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

Student I.D.: 21707188

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. 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. 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.

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 Ltd 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) 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 law.

II AUSTRALIA’S TERRITORIAL CLAIM IN ANTARCTICA AND THE REGULATION OF WHALING

A Australia’s Territorial Claim in Antarctica

The application of Australian law in relation to waters adjacent to Antarctica are based upon Australian sovereignty in Antarctica and international law. The Australian Antarctic Territory (AAT) is an external Territory of Australia as a matter of Australian domestic law, and is governed by provisions outlined in the EPBCA. While the ATT is recognised under Australian domestic law, sovereignty claims of Antarctica is a sensitive international issue, with only the United Kingdom, France, Norway and New Zealand officially recognising Australia’s claim over the AAT.

One of the key roles of the EPBCA includes the protection of threatened and endangered marine species. It applies throughout Australia, including its external territories and to adjacent waters claimed as Australia’s Exclusive Economic Zone (EEZ). The EPBCA established the Australian Whale Sanctuary (AWS) in order to give formal recognition of the high level of protection and management afforded to cetaceans in Commonwealth marine areas, including Australia’s EEZ. Section 225 provides provisions that regulate actions that will have, or are likely to have, a significant impact on threatened or migratory cetacean species that are listed under the Act. Pursuant to section 5(4) of the Act, it is an offence to kill, injure, take, possess or process a cetacean and this applies to all persons and vessels within territorial Australia and the EEZ.

In view of the controversy surrounding claims to maritime zones of Antarctica, Australia has established a practice of not seeking to enforce its domestic laws against foreign nationals in the claimed EEZ off the AAT. This practice has been sufficient for Australia in its international relationships with regards to the Antarctic Treaty System (ATS), however it creates difficulties when attempts are taken under private litigants acting in the public interest to have Australian authority exercised under the EPBCA.

B Regulation of Whaling

The regulation of whales within Australia’s EEZ is outlined in the overarching international legal framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Article 65 entitles Australia to ‘prohibit, limit or regulate the exploitation of marine mammals, including whales’. It requires Australia to cooperate with the conservation of marine mammals and ‘work through the appropriate international organisations for their conservation, management and study’. The appropriate international organisation is widely recognised to be the International Whaling Commission (IWC). The IWC was established under Article 3 of the ICRW to promote the objectives of the Convention. The purpose of the ICRW is to provide for the proper conservation of whale stocks and therefore make possible the ‘orderly development of the whaling industry’ rather than protect the whales themselves. The IWC is assisted by a Scientific Committee that is responsible for ‘reviewing scientific and statistical information with respect to whales and whaling, scientific research programs and special permits for scientific programs’.

The conduct of lethal scientific research on whales is conducted under Article 3 of the ICRW and allows countries to issue permits to its nationals authorizing killing, taking and experimenting of whales. Over the years an increase in IWC memberships primarily from anti-whaling states, led to the Commission steering away from its initial conservation mission (to exploit whales within the parameters of survival) towards a preservation model (no exploitation of the species regardless of its survival risks). This new focus became evident in 1986, when the IWC declared an interim global moratorium on all whaling. In 1994, the IWC established a Southern Ocean Whale Sanctuary in which commercial whaling was prohibited. While Japan has accepted the prohibition of commercial whaling under the moratorium, they have continue to carry out their lethal scientific whaling practices under claimed permits, and this remains to be the fundamental long-term threat to the over-exploitation of whales in the Southern Ocean.

III THE JAPANESE WHALING CASE

A Case Outline

This is a preview of the whole essay

III THE JAPANESE WHALING CASE

A Case Outline

The case of HSI v Kyodo concerned a challenge to Japan’s scientific whaling program in Antarctic waters. While the AWS is located within an area recognised as Australian territory for the purpose of Australian domestic law, other countries including Japan do not recognise Australia’s territorial claims. The challenge was brought before the court by Humane Society International (HSI), a not-for-profit non-government organisation (NGO) whose objectives include the promotion of the ‘enhancement and conservation of wild plants and animals’. They claimed that Kyodo Senpaku Kaisha Ltd (Kyodo), the company responsible for conducting the whaling program, had intentionally engaged in a series of activities that had resulted in Antarctic minke and fin whales being taken and interfered with, within the AWS. These acts were suggested to be in violation of sections 229-230 of the EPBCA. Kyodo claimed that the conduct was done in accordance with the Japanese Whaling Research Program under Special Permit in the Antarctic (JARPA) issued by the government of Japan under Article 8 of the ICRW and from 2005, under a second expanded program known as JARPA II. Both of which are monitored by the IWC. Permit’s authorised by the JARPA are not recognised in Australia pursuant to subsection 7(1) of the Antarctic Treaty (Environment Treaty (Environment Protection Act)) 1980 (Cth).

HSI, as an ‘interested person’ commenced proceedings in the Federal Court of Australia before Justice Allsop on 19 October 2004. They sought an injunction to stop Kyodo from any further whaling practices in the AWS. HSI believed that Kyodo had contravening sections 229-230 of the EPBCA because it had at no time held a permit as required under sections 231, 232 or 238 of the EPBCA. As Kyodo was a foreign company, HSI initially sought leave from the Federal Court to serve outside jurisdiction. Allsop J was concerned by the diplomatic implications of the proceedings regarding the rights Australia claimed off the AAT and therefore asked the Commonwealth Attorney-General to provide submissions on these issues as amicus curiae. In response, the Attorney-General highlighted both the international law issues and the consequent political controversy in seeking to enforce the EPBCA under international law. He conceded that HSI had a valid legal basis for service of the proceedings on Kyodo, however submitted that the Court should not allow service of the proceedings in Japan for diplomatic reasons. The Attorney-General declared that ‘Japan would consider any attempt to enforce Australian law against Japanese vessels and its nationals, in the waters adjacent to the AAT, to be a breach of international law on Australia’s part’.

In addition, the Attorney-General noted that with respect to the consequent political controversy that could arise if Australia sought to take law enforcement action against the Japanese whalers, Australia’s claimed jurisdiction of the EEZ adjacent to the AAT was reasonably expected to prompt a significant adverse reaction from other Antarctic Treaty Parties. He concluded that the enforcement of the EPBCA in relation to the AAT ‘would be contrary to Australia’s long term national interests’ and believed that Justice Allsop should consider his submission as a ‘key consideration’ in the proceedings determining whether to grant leave for HSI.

Allsop J acknowledged the Attorney-General’s submission, and although he agreed that they were non-justiciable, he regarded them as relevant considerations to be weighed when exercising judicial discretion. His Honour accepted that Japan would consider service or the exercise of federal jurisdiction under the EPBCA as contrary to international law. He further agreed with the Attorney-General in relation to the enforcement of the EPBCA on Japan may upset the diplomatic status quo under the ATS and be contrary to Australia’s long term national interests, including its interests connected with its claim to territorial sovereignty to the Antarctic. Allsop J concluded that the claim by the Court to exercise of jurisdiction to be impermissible under the ATS. Having considered the submissions by the Attorney-General, Justice Allsop declined to exercise his discretion to grant leave to serve originating process in Japan. HSI appealed against the decision to the Full Court of the Federal Court.

B Appeal

On appeal, the Full Court held unanimous that diplomatic and political issues were not relevant to the grant of leave to serve proceedings outside the jurisdiction in the case. The Judges agreed that the action was justiciable since the applicants had standing under the EPBCA. Moore J went on further to say that ‘to allow such considerations to influence the resolution of the application for leave denies the Federal Court its proper role in the Australian system of government’. He stated that courts must be prepared to hear and determine matters whatever their domestic or international political sensitivity is.

IV THE IMPACT OF THE OUTCOME ON AUSTRALIAN & INTERNATIONAL LAW & POLICIES

One of the most important aspects of the HSI case is the decision of the Full Court which reaffirmed the positive progression of marine animal protection law in Australia under the EPBCA. The case emphasises the difficulties that the courts have in addressing Australia’s rights and duties in the protection of over-exploiting marine resources through questions of domestic and international law. In particular, the Court avoided these issues either by focusing on the domestic law involved, by viewing questions of international law as contextual or political considerations, or by taking into account questions of international law as being sufficiently problematic that the Court should not determine the case at all. It is clear that the decisions in the case proved the reluctancy of the Court to engage specifically with questions concerning Australia’s rights and obligations under international law. This trend has both positive and negative aspects.

On the downside, the exercise of adjudicative and enforcement of jurisdiction in the AWS could be seen to significantly risk the continuing stability of the ATS and the broader environmental value it serves. 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. 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.

On the positive side, while the HSI 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, 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. 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. 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. Certainly the principles set out in the majority decision in the case will be binding on trial judges for injunctions and declarations sough under the EPBCA in the future. In addition, the result of the litigation may also be seen as sending a further message about Australia’s stance on whaling in the Southern Ocean.

V CONCLUSION

It is evident that the laws and regulations surrounding whaling in the Southern Ocean will continue to raise difficulties for Australian courts when trying to implement domestic law and international policies relating to sensitive global issues. The HSI case undoubtedly raised an intriguing interplay between national and international law. While the decision was a relatively straightforward application of the EPBCAs prohibition on whaling within the AWS, it is clear that the rights of Australia’s claim to the EEZ off the AAT remain unsettled as a matter of international law. Australia’s claims to sovereignty over Antarctica and claims to sovereign rights over adjacent maritime zones continue to be objected by Japan and are likely to be objected by other participants in the ATS. Given the sensitive nature of Antarctic sovereignty claims, and the associated uncertainty over maritime jurisdiction in the Southern Ocean, it seems likely that an international solution to the dispute is required rather than a unilateral assertion of domestic jurisdiction. Without this, Australian courts will be left open to further criticism in relation to applying domestic laws on internationally sensitive issues such as the exploitation of whales in the Southern Oceans.

BIBLOGRAPHY

Articles/Books/Reports

Anton, D, ‘Antarctic Whaling: Australia's Attempt to Protect Whales in the Southern Ocean’ (1 January 2009) 36(2) Boston College Environmental Affairs Law Review 3.

Baird, R, ‘The Antarctic Treaty System and Japan’s Scientific Whaling in the Southern Ocean – Is There an Obligation to Protect the Antarctic Marine Ecosystem?’ (2008) 11(3-4) ASIA Pacific Journal of Environmental Law 193.

Canberra Panel, ‘Japan’s ‘Scientific’ Whaling Program and the Antarctic Treaty System Independent Panel of Legal and Policy Experts’ (12 January 2009) Report of the Canberra Panel, <> at 10 January 2012.

Commonwealth Attorney-General, ‘Outline of Submissions of the Attorney-General of the Commonwealth as Amicus Curiae’, filed on 25 January 2005, Submission in Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2005] FCA 664, <> at 14 January 2012.

Davis, R, ‘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.

Davis, R, ‘Update: Japanese Whaling Litigation Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008] FCA 3’ (15 January 2008) 26(1) University of Tasmania Law Review.

Hughes, N, and Klein, N, ‘National Litigation and International Law: Repercussions for Australia's Protection of Marine Resources’ (2009) 33 Melbourne University Law Review 163.

Hutchinson, A, ‘Baleen Out the IWC: Is International Litigation an Effective Strategy for Halting the Japanese Scientific Whaling Program?’ (2006) 3 Macquarie Journal of International and Comparative Environmental Law.

Klein, N, ‘Where were the tuna watchers? Lessons for Australia in litigation against Japan’ (September 2008) 33(3) Alternative Law Journal.

McGrath, C, ‘Australia can Lawfully Stop Whaling Within its Antarctic EEZ’ (21 February 2008) National Environmental Law Association Seminar, <> at 14 January 2012.

Leary, D, ‘The standing of civil society to enforce Commonwealth environmental law under section 475 of the Environment Protection and Biodiversity Conservation Act and its international implications: the Japanese whaling case and the law of unintended consequences’ (2008) (8) Macquarie Law Journal.

Lyster, R, Lipman, Z, Franklin, N, Wiffen, G and Pearson, L, Environmental and Planning Law in New South Wales (2nd ed, 2009) The Federation Press, Sydney.

Case Law

HSI v Kyodo (Second Application for Leave to Serve) [2005] FCA 664.

Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2005] FCA 664.

Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2006] 154 FCR 425.

Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008] FCA 3.

Legislation

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

Treaties

Antarctic Treaty (Environment Treaty (Environment Protection Act) 1980 (Cth).

International Convention for the Regulation of Whaling, opened for signature 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948).

United Nations Convention on the Law of the Sea (1982).

Other Sources

Australian Legal Guide to Citation (2nd ed, 2002) Melbourne University Law Review Association Inc, Melbourne.

Environmental Law Publishing: Explaining the law to achieve sustainability, Japanese Whaling Case (2001) <> at 22 February 2011.

Killingbeck, S, LAW10727 Marine Animal Protection Law (1st ed, 2012) Southern Cross University, Lismore.

McGrath, C, ‘Injunction Granted in Japanese Whaling Case’ (2008) Humane Society International Technical Bulletin, <> at 10 January 2012.

Martin, E, and Law, J, (eds) Oxford Dictionary of Law, (6th ed, 2006).

A Hutchinson, ‘Baleen Out the IWC: Is International Litigation an Effective Strategy for Halting the Japanese Scientific Whaling Program?’ (2006) 3 Macquarie Journal of International and Comparative Environmental Law, 1.

S Killingbeck, LAW10727 Marine Animal Protection Law (1st ed, 2012) Southern Cross University, 43.

Ibid, 1.

Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2005] FCA 664; Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2006] 154 FCR 425; Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008] FCA 3.

International Convention for the Regulation of Whaling, opened for signature 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948).

R Baird, ‘The Antarctic Treaty System and Japan’s Scientific Whaling in the Southern Ocean – Is There an Obligation to Protect the Antarctic Marine Ecosystem?’ (2008) 11(3-4) ASIA Pacific Journal of Environmental Law 193, 196.

C McGrath, ‘Australia can Lawfully Stop Whaling Within its Antarctic EEZ’ (21 February 2008) National Environmental Law Association Seminar, <> at 10 January 2012, 2.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

S Killingbeck, above n 2, 45.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

S Killingbeck, above n 2, 31.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth), s 5(1).

Ibid.

Ibid, s 225.

Ibid, s 5(4).

Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008], above n 1, [5].

In 1959 Australia and Japan, along with a number of other nations concerned with the control and use of Antarctica, agreed to freeze further claims to sovereignty in Antarctica under the Antarctic Treaty 1959 (Antarctic Treaty). The treaty has been supplemented by the Convention for the Conservation of Antarctic Seals 1972, the Convention on the Conservation of Antarctic Marine Living Resources 1982 (CCAMLR), and the Protocol on Environmental Protection to the Antarctic Treaty 1991 (Madrid Protocol). Collectively, this regime is known as the Antarctic Treaty System (ATS). Although there have been periodic challenges to its legitimacy, the Antarctic Treaty System is the main international governance regime which applies to Antarctica and the Southern Ocean.

UNCLOS, art 65.

Ibid.

International Convention for the Regulation of Whaling, above n 5.

A Hutchinson, above n 1, 3.

International Convention for the Regulation of Whaling, above n 5.

S Killingbeck, above n 2, 18.

N Hughes and N Klein, ‘National Litigation and International Law: Repercussions for Australia’s Protection of Marine Resources’ (2009) 33 Melbourne University Law Review 163, 174.

International Convention for the Regulation of Whaling, above n 5.

S Killingbeck, above n 2, 45.

A Hutchinson, above n 1, 4.

The Southern Ocean Whale Sanctuary was established under Paragraph 7(b) of the International Convention for the Regulation of Whaling Schedule.

D Anton, ‘Antarctic Whaling: Australia’s Attempt to Protect Whales in the Southern Ocean’ (1 January 2009) 36(2) Boston College Environmental Affairs Law Review 3, 320.

Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008], above n 4.

D Leary, ‘The standing of civil society to enforce Commonwealth environmental law under section 475 of the Environment Protection and Biodiversity Conservation Act and its international implications: the Japanese whaling case and the law of unintended consequences’ (2008) (8) Macquarie Law Journal, 154.

Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008], above n 4, [3].

Ibid, [29].

International Convention for the Regulation of Whaling, above n 5.

Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008], above n 4. [3].

Ibid.

Section 475 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) was central to the commencement of the case as it permits an ‘interested person’ standing to bring an action to restrain a breach of the Act. Pursuant to section 475(7) of the Act, an ‘interested person’ includes, inter alia, organisations whose objects or purposes in the two years immediately before the conduct or proposed conduct occurred, included the protection or conservation of, or research into, the environment. Accordingly the provision gives standing to environmental NGOs to seek court orders to enforce the Act.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

Ibid.

N Hughes and N Klein, above n 26, 183.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

N Hughes and N Klein, above n 26, 183.

Commonwealth Attorney-General, above n 17, [14].

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

Commonwealth Attorney-General, above n 17, [17].

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.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

N Hughes and N Klein, above n 26, 183.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

C McGrath, above n 7, 16.

Antarctic Treaty (Environment Treaty (Environment Protection Act) 1980 (Cth).

C McGrath, above n 7, 17.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2006], above n 4, [38].

Ibid.

Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008], above n 4.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

N Hughes and N Klein, above n 26, 198.

D Anton, above n 31, 350.

Ibid.

Ibid, 351.

Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008], above n 4.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

C McGrath, above n 7, 17.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

Ibid.

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.

Humane Society International Inc v Koydo Senpaku Kaisha Ltd [2008], above n 4.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

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.

Ibid.

Environmental Protection and Biodiversity Conservation Act 1999 (Cth).