The ICJ Whaling Case: Missed Opportunity to Advance the Rule of Law in Resolving Science-Related Disputes in Global Commons?

36 Pages Posted: 6 Jun 2017

See all articles by Brendan Gogarty

Brendan Gogarty

University of Tasmania, Faculty of Law

Peter Lawrence

University of Tasmania

Date Written: April 1, 2017

Abstract

A number of treaties relating to the global commons include provisions which rely on science, or scientific research, without defining these terms (e.g. climate change, Antarctica). Disputes relating to what counts as genuine science and/or the appropriate responses to science are a feature of these regimes. Against this context, the Whaling Case before the International Court of Justice (ICJ) created hopes that the court would advance the rule of law by interpreting the concept of “scientific research” under the Whaling Convention. We argue that the court missed an opportunity by adopting a narrow approach which involved assessing the Japanese whaling programme in terms of its own objectives, by use of a standard of review test extracted from World Trade Organization (WTO) jurisprudence. On close inspection the ICJ implicitly adopted a definition of science while maintaining that it was doing no such thing. We argue that the Court should have proceeded to interpret scientific research under Art. VIII of the Whaling Convention applying the international law rules on treaty interpretation and informed by direct evidence from scientific experts which it is entitled to call on under its Statute. The Whaling Case thus represented a missed opportunity.

Keywords: international law, interpretation, international court of justice, ICJ, science, denotation, demarcation, Australia, Japan

JEL Classification: K33

Suggested Citation

Gogarty, Brendan and Lawrence, Peter, The ICJ Whaling Case: Missed Opportunity to Advance the Rule of Law in Resolving Science-Related Disputes in Global Commons? (April 1, 2017). Available at SSRN: https://ssrn.com/abstract=2980597 or http://dx.doi.org/10.2139/ssrn.2980597

Brendan Gogarty (Contact Author)

University of Tasmania, Faculty of Law ( email )

Private Bag 89
Hobart
Tasmania, 7001
Australia

Peter Lawrence

University of Tasmania ( email )

Private Bag 89
Hobart
Tasmania, 7001
Australia

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