By: Carolyn A. Dubay, Associate
Editor, International Judicial Monitor and Assistant Professor of Law,
Charlotte Law School
Most
common lawyers are familiar with the equitable maxims that guide judges in
adjudicating disputes and dispensing “justice.” Law students learn that
“equity will not suffer a wrong without a remedy” and that “he who comes into
equity must come with clean hands.” The role of equitable principles in
international law, however, remains an area of debate and confusion. Part of
this confusion results from the distinction between an international court’s
application of generally accepted equitable principles (such as the doctrines
of estoppel, unjust enrichment or unclean hands) and a judge’s decision to
render a just decision ex aequo et bono – a decision arising from the
judge’s own sense of “equity and conscience.”
The
distinction between equitable legal principles and ex aequo et bono is
embedded, at least implicitly, in Article 38 of the ICJ (International Court of
Justice) Statute. Article 38(1) defines “international law” to include
“general principles of law recognized by civilized nations.” Time-honored
equitable maxims that have been historically and routinely recognized and
applied by courts in most common law countries certainly fall within general
principles of law. In civil law countries, these principles may be reflected
in codified rules. On the other hand, Article 38(2) allows resort to ex
aequo et bono only “if the parties agree thereto.” The critical difference
between equitable principles that may be recognized as “general principles of
law” and ex aequo et bono is that decisions with reference traditional
equitable rules are still considered as rendered within the framework of the
law (either as infra or infra legem). Resort to ex aequo et
bono, on the other hand, is considered to operate outside or even contrary
to legal principles and reasoning (contra legem). In this regard, ex
aequo et bono is not intended to fill gaps in the law (lacunae) to
help interpret existing legal rules (praeter legem). Rather, it is
permitted or invoked to grant the judge free-floating discretion to do “equity”
in any way possible, regardless of the strictures of legal rules.
There
are several important reasons for the restriction on resort to ex aequo et
bono adjudication in formal international judicial bodies. First, the
continued legitimacy of international judicial bodies depends on the consent of
sovereign nations to operate within an international legal order. To the
extent that international judges abandon application of generally accepted
legal principles in favor of their own personal preferences as to what is
“just” notwithstanding those rules, the stability and predictability of the
rule of law is jeopardized. In other words, the application of personal
preferences and values, unbounded by legal rules or established principles,
could lead to unpredictable results and instability in the legal order. Second,
there is a recognized, although often debated, divide between equity as applied
to do justice in legal disputes and the concept of fairness and equality in
economic and political philosophy. The former is the realm of judges, while the
latter is the realm of law-makers and political actors. Where exactly the
dividing line falls between use of equitable principles and resort to ex
aequo et bono can often be blurred. Third, it is argued that dispute
resolution ex aequo et bono lies properly in the realm of arbitration,
conciliation
International
Judicial Monitor