Humane Society International Inc v Kyodo Senpaku Kaisha Ltd

1 I refer to my reasons dated 23 November 2004 ([2004] FCA 1510). I will not repeat matters (including definitions) there set out. These reasons should be read in conjunction with those reasons. Since November, I have received submissions made on behalf of the Attorney-General of the Commonwealth as amicus curiae. The applicant has responded to those submissions with written submissions of its own. 2 The submissions of the Attorney-General raised a number of issues with which it is necessary to deal, these being: (a) the nature of Australia's sovereignty over the Australian Antarctic EEZ and the grounds available under the relevant provisions of Order 8 Rule 1 of the Federal Court Rules, including the meaning of the phrase "in the Commonwealth" therein; (b) the nature of Australia's claims to the Australian Antarctic Territory and the adjacent EEZ and the lack of international recognition of those claims; (c) the likely consequences of any attempted curial enforcement of the EPBC Act upon Australia's international relations with Japan and other countries; (d) the Commonwealth Government's views as to the appropriate means of dealing with activities in the Antarctic EEZ, such as those apparently conducted by the respondent, which may be seen to be in contravention of the EPBC Act; and (e) the futility of any order permitting service in Japan. 3 The submissions of the applicant dealt with these matters as well as the two matters in respect of which I sought further assistance in my reasons of November: (a) whether the permits issued by Japan to the respondent, apparently under Article VIII of the Whaling Convention, cannot also be seen to be permits under Article 3 rules 1 and 2 of Annex II to the Madrid Protocol; and (b) the form of the pleading and whether it was pregnant with the proposition that the activities of the respondent exceeded what was allowed for by the relevant permit issued to it by the Government of Japan. 4 At the centre of the submissions on behalf of the Attorney-General are the international law issues attending Australia's claim to the Antarctic EEZ. There is no dispute that as a matter of Australian municipal law the Australian Antarctic Territory (that is Australian Antarctica "proper") is an external territory of Australia and the relevant adjacent waters of the Australian Antarctic Territory are part of Australia's Antarctic EEZ. Accordingly, there is no dispute that, as a matter of Australian municipal law, the provisions of the EPBC Act apply to foreigners and foreign flagged vessels (such as the respondent and its vessels) in the waters concerned. 5 The submissions on behalf of the Attorney-General reveal that Australia's claims to sovereignty over the Australian Antarctic Territory (along with the similar territorial claims of Argentina, Chile, New Zealand, Norway and the United Kingdom to different parts of the continent) are recognised by only a small number of countries. Formal recognition of Australia's claim is limited to four countries, including some of the other claimants to Antarctic territory: Norway, New Zealand, France and the United Kingdom. Japan does not recognise Australia's claim of territorial sovereignty over the Australian Antarctic Territory. 6 The legal framework (in terms of public international law) for activities in Antarctica that has been put in place to avoid arguments over fundamental claims to territorial sovereignty is found in the Antarctic Treaty 1959. The Antarctic Treaty, to which there are 28 Consultative Parties (both Australia and Japan being parties), provides (in Article IV) for the preservation of the positions of Parties in relation to their claims, or their opposition to claims of others, of territorial sovereignty. 7 Article VI of the Antarctic Treaty provides: The provisions of the present Treaty shall apply to the area south of 60° South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area. 8 The Australian domestic legislation concerning the Antarctic EEZ must (subject to any contrary intention in the domestic statute) be read conformably with the international convention providing the foundation for the legislation: El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA (2004) 209 ALR 448; [2004] 2 Lloyd's Rep 537 at [142] and the cases there referred to. The extension of territorial claims for control or some form of sovereignty to adjacent maritime waters is now regulated under international law in the United Nations Conventions on the Law of the Sea, done at Montego Bay on 10 December 1982 ("UNCLOS"). UNCLOS provides for the notion of EEZs up to 200 nautical miles beyond baselines of the coastal States from which the breadth of territorial seas are measured: see Article 57 of UNCLOS. Article 55 of UNCLOS recognises the fact that the claims for sovereignty in an EEZ are to be seen as balanced against the rights of other States and are to be found within the compromises embodied within the terms of UNCLOS. Article 55 reads: Specific legal regime of the exclusive economic zone. The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. 9 I referred in my earlier reasons to Article 65 of UNCLOS (see [54]). The balance between coastal States and other States can be seen in the terms of Articles 56 and 58 of UNCLOS which are in the following terms: Article 56 Rights, jurisdiction and duties of the coastal State in the exclusive economic zone