E13 Transcript

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Transcript Commences

Chris Patterson 00:07
Hello and welcome to the Law Down Under Podcast with barrister Chris Patterson. We will give you insights into the law in New Zealand and Australia, its application, and the law's future. Each episode features a new guest who will inspire interest in the law and give you a greater understanding of the legal issues that helped shape our justice system here down under. We thank you for tuning in and enjoy the podcast. So on the podcast with me today is Dr. Natalie Klein. She is a professor at the University of New South Wales Sydney in the Faculty of Law. She researches and teaches areas of international law, primarily focusing on the Law of the Sea and International Dispute Settlement. Natalie holds her master's and doctorates of law, both earned at Yale Law School, and currently serves as the President of the Australian branch of the International Law Association. From 2011 to 2017, she was Dean at Macquarie Law School. Prior to that, Natalie worked in the international litigation and arbitration practice of DLA Piper and also served as counsel for the East African government of Eritrea and was a consulate in the Office of Legal Affairs at the United Nations. As an expert in the area of international dispute settlement and the Law of the Sea. Natalie has authored numerous books and other publications, and continues to provide advice, undertake consultancies, and interact with the media, including podcasters like this podcast on the law of sea issues. Hey, so welcome, Natalie. How are you today?

Dr. Natalie Klein 01:43
Thanks, Chris. Great to be here.

Chris Patterson 01:45
are fantastic. Know you're calling we're all connecting in here now. You're you're still based in Sydney, aren't you?

Dr. Natalie Klein 01:51
Yes, that's right. So in the opposite Sydney today,

Chris Patterson 01:55
right and Sydney, like, like Auckland, we're all still going through the sort of what we're hoping is the tail end of this pandemic. I've just had one of my team knocked down with with COVID. How, how have you been holding up from the COVID Front?

Dr. Natalie Klein 02:13
Well, I've been getting through unscathed so far, that seems to be going quite dominant, coming through my family at the moment. So perhaps it's just a matter of time that fingers crossed, there'll be the unicorn and it'll be okay.

Chris Patterson 02:27
Yeah, look, the experts say it's worth avoiding, if you can, I've managed to avoid it. But I've got two teenage boys struck them fairly quickly once our borders opened up. But you know, teenagers there are they're super spreaders any day of the week. Hey, anyway, enough about COVID. Let's talk about the law of the sea, International Law of the Sea. Tell Tell me a bit about you, yourself. You you studied at Yale. Now that was your masters and your doctorate we did just get your undergrad degree from

Dr. Natalie Klein 03:00
I did my undergrad at the University of Adelaide. So I did a Bachelor of Arts law there and did my honours degree with at Adelaide Uni.

Chris Patterson 03:09
Fantastic South Australia, your your home state.

Dr. Natalie Klein 03:13
I spent most of my time growing up in Adelaide, but we moved around a little bit when I was growing up. So Tasmania, Sydney, Darwin, then Adelaide.

Chris Patterson 03:22
Okay. And the interest in in international law or festival. Tell us a bit about your studies at Yale. What What were you focusing on?

Dr. Natalie Klein 03:35
Well, I did very much focused on international law once I got there, because I've always been interested in things international law. And then when, when I was at uni, and I had the chance to study international law, I just found it really fascinating. We had the Jessup moot that was running there that I got to do, because that was all on non-navigational uses of international water courses, which was somewhat challenging since we don't actually have any international rivers in Australia. But it was a great exposure to international law. And I just wanted to continue working in that area. And I was looking at people who had the kind of careers that I wanted, and I saw they all went off and did their masters and doctorate. So I thought well, I better go and do my masters. So I applied the different programs and ended up at Yale which was which was great. And that gave me the chance to specialize in a lot of different international law subjects including law of disease. So that was really when I first started getting into that area and you know, as it's so often the case when you get a great teacher, they really inspire you in the area and that was my case.

Chris Patterson 04:39
And how did you find it being being an Australian studying it one of the American Ivy League schools?

Dr. Natalie Klein 04:49
was a little intimidating at the start. Everyone seemed very articulate and very smart and together that scene from Legally Blonde where they will sit around and say how wonderful they are. That was very much the experience of Yale as well. But in the end, I mean, it was just so much to learn it was it was a great environment, I probably only realized after I left just, you know, what a privileged environment it was to be in at the time. So it was a great experience.

Chris Patterson 05:19
And then I'll tell you, when from yellow you ended up with was this firm DeVos, Ian plumpton, were they based

Dr. Natalie Klein 05:30
there in New York City. So I had, I did my masters. And then I, I worked full year of full time for a year with a professor at Yale, who was the legal adviser to the president of Eritrea. And we were working on an arbitration between Eritrea and Yemen, and then between Eritrea and Ethiopia. And because I had done that work, then I was looking for law firms that also had international litigation practice. And that was Deborah boys. And I did bilateral investment treaty arbitration work with them. And also, we had a case that went to the International Court of Justice, which was on the consumer rights of Mexican nationals who were held on death row in the US. So that was a great case to be involved into are fascinating.

Chris Patterson 06:17
They must look, you must have taken a lot out of that experience.

Dr. Natalie Klein 06:46
Yes, that's right. I did an internship there when I had just finished my law degree in Adelaide. And then once I was back in the neighborhood, in New Haven, Connecticut, about two hours from New York City. I was in touch with the colleagues I'd met during the internship. And they had work that they still needed doing. So I was able to be working with them part-time while I was studying and did a short stint with them full time when they were negotiating the Convention on terrorist financing as well. So lots of different exposure to areas of international law as a result of that work. But it was really interesting to see how the UN operated from the inside. And there's a very particular style of writing as well. So that was a good experience to have.

Chris Patterson 07:38
And look, fortunate for us down under, you decided to return back to Australia. You ended up back in academia at Macquarie Law School. How was that experience for you?

Dr. Natalie Klein 07:55
Well, look, I had always assumed that I would end up teaching. That was just what had been in my mind for some time. So I was really glad to get into the classroom and have a chance to teach students all about international law and all the different things that I loved about it. I just love that moment when you see somebody's eyes light up when they realize that they understand something or that it's exciting to them. They really enjoy that dynamic. Also, I was quite glad to have a lot more independence when I was in the law firm. I was always reporting into this hierarchy, associate, senior associate, and both me. Once I was in academia, I could have my own opinions, which I didn't have to clear with a more senior lawyer. So that was nice. It was a nice change as well. And I had lots of great opportunities working at Macquarie.

Chris Patterson 08:50
You've been able to continue your interest in teaching as well as writing because you have been quite prolific. You've turned out quite a few publications. So you're at the University of New South Wales law school. You're teaching as well as continuing your areas of academic research.

Dr. Natalie Klein 09:11
Yeah, well, I'm quite fortunate at the moment. I've got an Australian Research Council future fellowship. So that means I don't have to teach at the moment. I still did last year to help out colleagues during everything going on. But mostly, I'm just so focused on research now. I've got a couple of projects that I'm looking at, which are all international law and definitely all Law of the Sea related, particularly focusing a lot on maritime security issues now. So that's been great to have. I'm sure I'll be looking forward to getting back to the classroom in a year or two in any event.

Chris Patterson 09:48
International law is quite a specialty in itself, but you've gone even more particular. You have your interest as the Law of the Sea. What attracted your interest, sparked that?

Dr. Natalie Klein 10:04
I think it was just realizing when you think of the Earth, 70% of the Earth's surface is covered by water. So the oceans actually affect so much of our lives. It was waking up to this idea that so much that we depended on really came back to the oceans, whether it was fish in your diet, particularly being used for transport of all the goods around the world. So something like used to be about 90% of the world's goods traveled by sea. I think that number's dropped a little in recent times. But it was just fascinating. And it very much fed into my interest in politics and history as well. When you think about countries claiming rights over particular islands and the waters that surrounded those islands, and what were the competing claims around all of that. And just the conservation and management aspects around the environment, especially with climate change, now the oceans are so important to us in terms of all the CO2 that gets released and the issue of ocean acidification. So it just felt like there was always something going on in this area, and I just wanted to know more about it.

Chris Patterson 11:24
That's really interesting. Now, you've mentioned maritime security. What are the maritime security threats that are most concerning?

Dr. Natalie Klein 11:36
Well, maritime security, traditionally, it was always about the defense interests of a country. The idea of, could we be invaded? The idea of the Japanese submarines coming into Sydney Harbor during World War Two. So that's the very traditional security. But these days, we think about maritime security far more broadly. The threats cross between piracy and armed robbery. So when we had all the breakdown around Somalia, a lot of piracy was happening in that area, with Somali pirates seizing big cargo ships. Also maritime terrorism. There was a lot of concern after September 11 that having planes been targeted, we would end up with a ship being loaded full of explosives and being exploded in one of the major ports, disrupting the global supply chain. Illegal fishing is a huge issue as well. Particularly, we know increasingly that not only is illegal fishing a problem for the resources themselves, but also for the people working in that industry, because there are considerable human rights abuses tied up in that industry. So there are different forms of smuggling, transnational crime, and irregular migration bundled into maritime security. So we look at it more from a human security perspective now, and there are quite a few different things that fall within that.

Chris Patterson 13:07
Yeah, well, I guess if we look at the purpose of a country's Navy, and we bring it back down under, look at the Australian Navy and the New Zealand Navy. One of the key purposes they have is to ensure that both countries' respective territorial fisheries are protected. But also both countries have responsibilities from an international point of view to make sure that international treaties are being respected. It reminds me of a story I was told a couple of years ago. A New Zealand naval ship was doing routine patrols in the Southern Ocean and came across an illegal longtooth fisher on a fishing boat. Longtooth is not supposed to be doing that. They asked for permission to board so they could carry out an inspection, got radio silence from the ship's captain. Which then leads to what surprised me. I'd be interested in your comments, whether you've come across or heard anything like this. It led to this New Zealand naval ship chasing this fishing boat three-quarters of the way around the globe to somewhere off Southern Africa. At which point, the captain scuttled the boat. They sank it. I thought, "God, you know, there was apparently about a month-long chase." I was thinking how lucky it was that it was New Zealand naval personnel because if it had been another country, they might have just said, "We'll save you the hassle, we'll sink the boat for you, unless you let us carry out the inspection." Have you heard of these sorts of stories before?

Dr. Natalie Klein 06:23
Yeah, it was fabulous exposure. I mean, the great thing about international law is just how it crosses into politics into history and geography as well. So I love that it's got all of that interaction with those other, the other disciplines.

Chris Patterson 06:39
And now you ended up doing a stint at the UN. I take it that was a New York as well. Yeah.

Dr. Natalie Klein 15:04
Oh, absolutely. There have been a few spectacular hot pursuits, particularly from Antarctic waters where the Patagonian toothfish trade has been huge. I think that particular hot pursuit made the news at the time because it was so long. I mean, normally, hot pursuits don't last for a month. And partly, that's just because the ships run out of petrol and they run out of supplies. There has been some discussion as a legal matter as to whether, if one country starts a hot pursuit, could they hand over the hot pursuit to another country? So if the ship comes close to South Africa, could South African authorities take it over? Can you still exercise jurisdiction if another country becomes involved? I know Australia and France have entered into treaties around that to allow for that shift in jurisdiction around it. But yes, it's part of the battle against illegal fishing. It's a pretty serious effort to get the vessels to stop. And Australia does have an approach where, you know, it might arrest a vessel, and potentially, they'll scuttle that ship itself as part of the enforcement, just to stop the ship from going back out. Australia tried to introduce an approach where foreign fishing vessels, when arrested, would have a different monitoring system installed. So they would be able to track where the ship went after that, and they wanted all the information about the beneficial ownership. But the ship resisted all those efforts, which went up to the international tribunal for the Law of the Sea. And they said no, Australia couldn't have that information. All Australia could do was set a financial bond for them to pay, and then they could be released. So it's a tricky area, and states try a lot of different tactics to try and get to the heart of the issue.

Chris Patterson 17:13
Yeah, well, you know, there's a lot of money at stake, whether it's fisheries or smuggling, etc. The International Tribunal for the Law of the Sea, if I got that right, is it the tribunal's call? Yes. Yes, that's what it's called. Where does it sit?

Dr. Natalie Klein 17:30
Well, that's based in Hamburg. So under the UN Convention on the Law of the Sea, whenever a state becomes a party to that convention, they also consent to jurisdiction to be exercised by actually it's one of, states have a choice. They can either go to the International Tribunal for the Law of the Sea, or they can choose the International Court of Justice. Or they can go to ad hoc arbitration, or they could potentially choose special arbitration, which is kind of focused on particular issue areas. So you get people with fishery expertise, for example. So mostly, the cases are going either to ITLOS, as we call it, or to ad hoc arbitration. If states have chosen different courts, then it goes to ad hoc arbitration as the default. Or if they don't choose, then it goes to them as default. So that's how we ended up, for example, Australia and New Zealand were able to take the case against Japan. They started that under the UN Convention on the Law of the Sea. And they sought provisional measures that went to the International Tribunal for the Law of the Sea. And then the dispute was heard by an Annex VII, as it's known, tribunal, on Australia and New Zealand's claims against Japan for taking too many southern bluefin tuna as part of an experimental fishing program. So those courts exist and they use them. They're being used by Australia and New Zealand.

Chris Patterson 18:59
How did that case turn out? What was the outcome of that case?

Dr. Natalie Klein 19:04
Well, Australia and New Zealand were successful in getting provisional measures, which essentially required all of the three states not to take any more southern bluefin tuna in excess of their national allocations. And then the case went to the Annex VII arbitration. Japan challenged the jurisdiction of the tribunal, saying this is really a dispute that needs to be resolved in the Commission for the Conservation of Southern Bluefin Tuna. The tribunal looked at the rules under UNCLOS and said, "Oh, that's actually right." So under the UN Convention on the Law of the Sea, if there's another forum available that should be used, if various conditions are met, then it should go there instead. The tribunal sort of kicked the dispute to that other mechanism, instead of making a decision on the merits. So it wasn't a good outcome for Australia and New Zealand in terms of finding that Japan had violated international law or anything like that, but it did send all the parties back to negotiations. And they continued talking and reached an agreement around that particular dispute. So it was helpful but not entirely satisfactory for Australia and New Zealand.

Chris Patterson 20:22
Yeah, but I guess at least there are these mechanisms that you've mentioned that are in place, which create forums where differences can be discussed, debated, and hopefully resolved rather than the alternatives that we're now seeing can take place in Ukraine, which is quite horrific when one country decides that it's going to have its way through force. One of the things that you did mention lately that I was really interested in and wanted to see if we could dive a bit into it, is human rights at sea.

Dr. Natalie Klein 21:14
Yes, human rights at sea is a related topic, isn't it?

Chris Patterson 21:16
Yeah, it is. It's been quite difficult because there has been a sort of blinkered view that human rights really only apply on land, and then once you're at sea, it's sort of a free-for-all because it's unclear in some instances which state is responsible for upholding human rights. But I think we're now at a point where it's become so obvious that there are so many problems that it's really an issue of concern for many states, and they do need to be far more cognizant of the fact that they have responsibilities to uphold human rights on the ships that are flagged to them, and when they come into port or in their waters. So I think states need to start getting a bit more proactive.

Chris Patterson 22:00
To be good international citizens, each nation needs to play its part in ensuring that there aren't these human rights abuses. Would you agree with that?

Dr. Natalie Klein 22:10
Yeah, well, it's not just about being good international citizens. They have obligations under human rights treaties and human rights law themselves to respect human rights. So if a vessel is within their effective control or within their jurisdiction, then they should be acting.

Chris Patterson 22:30
Now, as a bit of guidance around this, there is the Geneva Declaration for Human Rights at Sea, and I noted in my research that the declaration is open for public consultation until the 1st of September this year. Is that correct?

Dr. Natalie Klein 22:43
Yes, that's right.

Chris Patterson 22:45
Okay. And I take it that with the consultative process, following that, there'll be a move by the UN member countries to start formally adopting what will ultimately be the final declaration?

Dr. Natalie Klein 23:02
Well, just to give you a little bit of background on that, the Geneva Declaration on Human Rights at Sea has been drafted by an NGO known as Human Rights at Sea, which is based in the UK. And it's been in operation for about seven or eight years now. And just to disclose, I have recently joined Human Rights at Sea as one of their trustees. Hence, I know a little bit about what they're doing and trying to do.

Chris Patterson 23:24
Oh, congratulations. When was that appointment?

Dr. Natalie Klein 23:29
It was just announced yesterday, so it's hot off the press.

Chris Patterson 23:32
How many trustees are there?

Dr. Natalie Klein 23:34
I think there's about a dozen of us, covering different areas, and we have different domains of expertise. Another trustee has a background in modern slavery practices and works for another NGO. I'm coming in with the legal expertise, and others have expertise in accounting, corporate governance, as well as substantive areas that are covered.

Chris Patterson 23:54
Great. So the Human Rights at Sea NGO focuses on what projects and initiatives?

Dr. Natalie Klein 24:03
The Geneva Declaration is one of the initiatives that they have been pursuing, and it's recently been adopted. The Geneva Declaration is set up in a way that it's almost like a multi-pronged strategy. The document outlines the fundamental principles, which, at the end of the day, is that human rights apply at sea as they do on land. That's the core thrust of it. And then it provides guidelines on how each state, whether it's a coastal state, port state, or flag state (the state a ship is registered to), should recognize human rights and when they should act and provide remedies as well. It's been made accessible to make it relatively easy for it to be adopted into policy. But it's still at an early stage and will need the support of countries to get on board.

Chris Patterson 25:02
You mentioned two of the four fundamental principles from the Geneva Declaration. The first is that human rights are universal and apply to everyone. The second is that they apply to all persons at sea without any distinction. I'm curious about the third principle, which states that there are no maritime-specific reasons for denying human rights at sea. What are some maritime-specific reasons that could be raised by a country, organization, or individuals to somehow justify denying human rights at sea?

Dr. Natalie Klein 25:32
One of the maritime-specific reasons is the vastness of the oceans and the difficulty in policing and monitoring activities at sea, making it hard to detect human rights abuses. In some cases, the maritime abuses are committed far from the coast, and it's challenging to police those waters due to limited resources and capacity. Illegal fishing operations, for example, can keep their workers at sea for extended periods, sometimes a year or more, and their ships rarely return to port. This makes it difficult to monitor and ensure that human rights are respected for the workers on board. If someone is injured or abused on such a fishing vessel, they can be thrown overboard, and no one might ever know. So, one of the maritime-specific issues is that these abuses often happen far from land, which poses a significant challenge for monitoring. However, maritime-specific reasons should not be used as justifications for denying human rights. Instead, states have responsibilities to investigate, especially if the ship is registered under their flag, and other states can also exercise jurisdiction over stateless or foreign-flagged vessels when they come into contact with them. When these ships do come into port, that's an opportune time to investigate potential human rights abuses and seek remedies. This could extend to labor conditions for the people on board, ensuring they receive proper payment for their work.

Chris Patterson 27:02
Indeed, there have been instances of such abuses, such as unpaid or underpaid workers on fishing vessels. I recall an incident in New Zealand where a foreign fishing vessel came into port, and it was discovered that many of the crew hadn't been paid for months. The vessel was essentially detained until the issue was resolved, and the crew received their due entitlements. These types of enforcement actions are necessary to ensure the well-being of individuals at sea.

Dr. Natalie Klein 30:50
Yes, definitely. And I think there's more of an onus to do that. Now. I mean, traditionally, what the approach has been that the flag state continues to have responsibility over a ship when it comes into port. And the idea has been that even though that ship is sort of in the port of another country, that things like the labor laws of that country don't apply on that ship because otherwise, you know, a ship that goes, sailed around between 10 different countries that can't have 10 different labor laws applying. And that just makes it too complicated. So we have sort of basic international standards. And that's all well and good when you have, you know, people who are being are being paid, they've got decent work conditions, have been properly trained for the job that they're doing. You know, that can be all okay. But what we are instead seeing is the reality that, you know, the cheap labor means that you're not necessarily providing good healthcare, proper food, proper training, to people on the ship. And I think we've kind of passed this point where it's just poor labor conditions. It's really human rights violations. And then I think it is incumbent on ports to act in that situation.

Chris Patterson 32:15
Well, isn't it just trying to tackle what's effectively modern-day slavery?

Dr. Natalie Klein 32:21
Yeah, pretty much. It's very much in that zone. So a lot comes down to the legislation that individual countries have in place and hoping that the legislation itself goes so far as to criminalize actions that happen outside the territory, but the perpetrators come within territory.

Chris Patterson 32:44
Now, the fourth fundamental principle is that all human rights established under both treaty and customary international law must be respected at sea. Practically, how's it gonna work? Like, how would a country, just any individual country, go, "Alright, well, we've got to be aware of all the other treaties and customary international law. And if we're going to be investigating or policing or monitoring, we've got to be across those treaties and customary international laws." Isn't that a significant educational or upskilling jump that nations that sign up for this declaration will have?

Dr. Natalie Klein 33:36
Well, I think it's probably not as big as it sounds because you figure that this particular principle has to operate within the confines of the law of the sea, which provides only limited bases to exercise law enforcement jurisdiction over foreign-flagged vessels when they are outside your territorial sea. So it's going to be more about educating the law enforcement officers, whether it's the Coast Guard or the Australian Border Force. They should know what human rights apply when conducting law enforcement operations, and that should be part of their rules of engagement when they come across people who seem to be victims of human rights abuses. At the moment, perhaps one of the problems is that there could be an inspection of a fishing vessel, and the inspectors go on board, checking things like gear and catch amounts, but they don't necessarily inquire about the working conditions of the crew. So at the moment, there's limited awareness of human rights abuses. The Geneva declaration emphasizes that if you have a legal basis to go onto another ship, you need to also consider possible human rights violations. The standard used is that once there is effective control over another ship, that's when human rights obligations apply. To give an example, Australia's policy of turning back boats carrying irregular migrants. In this scenario, once the Australian government has taken effective control over people on board these boats, they must respect their human rights. For irregular migrants and asylum seekers, this includes the right to have their claims heard, the right not to be returned to a place where they might face persecution, and the right not to be subjected to cruel, inhuman, or degrading treatment. So it's about understanding that when you're exercising powers over individuals, human rights must be respected, whether it's due process rights, refugee rights, the right not to be detained, and so on.

Chris Patterson 38:00
Okay. So do you think that the Geneva Declaration for Human Rights at Sea would provide individual countries like Australia and New Zealand with a framework to create domestic laws consistent with the declaration?

Dr. Natalie Klein 38:28
Yes, I think that's a really important aspect in the end. If a state is going to assert jurisdiction, it needs the domestic authority to do so. It's not enough to say that all human rights obligations apply in the territorial sea if the country doesn't have domestic laws to enforce them. The Geneva declaration does encourage states to align their domestic laws with the principles outlined in the declaration. This would be essential because if a state is going to exercise authority and jurisdiction, they need to have the relevant domestic framework in place. So it's not just about recognizing international obligations; it's also about ensuring that domestic laws support the enforcement of these rights. Both aspects need to work in parallel to ensure effective implementation.

Chris Patterson 39:46
Okay, so this is going to require a little bit of commitment of politicians to champion making sure that human rights at sea are going to be respected, and that there's at least the legal framework in place that will enable the principles of the Geneva declaration to be hopefully met. I guess that's the hope, isn't it?

Dr. Natalie Klein 40:13
Yeah, exactly. I mean, I think if we can make some steps towards that, I mean, even if you take into account, I was referred to the fishing example a few times, there is a convention that's been adopted by the International Labor Organization that addresses minimum standards of work conditions for fishers. And it still has 20 countries that have become parties to that. I don't think either Australia or New Zealand are parties to it. The United Kingdom is, and Thailand, which is a country of concern for this practice, is a party to that treaty. So perhaps, for Australia and New Zealand, you know, something they could consider would be becoming parties to that treaty and then encouraging other countries to do so and then implementing it into their domestic laws. So that would be a positive step forward in that regard.

Chris Patterson 41:10
Certainly be one area where both Australia and New Zealand could lift the game and take some positive steps in that regard?

Dr. Natalie Klein 41:19
Well, yes, I think Australia and New Zealand, given their standing in the world and their strong support for a rules-based order, as it's called, I think they've got a great opportunity to perhaps take this on as an issue and rally other countries to it. We've seen this kind of phenomenon happen in international law in the past, where an NGO comes forward and says, you know, we really need to ban cluster munitions or ban landmines. And they've managed to get a country that's willing to support that initiative and take it through, and that ended up as a treaty. So I think, for human rights at sea, we're probably going to need that kind of support from countries like Australia and New Zealand, which are supportive of these principles and would normally follow those rules in their everyday practice.

Chris Patterson 42:17
With organizations like Greenpeace, or in particular Sea Shepherd, where do they fit in the equation of all of this?

Dr. Natalie Klein 42:25
Well, organizations like Sea Shepherd, it's more like a direct action group because they're operating at sea, and they're extremely good in terms of bringing exposure to particular issues. We certainly saw that with the whaling in Antarctic waters by Japan about 10 years ago when they were very active there. And also, Sea Shepherd continues to work to expose issues related to the conservation and management of sea species. So they'll go out and they'll gather information about illegal fishing of turtles, for example. And they've been operating around the Galapagos, and at one point they were going to be helping Palau police their big shark marine protected area around Palau. So there's, you've just got to be careful because, at the end of the day, Sea Shepherd is a private organization that doesn't actually have policing powers. But there should be a way to harness the type of information they get and to be able to use that so law enforcement officials can actually go and take action when necessary.

Chris Patterson 43:45
Now, you mentioned sharks and your, which a lot of listeners may not click onto straight away. I think it'd be fair to say that you're possibly one of the few international law experts on sharks. The reason I say that is that I did a search for books on the law of sharks, and I only came across one, and you're a co-author, which is "The International Law of Sharks: Obstacles, Options, and Opportunities." That was published back in 2017. What prompted you to want to write a book about the law of sharks?

Dr. Natalie Klein 44:26
Well, it was with my colleague, Erica de Cero, who is the co-author because we were both teaching at Macquarie Uni at the time, and I was very interested in the whaling issue, and Erica was the one who said, "Well, come on, what about sharks and all the issues surrounding conservation and management of sharks?" So she really brought me to this issue, and just an incredible realization that for all the sort of phobia we have around sharks and shark attacks, in the end, humans are killing something like 100 million sharks a year. There's really no contest when it comes to sharks killing humans and vice versa. Humans are winning by a long mile. So hands down, it was just, yeah, absolutely. And the fact that, you know, we still know so little about so many different species of sharks. There are different estimates as to how many species of sharks there are, and we really only know about the conservation status of about a quarter of them. We tend to get very focused on the megafauna, the great white shark in Australia or the whale shark in places like Ningaloo Reef. And in Europe, they have the basking shark as a large shark in their waters. What's sort of interesting from an international law perspective is that there's such a patchwork of regulation around sharks. It's such a big issue because once you target apex predators, it has effects down the food chain. For example, in Australia, with a lot of Indonesian fishers who come into some of the northern waters, they were fishing a lot for sharks. Once you remove all sharks, there's a surplus of jellyfish, and the jellyfish prey on prawns. So there was a negative impact on the prawn industry. So we needed the sharks to eat the jellyfish to preserve the prawns. You have to take into account what happens when you're removing one major species from the food chain and the ripple effects it has. Also, sharks have low fecundity, so it takes them a long time to have babies and produce new sharks. That's another consideration when you start overfishing a species. All of that feeds into the lack of knowledge about sharks, along with the patchwork of regulations. It was something that really needed attention, and we needed to focus on it.

Chris Patterson 47:14
Well, your book certainly does. I had a read of it a couple of days ago, and from what I could find on the internet, it's actually not available at the Auckland High Court Law Library. I think I may make a suggestion to them. They need to rectify that because I did find it interesting. More importantly, and linking into it, one of the points you make towards the end of your book in Chapter 11 is that the lessons derived from the international law regime for sharks can hold true for the conservation and management of many other marine species. The takeaway I got from that is that all the issues you're pointing out about the patchwork of regulations and governance being inadequate apply to other marine species. So while your book focused on the issues around the legislative framework and regulation for sharks, it's applicable to many other marine species. Is that the point you were trying to make?

Chris Patterson 39:46
Okay, so this is going to require a little bit of commitment of politicians to champion making sure that human rights at sea are going to be respected and that there's at least the legal framework in place that will enable the principles of the Geneva Declaration to hopefully be met. I guess that's the hope, isn't it?

Dr. Natalie Klein 40:13
Yeah, exactly. I mean, I think if we can make some steps towards that, I mean, even if you take into account, I was referred to the fishing example a few times, there is a convention that's been adopted by the International Labor Organization that addresses the sort of minimum standards of work conditions for fishers. And it still amazes me that only 20 countries have become parties to that. I don't think either Australia or New Zealand are parties to it. The United Kingdom is, and Thailand, which is a country of concern for this practice, is a party to that treaty. So perhaps for Australia and New Zealand, you know, something they could consider would be becoming parties to that treaty and then encouraging other countries to do so and then implementing it into their domestic laws. So that would be a positive step forward in that regard.

Chris Patterson 41:10
Certainly be one area where both Australia and New Zealand could lift their game and take some positive steps in that regard?

Dr. Natalie Klein 41:19
Well, yes, I think Australia and New Zealand, given their standing in the world and their strong support for rules-based order, as it's called, I think they've got a great opportunity to perhaps take this on as an issue and rally other countries to it. We've seen this kind of phenomenon happen in international law in the past where an NGO comes forward and says, you know, we really need to ban cluster munitions or ban land mines. And they've managed to get a country that's willing to support that initiative and take it through, and that ended up as a treaty. So I think for human rights at sea, we're probably going to need that kind of support from countries like Australia and New Zealand, which are supportive of these principles and would normally follow those rules in their everyday practice.

Chris Patterson 42:17
With organizations like Greenpeace, or in particular Sea Shepherd, where do they fit in the equation of all of this?

Dr. Natalie Klein 42:25
Well, Fish It's more like a direct action group because they're operating at sea. And they're extremely good at bringing exposure to particular issues. I mean, certainly, we saw that with the whaling in Antarctic waters by Japan 10 years ago when they were very active there. And also Sea Shepherd continues to really work to expose issues related to the conservation and management of sea species. So they'll go out and they'll gather information about illegal fishing of turtles or something. And I've been operating around the Galapagos, and at one point, they were going to be helping Palau police their big shark marine protected area around Palau. So there's, you've just got to be careful because at the end of the day, Sea Shepherd is a private organization that doesn't actually have policing powers. But there should be a way to harness the type of information they get and to be able to use that to follow through so law enforcement officials can actually go and act and take action where necessary.

Chris Patterson 43:45
Now, you mentioned sharks, and you, which a lot of listeners may not click on too straight away. I think it'd be fair to say that you're possibly one of the few international law experts on sharks. And the reason why I say that is I did a look for what books there were on the law of sharks, and I only came across one, and you're a co-author, which is the international law of sharks, obstacles, options, and opportunities. Now that was published back in 2017. What prompted you to want to write a book about the law of sharks?

Dr. Natalie Klein 44:26
Well, it was with my colleague, Erica Tero, who is the co-author because we were both teaching at Macquarie Uni at the time, and I was very interested in the whaling issue, and Erica was the one who said, "Well come on, what about the shark and all the issues surrounding conservation and management of sharks?" So she really brought me to this issue, and just an incredible realization that for all the phobia we have around sharks and shark attacks, in the end, humans are killing something like 100 million sharks a year. I mean, there's really no contest when it comes to sharks killing humans and vice versa. Humans are winning by a long mile. So hands down, it was just, yeah, absolutely. And the fact that, you know, we still know so little about so many different species of sharks, there's different estimates as to how many species of sharks there are, that really we only know about the conservation status of about a quarter of them. We tend to get very focused on sort of the megafauna, the great white shark, you know, Australia, we're in the whale shark as well around Ningaloo Reef, and in Europe, they have the basking shark as their very large shark in their waters. And then what was sort of interesting from the international law perspective was just that there's such a patchwork of regulation around it. And it's such a big issue because the sharks, once you sort of target and apex predators, and that has effects down the food chain. So, for example, in Australia, where we have a lot of Indonesian fishers who come into some of the northern waters, they were fishing a lot for sharks. But once you removed all the sharks, then there was a surplus of jellyfish, and the jellyfish ate the prawn, and they're going to be straightened prawn industry as a result of that. So we kind of needed the sharks to be able to eat the jellyfish to be able to preserve the prawns. So. So you have to take into account what happens when you're taking out one major species from the food chain and the flow-on effects it has. And also for sharks because they've got low fecundity, it takes them a long time to have babies and produce new sharks and so forth. So that's another consideration about when you start overfishing and species. So so all of that sort of biological aspects around sharks then feed into the lack of knowledge, plus we had this patchwork, it was just something that really needed to get some attention, and we needed to focus a lot more on.

Chris Patterson 47:14
Well, look, your book certainly does. I had a bit of a read of it a couple of days ago, from what I could get on the internet, it's actually not available at the Auckland High Court Law Library. And I, and I think I may make a suggestion to them, they need to rectify that because I did find it interesting. But more importantly, and kind of linking into it all is one of the points that's made at towards the end of your book. And in chapter 11, you make the point that the lessons derived from the international law regime for sharks can hold true for the conservation and management of a lot of other marine species. I mean, it's the takeout I took from that is that all the issues that you're pointing to about this patchwork of regulation and governance and how it's quite inadequate can equally be applied to other marine species. And so, in many ways, whilst I took it, you weren't just highlighting some of the issues and a lot of the concerns around the lack of legislative framework and regulation for sharks, it was actually more around other marine species as well because the same arguments apply, as do I pick the point up right.

Dr. Natalie Klein 51:07
Yeah. So I mean, I think generally, you could be talking about marine biodiversity. And the difficulties that emerge around marine biodiversity is that you need to consider the ecosystem. So we talk about ecosystem management and ecosystem services and things like that that need to be taken into account when you're planning how you're going to manage any one species. But everything is very connected. And in the Law of the Sea, it's always very tricky because, you know, we divide the oceans into different maritime zones. I mean, I've mentioned the territorial sea; we also have the exclusive economic zone; we have the high seas. So different states have different rights depending on where they are at one time. And so even if coastal states, I gave the example of Palau, has declared all of their exclusive economic zone to be a shark sanctuary. Well, the moment that silly shark swims outside of the EEZ, it can be caught on the high seas. So it means that any kind of marine biodiversity has to take into account the areas that are under national jurisdiction as well as the areas beyond national jurisdiction. And is it just species-specific, or do we need to look at how different species interrelate? Because bycatch is a big issue. So I think a big part for us in the book was just trying to think through well, how can you get better cooperation between the different agencies and entities that are dealing with these issues, whether they're regional fisheries management organizations, whether they're regional seas organizations, as well, then there's an overarching international organization, so they all need to be talking to each other. And they don't always do that. And that means that, you know, even if one has a great initiative, it isn't necessarily taking into account what another is doing. And that's true for sharks, that's true for whales, and it's just a general problem we have with marine biodiversity. So, yeah, it's a fair takeout that the situation of sharks is not necessarily unique.

Chris Patterson 55:38
Would there be an opportunity here to create a framework and some procedures in relation to sharks that could then be used as a, I guess, a template or a model for other endangered species?

Dr. Natalie Klein 53:41
Yeah, well, there has been talk in the past about whether we needed a shark-specific treaty, for example. But I think it is probably more looking at the cooperation aspect. And what we really need is like formalized channels of communication that exist between, you know, for example, the law enforcement officials as, as one country being able to call the law enforcement officials of another country and go, "Hey, we've just seen this ship come up on some satellite read we have, and it's heading into your waters; you should send out a ship." So we've got to have that kind of coordination. We need to have that broader agreement around which are the species that need protection. If they're protected under one treaty, they should probably be protected under another treaty as well. And we don't always have alignment there. And I just think if we could actually, you know, it's a very kind of technical nuts and bolts, if you could just talk to each other a bit more, then I think there would be greater ways of just putting in place some better plan. So it's just such a complex, interlocking system in the end. So it's just kind of working through what are going to be some of the ways that that can be done.

Dr. Natalie Klein 58:58
Yep, did not know that about great way to say. But on your point around the New Zealand case. So it was interesting. You said that because the court said that because they were not being fed. And that has actually been one of the really controversial points around some of the sort of sharp tourism is that I think they call it chumming or whether they're providing food to the sharks and then the effect that that has. So there's, I mean, around your ecotourism. There's also some interesting rules that have developed around that. And we have regulations in Western Australia with whale sharks around how close boats can get how close divers can get to them. And we've had regulations around the debating of them too. So So you know, even even though even your holiday experiences, there's no escaping the law. And as I said, the Law of the Sea is everywhere. So you know,

Chris Patterson 59:56
I was surrounded by it. Down Under you were surrounded by this is how our ancestors arrived was during the great migrations across the sea. We are totally reliant on the sea when it comes to you know our goods and services and etc. I haven't seen a cruise liner come back into Auckland. Yes. Since the borders open. Have you seen any cruise lines coming into Sydney Harbour?

Dr. Natalie Klein 1:00:25
Yeah, we've we've just had our first one come back in. And so that was certainly a very controversial issue, as you probably know, for Australia, and particularly for Sydney with the Ruby Princess at the time. So again, there was lots of international law issues tied up in cruise ships and whether they were allowed to come into port whether we could force them to leave. That was another interesting issue that came up. And, you know, the circle back to the human rights discussion. What about the people who were working on their ships and their conditions, particularly once they got sick? And who was responsible for those workers? So yes, cruise ships has their own specific issues under under criminal law and Law of the Sea, I think.

Chris Patterson 1:01:10
Absolutely. Absolutely. And look, I'm sorry, and I don't want to circle back to sharks, because we have covered quite a bit and I'd encourage anyone to read your book. It's who's got an interest in this area, but it's not blue reef. Here's the big whale sharks. I think I've seen photographs of it on on on Instagram, if I got that right as it were, right. Well, I can. I can go on. Yeah, and you mentioned Palau. I haven't have you been to Palau? No, I haven't. Okay. Well, look, my partner Kath. She's, she's a beautiful human, beautiful human being. One of the one of the interests that we both share is in diving. She has been up to Palau a couple of times and rates are extremely highly. She's never mentioned the sharks. So so I will, that'll be part of our dinner conversation tonight. We'll look. We'll look Natalie Klein, thank you very much for joining us on the the lowdown on the podcast, it's been an absolute privilege and, and a fascinating look at an area that I think escapes a lot of people's attention. And as we move forward with, with climate challenges and pressure on resources, and a need for sustainability, I suspect the Law of the Sea will become more and more relevant. And you've certainly given me and, and, and our listeners, a fascinating insight into this particular area. So thank you very much.

Dr. Natalie Klein 1:02:41
Thanks for the opportunity, Chris. It's been fun to chat.

Chris Patterson 1:02:44
It's been great to chat. Thank you. Thank you for tuning in and listening to this episode of the Law Down Under Podcast. You're welcome to join in on the discussion via my podcast page, which you can access at patterson.co.nz. That's patterson.co.nz. Thanks for supporting the podcast and tune in again for more on the law, its application and the future of the law here down under.