19/01/2017 3:23 PM AEDT | Updated 19/01/2017 3:24 PM AEDT

Turnbull And Abe Forgot To Discuss The Whale In The Room

We need to be honest about our position on Japanese whaling if we want it to stop.

The Asahi Shimbun via Getty Images
Japanese Prime Minister Shinzo Abe and Australian Prime Minister Malcom Turnbull met at Kirribilli House last week.

Last week saw the visit of a Japanese delegation to Australia, led by Prime Minister Shinzo Abe, for high level talks on trade, defense and sporting cooperation.

What doesn't seem to have been included in the talks, publically at least, is the thorny issue of Japanese whaling in the Southern Ocean. This was brought into sharp relief when the anti-whaling organisation, Sea Shepherd, published photographs of a dead minke whale.

Sea Shepherd Global / Glenn Lockitch

Sea Shepherd asserted that the killing of such whales is in breach of Australian and international law. These allegations were echoed in the Australian press and by some Australian politicians.

Unfortunately, such allegations are not an accurate statement of the legal position on whaling in international waters and may inhibit the path towards breaking the current international deadlock. Resolving international disputes, especially with a friendly nation, requires honesty about one's own position, and a degree of understanding about the basis for the other's position. Let us first start with Japan.

Japan has a long history of whale hunting. Until the 20th century, Japanese whaling was limited to its own region, but in the 1930s it expanded into the Southern Ocean, where Australia was already conducting much more extensive commercial whaling. By the mid-1940s, whales were being killed in such high numbers by various countries, including Australia, that those nations saw it necessary to enter an international agreement to properly manage whale stocks.

In 1946, whaling countries, including Japan and Australia, agreed to a treaty called the International Convention for the Regulation of Commercial Whaling (Whaling Convention), which was aimed at regulating (but not banning) the whaling industry to prevent whale stocks collapsing. The Whaling Convention established a commission (International Whaling Commission) which is supposed to set catch limits for whales, as informed by scientific data. Under the Whaling Convention, countries must adhere to these catch limits, unless they are conducting 'scientific research' on whales.

Australia continued commercial whaling until 1978. At that point, public opinion had turned against whaling, not only because many species were critically endangered, but because attitudes had changed about the acceptability of killing intelligent, unique creatures in such a brutal way. In the early 1980s, Australia was a part of an initiative within the International Whaling Commission to place a 'moratorium' (or ban) on whaling in the Southern Ocean by setting all catch limits to zero. Japan (and some other states) protested this.

The moratorium, Japan argued, was not based on science about stock viability (as the Convention requires) but rather ethical and domestic political considerations. However, after concerted pressure Japan agreed to the moratorium, but made it clear it would conduct scientific experiments to show that commercial whaling could be conducted without risking stock extinction.

Just as some countries and activist groups consider that Japan is misusing science for political ends, so Japan believes that whaling opponents to be doing a similar thing.

From the Japanese perspective, this is the point of their 'scientific' whaling program, to show that an international convention specifically designed to 'regulate' commercial whaling is being misused to ban it altogether, and doing so for political (i.e. ethical), not scientific purposes.

So just as some countries and activist groups consider that Japan is misusing science for political ends, so Japan believes that whaling opponents to be doing a similar thing. This is compounded by evidence that many whales in the Southern Ocean are no longer endangered, but have also increased in number well beyond what is needed to safely maintain the stocks.

Australia and other nations however, don't believe Japan's claim to be just doing science. In 2010 Australia took the Japanese to the International Court of Justice (ICJ) to argue that its alleged 'scientific whaling' program in the Southern Ocean was unlawful under the Whaling Convention. Although the ICJ agreed with Australia, that isn't the whole story.

The ICJ confirmed that Japan could conduct 'scientific whaling' under the Whaling Convention and it was up to the Japanese government to issue permits to its vessels for the killing of whales for science. However, on a technical point, the ICJ found the Japanese whaling program at the time -- called JARPA II -- had been improperly conducted, so wasn't for the purposes of 'scientific research'.

Activist groups may criticise the ethics of killing whales, but it is inaccurate to say the Japanese NEWREP-A program is 'illegal'.

However, Australia might have won the battle in the ICJ, but ultimately lost the war of preventing Japanese Whaling. The ICJ decision confirmed that the International Whaling Commission, Australia or anyone else (especially protest groups), didn't have the authority to tell the Japanese what they were doing was illegal. The ICJ decision therefore prompted Japan to stop the JARPA II program and simply start a new one, which it called NEWREP-A. The dead whales currently being shown in the Australian press have been killed under NEWREP-A program, which has not been found to be illegal by the ICJ. Activist groups may criticise the ethics of killing whales, but it is inaccurate to say the Japanese NEWREP-A program is 'illegal', or 'in contempt' of the ICJ.

Sea Shepherd Global / Glenn Lockitch

The same is true of the allegations that Japan is 'poaching' in the 'Australian Whale Sanctuary'. This area is only recognised in Australian law, and, to a limited extent by four other nations in the world. Japan is certainly not one of these (either is our main ally, the United States).

As far as international law is concerned, Japan is at liberty to assert that the area of the Australian whale sanctuary off the Antarctic coastline is a high seas area that is not subject to any domestic law. It is therefore incorrect to say that the Japanese are 'poaching' in Australian waters, at least as far as 99 percent of the world's states are concerned. That sanctuary legally and practically only applies to our own nationals and a few limited others.

The tendency to frame opposition to Japanese whaling in terms of law and science rather than ethics and morality is understandable, and hardly unique. In a world where trade often trumps the environmental concerns, or where commercial exploitation seems more important than preservation, declaring something illegal can carry more rhetorical weight than merely arguing that it is unethical, cruel and unnecessary.

But the truth is that international law is far from certain about the legality of Japan's actions and has so far proved incapable of stopping the Japanese whaling fleet. We should stop making such claims and trying to frame our opposition in legal terms. It makes us look irrational and unjustified in the minds of the Japanese and allows whaling proponents within that country to argue that we are not being honest about our position.

If we are clear about the ethical objection to whaling, the Japanese will no longer be able to hide behind that, and will need to face their own population about the cruelty of their slaughter, because that is what the debate will be about.

Many Japanese are appalled that we kill and eat our native emblem, the kangaroo.

Of course, narrowing the debate to that issue will have consequences within Australia too. It may make us face our ethical position on the slaughter of other animals, for food or otherwise. Many Japanese, for instance, are appalled that we kill and eat our native emblem, the kangaroo.

Equally, it will shine a light on our value system, in which we consider trade and sport to ultimately be more important things than the killing of whales in our diplomatic relations with the Japanese. Because ultimately, that is the only remaining avenue left to us to pursue our opposition to Japanese whaling; effective and strong diplomacy, leveraging off the strength of our relationship, as well as the shifting power balance in Asia in which Japan will need Australia at its side.

And now is the time to press that diplomacy. Japan is facing significant pressures from Chinese territorial claims in South and East China seas and North Korea's nuclear ambitions. It is also weathering a long standing trade deficit, the looming collapse of the TPP and a likely chilling of relations with the incoming Trump Administration. These are much bigger concerns for Japan than whaling, an industry propped up by the state, with little support or consumption by its own citizens. There has never been more appropriate time to press the matter with Japan on the diplomatic stage.

But this will require greater political willpower from our own government to raise whaling to the same status as trade pacts. It will also require that we are clear and honest about why we oppose whaling, not only to the Japanese, but to ourselves. It is not because it is 'illegal' or 'unscientific' but because we believe that brutally slaughtering these creatures is morally and ethically wrong. If we can do these things, we may be able to work with our close allies and friends to stop the practice, if not internationally, then at least in our region.