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[Originally posted, with full hyperlinks, at http://eastasiaforum.org/author/lukenottage/]

As an Australian/New Zealander lawyer who has spent almost eight years on and off in Japan since 1990, I am concerned that both sides tend to adopt internally inconsistent positions on whaling. What can the law add to this controversial topic?

Kent Anderson rightly points out the Japan reveals a major “blind spot” in underestimating antipodean objections nowadays to commercial whaling. But some Japanese commentators are all too aware of those objections; it’s just that they think them to be hypocritical. That is, when Australia brings claims against Japan under the WTO (or potentially, soon, under our FTA), it insists that any measures impeding its agricultural trade need to be based on science and economics, not the cultural values invoked by Japanese farming communities or their politicians and bureaucrats. Yet when whales are at stake, Australia insists that this is not about science and economics. The ethics involved in killing or keeping alive these magnificent mammals become a major factor – increasingly, it seems, a definitive one. Japanese commentators tend to see this as a double standard, which is why some of them delight then in highlighting kangaroo culling or ethically debatable farming practices in Australia.

But the Japanese government’s position is also inconsistent. When it defends WTO claims, at least to its own citizens, it invokes culture and ethics. Yet when it comes to whaling, the government and the media focus instead on economics and science. A major reason for this double standard, but also Australia’s, is local politics. Rural communities retain disproportionate voting power in Japan, while an anti-whaling stance plays into growing public concerns about other environmental issues in Australia.

How can the law help in such tense situations?

One influential (“systems”) theory of law argues that modern societies evolve into increasingly specialized sub-systems, such as law or science. Each has its own function and “discourse” or way of interacting with the others. This is mainly a descriptive socio-legal theory. But one normative implication is the need to preserve the relative autonomy of each, so that their complexities promote overall stability of the social system. Accordingly, the law should not simply rubber-stamp the substantive conclusions of scientists, nor their own processes of generating those conclusions. Nor should the law be completely subsumed into politics or economics. Unfortunately, that tends to be happening too much with the Whaling Convention and the IWC. Going to the other extreme, and prioritizing ethics over other subsystems’ discourses, is dangerous too.

For law to add value to the controversy over whaling, we need to open it to the various subsystems just enough to allow the law to apply and develop its own discourse to complex socio-economic problems. That, in turn, can feed back into the other subsystems in more productive ways for contemporary society. The way WTO law brings in economics and science is instructive, although not perfect. On whaling, even a soft bilateral (or trilateral) agreement involving Australia and Japan may help; we don’t necessarily need to wait for a new multilateral regime. Especially if the law does what it does best, which is to institutionalise transparent processes of reasoned debate, intersecting with multiple discourses evolving in other social subsystems.

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Japanese Law in Asia-Pacific Socio-Economic Context