Legal cases rulings re whaling in Australian Southern Ocean 2008

WHAT IS THE CURRENT STATUS ON THE FOLLOWING LEGAL CASES ALREADY COMPLETE.

Are we to be told by the Australian Govt that the Australian Federal court orders about whaling are to be ignored? If this is not reaon enough for Australia to enforce the court orders by the Royal Australian Navy since the duty of patrolling the Australian coastline falls to them.Maybe it's time to create an equivalent to the USA Coast Guard.

Humane Society International Inc v Kyodo Senpaku Kaisha
Ltd [2008] FCA 3 (15 January 2008)
Last Updated: 15 January 2008
FEDERAL COURT OF AUSTRALIA
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3
HUMANE SOCIETY INTERNATIONAL INC v KYODO SENPAKU KAISHA LTD
NSD 1519 OF 2004
ALLSOP J
15 JANUARY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1519 OF 2004
BETWEEN: HUMANE SOCIETY INTERNATIONAL INC
Applicant
AND: KYODO SENPAKU KAISHA LTD
Respondent
JUDGE: ALLSOP J
DATE OF ORDER: 15 JANUARY 2008
WHERE MADE: SYDNEY
1. THE COURT DECLARES that the respondent has killed, injured, taken and
interfered with Antarctic minke whales (Balaenoptera bonaerensis) and fin
whales (Balaenoptera physalus) and injured, taken and interfered with humpback
whales (Megaptera novaeangliae) in the Australian Whale Sanctuary in
contravention of sections 229, 229A, 229B and 229C of the Environment
Protection and Biodiversity Conservation Act 1999 (Cth), (the "Act"), and has
treated and possessed such whales killed or taken in the Australian Whale
Sanctuary in contravention of sections 229D and 230 of the Act, without
permission or authorisation under sections 231, 232 or 238 of the Act.

2. THE COURT ORDERS that the respondent be restrained from killing, injuring,
taking or interfering with any Antarctic minke whale (Balaenoptera bonaerensis),
fin whale (Balaenoptera physalus) or humpback whale (Megaptera novaeangliae)
in the Australian Whale Sanctuary, or treating or possessing any such whale killed
or taken in the Australian Whale Sanctuary, unless permitted or authorised under
sections 231, 232 or 238 of the

BRIEFING NOTE: THE AUSTRALIAN FEDERAL COURT JUDGMENT IN THE
JAPANESE WHALING CASE
HUMAN SOCIETY INTERNATIONAL INC V KYODO SENPAKU KAISHA LTD [2008] FCA
BY DR DAVID LEARY*
EXECUTIVE SUMMARY:
On 15 January 2008 the Australian Federal Court delivered its judgment in the case Human
Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 31 on the legality under
Australian Domestic Law of Japanese whaling in the Whale Sanctuary declared by Australia in the
waters adjacent to Australia’s Antarctic Territory. Japan claims these waters are high seas and does
not recognize Australia’s territorial claim in Antarctica. This briefing note has been prepared as a
summary of the decision in that case to aid informed debate of the whaling issue at the Pew
sponsored Whale Symposium to be held at the United Nations University, Tokyo on 30 and 31
January 2008.
In summary the judgment of the Australian Federal Court in the Whaling Case did not rule on the
legality or otherwise of Japanese whaling under international law but was confined to issues of
Australian domestic Law. The Court did not rule on whether the whaling was ‘scientific research’
for the purposes of the International Whaling Convention. However, the Court did rule that
Japanese Whaling within the Australian Whale Sanctuary adjacent to the Australian Antarctic
Territory contravened the provisions of the Australian Environment Protection and Biodiversity
Conservation Act 1999 (Cth) (the EPBC Act). In particular the Court held that the Respondent had
contravened ss 229, 229A, 229B, 229C, 229D and 230 of the EPBC Act in relation to Antarctic
minke whales and fin whales by killing, injuring, taking and interfering with them and the treating
and possessing of them and by injuring, interfering with and treating and possessing humpback
whales and that, unless restrained, it will continue to kill, injure, take and interfere with them, and
treat and possess them. The Court issued an injunction to restrain the Japanese whalers from
continuing with such conduct.

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Legality of whaling Under International Law

There have been a number of legal reports produced which have concluded that the Japanese whaling program is illegal on several counts. These full reports are confidential.

They include


There is a summary report of the Sydney panel report available. They concluded that Japan’s rapidly expanding ‘scientific’ whaling program breaches the United Nations Convention on the Law of the Sea, the Antarctic Treaty System and the Convention on International Trade in Endangered Species (CITES) and the International Convention on the Regulation of Whaling.
 
“Japan’s whaling program is illegal and will remain so until a government takes steps to challenge this unlawful activity”, said Professor Don Rothwell, chair of the Sydney Legal Panel.

Here are the conclusions of the Sydney panel Report Summary PDF:

SUMMARY OF FINDINGS = MAY 2007
Sydney Panel of Independent International Experts on Japan’s Special Permit (“Scientific”) Whaling under International Law

Principal Conclusions

1. That Australia and New Zealand consider sponsoring meetings of legal, scientific and policy experts to discuss options to resolve the dispute with Japan and the future of whale conservation within the International Whaling Commission

2. That Australia and New Zealand consider requesting Japan to agree to an ad hoc (one off) arbitration of the dispute on mutually agreeable terms

3. That Australia and New Zealand seek to raise their concerns over the conduct of JARPA II before the Antarctic Treaty parties, including at the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)

4. That Japan’s actions under JARPA II may be contrary to the requirement to conduct environmental impact assessment under the provisions of the 1992 Convention on Biological Diversity

5. That Japan’s authorisation of JARPA II may lead to breaches of the 1973 Convention on International Trade on Endangered Species of Wild Fauna and Flora (CITES)

6. That Australia and New Zealand consider commencing a legal claim before the International Tribunal for the Law of the Sea (ITLOS) seeking compulsory settlement of a dispute under the 1982 United Nations Convention on the Law of the Sea

7. That Australia and New Zealand also consider commencing a legal claim before the International Court of Justice arguing that Japan’s conduct of JARPA II was contrary to the International Convention on the Regulation of Whaling.

The Panel also noted that any legal action before the International Tribunal for the Law of the Sea or the International Court of Justice allowed for an immediate injunction to be sought which would have the effect of halting the Japanese whaling program prior to the commencement of the coming season.

Members of the Sydney Panel were:
Professor Donald R. Rothwell (Panel Chair; Professor of International Law, ANU College of Law, Australian National University, Canberra)
Professor Ivan Shearer (Emeritus Professor, Faculty of Law, University of Sydney, Sydney; Member, United Nations Human Rights Committee; Judge Ad Hoc, International Tribunal of the Law of the Sea)
Dr Christopher Ward (Sydney and Canberra Bar; President – International Law Association (Australian Branch))
Associate Professor Greg Rose (Australian National Centre for Ocean Resources and Security, University of Wollongong, Wollongong)
Dr Natalie Klein (Division of Law, Macquarie University, Sydney; Counsel before the International Court of Justice)
Dr Tim Stephens (Panel Rapporteur; Faculty of Law, University of Sydney, Sydney)

Re: LEGAL CASES RULINGS RE WHALING IN AUSTRALIAN SOUTHERN ...

The Judgement is still valid and just requires enforcement. Unfortunately, enforcement can only be done within the Australian jurisdiction or by voluntary cooperation outside the jurisdiction. So the ICR, Japananese companies involved in whaling can effectively thumb their noses at this Federal Court order as long as the companies and vessels stay out of Australian Territory.

But Humane Society International has threatened to take legal action against Australian companies aiding and abetting Japanese whaling industry. So the Air charter companies that Glenn Inwood hired to spy on conservation ships to pass on their co-ordinates and direction to vessels in the whaling fleet may be subject to legal action.

Re: LEGAL CASES RULINGS RE WHALING IN AUSTRALIAN SOUTHERN ...

TO TAKVER: I did the anonymous on this article and the article titled Ramming the Ady Gil real reasons for weak Aust. govt. response

Excellent information from you that should ideally be picked up by a major newspaper and cable, television so the Australian public can get the facts and pressure the Australian Government to action.

Amazing,facts get buried or ignored by government and the mainstream media just talks superficially.

I will try and get this info to journalists' contacts in Australian major papers and see if someone will make it a feature story.

I'll also try getting to CNN and see if anyone is willing to put it out there.

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