Australia condemns Japan's whaling actions but enforcing Australian law against the whalers could undermine the Antarctic Treaty and threaten Australia's Antarctic claim.
Recent clashes between the Japanese whaling fleet and Sea Shepherd highlight the Antarctic legal dilemma Australia faces.
Relying on territorial claims originally asserted by Britain but also claims made on behalf of Australia by Sir Douglas Mawson during the 1930s, Australia claims approximately 42 per cent of the Antarctic continent.
However Australia's claim to the 'Australian Antarctic Territory' (AAT) is not widely recognised. In fact only France, New Zealand, Norway and the United Kingdom officially recognise Australia's claim, while prominent allies such as Japan and the United States reject the claim.
This fundamental weakness in Australia's Antarctic claim is not widely understood and is rarely publicly articulated. Last week Environment Minister Tony Burke alluded to it when he was asked about why Australia is so reluctant to enforce Australia's anti-whaling laws in Antarctica.
Burke noted the Antarctic Treaty places constraints on Australia's ability to enforce Australian law in Antarctica and he was right.
Partly as a device to shore up Australia's Antarctic territorial claim over the AAT, Australia was an enthusiastic supporter of the 1959 Antarctic Treaty. The treaty contains a unique provision in Article IV which states that by entering into the treaty no country will be considered to have renounced their Antarctic claim, or to have recognised any of the territorial claims that had been made over Antarctica, or have compromised their capacity to assert a territorial claim in the future.
In this respect Article IV effectively sought to set aside ongoing diplomatic stoushes over territorial claims and allow Antarctica to be used for peaceful scientific research. Article IV also limited the capacity of the treaty parties from asserting any new territorial claims or enlarging any of their claims. Treaty parties also agreed to limit their exercise of jurisdiction to their nationals, meaning that they could not apply their national laws to foreigners.
By and large these provisions of the treaty have worked well for over 50 years, including more recent comprehensive environmental protection measures, such as a ban on mining.
However, in the past decade some cracks have begun to appear in the Antarctic pact and this has arisen primarily as a result of sovereignty and associated tensions over resource management. Australia has been at the centre of these tensions and its efforts to regulate whaling in the Southern Ocean have exposed some considerable weaknesses in Australia's policy and legal position.........please open link to read more...