Equity as a legal concept is a direct emanation of the idea of justice. It was however a long time, before this understanding broke way in municipal law, let alone that it became accepted by a majority in Public International Law, as the lawyers [in England] had a maxim that they would tolerate a ‘mischief’ [a failure of substantial justice in a particular case] rather than an ‘inconvenience’ [a breach of legal principle]. The parties to the case were however mostly not satisfied with such ‘inconvenience’ resulting from the ‘hard nosed’ municipal Common Law and started to seek redress from a higher authority — in this case the King of England. This (royal) remedy is based on the concept of ‘Equity,’ which — as understood in this paper — was applied to correct unjust outcomes and referred to considerations of fairness, and reasonableness. Eventually, the foremost municipal concept of Equity found entry into international jurisprudence. However, mostly civil law countries — whose approach towards Equity was and is more reluctant — were challenging this understanding, arguing that the Court “should work on the basis of existing rights,” in Public International Law a distinction of different ‘Equities’ was developed. As will be shown, the usage of some of these ‘Equities’ is highly controversial, whereas others are today nearly commonly accepted as part of today’s Public International Law.
Table of Contents
Chapter One: Introduction
1.1 Aim of Study
1.2 Significance of Examination
1.3 Literature Review
1.4 Methodology
Chapter Two: Development of the Principle of Equity
Chapter Three: The Usage of Equity in General Public International Law
3.1 Equity Intra Legem
3.2 Equity Praeter Legem
3.3 Equity Contra Legem
3.4 Interim Summary
Chapter Four: Equity in the Decisions of International Judicial Bodies
4.1 North Sea Continental Shelf Case
4.2 Continental Shelf Arbitration, France v. United Kingdom
4.3 Fisheries Jurisdiction Case
4.4 Continental Shelf Case, Tunisia v. Libyan Arab Jamahiriya
4.5 Continental Shelf Case, Libyan Arab Jamahiriya v. Malta
4.6 Burkina Faso v. Republic of Mali Case
4.7 Interim Summary
Chapter Five: Equity in the 1982 LOS Convention
5.1 Preamble, 1982 LOS Convention
5.2 Art. 59, 1982 LOS Convention
5.3 Art. 69 (1), 1982 LOS Convention
5.4 Arts. 74 (1), 83 (2), 1982 LOS Convention
5.5 Art. 140 (2), 1982 LOS Convention
Chapter Six: Equity in the 1982 LOS Convention — A Summary
Chapter Seven: Recent Developments
Chapter Eight: Conclusion
Objectives and Topics
This work examines the implications and application of the concept of Equity within the Law of the Sea (LOS), specifically investigating how this principle has transitioned from municipal legal systems into international jurisprudence and the 1982 United Nations Convention on the Law of the Sea. The primary research question addresses to what extent Equity acts as a source of Public International Law and how its integration into the New Law of the Sea affects legal certainty and the resolution of maritime disputes.
- The evolution of Equity from English Common Law to international judicial practice.
- The doctrinal debate between positivism and natural law regarding judicial discretion.
- The interpretation and legal significance of 'old' vs. 'new' Equity in international conventions.
- Case studies on maritime boundary delimitation and equitable solutions.
- The role of Equity in facilitating the New International Economic Order within seabed mining regulations.
Excerpt from the Book
3.1 Equity Intra Legem
Equity intra legem is the only Equity immanent in positive law. While taking into account the particular circumstances of a case, it is aimed at extenuating hardships. Equity in this sense shall allow for the possibility of choosing such variant among different readings of the law, which best reflects the specialties of the concrete case and the situation of the parties by considering their respective rights and obligations. Equity intra legem is determined by the existing legal framework and constitutes an element of the legal norm itself, while the other forms of Equity originate from outside.
As will be shown below, the 1982 LOS Convention does in several Articles include Equity intra legem.
Chapter Summary
Chapter One: Introduction: Provides an overview of the role of Equity as a derivative of justice and sets the research parameters regarding its controversial application in international law.
Chapter Two: Development of the Principle of Equity: Traces the origins of Equity back to fourteenth-century English Common Law as a corrective mechanism for legal rigidity.
Chapter Three: The Usage of Equity in General Public International Law: Distinguishes between three forms of Equity—intra, praeter, and contra legem—within the framework of international jurisprudence.
Chapter Four: Equity in the Decisions of International Judicial Bodies: Analyzes landmark cases, such as the North Sea Continental Shelf Cases, to evaluate how courts have applied equitable principles.
Chapter Five: Equity in the 1982 LOS Convention: Examines specific articles of the 1982 LOS Convention that incorporate Equity, highlighting the shift toward both 'old' and 'new' forms of the concept.
Chapter Six: Equity in the 1982 LOS Convention — A Summary: Summarizes how Equity serves as a flexible 'package deal' element in the LOS Convention, despite creating potential legal uncertainties.
Chapter Seven: Recent Developments: Discusses how recent ICJ jurisprudence, including the Cameroon v. Nigeria Case, has attempted to refine the role of Equity in delimitation.
Chapter Eight: Conclusion: Concludes that while Equity remains a vital tool for justice, its application continues to provoke controversy regarding legal certainty and wealth redistribution.
Keywords
Equity, Law of the Sea, Public International Law, 1982 LOS Convention, Maritime Delimitation, Judicial Discretion, Common Law, Positivism, Natural Law, Intra Legem, Praeter Legem, Contra Legem, New International Economic Order, International Court of Justice.
Frequently Asked Questions
What is the primary focus of this work?
This thesis examines the role and implications of the concept of 'Equity' in international law, specifically focusing on its integration into the Law of the Sea and its impact on how international judicial bodies resolve maritime disputes.
What are the main thematic areas covered?
The work covers the historical development of Equity in English law, the theoretical debate between legal positivism and natural law, the application of equitable principles in international court decisions, and the specific incorporation of these principles into the 1982 LOS Convention.
What is the central research goal?
The primary goal is to determine to what extent Equity has been successfully integrated as a source of Public International Law and how this integration influences the predictability of legal outcomes in maritime boundary disputes.
Which scientific methodology is employed?
The author uses a comparative and analytical methodology, drawing upon primary literature from law libraries in Dar es Salaam and Cologne, alongside an extensive review of international case law and scholarly periodicals.
What topics are discussed in the main part?
The main part analyzes the distinction between different forms of Equity (intra, praeter, and contra legem), reviews significant judicial precedents like the North Sea Continental Shelf Cases, and evaluates specific articles of the 1982 LOS Convention.
What are the defining keywords of the study?
Key terms include Equity, Public International Law, Law of the Sea, Maritime Delimitation, Judicial Discretion, and the New International Economic Order.
How does the author distinguish between 'old' and 'new' Equity?
'Old' Equity refers to traditional equitable principles used to correct outcomes within existing law, whereas 'new' Equity is linked to economic and political justice, particularly in the context of the New International Economic Order and wealth distribution.
What challenge does the ICJ face regarding Equity?
The ICJ faces the challenge of balancing the desire for 'just' and equitable results with the need for legal consistency, predictability, and adherence to established treaty law.
- Quote paper
- LL.M. Timo Knaebe (Author), 2006, The Implications of the Concept of Equity in the New Law of the Sea, Munich, GRIN Verlag, https://www.grin.com/document/59321
