International law, Sixth edition
part of international law and applied by the courts. ‘Under article 38 of
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International Law MALCOLM N. SHAW
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 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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