Australian Jurisdiction and Whales in Antarctica: Why the Australian Whale Sanctuary in Antarctic Waters Does Not Pass International Legal Muster and is Also a Bad Idea as Applied to Non-Nationals

34 Pages Posted: 2 May 2008 Last revised: 15 Nov 2015

See all articles by Don Anton

Don Anton

Griffith University - Griffith Law School; ANU College of Law

Abstract

This article examines the international legality of the projection of Australian adjudicative and enforcement jurisdiction against non-nationals in the Southern Ocean forming part the Antarctic Treaty Area. It sets out the Australian legal foundations on which Australian jurisdiction is currently being exercised for alleged breaches of Australian law applying to the Australian Antarctic Whale Sanctuary in the HSI v. Kyodo case. It then evaluates the exercise of Australian jurisdiction in light of the applicable international law. It accepts arguendo the factual basis of Australia's territorial claim in Antarctica, but nevertheless concludes that the extension of Australian jurisdiction over non-nationals in the purported Antarctic Australian Whale Sanctuary contravenes conventional and customary international law. In light of this conclusion, the article details the nature and importance of the ATS in order to highlight what is at stake by the challenged posed by the assertion of Australian jurisdiction. It then presents reasons why (in addition to illegality) the projection of Australian prescriptive, adjudicative and enforcement jurisdiction in what almost all other states consider the high seas off Antarctica is an unsound idea. The article concludes by arguing that the current Australian law conferring jurisdiction ought to be repealed.

Keywords: International Law, Antarctica, Law of the Sea, Whales

JEL Classification: K33, K32

Suggested Citation

Anton, Donald K., Australian Jurisdiction and Whales in Antarctica: Why the Australian Whale Sanctuary in Antarctic Waters Does Not Pass International Legal Muster and is Also a Bad Idea as Applied to Non-Nationals. Asia Pacific Journal of Environmental Law, Vol. 11, No. 3 & 4, 2008; ANU College of Law Research Paper No. 08-02. Available at SSRN: https://ssrn.com/abstract=1127852 or http://dx.doi.org/10.2139/ssrn.1127852

Donald K. Anton (Contact Author)

Griffith University - Griffith Law School ( email )

Kessels Road, Law Bldg (N61)
Nathan, QLD, 4111
Australia

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

HOME PAGE: http://https://law.anu.edu.au/staff/don-anton

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