part of international law and applied by the courts. ‘Under article 38 of
the Statute’, he declared, ‘if not independently of that article, the Court
has some freedom to consider principles of equity as part of the interna-
tional law which it must apply.’ However, one must be very cautious in
interpreting this, although on the broadest level it is possible to see equity
(on an analogy with domestic law) as constituting a creative charge in le-
gal development, producing the dynamic changes in the system rendered
inflexible by the strict application of rules.
150
The concept of equity
151
has been referred to in several cases. In the
Rann of Kutch Arbitration
between India and Pakistan in 1968
152
the
Tribunal agreed that equity formed part of international law and that
accordingly the parties could rely on such principles in the presenta-
tion of their cases.
153
The International Court of Justice in the
North
5
Georgia Journal of International and Comparative Law
, 1975, p. 381; R. Lapidoth, ‘Equity
in International Law’, 22
Israel Law Review
, 1987, p. 161; Schachter,
International Law
,
p. 49; A. V. Lowe, ‘The Role of Equity in International Law’, 12 Australian YIL, 1992, p. 54;
P. Weil, ‘L’ ´Equit´e dans la Jurisprudence de la Cour International de Justice’ in Lowe and
Fitzmaurice,
Fifty Years of the International Court of Justice
, p. 121; Pellet, ‘Article 38’, p. 723;
Thirlway, ‘Law and Procedure of the ICJ (Part One)’, p. 49, and Thirlway, ‘Supplement’,
p. 26. Note especially Judge Weeramantry’s study of equity in the
Jan Mayen (Denmark
v.
Norway)
case, ICJ Reports, 1993, pp. 38, 211; 99 ILR, pp. 395, 579.
148
Equity generally may be understood in the contexts of adapting law to particular areas or
choosing between several different interpretations of the law (equity
infra legem
), filling
gaps in the law (equity
praetor legem
) and as a reason for not applying unjust laws (equity
contra legem
): see Akehurst, ‘Equity’, and Judge Weeramantry, the
Jan Mayen
case, ICJ
Reports, 1993, pp. 38, 226–34; 99 ILR, pp. 395, 594–602. See also below, chapter 17, for
the extensive use of equity in the context of state succession.
149
PCIJ, Series A/B, No. 70, pp. 73, 77; 8 AD, pp. 444, 450.
150
See e.g. Judge Weeramantry, the
Jan Mayen (Denmark
v.
Norway)
case, ICJ Reports, 1993,
pp. 38, 217; 99 ILR, pp. 395, 585. Cf. Judge Schwebel’s Separate Opinion, ICJ Reports,
1993, p. 118; 99 ILR, p. 486.
151
Note that the International Court in the
Tunisia /Libya Continental Shelf
case, ICJ Reports,
1982, pp. 18, 60; 67 ILR, pp. 4, 53, declared that ‘equity as a legal concept is a direct
emanation of the idea of justice’. However, see G. Abi-Saab’s reference to the International
Court’s ‘flight into equity’ in ‘The ICJ as a World Court’ in Lowe and Fitzmaurice,
Fifty
Years of the International Court of Justice
, pp. 3, 11.
152
50 ILR, p. 2.
153
Ibid
., p. 18. In deciding the course of the boundary in two deep inlets, the Tribunal had
recourse to the concept of equity:
ibid
., p. 520.
s o u r c e s
107
Sea Continental Shelf
cases directed a final delimitation between the
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