The Legality of Whaling, Part I: Australia's Imperialist and Illegitimate Territorial Claims

The Antarctic Treaty (ATS), which governs Nation State's claims in Antarctica, was originally signed in 1959 by 12 countries including United States, Japan, Australia, New Zealand, and Russia among others. It has since been adopted by 47 different countries including most major players in International Politics, such as China.

The treaty allows member nations to enter or reserve claims to land in Antarctica. However, many of these claims are overlapping and the treaty effectively acts as a gentleman's agreement to not pursue these claims. It has been quipped in the past that the Antarctic Treaty effectively puts territorial claims "on ice".
Key to this concept is Article IV of the original treaty:

Article IV
[territorial claims]
1. Nothing contained in the present Treaty shall be interpreted as:
(a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica;
(b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;
(c) prejudicing the position of any Contracting Party as regards its recognition or nonrecognition of any other State's right of or claim or basis of claim to territorial sovereignty in Antarctica.
2. No 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. No new claim, or enlargement of an existing claim, to territorial sovereignty shall be asserted while the present Treaty is in force.

While item 1 of Article IV makes it clear that countries may lay claim to Antarctica when they ratify it, item 2 expressly forbids them from acting on those claims. Item 2 also forbids them from making any new claims or enlarging an existing claim. So whatever was claimed when said country ratified the treaty cannot be changed.

This has three significant consequences for Australia.
- First, this treaty states that no other country needs to respect any claims Australia has made in Antarctica. In fact, only 4 countries recognize Australia's territorial claim: New Zealand, France, Norway, United Kingdom. Each of these 4 countries have their own claim which, in turn, Australia recognizes.
- Second, it forbids Australia from taking any action which may be construed as an attempt to enforce or legitmize their claims.
- Third, it forbids Australia from enlarging their claims.

When it comes to the whaling issue, Australia has violated every single one of these.

- First, Australia has perpetuated the myth that they have a legitimate claim which shall be recognized by Japan.

- Second, the HSUS court case against Kyodo Senpaku on whaling is a clear attempt to legitimize their claim. In fact, the implementation thus far for Environment Protection and Biodiversity Conservation Act suggests it was passed solely as an attempt to legislate against Foreign Nationals in International Waters. This can be seen by the fact that the Judge found them guilty for doing Non-Lethal research on Humpback whales:

Allsop said that while no humpback whales had been killed by the whaling firm, there was evidence that biopsy samples were taken from humpbacks using a crossbow.
   
"I am satisfied that this non-lethal method of sampling amounted to injuring, interfering with and treating a cetacean within the definition of the EPBC Act," he said.

Just last year, Australian Scientists set out to do the exact same research on humpbacks, taking 65 biopsies -- JARPA took 86 in the same period. Not only have they not been taken to court, but the Australia Government funded what their own courts has said is an illegal attack on whales. It appears that Australia believes it has the ability to legislate domestic law against Japanese citizens in International Waters.
While Australians are claiming Japanese do not respect their territorial illegitimate claims, it is actually Australians who do not respect the Sovereignty of Japan. I suspect this pattern of illogical and unreasonable double standards plays out across much of Australia's foreign policy in Asia.

- Third, the Exclusive Economic Zone (EEZ) which Australia claims Japan is operating in is an enlargement of their original claim. This EEZ was not claimed by the Australian Government until 29 July 1994, more than 3 decades after entering into a Treaty which forbids the "enlargement" of their existing claims.


USA doesn't recognize Australia's claims.(emphasis mine)

The United States recalls the principles and objectives shared by the Antarctic Treaty and the United Nations Convention on the Law of the Sea (the Convention), and the importance of the Antarctic system and the Convention working in harmony and thereby ensuring the continuing peaceful cooperation, security and stability in the Antarctic area. The United States wishes to inform you that, recalling Article IV of the Antarctic Treaty, the United States does not recognize any State's claim to territory in Antarctica and consequently does not recognize any State's rights over the seabed and subsoil of the submarine areas beyond and adjacent to the continent of Antarctica. The United States acknowledges with appreciation Australia's request to the Commission that it not take any action on that portion of its submission relating to areas of the seabed and subsoil adjacent to Antarctica.

Almost the exact same statement from:
Japan, Russia, Netherlands, Germany, India


In other words, Australia was forced, by worldwide opinion and with the legal backing of ATS Article IV, to withdraw their submission related to their illegitimate claims in Antarctica.

China and Russia don't even respect the semi-valid Australian claims to Antarctic territory (which is part of the ATS, as opposed the newly claimed 200m EEZ which is not part of ATS and therefore a violation of the treaty):

Countries such as the former Soviet Union, and now China and India, have not sought permission from Canberra to build their bases in the Australian Antarctic Territory.

New Zealand is looking at Australia's actions as an example of what NOT to do (emphasis mine):

The Australian legislation and the HSI case have put the Australian government in a fairly difficult position, fenced between the demands of the domestic constituency for enforcement of the injunction and the need to maintain international cooperation in Antarctica. Australia resolved this tension by dispatching the customs vessel Oceanic Viking to observe the Japanese whalers.

Although it may seem attractive to some for New Zealand to claim an EEZ and arrest Japanese whalers, this is not an action that is necessary or desirable at this stage. New Zealand maintains its claim to sovereignty by enacting legislation consistent with New Zealand sovereignty over the Ross Dependency, but by not pursuing its rights as vigorously as Australia has, it has taken a more conciliatory approach to the various positions of countries in the ATS. The Japanese whaling issue is a serious problem, and it is likely that the vessels will return to the waters of the Ross Dependency in the next whaling seasons. However, the path to resolving this dispute must be through international diplomacy rather than through individual state action that risks destabilising the ATS as collateral damage."

In essence, it is not just Japan who doesn't recognize these illegitimate territorial claims. With the exception of 4 countries, who only recognize Australia's claims in exchange for their own bogus claims being recognized, the entire world does not recognize the Australian fake Antarctic Territory.
One has to wonder if all the Nationalist furor and rhetoric which the Australian government, and various environmentalists frauds, stir up on this issue is about whales. Or if it's about finding a justification to enforce their Imperialist claims to the pristine Southern Ocean and it's rich resources?