Australia and Japan are key actors in the Indo–Pacific, integral to the region’s future security architecture and the prevalence of international law at sea. Australia’s location, democratic system, economy and military capabilities make the country important to Japanese Prime Minister Shinzo Abe.

The Japanese leader’s narrative is based on the following legs: peaceful resolution of territorial disputes in accordance with international law (including arbitration under UNCLOS); interim agreements on resource management (embodied in the Japan–Taiwan fisheries agreement); tighter links among ‘Maritime Democracies’ (chief among them Asia’s ‘democratic security diamond’, made up of Japan, the US, India and Australia); regional capacity building assistance (both Japan and Australia are helping the Philippines rearm); and the 1982 Falklands War as a reminder to revisionist powers that appeals to international law don’t exclude an armed response to aggression.

Despite strengthening ties, cooperation between Tokyo and Canberra is threatened by a long-standing dispute over whaling. Both countries therefore need to make an effort to reach a decision on that issue which lays the foundation for closer defence and security relations between the two countries in an increasingly challenging strategic environment.

In 2014 the International Court of Justice (ICJ) ruled that Tokyo’s special permits under her whaling program ‘JARPA II, were not “for purposes of scientific research” pursuant to Article VIII, paragraph 1, of the Convention’. Tokyo reacted by announcing in October 2015 that it was excluding the International Court of Justice from future whaling disputes, stating that its jurisdiction ‘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’.

Tokyo’s decision is of particular concern to Australia and other maritime democracies, plus Vietnam, because it contradicts Japan’s support for the Philippines’ international arbitration suit against China. It runs directly counter to the view that international law, and more specifically international tribunals, provide a way forward when negotiations have failed to produce a solution to maritime disputes.

It also contradicts the emphasis on the rule of law in Japan’s 2015 White Paper on the Arctic. After all, the notion that endless negotiations are better, and that a decision by an international court is incompatible with a country’s sovereignty, sounds perilously close to Beijing’s assertions in rejecting compulsory arbitration under UNCLOS in the South China Sea.

The context and scope may be different than the Philippines–China arbitration case, but too much is at stake for Tokyo to leave this flank open. Looking at the wider strategic picture in the maritime Asia–Pacific, it’s clear that Tokyo should be careful to act in accordance with international law and tribunals given its stance on other maritime disputes. Any actions contrary to this have the potential to damage relations with a key partners like Australia.

The same determination, pragmatism, and eagerness to invest political capital—as displayed by Prime Minister Shinzo Abe in securing a successful end to long years of fisheries negotiations with Taiwan—is now needed.  

That doesn’t mean, however, that Australia should simply continue to push Japan to terminate whaling. Scientific evidence-based conservation concerns are legitimate, but ideally should go hand-in-hand with a pragmatic examination of the other side’s cultural determinants plus shared strategic interests..  

Australia and Japan must understand that they’re condemned to finding a solution, unless they’re prepared to leave in place an obstruction to enjoying deeper relations and to give ammunition to other parties that seek to subvert the international legal order. Any solution to the issue will involve not only both countries’ governments, but also their civil societies, including relevant private industry and environmental organisations.

Both Japan and Australia share an interest in the South China Sea, as clear from their support for the Philippines’ military modernisation program. A pragmatic approach to whaling, with concessions by both sides, would remove an irritant and pave the way to greater cooperation at all levels, including more frequent joint naval and military drills and exchanges. Proposals for an ‘Asian NATO’ remain far-fetched, but as long as Canberra and Tokyo keep moving forward they will stay alive.