Proportionality and Margin of Appreciation in the Whaling Case. Reconciling Antithetical Doctrines?

• Published in: European Journal of International Law
• Main Author: vincenzo cannizzaro
• Other Authors: Cannizzaro, Vincenzo
• Format: Article in Journal/Newspaper
• Language: English
• Published: 2016
• Subjects: whaling case; international court of justice; antarctic; legality of a whaling program; international law; Antarc*; Antarctic
• Online Access: http://hdl.handle.net/11573/1092870; https://doi.org/10.1093/ejil/chw058; http://www.ejil.org/pdfs/27/4/2683.pdf

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.