The Implications of the Concept of Equity in the New Law of the Sea

by: Timo Knaebe

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

BIBLIOGRAPHY

 

ABBREVIATIONS/LANGUAGE

Descriptive terms in reference to the economic capacity of countries or world regions are
used for purposes of clarity and comprehensibility and are not intended to express any
personal opinions of the author.
EEZ = Exclusive Economic Zone
ICJ = International Court of Justice
LOS = Law of the Sea
PCIJ = Permanent Court of International Justice
UN = Charter Charter of the United Nations
UNCLOS III = Third United Nations Conference on the Law of the Sea

ABSTRACT

“Equity as a legal concept is a direct emanation of the idea of justice” — this statement of the International Court of Justice is the center point of the examination of the implementations of Equity on the Law of the Sea. Beginning with the history of the concept in the municipal legal system of England, to the early judicial decisions of international legal bodies that applied equitable principles, to the significant position the concept was given in the 1982 United Nations Convention on the Law of the Sea, and concluding with its application by judicial bodies today, this paper tries to carve out, if taking recourse to procedures of municipal — Common Law based — legal systems can facilitate the reinforcement of Public International Law. However, this work aims to go beyond the question, if Equity constitutes a source of Public International Law — a conception still contested from parts of the Civil Law sphere. These different views of the main legal spheres make it necessary to discuss the doctrinal debate between positivism and natural law regarding the role of Equity in Public International Law.

This leads to the problem that, although it was stated that Equity is a “direct emanation of justice” and although Equity was implemented in the 1982 United Nations Convention on the Law of the Sea, hence elevated to Equity intra legem, the problems of its application, namely the legal uncertainty caused by the still prevailing unpredictability of judgments, were not solved but even increased since this implementation lead to the emergence of a s ‘new form’ of Equity.

This new form is — again — contested, but the parties to the controversy are no longer aligned in the different legal spheres but along an economic division as most developed countries fear that such would bind them legally to redistribute wealth. This leads back to the beginning, and the reason for the invention of Equity. It lays, according to Aristotle, in “the idea of justice.” The lawgiver in municipal law with his necessarily generalizing approach, however, was seen as unable to achieve such “justice” in some exceptional isolated cases. Concluding, this work contents that in today’s New Law of the Sea — as part of the general international legal system — Equity does play an important, although controversial, role since our system is not yet as democratically developed as nineteenth century England in which the concept was made obsolete through the creation of one “just” system.

CHAPTER ONE

Introduction

Equity as a legal concept is a direct emanation of the idea of justice.¹ 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],²

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,”³ 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.

1.1 Aim of Study

Beginning with earlier judicial decisions of international legal bodies that applied equitable principles, to the significant position the concept was given in the 1982 United Nations Convention on the Law of the Sea (1982 LOS Convention), and concluding with its application by judicial bodies today, this paper aims to examine to which extent the principle of Equity found entry into the Law of the Sea (LOS).

1.2 Significance of Examination

As equitable principles were commonly applied in connection with disputes revolving around the LOS, an examination of the implications is necessary. Such need is emphasized with the coming into force of the 1982 LOS Convention, where the application of the concept of Equity was significantly laid down, for most countries — industrialized and developing countries alike. Further, in the course of this paper, the doctrinal debate between positivism and natural law regarding the role of Equity in Public International Law will be discussed.

1.3 Literature Review

Specific literature focusing on the usage of Equity in the LOS does not exist, as most legal scholars and international judicial bodies (the latter even when applying equitable principles in their decisions) refer solely to Public International Law’s general conception of Equity. Especially since Equity was explicitly inscribed by the 1982 LOS Convention, this lack of particular consideration of its implications on the new LOS is apparent. One of the few authors paying tribute to the distinct position of Equity in the 1982 LOS Convention is M. N. Shaw. However, although highlighting the significance of the concept in the new LOS, he does not elaborate on its implications for this area. The same applies to W. Heintschel von Heinegg and S. K. Kapoor, who in their latest edition elaborate on the concept of Equity — the latter even referring to its implementation in the 1982 LOS Convention — however fail to analyze the latest developments in the judgments of international judicial bodies concerning sea-related problems. Other authors like R.-J. Dupuy and D. Vignes or D. P. O’Connell, albeit mentioning the position of Equity in the 1982 LOS Convention, do not analyze the legal problems arising out of implementing such vague concept in positive law.

1.4 Methodology

The methodological approach is based on the collection of material from the Dar-Gent Law of the Sea Centre, the University of Dar es Salaam’s main library (law collection), the faculty of law library, and the library of the University of Cologne/Germany. Further, the author’s own collection of literature and — to consider recent developments — periodicals in addition to the World Wide Web are drawn as sources.

CHAPTER TWO

Development of the Principle of Equity

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1 Continental Shelf Case (Tunisia v. Libyan Arab Jamahiriya), I.C.J. Reports 1982, pp. 18, 60. Burkina Faso v. Republic of Mali Case, I.C.J. Reports 1986, pp. 554, 633.

2 OLDHAM, J., English Common Law in the Age of Mansfield, Rosewood: North Carolina Press, 2004, p. 5.

3 Free Zones of Upper Savoy and the District of Gex Case, PCIJ Ser. A, No. 24, 1930, p. 10.