[Australia's efforts to protect certain marine resources have been challenged in recent litigation before Australian courts, potentially prompting repercussions for Australia's standing within international legal regimes. In this article, the authors consider the extent to which Australian courts should not only be generally cognisant of the international law framework in which their decisions sit, but also take specific account of Australia's international rights and duties in determining matters. This analysis contributes to wider discussions about the role of international law before national courts and, in particular, addresses the use made of non-justiciability doctrines as well as whether national courts should play a role in seeking institutional change in the international legal system.]
CONTENTS I Introduction II Australia's Rights and Obligations under the Law of the Sea A Maritime Zones Extending from Australia's Mainland B Maritime Zones and the Australian Antarctic Territory C Australia's Rights and Duties in Relation to Marine Resources under International Law 1 Southern Bluefin Tuna 2 Whales 3 Mineral Resources III National Courts in the International Legal System IV National Court Treatment of International Affairs V National Litigation on Marine Resources: The Approach of Australian Courts towards International Law A HSI v Kyodo B Re HSI and Minister for the Environment C Petrotimor D Lessons from Marine Resources Cases VI Reconciling the Role of Australian Courts in Relation to International Law on Marine Resources I INTRODUCTION
Recent litigation before Australian courts in relation to the protection of certain marine resources (namely, whales, southern bluefin tuna and hydrocarbon resources in the Timor Gap) (1) may have repercussions for Australia's standing and responsibility within international legal regimes. In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd ('HSI v Kyodo'), (2) Re Humane Society International and Minister for the Environment ('Re HSI and Minister for the Environment') (3) and Petrotimor Companhia de Petroleos SARL v Commonwealth ('Petrotimor'), (4) the Australian judiciary was required to render decisions on the basis of Australian legislation that implicated international rights and duties. In light of these recent decisions, it is worth questioning to what extent Australian courts should not only be generally cognisant of the international law framework in which their decisions sit but also take specific account of Australia's international rights and duties in determining a matter. This study sits within a broader framework of analysis concerning the interaction of national and international law. The focus on litigation over marine resources protection provides another analytical stream for discerning broader trends in this area, both in Australia and globally.
The involvement of national courts in cases involving international law issues is by no means a new phenomenon and judges, practitioners and commentators have all grappled with the question of how national courts should address these issues. (5) An overriding concern for national courts has traditionally been the need for the different branches of government to 'speak with one voice',(6) and courts have usually been willing to defer to executive expertise in matters of international affairs through the application of various judicial doctrines. (7) Strict adherence to this approach has been increasingly questioned with the advent of globalisation and with it the growing involvement of non-state actors in international affairs. There has been an ongoing engagement of national courts with international affairs through both comparative constitutional law and international law. In the early 1990s, Professor Harold Koh argued that national courts should be willing to address those politically charged cases which he described as 'transnational public law litigation', (8) rather than indiscriminately applying judicial doctrines to avoid them. (9) Professor Koh advocated for a careful examination of whether a court has jurisdiction as the principal means for assessing whether cases with international implications should be heard and resolved. (10)
More recently, Professor Eyal Benvenisti has commented favourably on the use that national courts are now making of foreign and international law as a means of empowering domestic democratic processes, in some ways countering the forces of globalisation. (11) He notes that external pressures (ranging from cartels of powerful states, active non-governmental organisations and intergovernmental organisations) have reduced the ability of some governments to allow for national interests to be protected. (12) Furthermore, he proposes that enhanced coordination of national courts, through recourse to comparative constitutional law and international law, provides a means to restore meaningful domestic democratic deliberation. (13 )Professor Benvenisti argues that
for courts in most democratic countries ... referring to foreign and international law has become an effective instrument for empowering the domestic democratic processes by shielding them from external economic, political, and even legal pressures. (14) In considering national litigation related to Australia's protection of marine resources, it is possible to undertake a preliminary assessment as to the extent to which Australian courts are embracing Professor Benvenisti's notion of empowering domestic democratic processes. HSI v Kyodo, Re HSI and Minister for the Environment and Petrotimor are all cases that gave the applicants an opportunity to have a greater voice in shaping Australia's role or position on particular international law issues. Nonetheless, these cases show that Australian courts have been inconsistent in their willingness to address specifically rights and obligations arising under international law, although concerns regarding international affairs more generally have resonated in judicial decision-making. Consistent with Professor Koh's suggestion of 'doctrinal targeting' to increase the likelihood that courts will engage with cases involving international law, the courts have carefully considered whether they have jurisdiction to determine the cases presented or whether deference should be accorded to the other branches of government. (15) These assessments have predominantly been undertaken with regard to national law, rather than addressing the questions of international law at play. (16) Most notably, Australian courts have not availed themselves of the potential for courts to allow for international institutional reform, whereby rulings sought by plaintiffs on marine resource protection may potentially be taken to both domestic and international for a as a means of influencing their processes and decision-making. Instead, the courts have minimised their role in the international legal system, both in terms of developing the law itself and in relation to Australia's responsibility under international law. We consider this outcome to be appropriate and argue that Professor Benvenisti's support for judicial engagement to enhance democratic processes is unnecessary in the context of marine resource protection. (17)
In examining the judicial role in relation to Australia's rights and duties in the protection of marine resources, we first set forth the relevant international legal framework. The role of national courts vis-a-vis Australia's international rights and duties is then examined from an international law and Australian constitutional law perspective. From this background, we analyse the judgments in HSI v Kyodo, Re HSI and Minister for Environment and Petrotimor as a means of highlighting how decisions on national legislation have implicated Australia's international legal rights and duties (or at least its international standing) in relation to marine resources. The recent cases dealing with marine resources that are examined here merit attention in view of the stakes for Australia, namely, Australia's rights over resource-rich maritime areas and resources of consider able economic importance. (18) This article concludes that, while greater account could have been taken of Australia's international obligations in these cases, it is generally preferable that the courts avail themselves of non-justiciability doctrines in order to avoid causing international law disputes, despite any broader political goals for institutional reform that may exist.
II AUSTRALIA'S RIGHTS AND OBLIGATIONS UNDER THE LAW OF THE SEA
Australia's rights and obligations in relation to the international law of the sea may predominantly be drawn from the 1982 United Nations Convention on the Law of the Sea (' UNCLOS') (19) and have been enacted into Australian law through a range of legislation, most notably the Seas and Submerged Lands Act 1973 (Cth) ('Seas and Submerged Lands Act'), which was amended to reflect aspects of UNCLOS by Maritime Legislation Amendment Act 1994 (Cth) part 2. The law of the sea comprises a complex body of law: the oceans are divided into various maritime zones, and the rights and duties of a state and its vessels will depend on the location of the particular activity being undertaken. (20) As a result, Australia's rights to regulate the fishing of southern bluefin tuna will vary depending on where fishing vessels are located. Similarly, Australia's right to grant oil concessions over offshore areas depends on the limits of its continental shelf. (21) Further, the actions Australia may take to prevent Japanese whaling vessels from killing particular species of whales are also affected by the location of the whaling activity. This section briefly describes the different maritime zones as a means of indicating what rights and responsibilities Australia has in different areas of the oceans, including zones off Australia's claimed Australian Antarctic Territory ('AAT')...
