The rule of law has been Japan’s trump card in its ongoing rhubarb with China over competing territorial claims in the East China Sea.
In the war of words with Beijing, Tokyo has gained moral authority by criticizing its rival for not abiding by the rule of law and trying to change the status quo through unilateral actions and military coercion. Early last year Keiichi Hayashi, Japan’s ambassador to the United Kingdom, responded to his Chinese counterpart’s assertion that Japan was acting like “Harry Potter” nemesis Voldemort with a similar dig of his own.
“There are two paths open to China,” Hayashi wrote in a Telegraph op-ed. “One is to seek dialogue and abide by the rule of law. The other is to play the role of Voldemort in the region by letting loose the evil of an arms race and escalation of tensions.”
Thus, the decision to resume whaling in the Southern Ocean is a major blunder on Japan’s part because it undermines its rule-of-law diplomacy. Japan’s defiance of the International Court of Justice (ICJ), which ruled that its whaling-for-research program in Antarctic waters violates the 1986 moratorium of the International Whaling Commission (IWC), is a major setback because, in doing so, Japan is exempting itself from the same rule of law it otherwise assiduously upholds.
When the ruling was issued in March 2014, Japanese Foreign Ministry spokesman Noriyuki Shikata told reporters that Japan respected the rule of law and would abide by the decision. This was the right call, because by voluntarily agreeing to participate in the ICJ process, Japan and Australia committed to accepting the outcome. Japan subsequently reversed course and is now flouting the ruling by resuming whale hunts in Antarctica.
This is a serious mistake with the potential for negative repercussions that outweigh any possible benefits from whaling. The 1986 moratorium on commercial whaling helped prevent the extinction of certain whale species. Since then, however, Japan has killed 14,000 whales, mostly minke, allegedly to gather scientific data in support of its contention that whales can be sustainably harvested. This scientific cull is allowed ostensibly under a clause in the International Convention for the Regulation of Whaling that permits research whaling. The IWC has long argued this is a sham, and now the ICJ agrees. Experts are convinced that the data Japan gathers in its research whaling could be obtained through nonlethal means and that the principle objective of the whale hunt is culinary rather than scientific.
Last season, Japan abided by the ICJ ruling and conducted only nonlethal sampling in the Southern Ocean, but it recently announced plans to cull 333 minke whales a year for the next dozen years in Antarctica, about a third of its previous annual target. Joji Morishita, Japan’s representative to the 90-member IWC, asserts disingenuously that the ICJ ruling didn’t actually rule out killing whales, but rather merely requires stronger scientific justification of this lethal cull. Actually, the ICJ ruled that lethal sampling was not justified “for purposes of scientific research” and was an abuse of the research exemption.
Morishita’s dubious sophistry aside, abiding by the rule of law only when it is convenient weakens Japan’s hand in dealing with China and puts it in the hypocrisy big leagues alongside the United States, which accepts the ICJ’s jurisdiction only on a case-by-case basis after withdrawing from compulsory jurisdiction in 1986. The U.S. may remonstrate that China’s actions in the South China and East China seas violate the United Nations Convention on the Law of the Sea, but the U.S. Congress has yet to ratify it, so Washington doesn’t have a leg to stand on.
Whaling advocates in the Japanese government may think they are justified on cultural and culinary grounds, but they are harpooning “Brand Japan.” Japan’s scientific argument for the resumption of whaling was examined and found wanting by two international panels of experts. Moreover, in terms of Japan’s global public image, whaling is a losing proposition. It’s a diplomatic scarlet letter that negatively influences public opinion in Europe, North America and Australia over a program that uses taxpayer money to kill something that hardly anyone craves — all for the sake of a national identity that few embrace. The entire program is only viable with heavy government subsidies administered by the Fisheries Agency, but in an example of the bureaucracy’s stovepipe mentality, health ministry authorities have found very high concentrations of mercury and PCBs in whale meat, and warn pregnant women not to eat any at all.
Cetacean nationalists have been successful in tapping into anti-anti-whaling sentiment among the public, portraying themselves as patriots standing up to culinary imperialism, but they do so because that is what they get paid to do from government coffers, not because there is grass-roots support. Vested interests in the bureaucracy and Diet have a lot to lose if Japan lays down its harpoons so even if Japanese prefer watching whales over eating them, their voices don’t count.
The bottom line is that putting uneaten and unwanted whale in cold storage, forcing school lunch programs to serve an unhealthy product to students in the name of an invented tradition, and bribing landlocked nations to support its position in the IWC does not seem to be inspired policy.
Problematically, there are two critical countervailing considerations. First, Tokyo is much more worried about this precedent morphing into the unilateral imposition of fishing sanctuaries where Japanese fishing interests and consumers have real interests at stake, and so they oppose Australia’s initiative in the Southern Ocean. Second, Japan has a stake in upholding the rule of law, especially because of China’s regional hegemonic ambitions.
Japan’s choice to flout the rule of law threatens its legal position in any potential future arbitration cases that might arise over territorial claims or exclusive economic zones. The Philippines is challenging China’s assertion of expansive maritime claims in a territorial dispute currently under U.N. arbitration. If that decision goes in favor of Manila, Beijing will certainly ignore the ruling, and it can now cite Japan as a fellow scofflaw.
Jeff Kingston is the director of Asian Studies, Temple University Japan.