‘Whaling Out’ the Climate Problem: A New Framework of Analysis?

Abstract

It is often considered that states may quite discretionarily define the course of their actions in order to combat global warming. While states do indeed enjoy discretion in this matter, it is not without limit and it can arguably be reviewed. Although the task of determining where the threshold lies is an arduous one, reference to the reasoning followed by the International Court of Justice in the Whaling in the Antarctic case can somewhat facilitate its accomplishment. This is due to the analogy that can be drawn between the kind of legal questions raised in the Whaling case and those pertaining to combating climate change: whether and how a state’s discretionary power can be subject to judicial review; whether and how disputed scientific facts can be arbitrated upon; whether states, when determining the appropriate course of their actions, may be expected to give regard to certain elements of fact and law? From the Whaling case, it thus seems that a new framework of analysis can be drawn, allowing to better articulate the politics of climate change with the law and to transcend some of the main shortcomings of the international climate regime. This chapter is aimed at sketching out the main contours of this framework of analysis, the benefit of which, it is argued, is to uncover new ways around the complex issues that the climate problem encompasses, and to thereby help specify what obligations states have in this regard.