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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
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

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