entire Antarctic continent, with its coordinates specifically outlined in the Schedule.
Apart from these established sanctuaries, over a number of years, Brazil and other
southern Atlantic littoral states have proposed the establishment of a South Atlantic
Whale Sanctuary, but have thus far failed to garner the necessary three-quarter
majority to amend the Schedule accordingly.
Not surprisingly, Japan has been an outspoken opponent of the establishment of
whale sanctuaries since it considers these contrary to a science-based approach of the
Commission. After all, whale sanctuaries establish blanket bans on the taking of
whales in specific areas, neglecting differences in stocks and, ultimately, negating
the migratory behaviour of many whale species. But be that as it may, despite the
existence of the Southern Ocean Whale Sanctuary, Japan has continued whaling in
it, since, officially, whaling operations were not for commercial but for scientific
reasons.
Here we enter the second element of relevance in this context: Australia’s
Antarctic claims. Seven states claim territories in Antarctica—Australia,
New Zealand, the UK, Chile, France, Argentina and Norway—some of which
overlap, based on their historical activities on the continent. However, the Antarctic
Treaty of 1959, which these states agreed on, but which has been joined by
numerous other states, including Japan, since then, does not substantiate such claims
as long as the treaty is in force. The treaty notes that “[n]o acts or activities taking
place while the present Treaty is in force shall constitute a basis for asserting,
supporting or denying a claim to territorial sovereignty in Antarctica or create any
rights of sovereignty in Antarctica.”
13 To this end, while all claimant states recognise
each other’s claims, other states do not. Japan, for example, does not recognise any
Antarctic territorial claims.
Australia has time and again made reference to its claim, also by submitting
information on its EEZ in its Antarctic territory to the UN Commission on the Limits
of the Continental Shelf (CLCS) in 2004. According to the UNCLOS, the coastal
state has sovereign rights over the marine resources within its EEZ, up to 200 nautical
mile from the baseline. To this end, Australia retains the right to control any fishing
or whaling activities in its EEZs, also in its Antarctic territory. Since Australia has
long criticised Japan’s scientific whaling operations in the Antarctic as being commercial whaling in disguise, it consequently considered Japan’s whaling in its
Antarctic EEZ as being in contravention of Australian law.
Australia took therefore an unusual step: it filed proceedings at the International
Court of Justice (ICJ). The ICJ is an international institution which aims to resolve
bilateral disputes. Even though whaling is indeed a multilateral activity, in the
Whaling in the Antarctic case, it essentially boiled down to a bilateral dispute
between Australia and Japan. Australia filed an application to start proceedings
against Japan on 31 May 2010, based on the assertion that Japan’s ongoing Antarctic
whaling programme, JARPA-II, violated the moratorium on commercial whaling
based on the ICRW and the associated Australian stance on whaling. The court, from
13 Antarctic Treaty, art IV c).
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5 The International Legal Framework for Whales
Apart from these established sanctuaries, over a number of years, Brazil and other
southern Atlantic littoral states have proposed the establishment of a South Atlantic
Whale Sanctuary, but have thus far failed to garner the necessary three-quarter
majority to amend the Schedule accordingly.
Not surprisingly, Japan has been an outspoken opponent of the establishment of
whale sanctuaries since it considers these contrary to a science-based approach of the
Commission. After all, whale sanctuaries establish blanket bans on the taking of
whales in specific areas, neglecting differences in stocks and, ultimately, negating
the migratory behaviour of many whale species. But be that as it may, despite the
existence of the Southern Ocean Whale Sanctuary, Japan has continued whaling in
it, since, officially, whaling operations were not for commercial but for scientific
reasons.
Here we enter the second element of relevance in this context: Australia’s
Antarctic claims. Seven states claim territories in Antarctica—Australia,
New Zealand, the UK, Chile, France, Argentina and Norway—some of which
overlap, based on their historical activities on the continent. However, the Antarctic
Treaty of 1959, which these states agreed on, but which has been joined by
numerous other states, including Japan, since then, does not substantiate such claims
as long as the treaty is in force. The treaty notes that “[n]o acts or activities taking
place while the present Treaty is in force shall constitute a basis for asserting,
supporting or denying a claim to territorial sovereignty in Antarctica or create any
rights of sovereignty in Antarctica.”
13 To this end, while all claimant states recognise
each other’s claims, other states do not. Japan, for example, does not recognise any
Antarctic territorial claims.
Australia has time and again made reference to its claim, also by submitting
information on its EEZ in its Antarctic territory to the UN Commission on the Limits
of the Continental Shelf (CLCS) in 2004. According to the UNCLOS, the coastal
state has sovereign rights over the marine resources within its EEZ, up to 200 nautical
mile from the baseline. To this end, Australia retains the right to control any fishing
or whaling activities in its EEZs, also in its Antarctic territory. Since Australia has
long criticised Japan’s scientific whaling operations in the Antarctic as being commercial whaling in disguise, it consequently considered Japan’s whaling in its
Antarctic EEZ as being in contravention of Australian law.
Australia took therefore an unusual step: it filed proceedings at the International
Court of Justice (ICJ). The ICJ is an international institution which aims to resolve
bilateral disputes. Even though whaling is indeed a multilateral activity, in the
Whaling in the Antarctic case, it essentially boiled down to a bilateral dispute
between Australia and Japan. Australia filed an application to start proceedings
against Japan on 31 May 2010, based on the assertion that Japan’s ongoing Antarctic
whaling programme, JARPA-II, violated the moratorium on commercial whaling
based on the ICRW and the associated Australian stance on whaling. The court, from
13 Antarctic Treaty, art IV c).
102
5 The International Legal Framework for Whales