Equity and Justice in International Law
Article 38(2) of the Statute of International Court of Justice says that "This provision shall not prejudice the power of Court to decide a case ex aequo et bono, if the parties agrees thereto". Article 38(2) provides exception to it means that the Court may travel beyond the principles laid down in Article 38(1) and can travel beyond the law, if the parties agrees to.
Though, the Statute of International Court of Justice has not explicit mentioned that the Equity and Justice is a source of International Law, Article 38(1) implied it saying that Courts should follow International Conventions, customs etc.
Though principles of Equity cannot be straight away be applied in cases related to International Law, it is of immense use in cases where there are no rules already laid down. Hence, Equity and Justice can be used in the formation of new law because these principles help in providing equitable results.
The principles of Equity and Justice are adopted in the new International Economic Order, new Law of Sea, the Law of Air Space and Outerspace etc. Agitation against the violation of Human Rights is a part of Equity and Justice.
ex acquo et bono is the opposite of principles of Equity and Justice. Hence if parties agrees to settle the dispute using it, they are explicitly moving away from the application of rules as per International Law.
Related Case Laws
- North Sea Continental Shelf Case (1969)
- United States vs Canada in Gulf of Maine Boundry case: Using concepts of acquiescence and estoppel by following the fundamental principles of good faith and equity
- Holland and Belgium, Meuse Case 1937 regarding diversion of water
- Barcelona Traction Case
- Rann of Kutch Arbitration between India and Pakistan 1968
- Frontier Dispute Burkina Faso vs Republic of Mali
- International Court of Justice
- State Responsibility for Contracts with foreigners
- International Conventions
- International Delinquency
- Decisions of International Institutions as source of International Law
- General Principles of Law as source of International Law
- Judicial decisions as source of International Law