183. 45 Commonwealth Attorney-General, above n 17, [14]. 46 Environmental Protection and Biodiversity Conservation Act 1999 (Cth). 47 Commonwealth Attorney-General, above n 17, [17]. 48 HSI v Kyodo (Second Application for Leave to Serve) [2005] FCA 664 (Unreported, Allsop J, 27 May 2005) [19], in N Hughes and N Klein, above n 26, 184. 49 Environmental Protection and Biodiversity Conservation Act 1999 (Cth). 50 N Hughes and N Klein, above n 26, 183. 51 Environmental Protection and Biodiversity Conservation Act 1999 (Cth). 52 C McGrath, above n 7, 16. 53 Antarctic Treaty (Environment Treaty (Environment Protection Act) 1980 (Cth). 54 C McGrath, above n 7, 17. 55 Environmental Protection and Biodiversity Conservation Act 1999 (Cth). 56 Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2006], above n 4, [38]. 57 Ibid. 58 Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008], above n 4. 59 Environmental Protection and Biodiversity Conservation Act 1999 (Cth). 60 N Hughes and N Klein, above n 26, 198. 61 D Anton, above n 31, 350. 62 Ibid. 63 Ibid, 351. 64 Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008], above n 4. 65 Environmental Protection and Biodiversity Conservation Act 1999 (Cth). 66 C McGrath, above n 7, 17. 67 Environmental Protection and Biodiversity Conservation Act 1999 (Cth). 68 Ibid. 69 This is one of the points used by the applicants to justify the injunction: HSI, 'Applicant's Outline of Submissions for Leave to Serve outside the Jurisdiction', Submission in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, NSD 1519/2004, 12 November 2004, [31] in N Hughes and N Klein, above n 26, 200. 70 Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008], above n 4. 71 Environmental Protection and Biodiversity Conservation Act 1999 (Cth). 72 R Davis, 'Case Note: Federal Court declares Japanese whaling illegal in Australian Antarctic Waters: Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008] FCA 3' (2008) 159 Maritime Studies 21, 95. 73 Ibid. ?? ?? ?? ?? 1 Student I.D.: 21707188 1 ...read more.

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