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Lord Hunt of Kings Heath: Under the terms of Article VIII of the International Convention on the Regulation of Whaling, Japan's lethal research takes of minke whales in the Southern Ocean and of minke, Bryde's, sei and sperm whales in the North Pacific are, regrettably, quite legal.

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The right of any contracting Government to the International Whaling Commission (IWC) to issue special permits and to conduct lethal research whaling is enshrined in Article VIII of the International Convention on the Regulation of Whaling (ICRW). The chairs' suggestions do not include any proposal to amend Article VIII. The extent to which current so-called scientific whaling may or may not be curtailed as a result of pursuing any of the options advanced in the chairs' paper will depend on the willingness of those Governments currently pursuing such operations to scale them back voluntarily, in exchange for other possible concessions. There would be no legal recourse for the IWC if such voluntary action were ever discontinued.

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Save through an amendment to Article VIII of the International Convention on the Regulation of Whaling (which would probably require the convening of a formal diplomatic conference to adopt it and subsequent ratification by all parties to bring it into effect), the International Whaling Commission has no power to alter the legal status of whaling under special permit

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Nobody hunts whales in the US, Why?

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Originally posted by agni99:
This is Justice Alsop's ruling

http://www.hsi.org.au/editor/a...vs_Kyodo_FCA_664.pdf

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First, the Government considers that the Government of Japan would regard any attempt by Australia to enforce Australian law against Japanese vessels and its nationals in the Antarctic EEZ to be a breach of international law on Australia’s part and would give rise to an international disagreement with Japan.

Secondly, enforcement of Australian domestic law against foreigners in the Antarctic EEZ, based as it is on Australia’s claim to territorial sovereignty to the relevant part of Antarctica, can be “reasonably expected to prompt a significant adverse reaction from other Antarctic Treaty Parties”.

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Senator SIEWERT-Exactly. But that is not done when there are foreign vessels whaling in Australian waters.

Mr Campbell-If what you are suggesting is that Australian vessels that normally enforce fisheries laws do not enforce those laws in our proclaimed exclusive economic zone off the Australian Antarctic Territory, the answer is: yes, they do not board the vessels.

Senator SIEWERT-That is because those waters are not recognised internationally?

Mr Campbell-It is partly because relatively few countries recognise our sovereignty over the Australian Antarctic Territory and hence our sovereign rights over the adjacent waters, but also because of sensitivities within the Antarctic Treaty system.

Senator SIEWERT-What happens where those waters are near our bases? Are those waters recognised as our waters near our bases?

Mr Campbell-I think it comes back to the basic point that it is a question of recognition of our sovereignty over the Australian Antarctic Territory. Whilst Australia firmly believes that it has sovereignty over it, that is a view that is not shared by a lot of other countries.

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Textually, Article IV(2) has direct bearing on
the legality of Australia’s declaration of an Antarctic EEZ in 1994 and
enforcement of the Australian AWS under the EPBC Act. Specifically,
the treaty prohibits a state from asserting a “new claim, or enlargement
of an existing claim, to territorial sovereignty in Antarctica . . . .”133 The
effect “would seem to be that EEZs cannot be claimed off [Antarctic]
territory . . . .”134

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In these cir****tances, it is difficult to characterize the declaration
of an EEZ, in Antarctica or elsewhere, as anything but a claim. The EEZ
did not exist in 1961 when the Antarctic Treaty came into force. Upon
its establishment, it did not automatically attach to a coastal state by
virtue of international law, as may be the case in connection with the
territorial sea141 or the contiguous zone.142 An EEZ is not created ipso
facto, but must be declared. Accordingly, under Article IV(2) of the
Antarctic Treaty it seems clear that the declaration of an EEZ is a
“claim” that is prohibited, provided the other conditions of the Article
are satisfied.

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With the entry into force of Article IV of the Antarctic Treaty, a legal
bar to EEZ claims was established because such a claim would either
be a new claim or the enlargement of an existing claim.145

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A key objection to maritime claims to an EEZ in Antarctica relies
on the fact that under Article VI nothing in the Antarctic Treaty can
“prejudice or in any way affect the rights, or the exercise of the rights,
of any State under international law with regard to the high seas” in
Antarctica.164 A number of states maintain that this means all Antarctic
seas are to be considered high seas because there are no recognized
sovereign coastal states within the ATS.165 In other words, for the 187
states that do not recognise territorial claims in Antarctica, all marine
areas adjacent to Antarctica are high seas because there are no coastal
states.166

quote:

Originally posted by agni99:
This is Justice Alsop's ruling

http://www.hsi.org.au/editor/a...vs_Kyodo_FCA_664.pdf

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"A lie can travel halfway around the world while the truth is putting on its shoes." - Mark Twain

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Originally posted by agni99:
And this is the legal opinion of the Government of the United Kingdom as expressed to the House of Lords by the Minister

http://www.publications.parlia.../text/90304w0004.htm

Clearly, just like Japan, other countries do not recognize these waters as Australian.

And clearly the Japanese whaling is legal.

quote:

Originally posted by agni99:
This is Justice Alsop's ruling

http://www.hsi.org.au/editor/a...vs_Kyodo_FCA_664.pdf

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12 Australia’s claimed exclusive economic zone extends to the waters adjacent to the baseline of Australia’s external territories, including, importantly for this matter, the Australian Antarctic Territory. By virtue of the statutory definition in s 225 of the EPBC Act, the waters within 200 nautical miles from the Australian Antarctic Territory land mass are within the Australian Whale Sanctuary.

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20 Following the Full Court judgment, the applicant attempted, unsuccessfully, to serve the respondent in Japan via diplomatic channels. The Japanese Ministry of Foreign Affairs, in a note verbale dated 26 October 2006, refused to allow the documents to be accepted for service on the grounds that “this issue relates to waters and a matter over which Japan does not recognise Australia’s jurisdiction”. The applicant then filed a notice of motion on 31 January 2007, seeking substituted service upon the respondent in accordance with Order 7 rule 9 of the Federal Court Rules.

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... JARPA is not a recognised foreign authority for the purposes of subsection 7(1) of the Antarctic Treaty (Environment Protection) Act 1980 (Cth).

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42 The respondent is the entity authorised by the Japanese Government to conduct the whaling. No direct evidence has been adduced to establish that the crews of the vessel were employees of the respondent. I infer, however, that the crews of the various vessels in the fleet were acting in accordance with the respondent’s authority, under JARPA and JARPA II.

43 Based on the facts outlined above, I am satisfied that the respondent is responsible for the actions of the whaling fleet for the purposes of the EPBC Act.

44 For the reasons already given in earlier reasons, I am satisfied that the EPBC Act applies to the Australian Whale Sanctuary and that there is no recognised foreign authority for the purposes of s 7(1) of the Antarctic Treaty (Environment Protection) Act 1980 (Cth). In reaching this latter conclusion, I have acted on the submissions and material put on by the applicant and the concession of the Attorney-General, both referred to at [40] of my reasons published on 27 May 2005 ([2005] FCA 664). Thus, I am satisfied that the respondent has contravened the EPBC Act, as alleged.

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47 In addition to paragraphs [14] – [16] of the majority judgment of the Full Court of this Court on appeal (excerpted above), Black CJ and Finkelstein J said the following on futility at [18] – [20]:

There is another way of considering the question of futility. The injunctive relief that the appellant seeks is relief by way of statutory injunction under s 475 of the EPBC Act. That section authorises the grant of what has been called a public interest injunction: see ICI Australia Operations Pty Ltd v TPC (1992) 38 FCR 248 at 256. Section 475 and the related provisions in Div 14 of Pt 17 of the EPBC Act have their counterpart in s 80 of the Trade Practices Act 1974 (Cth) (‘the TP Act’) upon which they appear to have been largely modelled.

Parliament has determined that it is in the public interest that the enforcement provisions of the EPBC Act should be unusually comprehensive in scope. Section 475 of the EPBC Act and its related provisions form part of a much larger enforcement scheme contained in the 21 divisions of Pt 17. The provisions include the conferral of powers of seizure and forfeiture, powers to board and detain vessels and authority to continue a pursuit on the high seas.

It is an important and distinctive feature of Div 14 of Pt 17 of the EPBC Act that, like s 80(4) of the TP Act, the Federal Court is expressly empowered to grant an injunction restraining a person from engaging in conduct whether or not it appears to the Court that the person intends to engage again in conduct of that kind and, even, whether or not there is a significant risk of injury or damage to the environment if the person engages

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54 On the material placed before the Court, I am satisfied that the respondent has contravened ss 229, 229A, 229B, 229C, 229D and 230 of the EPBC Act in relation to Antarctic minke whales and fin whales by killing, injuring, taking and interfering with them and the treating and possessing of them and by injuring, interfering with and treating and possessing humpback whales and that, unless restrained, it will continue to kill, injure, take and interfere with them, and treat and possess them.

55 In all the cir****tances, the orders of the Court will be:

1. The Court declares that the respondent has killed, injured, taken and interfered with Antarctic minke whales (Balaenoptera bonaerensis) and fin whales (Balaenoptera physalus) and injured, taken and interfered with humpback whales (Megaptera novaeangliae) in the Australian Whale Sanctuary in contravention of sections 229, 229A, 229B and 229C of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), (the “Act”), and has treated and possessed such whales killed or taken in the Australian Whale Sanctuary in contravention of sections 229D and 230 of the Act, without permission or authorisation under sections 231, 232 or 238 of the Act.

2. The Court orders that the respondent be restrained from killing, injuring, taking or interfering with any Antarctic minke whale (Balaenoptera bonaerensis), fin whale (Balaenoptera physalus) or humpback whale (Megaptera novaeangliae) in the Australian Whale Sanctuary, or treating or possessing any such whale killed or taken in the Australian Whale Sanctuary, unless permitted or authorised under sections 231, 232 or 238 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

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Originally posted by antiantiwhaler:
so, Australia should dispatch navy?