Proportionality and margin of appreciation in the whaling case: Reconciling antithetical doctrines?

Abstract

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 far-reaching implications and contribute to untie some still unresolved knots of the proportionality doctrine.