5.2 Equity : Amongst these general principles it could be argued that equity, in the sense of justice and fairness, is included and in a number of cases it has been used indirectly to affect the way in which substantive law is applied. The application of equity as a general principle should not be confused with Article 38(2) which states that if both parties to a dispute agree, the court can decide a case In the event of the court being unable to solve a dispute by reference to treaty law, custom or general principles, Article 38 provides a subsidiary means of

doi:10.4324/9781843143802-20

Chapter

Amongst these general principles it could be argued that equity, in the sense of justice and fairness, is included and in a number of cases it has been used indirectly to affect the way in which substantive law is applied. The application of equity as a general principle should not be confused with Article 38(2) which states that if both parties to a dispute agree, the court can decide a case In the event of the court being unable to solve a dispute by reference to treaty law, custom or general principles, Article 38 provides a subsidiary means of

ABSTRACT

During the period under review [1960-1989] there has been a striking increase in references to equity in the work of the Court – not only in the pleadings of the parties, but in the judgments themselves; so much so that one observer has felt able to declare that ‘after 50 years of hesitation the World Court has clearly accepted equity as an important part of the law that it is authorised to apply’.78 Concepts of equity have certainly had a very extensive influence in one particular domain – that of the delimitation of maritime areas; but it is probably premature to see in the decisions of the Court even in that specific field the application of any consistent and mature theory of equity. In matters unconnected with maritime delimitation, equity has been referred to and applied sporadically, but in ways which paradoxically are easier to reconcile with classical concepts of equity than the specialised use of it in disputes of maritime areas.79