About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

12 Aust. YBIL 54 (1988-1989)
The Role of Equity in International Law

handle is hein.journals/ayil12 and id is 62 raw text is: THE ROLE OF EQUITY IN INTERNATIONAL LAW VAUGHAN LOWE* This paper considers the role of equity in international law. After setting out a working definition of equity and considering whether recourse to equity is permissible, it asks whether there is any need for equity in international law - that is, whether there is anything that can be done by recourse to equity which could not otherwise be done. Concluding that there are limited circumstances in which recourse to equity might appear necessary, it then discusses the features of equity which make its use desirable in certain contexts. Two short final sections deal with the content of equity, and with the question whether its use requires the consent of states. A Working Definition of Equity Later in this paper I shall have to return briefly to the question of the content of equity; but it is necessary to adopt a working definition at this stage. A serviceable definition of equity is: general principles of justice as distinguished from any particular system of jurisprudence or the municipal law of any State.1 I use the term to signify equity as distinct from law. The extent to which equity becomes, through its use, modulated or controlled by legal rules is not important here (although it is discussed below).2 What is critical is the attachment of equity to the conception of justice and its detachment from the rules of any particular legal system. I am aware that by forcing a distinction between law and equity in this way I am to some extent creating the problems which I address, and may therefore be accused of putting up straw men. I do so deliberately in the context of this paper. The close relationship between law and equity is undeniable, and the pervasive influence of equity on legal rules and principles is at least as strong in international law as in other legal systems. But there seems little point in trying to tease out the precise nature and extent of that relationship and influence. The two are so thoroughly commingled as to be inseparable, and it is not clear that an attempt to separate them would be either informative or interesting. The purpose here is to examine the particular roles of Law and Equity as distinct bodies of norms and approaches to normativity. * University of Cambridge 1 This was the definition of the phiase law and equityused by the Tribunal in the United States-Norway Arbitration, 1922 (1923) 17 AJIL 362 at 384. The phrase was adopted by the Tribunal in the Cayuga Indians arbitration: see Nielsen F K, American and British ClaimsArbitration (1926), p 307, at 320-321. 2 See further, Weil P, The Law of Maritime Delimitations - Reflections (1989), pp 159-177.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most