The history of Australian legal opposition to Japanese Antarctic whaling

ABSTRACT

Whaling has been a consistent theme in Australia’s relations with Japan since the 1930s, Australia having endeavoured to regulate, restrict, or bring to a complete halt Japan’s Antarctic whaling virtually since it began. Australia’s motivations have been mixed, involving at various points, some combination of protection of Australia’s coastal whaling industry, concern for Australia’s security, for safeguarding Australia’s Antarctic territorial claim, and more recently, concern for Australia’s whale-watching industry and/or for the whales. Since environmental consciousness became a primary factor in the 1970s, Australian policy has been aligned with that of anti-whaling non-governmental organizations (NGOs), albeit that certain actions of NGOs have caused difficulties for the Australian Government. Law – inclusive of legal argument in the course of diplomacy, domestic laws, and international litigation – has been a mechanism of influence used by the Australian Government and NGOs. This paper traces Australia’s legal opposition from its beginnings until Japan’s announcement in December 2018 that it would end Antarctic whaling.     

Scientific whaling and how philosophy of science can help break the international deadlock

Despite widespread public interest on the topic of whaling, there is at present relatively little work on how philosophy might contribute to analysis of the status of whaling in international law. When philosophers have looked at the topic of whaling, they have confined their attention to a fairly narrow set of ethical questions, such as whether international law should permit certain forms of traditional indigenous whaling or extend legal rights to whales themselves. However, there is another important issue which has so far been largely neglected by philosophy, even though it is at the forefront of current international legal disputes over the status of whaling: the issue of so-called ‘scientific whaling’. This article considers the international legal dispute between Australia, New Zealand and Japan over the latter’s lethal harvesting of whales in the Southern Ocean, and the recent attempt at resolution by the International Court of Justice. On its face, this required that the Court demarcate ‘scientific’ from ‘unscientific’ activity; however, it effectively baulked at this task. The authors argue that this approach of the Court was unfortunate, and that demarcating science from commerce is not only achievable in philosophy, but might also inform international legal practice. Resolving this issue is important for genuine progress to be made in the current international stand-off over Japanese whaling in the Southern Ocean.     

Contemporary Irish theatre,the new Playboy controversy,and the economic crisis

Abstract

This article examines the impact of the economic crisis on contemporary Irish theatre. More specifically, I contend that the legal controversy surrounding Bisi Adigun and Roddy Doyle’s second production of Playboy of the Western World: A New Version in 2008 provides a case study of how professional theatre productions that dramatised stories of immigrant empowerment during the Irish economic boom were profoundly inhibited by the bust that followed. Their collaborative version of the new Playboy was widely regarded as Ireland’s most successful intercultural play and a commercial success when it was first staged at the Abbey Theatre in 2007. The subsequent breakdown in their relationship and ensuing legal dispute is more symptomatic of Celtic Tiger Ireland in economic collapse, I suggest, than the content of the play itself, or most other productions mounted in the period. I argue that this dispute did not simply reflect but also reinforced the social effects of the economic crisis, through its prolonged litigation, enormous expense, and especially the missed opportunity that it represented to position the multicultural and migrant themed Playboy within the Irish theatrical mainstream. More broadly, I suggest that the economic crisis has been marked by the disappearance of immigrants from the professional Irish stage, a void which was only partially filled by community theatre productions. A case in point is Adigun and Arambe’s most recent adaptation of Jimmy Murphy’s The Kings of the Kilburn High Road in The Paddies of Parnell Street (2013), a play which I positively appraise as an example of successful “intercultural re-appropriation”.     

Discrimination and silence: minority foundations in Turkey during the Cyprus conflict of 1974

In 1974, the dispute between Turkey and Greece over Cyprus resulted in Turkish military intervention in the island. The same year, the Turkish Court of Cassation issued a legal decision that rendered possible the confiscation of properties belonging to minority foundations in the years to come. I argue that the case of minority foundations in 1974 was not a coincidence but a conscious reciprocal discrimination applied in both official and unofficial spheres. I support my argument with the following indicators: (1) the wider historical Greek–Turkish conflict and its ‘reciprocal’ nature of discrimination against non‐Muslim minorities; (2) the laden interpretation of the non‐Muslim minorities as the internal enemies in the Turkish mind‐set and its direct reflections on the 1974 case of foundations; and (3) the nature of the press coverage, which I assess using detailed reading and content analysis of three Turkish newspapers (H ürriyet, T ercüman, C umhuriyet) and one Rum minority newspaper (A poyevmatini).     

Legal geographies and ecological invisibility: The environmental myopia of evidence

This study shows how legal evidentiary rules intended to make trials fair also enable biodiversity loss, even in courts charged with environmental protection. The common law is premised on two types of rules. The first, substantive laws, set rules for how society should function—obstructing and punishing some behaviours while enabling and rewarding others. In contrast, procedural laws are intended to level the playing field when there is a dispute over substantive rules during litigation. This case study concerns a routine environmental dispute over land development in Sydney, Australia. It demonstrates how, by enabling courts to determine what evidence will and will not be considered, procedural rules and practices drive substantive outcomes by rendering certain places, dynamics, and connections visible and capable of judicial action while obscuring others. Specifically, the court’s efforts to use evidentiary tools to make litigation more efficient drove substantive outcomes in two ways. First, work to narrow evidence to address factual disputes also narrowed the court’s geographic scale of analysis to the property boundaries of the site, thus obscuring broader threats to a critically endangered ecological community. Second, these procedural evidentiary decisions drove substantive outcomes undermining biodiversity protection, while concealing their inherently substantive nature. Combined with the tendency of the court to use procedural informality to promote compromise between the parties, and a broader juridical treatment of intact ecological communities as species that can largely be moved at will, the evidentiary rules enabled an environmentally focused court to enable the victory of development over species protection.     

Herbert Brownell,Jr.: The “Hidden Hand”1 in the Selection of Earl Warren and the Government's Role in Brown v. Board of Education

There are, of course, many heroes behind the Supreme Court's most famous and, some would argue, most significant case of the 20^th Century: Brown v. Board of Education. ² Chief Justice Earl Warren wrote the decision and is credited with convincing the other Justices to make it unanimous. Thurgood Marshall and Robert L. Carter argued important aspects of the case for the NAACP and championed a legal strategy that brought it to the High Court. Few, however, would readily name Herbert Brownell, Jr. as one of the heroes. Yet, as Attorney General, Brownell was President Eisenhower's chief adviser on judicial appointments when he put Warren on the Court, and Brownell led the Justice Department in supporting the notion that segregation of public schools violated the Constitution.     

Culture and Legal Policy Punctuation in the Supreme Court's Gender Discrimination Cases

For the most part, punctuated equilibrium scholarship has ignored the legal policy change generated by the Supreme Court. In this study, I address this gap though an examination of the Court's equal protection and gender cases from the 1970s. My case study here has two aims. First, I offer an adaptation of the jurisprudential regimes framework as a device for framing and identifying legal policy punctuations. After identifying Reed v. Reed (1971) as the cut point of such a regime, I then use Reed and its progeny to illustrate the promise of culture in explaining stasis and change, specifically focusing on the concepts of cultural cognition and cultural surprise.     

‘A Beautiful Fiction of Law’: Rhetorical Engagements with Terra Nullius in the British Periodical Press in the 1840s

This paper analyses two critiques of the jurisprudential basis of settler colonialism in Australia published in the early Victorian periodical press. Review articles in the North British Review and Fraser's Magazine in the 1840s deployed claims of legal sophistry to dispute the fiction that Australian colonies were settled, rather than conquered, and that the country was a terra nullius. By examining the politics and rhetoric of each article, the significance of legal ideology for both literature promoting colonization and humanitarian critiques of colonial policy is assessed. Through a combination of discourse analysis and intellectual history, the North British Review article is read as fusing Scottish Enlightenment concepts of social evolution with the rhetoric of sensibility to defend the existence of Indigenous rights to land and to argue for the degenerative implications of colonial social practices. Similarly, the Fraser's Magazine article offers an epitome of the place of law in colonial policy-making by invoking utilitarian and pragmatic approaches to law to rationalize doctrines of sovereignty and jurisdiction, minimizing legal protections for Aborigines while maximizing the legal powers of colonists. By tracing the use of jurisprudential rhetoric in reviews published in two leading metropolitan journals, the paper offers evidence that the literary sphere contributed to the emergent culture of colonial legality.     

清末民初上海公共租界会审公廨法权之变迁(1911～1912)

清末民初,上海公共租界会审公廨法权较之以往发生了重大的变化。《申报》对此作有较为详细的报道,以此为考察材料,通过对法权变化内容的分析和这一过程的动态重构,以期从中透视变乱之际中外权势转移的动态情景,并得以多层面、多视角得认识中国法制近代化的艰辛历程。     

The Arlington Cemetery Case: A Court and a Nation Divided

Seventeen years after the Confederate general Robert E. Lee surrendered at Appomattox, his eldest son won a sweeping victory over the federal government in the United States Supreme Court. On December 4, 1882, the Supreme Court upheld a federal trial court's ruling that the United States government's claim of title to Arlington National Cemetery rested on an invalid tax sale. The Justices thus affirmed the lower court's verdict that George Washington Custis Lee (“Custis Lee”), eldest son of Mary and Robert E. Lee, held legal title to Arlington. The Supreme Court also upheld the lower court's decision to permit Custis Lee to bring suit against the government officers who occupied Arlington. On the latter point, the Justices split 5 to 4, with a majority ruling for Custis Lee. The outcome of United States v. Lee, commonly known as the Arlington case, made it clear that the Lee family, and not the United States government, owned Arlington.     

The Life and Career of Justice Robert H. Jackson

Robert H. Jackson was one of the most influential Justices of the Supreme Court in the twentieth century. His tenure on the Court ran from 1941 to his death in 1954, and during that time he participated in landmark cases involving the programs implemented by Roosevelt's New Deal to rescue the country from Depression, having previously served the administration in other roles. He authored a memorable dissent in United States v. Korematsu, the notorious Japanese internment case. ¹ He is also remembered for the role he served as the chief American prosecutor before the International Military Tribunal that tried Nazi leaders after World War II. In some ways, Jackson's fierce independence and the lessons he learned growing up in a small town were the ideal training for the demands and competitiveness of the nation's highest Court. That Jackson's words and beliefs still have relevance in the twenty‐first century is evidenced by the fact that both recent Supreme Court appointees quoted him during the confirmation hearings. ² In this essay, I will examine how Jackson's life experiences influenced his legal career and informed his jurisprudence, and to what extent Jackson lived up to his own vision of the role of a Supreme Court Justice.     

„[…︁] mein Recht muss mir werden!“ Hermann Bahrs Tragikomödie Der Querulant (1914)

“[…︁] mein Recht muss mir werden!” Hermann Bahr’s Tragicomedy ­ Der Querulant ­ (1914). At the end of the eighteenth century, people who became notorious for their excessive engagement in legal proceedings started being labeled as “querulents” or “paranoid litigants”. The term “querulents” first appeared in the General Order of the Court for the Prussian States (Allgemeine Gerichtsordnung für die Preußischen Staaten) from July 6, 1793. From there on, the spectrum of juridical measures undertaken against the so-labeled litigators included classifying these persons as ineligible for legal action and psychiatric hospitalization. The paper discusses to what extent Hermann Bahr rearranges psychiatric and legal knowledge about this special type of the complainer in his tragicomedy Der Querulant, premiered in 1914. This concerns, first, the theatricality of the body and speech, secondly, the use of cultural techniques of writing and, thirdly, conflicting notions of justice. Therefore, the paper analyzes the aesthetic function of querulous behavior in the dramatic structure of the play from the point of view of both media theory and literary theory.     

Thick Decisions: Expertise,Advocacy and Reasonableness in the Federal Court of Australia

Drawing from the litigation around the Hindmarsh Island Bridge (especially Chapman v Luminis Pty Ltd 2001) this article provides an analysis of judicial responses to anthropological expertise. Sensitive to the institutional responsibilities of judges, as well as rules of evidence, procedures and legal causes of action, it examines the strategic representation and appropriation of anthropological knowledge and practice. In exploring the relations between law and expertise the article illustrates how their combination shapes outcomes. In the process it explains how the judge could have produced a range of (in)consistent outcomes through the modulation of legal categories and their relations with prevalent images of anthropological expertise. This analysis positions the article to critically reflect on some of the implications for anthropologists working in and around legal or quasi‐legal settings as well as those commenting on that participation.     

The Case of William Dick: Ransom County, North Dakota

In May 2009, a decision of the United States Supreme Court with North Dakota roots turned fifty years old. A case unique in the annals of the law, Dick v. New York Life Insurance Company ¹ still fascinates lawyers today. Factually, the case presented a strange question: could an experienced hunter accidentally shoot himself not once, but twice? Some of North Dakota's finest lawyers, including Philip Vogel, Donald Holand, and Norman Tenneson, aimed to get to the bottom of that matter. The judges were equally impressive: Judge Ronald Davies of the federal district court; Judge John Sanborn of the U.S. Court of Appeals for the Eighth Circuit; and Chief Justice Earl Warren and Justice Felix Frankfurter. Finally, as a matter of Supreme Court jurisprudence, Dick may have been the last time the High Court granted a petition for certiorari in a case that turned almost exclusively on questions of fact. In honor of its golden anniversary, this article recounts the captivating story of Dick v. New York Life.     

Punctuated Equilibrium and the Supreme Court

In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This article addresses that gap by providing evidence that legal policy change—here conceptualized as changes in what precedents the Supreme Court most often cites—is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.     

British Postal Packet Hanover, 1757: a legal history

The wrecking of the Falmouth Postal Packet Hanover in 1763 led to three legal disputes and two court cases—in 1766 and 1997. This article recounts the origins and course of these disputes. It examines what the resolution of the 18th‐century case and the second dispute has revealed of the law and practice of marine insurance in the mid 18th century. It further examines what the 20th‐century case has revealed concerning the tension between ancient principles of commercial salvage and modern principles of heritage protection. Somewhat fortuitously, the examination of the case provides an opportunity to advance a simple solution to this conflict.     

Thomas Jefferson and the American Indian Nations: Native American Sovereignty and the Marshall Court

The Cherokee Removal Cases — Cherokee Nation v. Georgia ¹ and Worcester v. Georgia ² —stand as the dramatic last act of the Marshall Court era. Thomas Jefferson was long dead by the time of the removal of the American Indians from the land north and south of the Ohio River. Yet in many ways the Cherokee Removal Cases that bedeviled Marshall in his final years on the Court were Jefferson's revenge, the first bitter fruits of policies adopted during his presidency that created the political and legal environment for the Indian Removal Act of 1830 and the Cherokee Nation litigation itself. This Jeffersonian legacy is ironic, given that Jefferson as a scholar, diplomat, and Secretary of State was an ardent supporter of Indian sovereignty and eventual citizenship. Yet these views were subordinated during his presidency to concerns of what we would term "national security," to preserve the Union, and to advance the interests and needs of his political party.     

Elusive polis: Explaining the MFP

Walter Hamilton. Serendipity City: Australia, Japan and the Multifunction Polis. Sydney: ABC Enterprises, 1991. 228 pp. A$29.95 (hardcover).

Ross E. Mouer and Yoshio Sugimoto (eds.). The MFP Debate: A Background Reader. Bundoora: La Trobe University Press, 1990. 166 pp. n.p.g. (paper).

Gavan McCormack (ed.). Bonsai Australia Banzai: Multifunctionpolis and the Making of a Special Relationship with Japan. Sydney: Pluto Press Australia, 1991. 228 pp. A$16.95 (paper).

Ian Inkster. The Clever City: Japan, Australia and the Multifunction Polis. Sydney: Oxford University Press, 1991. xi + 180 pp. $17.95 (paper).     

The Many Tongues of the King: Indigenous Language Interpreters and the Making of the Spanish Empire

General language interpreters of Lima's High Court of Appeal (Audiencia) played a significant part in gaining access to the Spanish system of justice for the indigenous populations of Peru. These interpreters worked as translators in lawsuits, notarial transactions, and other legal and administrative procedures conducted or supervised by the viceroy, the justices of the Audiencia, the public defender of the Indians, and other officials stationed at the viceregal court. But they also served as legal agents and solicitors for native leaders and communities litigating in Lima or aspiring to take their cases to the Supreme Council of the Indies in Spain. Through formal and informal dealings, these interpreters brokered between the king and his native subjects, thus connecting indigenous groups with the Habsburg royal court. The careers of these official translators illustrate the crucial roles played by indigenous subjects in the formation of what can be termed the ‘Spanish legal Atlantic,’ an organic network of litigants, judges, lawyers, attorneys, and documents bridging courtrooms on both shores of the ocean.     

Israel and the International Legal Arena

Israel considers the international legal arena as another battlefield where the country's legitimacy is challenged. Jerusalem's apprehension in regard to its international standing further increased in 2002 following the establishment of the International Criminal Court at The Hague. Developments in the case against Prime Minster Ariel Sharon in Belgium between June 2001 and September 2003 strengthened the Israeli government's conviction that an anti-Israel agenda could percolate into the legal process. Similarly, the International Court of Justice's advisory opinion in regard to the “wall” (security fence), issued on 9 July 2004, reinforced Israel's distrust of the international legal arena. This article follows the anti-Israel offensive in the international legal arena and analyzes Israel's counter actions.