국제사법재판소의 남극해 포경 사건(Whaling in Antarctic)에서의 판단의 재량 이론 - 판단의 재량 이론의 적용과 그 제한원리로서의합리성 기준 적용을 중심으로 -

International courts tend to defer judicial review on (i) unsettled, openended norms, and (ⅱ) result-oriented norms (norms that do not provide explicit methods for accomplishing the results), because appreciation and determination of states parties are embedded in both types of norms. ICJ have applied ‘margin of appreciation’ doctrine both explicitly and implicitly. In ICJ’s recent cases, ICJ has preferred to apply the doctrine broadly and limit state parties’ appreciation by review on various standards, especially reasonableness. It seems that the trend is to improve the requirement on reasonableness review. In Whaling in the Antarctic case, which is the most recent case in which the doctrine was applied, ICJ has ruled that state parties do not have the authority to determine what a ‘scientific research’ is, nor what ‘for the scientific research’ is. Instead, ICJ defined ‘scientific research’ as a very broad term, which has amounted to expand the meaning of the term unlimitedly. ICJ recognized that Japan has the authority to determine the construct of the program, such as conditions to permit whaling within the program. ICJ limited state parties’ acts by considering the reasonableness of JAPRA Ⅱ. Although application of the doctrine and standard of review are hard to define and they have to be analyzed case by case, at least it could be concluded that ICJ’s reasoning on the doctrine has been repeated in the Whaling case.