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
