Sunday, November 29, 2015

Tokyo's decision to skirt the ruling of the International Court of Justice and again send its hunting fleet south is a self-defeating complication.

Japan's whaling hypocrisy sets a dangerous precedent

Judges at the highest UN court, order Japan to halt whaling in the Antarctic, rejecting the country's long-held argument that the catch was for scientific purposes.

Malcolm Turnbull needs to directly warn Japan that its dismal choice to resume the slaughter of whales in the Southern Ocean will damage the relationship with Australia.

This is not simply about saving the whales, although this international campaign stirs more passion in the Australian community than most questions of war and peace.

This entire episode has set a remarkable precedent that won't go unnoticed in Beijing. 

The consequences of Japan's blatant disregard for international law goes much further. In a region where nervous governments are demanding that a more assertive China "follow the established rules" in settling territorial disputes, Tokyo's decision to skirt the ruling of the International Court of Justice and again send its hunting fleet south is a self-defeating complication.

Tokyo will argue it has technically respected the court's decision last year to strike out the supposedly "scientific" program by drawing up a new and updated rationale for whaling. "The Antarctic Ocean has its unique marine ecosystem," reads Japan's latest justification, made public at the weekend, "[with] abundant living resources that could be sustainably exploited for food and other purposes."

The risk of climate change gets a mention in the 110-page document, and understanding how it might effect whales. Or it could be that minke, humpback and fin whales are competing for food, Japan argues. "Investigation" is needed – and that just happens to include killing 4000 minke whales over the next 12 years, and reserving the right to change this "lethal sample size" at any time.

All of which is dubious and debatable. But that is beside the point. Japan's far more significant decision is to exempt itself from the jurisdiction of the international court to prevent any future challenge to whaling.

Japan has made a special declaration to state that the court "does not apply to ... any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea".

This entire episode has set a remarkable precedent that won't go unnoticed in Beijing. Japan has been hauled before the independent umpire, had the decision go against it, and so responded by excusing itself from the rules.

Think how that precedent might be applied. Japan and China are caught up in a bitter dispute about who owns an island chain in the East China Sea, which Japan controls as "Senkaku" and China claims ownership of as the "Diaoyu" islands. Tokyo last week announced a plan to station 500 troops nearby, while at the weekend eight Chinese air force bombers and a collection of reconnaissance planes buzzed close to Japanese airspace.

Whenever tensions flare, Australia's standard diplomatic response is to claim it takes no side in the dispute, but to urge a resolution in accordance with international law. Foreign Minister Julie Bishop deployed this very same line when China decided to unilaterally declare any aircraft flying near the disputed islands had to identify themselves – and earned a dressing down in Beijing as a result.

But the issue will be even more complicated next time tensions flare, thanks to Japan's legal exemptionalism on the whaling issue. The precedent will also have consequences for the territorial stoush in the South China Sea between China, the Philippines, Vietnam and other south-east Asian nations.

When the United States made a show of sailing a warship into waters near one of China's artificial islands last month, the point was supposedly to uphold the principles of free navigation international law.

"It's very important for us to uphold the basic principle that these issues should be resolved by international norms, the rule of law and be peacefully settled," President Barack Obama explained at the recent summit of Asia-Pacific leaders. And there was Malcolm Turnbull standing beside him, quick to chime in: "We are very much of the same mind."

What will this argument be worth now that Japan, the region's other great power, has so demonstrably ignored the law?

Australia's response to Japan's decision has so far been careful in public. Environment Minister Greg Hunt said Australia was "strongly opposed" to whaling and declared Japan should not "unilaterally decide" the scientific basis of its program.

But the government should go further, and scorch Japan over the dangerous broader diplomatic ramifications of its action.

Both sides of politics in Australia have maintained that the whaling issue can be quarantined from the wider relationship with Japan. That is true only up to a point. Challenging Tokyo in the international court didn't scuttle the pursuit of a free trade deal. Yet there are some in Japan who think Australia is doing nothing less than harbouring terrorists by allowing Sea Shepherd ships to tie up at the Williamstown docks.

The vast majority of Australians certainly don't think so, and Japan's arguments in favour of whaling are pitifully weak. But just as importantly, if Australia wants to be taken seriously in its boast of pursuing a values-based foreign policy, demanding friends respect the rule of law is essential.

Daniel Flitton is senior correspondent at The Age.

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