A Critical Re-analysis of Whaling in the Antarctic: Formalism, Realism, and How Not to Do International Law
In: New Zealand Yearbook of International LawSearch for other papers by James C. Fisher in
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Abstract
Commentators have tended to overlook the lack of legal rigour displayed by the icj decision in Whaling in the Antarctic out of enthusiasm for its substantive outcome, but political developments, such as Japan’s impending withdrawal from the International Whaling Commission, compel scholars to re-evaluate the decision from both legal and political perspectives. This article suggests that concern for the consequences of its decision led the icj to contort the application of formal law. On the best evidence available, it was predictable that doing so would further entrench the Japanese position. Whaling in the Antarctic therefore inhabits an unsustainable position between formalist and realist approaches to public international law; it is unprincipled in that it perforates the conceptual boundary between legal and non-legal reasoning, and is simultaneously ineffective, in that doing so failed to ameliorate Japanese state policy. While not suggesting that instrumentalist considerations should never influence formalist reasoning, this article argues that this must be done selectively and intelligently, balancing whatever immediate advantages this may offer against the countervailing harms of departing from positive law in hard cases.