When the Pot call the Kettle 'black' - Equity in the Case Concerning Diversion of River Meuse
- Almi Nibach
- Apr 23, 2018
- 5 min read
"It forms part of it to the same degree to which considerations of morality, good conscience and good faith have been generally adopted as part of the municipal systems of various States. Some of these principles have obviously found their way into English equity in the restricted meaning of the term; others have found a place in the English common law proper just as they have found a place in the Codes of France, Germany, or Switzerland." - Lauterpacht on Equity
Types of Equity
If we take a look at Article 38 of ICJ Statute, we can see that equity is a part of international law. We can consider it as a part of “general principles of law recognized by civilized nations” as stipulated under Article 38(1) and ex aquo et bono in Article 38(2) of ICJ Statute. Before moving on to seeing how equity is applied under international law, it is best to know types of equity. Simply put, there are three types of equity: 1) equity infra legem, 2) equity praeter legem, and 3) equity contra legem.
1. Equity Infra Legem
Equity infra legem is a form of equity ‘which constitutes a method of interpretation of the law in force, and is one of its attributes”. In other words, equity infra legem is used to adapt the law to the facts of individual cases. Vaughan Lowe stated in “The Role of Equity in International Law” that this type of equity involves the use of judgment and discretion, citing ICJ’s decision on a question whether or not an oral exchange--such as Ihlen Declaration--constitutes a treaty as one of its example. He then posited that the use of discretion is simply a part of the process of applying the norm.
Keyword: Discretion, Judgment
2. Equity praeter legem
Equity praeter legem is used to “fill gaps in the law”. To put it simply, equity praeter legem is used in situations where the law does not apply to the case thus recourse must be made to equity to fill the gap. In regards to this, Sir Gerald Fitzmaurice stated:
"It is axiomatic that courts of law must not legislate: nor do they overtly purport to do so. Yet it is equally a truism that a constant process of development of the law goes on through the courts, a process which involves a considerable element of innovation ... In practice, courts hardly ever admit a non liquet. As is well known, they adapt existing principles to meet new facts or situations.”
If you have seen the previous post on general principles of law, you’d see that the wording used to describe the purpose of both general principles of law and equity praeter legem are the same. This is due to the fact that usually the alleged uses of this type of equity are cases where ICJ is required to recourse to general principles of law to “fill the gap”. The first example is the North Sea continental Shelf (if you have not read it, click here).
In North Sea Continental Shelf, ICJ stated that was not “applying equity as a matter of abstract justice, but applying a rule of law which itself requires the application of equitable principles, in accordance with ideas which have always underlain the development of the legal regime of the continental shelf”. Although at first sight this might look like this is an example of equity praeter legem, I agree with the view of Vaughan Lowe which stated that in this case “Equity was used, not to fill a gap in the law, but because a gap-free law prescribed the application of a rule pegged to a standard based in equity.”
This view is very much in line with what Sir Gerald Fitzmaurice said about the fact that courts rarely admit non liquet. In the end, I must agree again with Vaughan Lowe when he said that it is not necessary to use this type of equity in international law due to the fact that there always seem to be other techniques that can be used to ensure there aren’t gaps.
Keyword: Fill the gaps, general principles of law
3. Equity contra legem
Equity contra legem is “equity used in derogation from the law, to remedy the social inadequacies of the law.” Akehurst provided another definition for this type of equity. According to Akehurst, equity contra legem means that there is a law that is unjust, hence it is best to not use the law and instead recourse shall be made to equity. What I understand from both definitions is that, equity is used by courts when it is more just to recourse to equity, rather than to recourse to the actual law.
Equity in Diversion of River Meuse case: What type was it?
The Meuse River is a river located in the Netherlands and Belgium. In brief, Belgium planned to build a canal which according to the Netherlands would be in violation of 1863 Treaty that regulated the uses of River Meuse. The Netherlands considers that this action is detrimental to the Netherlands and unfair as the planned canal would divert the water of river Meuse. Interesting fact that must be considered in this case is that the Netherlands had built Juliana Canal which purpose was to utilize the water of river Meuse. The Netherlands then asked ICJ to adjudge and declare that 1) the works already carried out by Belgium were contrary to the Treaty of 1863, and 2) that the proposed works would be contrary to it. The Netherlands also asked ICJ to "order Belgium to discontinue all the works relating to the diversion of water and to restore to a condition consistent with the Treaty of 1863. On the other hand, Belgium asked ICJ to declare the Netherlands’ submission ill-founded and that the constructions conducted by Belgium in relation with the water diversion was in line with the 1863 Treaty between two States.
ICJ rejected the demands of both Belgium and the Netherlands. Both Judge Hudson and Judge Anzilotti then gave an insight into what is ‘equity’ in international law. Judge Hudson said that the principle had found its place in international law and had been applied in tribunal decisions. In addition, according to Judge Hudson, this principle had met the qualifications as a legal principle as stated in Article 38 of the Statute of the Court because it has been well accepted by various legal systems, such as Anglo-American legal system. This principle, according to the Anglo-American legal system, is "equality is equity" and "he who seeks equity must do equity". In line with this maxim, ICJ refused to accept claims from a party whose actions were also inconsistent with what the party demanded from others. Judge Hudson posited that:
"A sharp division between law and equity, such as prevails in the administration of justice in some States, should find no place in international jurisprudence. The question here is of a general principle of law re-cognized by civilized nations in the sense of Article 38 of the Statute, and the Court's recognition of equity as part of international law is in no way restricted by the special power conferred on it to decide a case ex aequo et bono if the Parties so agree.”
Judge Anzilotti also considered that equity should be applied in international law because of its universal application. According to Judge Anzilotti, this principle is derived from maxim indimplenti non est adimplendum. Judge Anzilotti also agreed that the Netherlands did not fit the maxim of "he who seeks equity must do equity" contained in the principle of justice as explained by Judge Hudson as it had previously constructed Juliana canal and utilized the water in the same manner.
Conclusion
There are three types of equity: equity infra legem, equity praeter legem, and equity contra legem. In the case of River Meuse, at first sight, the application of equity in this case looks like it could be an application of equity praeter legem. However, Judge Hudson made it clear that in this case that this is a recourse to general principles recognized by civilized nations.
REFERENCES
Vaughan Lowe, "The Role of Equity in International Law", Australian Book of International Law
S.K. Chattopadhyay, "Equity in International Law: Its Growth and Development", Georgia Journal of International and Comparative Law
Martin Dixon, Robert McCorquodale, Sarah Williams, Cases and Materials on International Law
Comments