Proportionality and Margin of Appreciation in the Whaling Case. Reconciling Antithetical Doctrines?
In its decision on the Whaling in the Antarctic case, the International Court of Justice used a sophisticated methodology for assessing the legality of a whaling program allegedly designed to pursue purposes of scientific research. Based on the combination of two instruments – margin of appreciation...
| Published in: | European Journal of International Law |
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| Format: | Article in Journal/Newspaper |
| Language: | English |
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2016
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| Online Access: | http://hdl.handle.net/11573/1092870 https://doi.org/10.1093/ejil/chw058 http://www.ejil.org/pdfs/27/4/2683.pdf |
| Summary: | In its decision on the Whaling in the Antarctic case, the International Court of Justice used a sophisticated methodology for assessing the legality of a whaling program allegedly designed to pursue purposes of scientific research. Based on the combination of two instruments – margin of appreciation and proportionality review – this methodology ultimately enabled the Court to reconcile apparently divergent needs: to grant a measure of discretion to states in determining their domestic policy requirements and to exert an international control over discretionary powers. From a theoretical viewpoint, this approach can have farreaching implications and contribute to untie some still unresolved knots of the proportionality doctrine. |
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