What’s equity?

What´s equity? what is fair and reasonable. Two spheres:

a) Equity intra legem.- Under article 38 (1) (c) ICJ Statute is understood to be:

  • a general principle of IL and thus may be considered as a material source of law.
  • A way of infusing elements of reasonableness and individualised justice whenever law leaves a margin of discretion to a court in decicing a case. This is equity which operates within the boundaries of law .

b) Equity contra legem.- Under article 38(2) of the Statute of the ICJ, equity means that a decision may be made ex aequo et bono, i.e. the court should decide the case not on legal considerations, but solely on what is fair and reasonable in the circumstances of the case (equity contra legem).

Codification of the ILC

the contribution of the ILC (International Law Commission)

  • Codification of IL (systematisation of the existing customary rules of iL).
  • The progressive development of IL, which involves the creation of new rules of IL either by means of the regulation of a new topic or by means of the revision of the existing rules.

Soft law

Soft law: non-binding rules. Functions:

  • «Harden» to some treaties.
  • Provide evidence of an existing customary rule.
  • Formative of opinio iuris or of a State practice.
  • Interpretation
  • Incorportated to binding treaties.
  • Assist in the development and application of general international law.

Codes of conduct: non-binding instruments unless otherwise agreed.

Secondary law of IGOs as Source of International Law

Secondary law of International Governmental Organisations (IGOs) as Source of International Law.

There is a disagreement as to whether secondary acts adopted by IGOs constitute a source of law or whether, being a derivative source of law, they do not form part of general international law.

  • Primary law refers to treaties.
  • Secondary law refers to acts adopted by IGOs on the basis of primay law. E.g. UNGA, UNSC, etc.

Modern theories have sustained that these secondary laws are an independent sources of law (e.g. resolutions of General Assembly of the United Nations).

Declarations as Source of International Law

Most declarations contain political statements only and thus have no binding effect in international law.

Sometimes states make «declarations» as to their understanding of some matter or as to the interpretation of a particular provision. Unlike reservations, declarations merely clarify the state’s position and do not purport to exclude or modify the legal effect of a treaty. Usually, declarations are made at the time of the deposit of the corresponding instrument or at the time of signature.

The term «declaration» is used for various international instruments. However, declarations are not always legally binding. The term is often deliberately chosen to indicate that the parties do not intend to create binding obligations but merely want to declare certain aspirations. An example is the 1992 Rio Declaration. Declarations can however also be treaties in the generic sense intended to be binding at international law. It is therefore necessary to establish in each individual case whether the parties intended to create binding obligations. Ascertaining the intention of the parties can often be a difficult task. Some instruments entitled «declarations» were not originally intended to have binding force, but their provisions may have reflected customary international law or may have gained binding character as customary law at a later stage. Such was the case with the 1948 Universal Declaration of Human Rights. Declarations that are intended to have binding effects could be classified as follows:

  1. A declaration can be a treaty in the proper sense. A significant example is the Joint Declaration between the United Kingdom and China on the Question of Hong Kong of 1984.
  2. An interpretative declaration is an instrument that is annexed to a treaty with the goal of interpreting or explaining the provisions of the latter.
  3. A declaration can also be an informal agreement with respect to a matter of minor importance.
  4. A series of unilateral declarations can constitute binding agreements. A typical example are declarations under the Optional Clause of the Statute of the International Court of Justice that create legal bonds between the declarants, although not directly addressed to each other. Another example is the unilateral Declaration on the Suez Canal and the arrangements for its operation issued by Egypt in 1957 which was considered to be an engagement of an international character.

Public International Law

Public International Law is a set of laws that regulates relationships between States and/or International Organizations.

Concerning its history…

Previous: The Ancient Age (Ancient times; Ancient Greece; Ancient Rome); The Middle Ages.

  • From the 1648 Peace Treaty of Westphalia to the 1815 Congress of Vienna.
    • Treaty of Westphalia: it recognized the principle of sovereignty, territorial integrity and equality of States.
    • Mare Liberum.- Grotius.
    • De Jure Belli ac Pacis (Pufendurf, Hobbes, Locke).
  • From the 1815 Congress of Vienna to the outbreak of the WWI in 1914.
    • Sovereignty
    • Balance of power
    • Legitimacy
    • Equality between Nations.
    • Codified Law on Diplomatic agents and missions.
    • Prohibited slave trading and laid me ; foundations for the free navigation of rivers.
  • Council of Europe: modern International Law (State’s responsibility).