If international law is to mean anything and to be accorded any respect, it must begin with the truth. And describing the Japanese whaling industry as a "legally sanctioned cetacean research program" is such obvious doublespeak as to make the rest of Tokugawa's argument, based as it is on this premise, completely invalid.

Ieyasu, you have very dogmatic views on something that is not as clear-cut as you suggest.

I agree that Japan has a good argument based on the text of Article VIII of the International Whaling Convention that whatever it chooses to call "research whaling" is lawful. The article is written very broadly.

On the other hand, the lack of any credible research being produced from killing the whales undermines the validity of Japan's position considerably.

Japan could continue its research using non-lethal methods. The lethal methods are not producing any useful science.

Japan does appear to be abusing its rights under Article VIII of the IWC to conduct commercial whaling disguised as research.

In relation to Australian law prohibiting whaling around Australia's Antarctic territory, you could say "the truth of the matter is that" Australia has a legal right under UNCLOS to prohibit whaling within those waters and Japan is breaching Australian law by authorising its nationals to conduct whaling in those areas. And "Just because you do not like it [and Japan does not recognise Australia's sovereignty in Antarctica] does not make it invalid."

You could have followed the outcome of the 2008 Australian case closely to receive judicial confirmation of the illegality of the Japanese research programs under Australian law.

Ieyasu, you make false arguments.

I said that "the lack of any credible research being produced from killing the whales undermines the validity of Japan's position considerably."

I presume you have looked at the JARPA cruise reports (or perhaps you are involved in writing them) so you know that there is nothing new coming from the lethal research methods. You can read one at http://www.envlaw.com.au/whale17.pdf

There is simply no need for lethal research methods to be used.

I disagree that the validity of Australian law to stop Japanese nationals whaling in its Antarctic waters is tenuous. Recognition is not the test of sovereignty under international law, effective occupation is.

If you wish to, you can read my analysis of the legal basis for Australia being able to lawfully stop Japan's whaling in its Antartic waters at http://www.envlaw.com.au/whale24.pdf

That is a good question Ieyasu and there has been academic debate on this point. Several countries, such as the USA, objected to Australia asserting some of its rights to the continental shelf adjacent to its Antarctic territory so they presumably also object to the assertion of the EEZ.

My opinion is that the better view is that, interpreted in good faith, the ordinary meaning of Article IV suggests that Australia is not restricted from claiming an EEZ adjacent to the Australian Antarctic Territory (AAT) because a declaration of an EEZ under the United Nations Law of the Sea Convention 1982 (UNCLOS) is based on an assertion of sovereign rights of a coastal state and is not an assertion of territorial sovereignty over that area. Article 56 of UNCLOS makes this clear. The distinction between "sovereignty" and "sovereign rights" is an important one in UNCLOS.

I note that in considering Antarctic policy it is important to guard against bias in favouring the perceived national interests of a writer’s own country.

It is unlikely to be a mere coincidence that most writers on Antarctica adopt views on sovereignty and the ability to regulate activities in Antarctica that are consistent with the views of their national governments.

I am an Australian national and I explicitly recognise and attempt to guard against skewing my analysis to accord with Australia’s policy position and perceived national interests.

I was a barrister in the Australian Federal Court case that Tim referred to as well but I try to also guard against "adversarial bias".

If you want to read my views on this point in more detail, you can read a paper I wrote a few years ago at http://www.envlaw.com.au/whale24.pdf

Just to add Ieyasu: countries often take political positions based on their own economic interests in sovereignty disputes that do not reflect the principles of international law.

In my view that is what Japan, the USA and other countries do in refusing to recognise Australia's sovereignty in Antarctica. Their aim is to try to keep the resources available for their nationals to exploit in the future.

Another example of political positions that do not reflect the principles of international law is the current dispute between Japan, China and Taiwan over the Senkaku / Diaoyu / Tiaoyutai Islands: http://en.wikipedia.org/wiki/Senkaku_Islands

The dispute is very topical now given the recent flare-up in tensions over the islands.

As an outsider, my view is that Japan has territorial sovereignty over the islands under the ordinary principles of international law.

While China and Taiwan’s claims are based on a long history, it is effective occupation that is the key test under international law.

In 1895 when Japan annexed the islands using its superior military might at the time, armed force and conquest were lawful under international law.

It then exercised effective occupation over the islands until 1945 when it was defeated in World War II by the USA.

The islands reverted to Japan in 1972 under a treaty with the US.

Japan has had effective occupation of the islands since 1895 – 1945 and 1972 to the present.

But, while I think Japan has the stronger basis for sovereignty under international law, China isn’t going to give up on the islands and it will try to muscle and intimidate Japan into surrendering them to China. The domestic politics stoking anti-Japanese feeling in China and the resources involved make that very clear.

This is an example of politics (plus the desire for the associated wealth from resources in the islands' maritime zones) trumping the law.

I see that as the bottom line regarding the dispute over Australian sovereignty in Antarctica as well.

Anyway, that's well off-topic here so I'll leave it at that.

Thanks for your helpful comments Chris.

I don't have a firm view on the sovereignty issue, but I do accept that if Australia has a valid territorial claim then it follows that Australia can assert claims to maritime zones adjacent to the AAT. I don't see these as new claims, contrary to the Antarctic Treaty. They are pre-existing entitlements under the law of the sea.

In relation to the enforcement issue, Ben Boer and I explored it in some detail in Looking South: Australia's Antarctic Agenda (http://www.federationpress.com.au/bookstore/book.asp?isbn=9781862876576).

Ben and I trace the treatment of jurisdictional issues from 1959 until today, and come to the conclusion that the Antarctic Treaty does not allow claimants to exercise jurisdiction on a territoriality basis. No claimant has sought to exercise jurisdiction against non-nationals, so far as I am aware, and it would be dangerous for any claimant to do so, as it could imperil the Antarctic Treaty itself which has been essential for protecting the Antarctic environment.

Thanks Tim, I did like Looking South but I disagree with your analysis on the enforcement issue. Still, we can agree to disagree. You view on non-enforcement is certainly the accepted dogma at present.

Ieyasu, thanks for making me laugh with your points about my "profound ignorance of geopolitical reality" and "Australia’s imperialistic territorial claims in Antarctica".

You might have a think about the role of sovereignty as the foundation for the international legal system. Why is it so "imperialistic" for Australia to assert its rights in accordance with that system?

Certainly Australia has economic and resource motives for maintaining its Antarctic territory and asserting an EEZ around it. I do not assume or suggest otherwise.

The justification for Australia's position is that it is based on the established principles of international law. It is not a fiction made up like, say, China's U-shaped claim over the South China Sea.

Japan's position on Antarctica depends on denying the application of established principles to the facts.

This is ironic given the number of disputes over sovereignty that Japan has with its neighbours.

One would think that Japan's interests would lie in respecting the normal principles for establishing sovereignty, including over remote and largely uninhabited areas.

Good luck if you want to work out sovereignty over the Senkaku Islands by counting the proportions of the world's population that recognise Japan's sovereignty and the those that recognise China's sovereignty.

Perhaps though you only apply international law when it suits Japan's interests? I don't see much trace of anything else in your dogmatic reasoning that Japan is 100% right and everyone else is 100% wrong.

For my part, I accept that there are arguments either way on many issues such as the legality of the whaling under Article VIII of the IWC.

You might well be right that Australia will fail in the ICJ case and that it will be able to continue to whale in its own waters and on the high seas.

Australia can, however, validly stop Japanese nationals whaling within Australian waters, just as it can regulate any fishing or use of marine resources in those waters under UNCLOS.

On the central question of Australian sovereignty in Antarctica, you should read the outstanding work of Gillian Triggs that I referred to in my earlier question to Tim rather putting your fingers in your ears and shouting as loudly as you can that Australia does not have sovereignty in Antarctica.

Yes, she is an Australian (so you will assume she is terribly biased and unable to think rationally) but she is also one of the world's leading international lawyers. She goes carefully through the principles and evidence regarding Australian sovereignty in Antarctica. Have a read of her work and see if you can poke holes in it.

Having worked through all of the relevant legal issues and relied on Gillian Trigg's work in relation to sovereignty, my conclusion is that Australia can lawfully enforce its laws against Japanese nationals carrying out whaling in Australia's Antarctic waters.

As a final, minor note, you referred to "Japanese government vessels" but the vessels that carry out the whaling are not owned by the government of Japan. They are owned and operated by a private company, Kyodo Senpaku Kaisha Ltd.

Ieyasu, I am not sure about your reference to Japan's actions. Are you referring to conquest of territories using armed force? Conquest of territory by the use of armed force is now outlawed by Art 2(4) of the UN Charter.

Regarding the principles for effective occupation and establishing sovereignty in Antarctica, the Legal Status of Eastern Greenland gives the leading international decision on sovereignty over remote, sparcely populated and ice-clad land masses such as Antarctica. See: http://www.worldcourts.com/pcij/eng/decisions/1933.04.05_greenland.htm

As to personal motivations, I'm just a lawyer working in this area and a university lecturer in environmental law. I acted a few years ago as a barrister in the Australian court case regarding Japanese whaling and that forced me to come to grips with the Antarctric Treaty System and related issues.

I am contributing comments to Tim's article and responding to your questions and comments in the context of simply assisting you and others to gain an understanding of the legal and policy issues, as well as being open to learning myself if an issue I haven't considered is raised.

My main research areas are climate change and environmental regulation. See: http://www.gpem.uq.edu.au/chris-mcgrath

How about you? Are you a lawyer in Japan or teaching at a university? You certainly have a depth of knowledge regarding many of the issues involved.

Good point Ieyasu. We can certainly agree on all nations, including Australia and Japan, reducing or halting the take of SBT to allow the stocks to recover.

Sadly Peter, there are many detailed reviews of the Japanese whaling program coming to the same conclusion as you reached that the killing of whales has negligible scientific value.

See, for example, Peter Sands (2008) "Japan's ‘Research Whaling’ in the Antarctic Southern Ocean and the North Pacific Ocean in the Face of the Endangered Species Convention (CITES)" Review of European Community & International Environmental Law, Volume 17, Issue 1, pages 56–71, available at http://onlinelibrary.wiley.com/doi/10.1111/j.1467-9388.2008.00587.x/pdf

The abstract reads:

"Over the past 20 years, Japanese whalers have taken more than 10,000 whales from the Antarctic Southern Ocean and the north Pacific Ocean for ‘scientific purposes’, under a controversial exemption clause in the International Convention for the Regulation of Whaling (ICRW). After analyzing the relationship of the ICRW regime with other applicable multilateral agreements, this article concludes that Japan's current pelagic ‘research whaling’ programmes are not only a growing embarrassment for the country's meritorious ongoing research in both polar regions; they are also in open breach of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). In light of different options for international legal action, the author recommends the initiation of ‘compliance procedures’– potentially leading to a collective trade embargo – in accordance with CITES Conference Resolution 14.3 (2007)."