Japanese whaling in Australian and New Zealand Antarctic waters

By Dr Chris McGrath, barrister, Queensland

The Federal Court of Australia has declared Japanese whaling in Australia’s Antarctic waters to be unlawful under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and granted an injunction restraining it. The result is the culmination of a series of decisions since 2004 in the ‘Japanese Whaling Case’ that have navigated the complex interplay between international law and Australian domestic law applying to Antarctica and whaling. (The primary citations of the series of decisions in this case are: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510; [2005] FCA 664; [2006] FCAFC 116; [2007] FCA 124; [2008] FCA 3; [2008] FCA 36. Background documents for this case, including court documents, submissions, affidavits, and maps, are available at http://www.envlaw.com.au/whale.html, viewed 23 January 2008.)

Despite the declaration and injunction issued in this case, ultimately enforcement of the prohibition against whaling in the Australian Whale Sanctuary (AWS) under the EPBC Act rests on the shoulders of the new Australian Government. It could stop the Japanese whalers by ordering an Australian customs or fisheries vessel to seize the Japanese vessels operating in the AWS adjacent to Antarctica. Prior to being elected and prior to the injunction being issued by the Federal Court, the Australian Labor Party committed itself to “enforce Australian law banning the slaughter of whales in the Australian Whale Sanctuary”, stating:
• It is illegal under the EPBC Act to kill or injure a whale within the AWS. Since 1999, more than 400 whales have been killed in the AWS without a single prosecution, despite these actions being illegal under Australian law.
• The then Attorney-General, Philip Ruddock, tried to block an action by the environment group Humane Society International Inc (HSI) to get Federal Court enforcement of Australian law, arguing that the prosecution of Japanese whalers would “create a diplomatic disagreement with Japan”.
• A Federal Labor Government will enforce Australian law prohibiting whaling within the AWS adjacent to the Australian Antarctic Territory (AAT), penalising any whalers found to have breached Australian law.
(Rudd, K and Garrett, P, “Federal Labor’s Plan To Counter International Whaling”, ALP Media Statement, 19 May 2007, available at http://www.alp.org.au/media/0507/msenhloo190.php, viewed 23 January 2008).

In January 2008, the Australian Government dispatched the customs vessel, Oceanic Viking, to monitor Japanese whaling, but stopped short of intercepting and seizing the Japanese vessels. It remains to be seen whether the new Australian Government will fulfil its election commitment to enforce Australian law against the whalers.

The litigation
The case began in late 2004 when HSI commenced proceedings in the Federal Court in Sydney against the Japanese company that conducts whaling in waters adjacent to Antarctica, including in the AWS adjacent to the AAT. The AWS covers the exclusive economic zone of 200 nautical miles adjacent to the Australian mainland and external territories that Australia has declared as an exercise of sovereign rights under the United Nations Convention on the Law of the Sea 1982 (UNCLOS). The exercise of jurisdiction against Japanese nationals killing whales in the AWS appears consistent with international law, including the Antarctic Treaty System (ATS), despite international sensitivity over sovereignty in Antarctica (see McGrath, C, “The Japanese Whaling Case” (2005) 22 EPLJ 250).

As the Japanese company has no registered office in Australia, to proceed against it HSI needed the leave of the Federal Court in accordance with the Federal Court Rules and the principles of private international law. Justice Allsop refused to grant leave to serve the originating process after Ruddock submitted to the Court that allowing the case to proceed would cause a diplomatic incident (Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664).

HSI succeeded in its appeal against this refusal and was granted leave to serve the originating process. The Full Court held that diplomatic and political considerations were irrelevant where, as here, Parliament had provided that the action was justiciable in an Australian court (Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 at [13] per Chief Justice Black and Justice Finkelstein, with whom Justice Moore agreed on this point (at [38]), although he dissented on the question of futility). The majority of the Full Court, Chief Justice Black and Justice Finkelstein, also set out important principles for “public interest injunctions”.

Broadly speaking, the principle that emerges from the majority judgment is that the Federal Court may grant an injunction under section 475 of the EPBC Act even if it may prove impossible to enforce where it serves the public interest objects of the Act by having an educative effect (see McGrath, C, “Japanese Whaling Case appeal succeeds” (2006) 23 EPLJ 333 at 333-335).

After being granted leave to serve the originating process, HSI sought to effect service through the diplomatic channel as normally required by the Federal Court Rules. However, this failed due to the Government of Japan refusing to serve the respondent company because of its non-recognition of Australia’s jurisdiction over Antarctic waters. HSI then sought, and was granted, an order for substituted service of the originating process by post and personal service (see Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124).

After service was effected by substituted service, the matter came on for trial before Justice Allsop. The respondent Japanese whaling company did not appear at the trial, and Justice Allsop proceeded to hear the matter in September 2007. At the trial, Justice Allsop sought confirmation of the Attorney-General’s views on the proceedings. In October 2007, Ruddock confirmed his opposition to the proceedings. However, following the Australian federal election in November 2007, the new Attorney-General, Robert McClelland MP, requested the Court not to place any reliance upon the views conveyed to the Court on behalf of the previous Attorney-General: “The Commonwealth Government believes that the matter would best be considered by the Court without the Government expressing a view.” (Correspondence dated 12 December 2007, written on behalf of the new Attorney-General to Justice Allsop.)

Justice Allsop did not acknowledge the changed views of the new Attorney-General in his reasons for judgment, but ultimately granted the declaration and injunction sought by HSI pursuant to the principles for public interest injunctions stated by the majority of the Full Court (Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3). HSI has since effected substituted service of the orders, thereby enlivening the potential for future contempt proceedings should the Japanese whaling company refuse to comply with the injunction.

Enforcement of the injunction
Enforcement of the injunction against the Japanese whaling company will be difficult, and, without the help of the Australian Government, probably impossible, which emphasises the importance of the change in the government’s attitude to the case. The company’s office is located in Japan and it has no assets outside Japan other than its vessels during whaling voyages. The injunction cannot be enforced in Japan because it is a non-money order and contrary to public policy under Japanese law.

If, as seems likely, the Japanese whaling company ignores the declaration and injunction and continues to whale within the AWS, HSI can bring contempt proceedings against it under the Federal Court Rules. The main penalty the Court can impose is to fine the company; however, the fine can be enforced through seizure and sequestration (ie sale of property to satisfy a judgment) of the respondent’s whaling vessels while they are operating in Australian waters. In practice, seizure and sequestration of the vessels would be effected by a Federal Admiralty Marshal, an officer of the Federal Court acting under the Admiralty Rules 1988 (Cth). In the unlikely event that one of the Japanese whaling vessels enters an Australian mainland port, HSI could seek an order from the Federal Court for seizure and sequestration of the vessels. Seizure can occur within Australian waters adjacent to Antarctica, but the practical difficulties of such a course are obviously immense and, without the support of the Australian Government, impracticable. The Australian Government could stop the whaling by ordering an Australian customs or fisheries vessel to seize the Japanese whaling vessels operating in the AWS adjacent to Antarctica, as has occurred on numerous occasions to enforce Australian fisheries laws in Australia’s northern waters and sub-Antarctic islands. (In “Australian Government imposes custodial sentence for illegal foreign fishers” (2006) 23 EPLJ 253 at 254, R Baird noted that 280 illegal fishing boats, mainly Indonesian, were apprehended by Australian fisheries vessels between 2000 and 2005, including by the Oceanic Viking customs vessel. Details of the arrest of the Russian flagged Volga for illegally fishing for Patagonian Toothfish in the Australian Heard Island/McDonald Island Exclusive Economic Zone are set out in Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 (Justice French); and [2004] FCAFC 262 (Chief Justice Black, Justices Emmett and Selway).)

Policy considerations
Despite the admonition of the Full Federal Court against courts considering political and diplomatic considerations, and the declaration and injunction ultimately granted by the Federal Court in this case, diplomatic considerations rightly affect the Australian Government’s actions in the international arena and in relation to Antarctica.

Consequently, it is necessary to consider at a political and diplomatic level how Australia can pursue its multiple objectives of maintaining Australian sovereignty in Antarctica, maintaining strong and cooperative diplomatic relationships with other nations concerned with Antarctica, and protecting whales. Australia has historically not enforced its laws against foreign nationals in the AAT or the adjacent exclusive economic zone (EEZ).

Some legal and policy commentators (eg Blay, S, and Bubna-Litic, K, “The interplay of international law and domestic law: the case of Australia’s efforts to protect whales” (2006) 23 EPLJ 465) and, indeed, most other Contracting Parties to the ATS argue that Australia cannot, and should not, attempt to enforce Australian laws against foreign nationals within the AAT and adjacent EEZ. However, the stronger legal view is that Australia can lawfully enforce its domestic laws against foreign nationals in the AAT and adjacent EEZ. (See House of Representatives Standing Committee on Legal and Constitutional Affairs, Australian Law in Antarctica: The report of the second phase of an inquiry into the legal regimes of Australia’s external Territories and the Jervis Bay Territory (Australian Government Printing Service, Canberra, 1992), para 2.31, available at http://www.aph.gov.au/house/committee/laca/antarctica.pdf, viewed 26 February 2008; and McGrath, “The Japanese Whaling Case”, at 250-254.)

On the basis that enforcing Australian laws against the Japanese whalers operating within Australia’s EEZ adjacent to the AAT does not breach the ATS, it can be justified to other Contracting Parties without destabilising the ATS or jeopardising their current cooperative approach. There are two reasons for this. First, the parties themselves excluded whaling from regulation under the ATS. Second, Australian domestic law recognises foreign authorities granted by parties to the ATS and, therefore, will not be enforced against activities taken pursuant to foreign authorities.

As the regulation of whaling in Antarctic waters was excluded from the ATS by the Contracting Parties themselves and Australian domestic law carefully recognises the general rule that Australian law will not be enforced against foreign nationals operating under an authority granted by a party to the ATS, Australia can justify enforcing its own laws against Japanese whaling in this case.

To best achieve its multiple objectives of maintaining Australian sovereignty in Antarctica, maintaining strong and cooperative diplomatic relationships with other nations concerned with Antarctica, and protecting whales, the Australian Government can base its long-term policy position concerning Japanese whaling in Antarctica on two levels:
• Supporting international cooperation under the ATS and not applying Australian law to matters regulated under the cooperative arrangements of the ATS (eg Russian drilling at Lake Vostok); but also,
• Applying Australian laws to matters outside the ATS, such as whaling, and to the activities of any nationals of non-parties (eg fishing vessels operating under flags of convenience).

Enforcing Australian law against Japanese whalers is consistent with this two-pronged approach to protecting the Antarctic environment.

Relevance for New Zealand law
The Japanese Whaling Case is relevant to New Zealand’s management of its Antarctic Territory, the Ross Dependency, and Japanese vessels operating offshore of this territory. New Zealand has some history of regulating whaling in waters adjacent to the Ross Dependency, but this has been limited to coastal waters of three nautical miles under The Ross Dependency Whaling Regulations 1926 and later The Ross Dependency Whaling Regulations 1929. (New Zealand later enacted the Whaling Industry Act 1935, for the licensing of whaling generally in New Zealand waters and by New Zealand vessels, but did not repeal the 1929 regulations.) New Zealand has a number of other pieces of legislation specific to Antarctica that do not regulate whaling: Antarctica Act 1960, Antarctic Marine Living Resources Act 1981, and Antarctica (Environmental Protection) Act 1994. Unlike Australia, New Zealand has not declared an EEZ adjacent to its Antarctic territory under the UNCLOS.

The Marine Mammals Protection Act 1978 (MMPA) regulates the taking of marine mammals in New Zealand waters. However, the MMPA is not in force in the territorial sea of 12 nautical miles adjacent to the Ross Dependency. The Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 has not been commenced in relation to the Ross Dependency. (See the Territorial Sea and Exclusive Economic Zone Act Commencement Order 1977.) The MMPA, therefore, prohibits any person (including a foreign national) killing marine mammals on the Ross Dependency, but not in the adjacent waters. The Ross Dependency Regulations 1923 apply the laws of New Zealand to the Ross Dependency “except in so far as the same are inapplicable to the conditions in such dependency”. Consequently, the only New Zealand law that prohibits whaling by foreign nationals in waters adjacent to the Ross Dependency is the Ross Dependency Whaling Regulations 1929, the operation of which is limited to waters within three nautical miles of the dependency. (See Bush, WM, Antarctic and International Law: A Collection of Inter-State and National Documents, Volume III (Oceana Publications Inc, New York, 1982), pp 51-57.)

Like Australia, New Zealand has a strong international policy opposing Japanese whaling in Antarctic waters and, therefore, the policy considerations set out above are equally applicable to New Zealand. Consequently, to maintain New Zealand sovereignty in Antarctica, to continue the cooperative approach under the ATS, and to protect whales, New Zealand would best proceed by: exercising its rights under UNCLOS to claim an EEZ adjacent to the Ross Dependency; prohibiting whaling in its EEZ; and excluding Japanese whaling vessels from its waters. 

Conclusion
The Japanese Whaling Case raises an intriguing interplay between national and international law, and some very difficult legal issues. The case is important at a number of levels, not least of which is the complete protection of whales in a massive body of ocean adjacent to Antarctica. Sovereignty over Antarctica and international politics simmer in the background. The Australian Government can lawfully fulfil its election commitment to “enforce Australian law banning the slaughter of whales in the Australian Whale Sanctuary” while meeting the diplomatic concerns of other Contracting Parties. Whether the Government fulfils its election commitment remains to be seen.

Dr Chris McGrath BSc LLB (Hons) LLM PhD was junior counsel for HSI in the Japanese Whaling Case. This article is adapted from a paper available at http://www.envlaw.com.au/whale24.pdf (viewed 18 April 2008).

NZLawyer, 16 May 2008