Autralian 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

Donald K. Anton*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

6 Citations (Scopus)

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 of 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 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 Antarctic Treaty System 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 enforcernent 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 The article concludes by arguing that the current Australian law conferring jurisdiction ought to be repealed.

Original languageEnglish
Pages (from-to)159-192
Number of pages34
JournalAsia Pacific Journal of Environmental Law
Volume11
Issue number3-4
Publication statusPublished - 2008

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