Human(e) Science? Demarcation, Law, and ‘Scientific Whaling’ in Whaling in the Antarctic

Abstract

This paper analyzes a recent case in which a court, like the Daubert Court, was asked to demarcate legitimate from illegitimate science. The court was the International Court of Justice (ICJ), and it was asked by the state of Australia to find the state of Japan in violation of the International Convention for the Regulation of Whaling because of its licensing of a research program that engaged in killing whales ostensibly “for purposes of scientific research.” Australia premised a good portion of its argument on a four-part definition of “scientific research,” reminiscent of the four notorious “Daubert criteria,” and the claim that the Japanese research program, “JARPA II,” failed to comply with this definition. The paper suggests that the Court’s judgment, which forced Japan to temporarily cease whaling, illustrates the merits for courts of avoiding the temptation to engage in demarcation exercises.