Enforcing Australian Law in Antarctica: The HSI Litigation

Article excerpt

[Law enforcement in Antarctica is complicated by uncertainties regarding sovereignty, and jurisdiction. In line with the usual practice of the Antarctic Treaty parties, Australia has generally refrained from enforcing its legislation for the Australian Antarctic Territory against foreigners. Recent litigation that attempts to enforce Australian whale protection laws against Japanese whalers in Antarctica represents a challenge to this traditional approach. The HS1 Litigation highlights the ongoing difficulties faced by Australia in trying to effectively manage the Australian Antarctic Territory within the constraints of the Antarctic Treaty System. Using fisheries regulation and continental shelf delimitation as comparative examples, this commentary highlights the challenges of law enforcement facing the Antarctic legal regime, and the implications for Australian Antarctic law and policy. The traditionally restrained approach to law enforcement in Antarctica has allowed the Antarctic Treaty System to flourish and develop into a dynamic, and arguably quite effective, regime for the environmental protection of Antarctica. This is despite the fundamental disagreements between states over questions of territorial sovereignty. It seems likely that continuation of the HSI Litigation will provoke an international response from Japan, and potentially have further repercussions for the Antarctic Treaty System.]

CONTENTS

I    Introduction
II   International Law Context
III  The HSI Case
IV   A Brief History of Australian Involvement in Antarctica
V    Management of Antarctica under the Antarctic Treaty System
VI   Sovereignty and Jurisdiction
       A Maritime Zones in Antarctica
       B Enforcement Jurisdiction
VII  Regulation of Fisheries
VIII Regulation of Whaling
IX   Conclusion

I INTRODUCTION

Law enforcement in Antarctica has always been problematic because of uncertainty regarding sovereignty and jurisdiction in the region. Litigation currently before the Federal Court of Australia has reignited the debate about the extent to which Antarctic Treaty (1) parties can enforce their national laws against foreigners in the Antarctic. (2)

The court action has been brought by an environmental group, Humane Society International ('HSI'), against a Japanese company, Kyodo Senpaku Kaisha Ltd ('Kyodo'). It relates to whaling operations that are alleged to have been conducted by Kyodo, contrary to Australian law, in the exclusive economic zone ('EEZ') offshore the Australian Antarctic Territory.

On its face, the litigation appears to involve a fairly straightforward application of Australian laws for the protection of whales. Behind that facade, however, lies a complex web of international law obligations: the law of the sea, laws for the regulation of whaling and laws governing the Antarctic Treaty System. (3) When viewed in this context, the litigation highlights the ongoing difficulties that Australia faces in relation to its assertion of sovereignty over the Australian Antarctic Territory. By raising questions about the ability of Australia to enforce its whale protection laws in Antarctica, the litigation also highlights the difficulties that Australia faces in trying to effectively manage the Australian Antarctic Territory within the constraints of the Antarctic Treaty System.

After briefly noting the international law context, this commentary will outline the HSI Litigation, in particular highlighting the political aspects of the litigation. It will then place the litigation in the context of Australian activities in Antarctica and the Antarctic Treaty. The commentary will then examine two issues that have been highlighted by this litigation: the assertion of jurisdiction over maritime areas and the enforcement of laws in Antarctica, in particular, laws dealing with fisheries and whaling. These issues will be assessed in reference to current Australian practice. …