211

INTRODUCTION

SEPARATE OPINION OF JUDGE WEERAMANTRY

TABLE OF CONTENTS

Special role played by equity in this case

PART A. GENERAL EQUITABLE JURISDICTION OF THE COURT

Conceptual problems associated with the use of equity
Issues arising from the Court’s reliance on equity

Analysis of equity with reference to maritime delimitation
I. The application of equity

177

(a)
(b)
(c)
(a)

Equitable principles
Equitable procedures
Equitable methods
Equitable results

II. Inapplicability of equity as a system separate from law

(a)
(b)

Equity in common law
Equity in civil law

II. The categories of equity

(a)
(b)
(o)
(d)

(e)

Equity ex aequo et bono

Absolute equity

Equity praeter legem

Equity infra legem (also termed equity intra legem or
equity secundum legem)

Equity contra legem

IV. The routes of entry of equity

(a)
(b)

(g)
(h)

Equity as required to be applied by treaties

Equity as contained in customary international law
Equity as a general principle of law

Equity as embodied in the decisions of courts and
tribunals

Equity as expounded in the writings of the publicists
Equity as justice

Equity as drawn in by the United Nations Charter
Equity as embodied in State practice

V. A priori and a posteriori employment of equity

(a)
(b)

The positive or a priori use of equity to construct a
result
The negative or a posteriori use of equity to test a
result

Paragraphs
1-11

5-11
12-165

12-19
20

21-165
21-42

22-24
25-27
28-30
31-42

43-51

47-48
49-5]
52-73
53-61
62-64
65-68

69-72
73
74-102
75-77
78-80
81-86

87-90
91-93
94-98
99-101
102

103-109

103
104-109
212

VI

VII.

VIN

MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

. The uses of equity

(a) Asa basis for individualized justice
{b) As introducing considerations of fairness, reason-
ableness, and good faith

(c) As a basis for certain specific principles of legal
reasoning

(d) As offering standards for the allocation and sharing
of resources and benefits

(e) Toachieve distributive justice

The methods of operation of equity

(a) Through balancing the interests of the parties

(6) Through an equitable interpretation of a rule of law
or of a treaty or set of facts

{c) Through tempering the application of strict rules

(d} Through the choice of an equitable principle

(e) Through the use of judicial discretion

(f) Through filling in gaps and interstices in the law

(g) Through following equitable procedures

(h) Through the application of equitable principles
already embedded in the law

(i) Through its use in negative fashion to test a result

. The stages of equitable decision-making

(a) The identification of the area of the dispute

(b) The preparatory phase of assembling the relevant
circumstances

(c) The decisional phase

(d) The confirmatory phase

Uncertainties in the use of equity

(a)
(b)
(c)
(d)
(e)

PART B.
TATION

Absence of mechanisms for precise quantification

Lack of definiteness in the scope of equity

Lack of crystallization of equitable results

Changing nature of the law of the sea

The resort to fact-intensive rather than rule-intensive pro-
cedures

PARTICULAR INVOCATIONS OF EQUITY IN MARITIME DELIMI-

Long-standing recognition of equity in the law of the sea

The us

e of equity in the 1958 Geneva Convention

The use of equity in the 1982 Montego Bay Convention
Categories of relevant factors are not closed
The equidistance principle

(i)
(ii)
Gi)

Is it a mandatory rule?
Does it have priority over other factors?
Does it have parity with other factors?

The “special circumstances” principle

178

110-121
113-115

116

117

118-120
121

122-146
122-128

129-132

147-155
148

149-150
151-153
154-155

156-165

157-158
159
160
161-162

163-165

166-232

166-170
171-177
178-180
181-189
190-203

192-196
197-199
200-203

204-207
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MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

The “relevant circumstances” principle

(a)
(b)
(c)
(à)
(e)

179

Population

Economic factors

State practice

The ice factor

National security

The conduct of parties
Disproportion in coastal length

EQuiTy VIEWED IN GLOBAL TERMS

208-232

213-218

219
220-224
225-227

228
229-230
231-232

233-248
214 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

INTRODUCTION

1. The observations that ensue indicate the reasons for my agreement
with the Judgment of the Court. In view of the Judgment’s intensive use of
equity, they explore in somewhat extended form the jurisprudential con-
tent and practical application of that concept in a manner which can most
appropriately be attempted in a separate opinion.

2. Against this background, it is not necessary in this opinion to recapi-
tulate the several details of fact, which are set out in the Judgment. This
opinion will attempt, rather, to examine the application of equity to those
facts, explaining my support of the methods used and conclusions
reached.

3. The ensuing analysis is undertaken against the background of the
substantial body of creative work done by this Court in laying the founda-
tions of an equitable jurisprudence for the evolving law of the sea. What
“appears at first sight to be a jumble of different and disparate elements” !
may well yield, upon closer examination, some useful guidelines for the
determination of a case such as this.

4. Although this opinion focuses on the field of maritime delimitation,
it will also take in occasional glimpses, when necessary, of the broader
equitable landscape lying beyond. This is rendered all the more necessary
because application of equity in the field of maritime delimitation raises
far-reaching juristic questions? and is currently passing through a critical
phase?.

Special Role Played by Equity in this Case

5. The Court’s Judgment reveals the use of equity in several ways, and
at various stages in the judgmental process.

1 R. Y. Jennings, “Equity and Equitable Principles”, in Annuaire suisse de droit
international, Vol. XLII (1986), p. 38. See, also, the same author in “The Principles
Governing Marine Boundaries”, in Staat und Vülkerrechtsordnung, Festschrift für
Karl Doehring, 1989, p. 408.

2 See Mark W. Janis, “Equity in International Law”, Encyclopedia of Public Inter-
national Law, Vol.7, pp. 76-77 :

“The application of equitable principles in these maritime delimitation cases has
evoked a debate regarding the role of equity which is rather similar to that which
accompanied earlier manifestations of equity practice. Some observers — largely
in the positivist tradition — have criticized the courts for going beyond their
powers.”

3 Judge Jennings refers, in connection with maritime delimitation, to “some deep
problems — one might almost add a malaise — affecting that part of international law
today” (“The Principles Governing Marine Boundaries”, op. cit., p. 398). See, also, the
criticisms of the use of equity assembled by Judge Bedjaoui in “L’‘énigme’ des
‘principes équitables’ dans le droit des délimitations maritimes”, in Revista Espanola de
Derecho Internacional, Vol. XLII (1990), p. 376.

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6. It describes the equidistance-special circumstances rule of the
1958 Convention as expressing a general norm based on equitable prin-
ciples (para. 46) and examines the “equitable principles-relevant circum-
stances” rule relating to delimitation of a continental shelf, fishery zone or
all-purpose single boundary (para. 56). It also examines the effect of the
customary rule which requires a delimitation based on equitable prin-
ciples (paras. 46 and 71).

7. The Court gives its attention to the application of equitable pro-
cedures (para. 92), the effecting of an equitable division (para. 64), the
need to arrive at an equitable result (paras. 54 and 90), the ensuring of an
equitable solution (para. 65) and the process of evolving such a solution
(para. 63). It notes the prima facie equitable character of the reasons
underlying the equidistance method and the need for an equitable delimi-
tation to take into account the disparity in coastal lengths (para. 65). It
stresses that a result which is equitable in itself is the objective of every
maritime delimitation based on law (para. 70), and refers to the equity of
the delimitation line (para. 62).

8. The Judgment considers whether a given line is “equitable in its
result” (para. 62), and it describes the line drawn by Denmark 200 nautical
miles from the baselines of Eastern Greenland as “inequitable in its
effects” (para. 87). It takes note of Norway’s argument that proportional-
ity is the test of the equitableness of a result arrived at by other means
(para. 63) and Denmark’s reference to “a method appropriate for an equi-
table delimitation line” (para. 62). It considers the manifestly inequitable
results following from the application of the median line (para. 68).

9. Specific reference is made to the measure of discretion conferred on
the Court by the need to arrive at an equitable result (para. 90). Recogniz-
ing the need to make proper provision for equitable access to fishery
resources (paras. 75, 91 and 92), the Court makes a division according
to which it considers that “the requirements of equity would be met”
(para. 92).

10. Equity has thus played a role of overwhelming importance in the
Court’s decision, involving the application of equitable principles, equi-
table procedures and equitable methods. The decision reveals an inten-
sive effort directed towards achieving an equitable solution and at testing
the equitable nature of that solution. It draws in equity to address the
problem in hand through a multitude of routes — treaty, customary inter-
national law and judicial decisions to name a few. The methods used
involve both the a priori use of equity to work forwards towards a possible
result and the a posteriori use of equity to test a result thus reached.

11. Since this case has drawn both upon the Court’s general equitable
jurisprudence and on its particular invocations in relation to the law of the
sea, this opinion will deal with both these aspects. The special invocations
of equity which give it redoubled emphasis in the law of the sea tend some-

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times to overshadow the applicability of general principles of equity,
which still play a vital part in this field. To minimize the importance of
general equitable considerations, especially at this incipient stage of the
developing law of the sea, may cramp the evolution of the latter in what is
perhaps its most formative phase. This opinion consequently devotes
some attention to an examination of the ways in which equity, both in its
general sense and in its special application to the law of the sea, can contri-
bute to the solution of the varied problems encountered in this case.

Part A. GENERAL EQUITABLE JURISDICTION OF THE COURT
Conceptual Problems Associated with the Use of Equity

12. The issue whether equity should play a role in maritime delimita-
tion is one which has been questioned by eminent authority, both judicial
and academic, and must be seriously addressed if reliance is to be placed
upon it. This is part of a larger question as to whether, indeed, although
equity is clearly a part of public international law, its use is really neces-
sary or useful, having regard to its uncertainties, its difficulties of defini-
tion and its lack of methodologies for the precise quantification of its
findings.

13. Telders, for example, has expressed the view that, apart from the
application of the principle of good faith, equity has no special legal sig-
nificance!. Ripert, in his lectures before the Hague Academy in 1933,
went even further to state that equity is a principle, but a principle of
morality and not of law?.

14. Indeed, judicial dicta of some judges of this Court have given
strong expression to such a view. Vice-President Koretsky, for example,
in the North Sea Continental Shelf cases, affirmed that equity, being of
“a non-juridical, ethical character”, ought not to be resorted to by this
Court:

“T feel that to introduce so vague a notion into the jurisprudence of
the International Court may open the door to making subjective and
therefore at times arbitrary evaluations, instead of following the
guidance of established general principles and rules of international
law in the settlement of disputes submitted to the Court.”
(CJ. Reports 1969, p. 166, dissenting opinion.)

1 “Qpzet van een boek over het internationale recht” (“Outline of a Book on Interna-
tional Law”) in Verzamelde Geschriften (Collected Papers), The Hague, 1948, p. 292, at
p. 338.

2 Georges Ripert, “Les règles du droit civil applicables aux rapports internationaux”,
44 Recueil des cours de l’Académie de droit international (1933-IT), p. 575 — “L’équité est
principe, mais principe de morale et non principe du droit.”

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Judge Tanaka put it even more strongly in his observation in the same case
that, “Reference to the equitable principle is nothing else but begging the
question.” (I.C.J. Reports 1969, p. 196, dissenting opinion.) Other criti-
cisms! describe equity as a doctrine “déroutée et déroutante”, “a riddle
wrapped in a mystery inside an enigma”, as paradoxical, circular, fuzzy
and lacking precise definition.

15. These conceptual criticisms of equity may be addressed at three
levels — at the level of law in general, at the level of international law and
at the level of the law of the sea.

16. At its most general level, equity has been seen as the source of that
dynamism which is necessary for legal development. Thus, in the words of
the eminent comparativist Puig Brutau, “equity is one of the names under
which is concealed the creative force which animates the life of the law”.

17. At the level of international law, that creativity is well illustrated
when one considers that equity has been the source that has given interna-
tional law the concept of international mandates and trusts, of good faith,
of pacta sunt servanda, of jus cogens, of unjust enrichment, of rebus sic
stantibus and of abuse of rights. No doubt, the future holds for it a
similarly vital creative role.

18. Viewed more specifically, in the context of the law of the sea, its
potential for developing that incipient branch of international law is so
far-reaching as to have attracted the comment that it is

“a juridical arsenal from which the judge draws the tools which
enable him to identify, evaluate, understand and give effect to cir-
cumstances recognized as juridically relevant in a particular case”?
(translation).

19. What follows is an analysis of these tools by which equity helps to
identify, evaluate, understand and give effect to the circumstances in a
particular case. Thereafter, this opinion will address the question whether
the uncertainties of equity render it a practically unsuitable tool for the
determination of cases such as this.

Issues Arising from the Court’s Reliance on Equity

20. This analysis centres around the following aspects of the reliance
on equity in the Judgment:

1 As assembled by Judge Bedjaoui in “L’‘énigme’ des ‘principes équitables’ dans le
droit des délimitations maritimes”, op. cit., p. 376.

2 “Juridical Evolution and Equity”, in Essays in Jurisprudence in Honor of
Roscoe Pound, 1962, pp. 82, 84.

3 “les principes équitables se présentent en définitive comme un arsenal juridique
dans lequel le juge puise les outils permettant d’identifier, d’évaluer, de com-
prendre et de satisfaire des circonstances reconnues juridiquement pertinentes
dans une espèce déterminée.” (Bedjaoui, op. cit., p. 384.)

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— The Judgment of the Court, in common with most others in the field of
maritime delimitation, resorts to equity not merely for principles but
also for procedures and methods, and for the testing of tentative solu-
tions reached. The one word “equity” covers all these applications,
some of them quite distinct from others.

— Theterm “equity” as used by the Court, and in international law and in
maritime delimitation generally, has a distinct meaning from equity as
used in the sense of a corrective system standing apart from the law.
Whenever the term equity is used in the Judgment, the term is not used
in the latter sense, and this distinction must be kept in mind for an
appreciation of the role of equity in this case.

— There has been no resort to equity ex aequo et bono. Nearly every deci-
sion applying equity to maritime delimitation has stressed that the spe-
cies of equity employed is not equity ex aequo et bono. This necessitates
an examination of the distinctions between that concept and the con-
cept of equity actually employed. The various categories of equity and
their relevance to this case call for examination in this context.

— The Judgment draws in equity through treaties, customary interna-
tional law and judicial decisions, as well as broader concepts of equity
which flow in from many sources. An examination of these varied
sources will clarify the several ways in which the problem before the
Court has necessarily attracted its operation.

— The Judgment uses equity a priori to work towards a result, and
a posteriori to check a result thus reached. This raises important
juristicissues.

— There are several purposes or ends for which equity has been used.
These are varied and some of them are pertinent to this Judgment in
particular and to maritime delimitation in general. Not all the possible
purposes and ends of equity are appropriate to maritime delimitation.

— Equity has many methods of operation, more than one of which has
been used in the Judgment. These may not all be spelt out specifically,
but one or more of them are in constant use in every exercise of that
discretion, as indeed they are in this case. The ambit of judicial discre-
tion — a matter specifically referred to in the Judgment — has been
the subject of some controversy. In subscribing to the decision of the
Court, I have accepted the legitimacy of such a use of judicial discre-
tion and feel impelled to explain why I consider such use of discretion
legitimate.

— The process of equitable decision-making, as in a boundary delimita-
tion, is not a single process but can be broken up into its constituent
stages. The decision in this case has proceeded through those stages as

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will be pointed out. An appreciation of those separate stages is an aid
to understanding the actual operation of equity in this case.

These aspects will be discussed in the ensuing paragraphs in the order in
which they have been set out.

ANALYSIS OF EQUITY WITH REFERENCE TO MARITIME DELIMITATION

I. The Application of Equity

21. The application of equity to a given case can comprise the applica-
tion of an equitable principle or principles, the adoption of an equitable
procedure or procedures, the use of an equitable method or the securing
of an equitable result. Ail of these aspects are relevant to the determina-
tion of the present case.

(a) Equitable principles

22. Equitable principles are in this discussion taken to include con-
cepts, black-letter rules and standards or principles in the broader sense,
as there is no need in this discussion to refine this category further. The
important distinction drawn by jurists! between black-letter rules and
standards or principles is hence not used for the purpose of this classifica-
tion, and the term “equitable principles” is to be read as covering all of
these.

23. The Chamber of this Court, in the case concerning Delimitation of
the Maritime Boundary in the Gulf of Maine Area, had in mind a classifica-
tion of this broad nature when it observed that there is a distinction:

“between what are principles and rules of international law govern-
ing the matter and what could be better described as the various equi-
table criteria and practical methods that may be used to ensure in
concreto that a particular situation is dealt with in accordance with
the principles and rules in question” (.C.J. Reports 1984, p. 290,
para. 80).

The ensuing analysis proceeds upon the broad division between concepts
and principles without making another specific category of “criteria”.
24. General equitable principles relevant to this case would include
equitable principles applicable to the assessment of representations of
State policy regarding maritime delimitation which other States have
relied upon to their prejudice; equitable principles of interpretation in
relation to relevant treaties; and principles of fairness in considering

1 See, for example, R. Dworkin, Taking Rights Seriously, 1977, p. 46.

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220 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

whether large sections of the waters to be demarcated are unusable in
consequence of their being frozen over for considerable periods.

(b) Equitable procedures

25. As with most areas of law, equity has both a substantive and an
adjectival aspect. The application of equitable procedures of enquiry is
necessarily an important part of equity. Procedural equity in its broadest
form is the equity which ensures that in the process of enquiry and investi-
gation leading to a decision, the parties enjoy the opportunity of a full and
fair presentation of their respective cases to the court or tribunal. The pro-
cedural aspect of equity has an ancient origin and is rooted in popular
concepts of fairness!.

26. The equitable concern with procedural fairness gives rise to the
principle involved in this case, that all relevant circumstances will be con-
sidered in determining how the maritime space in contention is to be deli-
mited between the Parties, unless this consideration is prevented by a rule
of law. The Court in its Judgment has therefore given its consideration to a
wide range of factors — State practice, the conduct of the Parties, propor-
tionality of coastlines, population, economic factors, the equidistance
principle and the unusability of part of the maritime space in contention
owing to drift ice. Whatever may be the eventual conclusion regarding the
weight to be given to each factor, Parties are entitled to a consideration of
such factors by the Court and in the absence of a legal principle rendering
a particular factor irrelevant, the impact of that factor upon the case in
hand needs to be assessed.

27. This is especially so having regard to the uniqueness of each par-
ticular case and the fact that its special circumstances may throw up for
consideration some fact or circumstance never considered in the relevant
jurisprudence up to that time. The fact that a considerable portion of the
relevant area in this case is ice-bound for the greater part of the year is
such a factor. As this Court pointed out in the Gulf of Maine case:

“Although the practice is still rather sparse, . . . it too is there to
demonstrate that each specific case is, in the final analysis, different

' For example, the audi alteram partem rule has from ancient times been described
even in popular literature :

“Qui statuit aliquid parte inaudita altera,
Aequum licet statuerit, haud aequus fuit.”

(Seneca, Medea 199-200, cited in a series of later common law cases such as Re Hammer-
smith Rent-Charge, 4 Ex 87, at 97; Smith v. Rex,3 App. Cas. 614 at 624. See also Broom,
Legal Maxims, 10th ed., 1939, p. 66.)

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221 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

from all the others, that it is monotypic and that, more often than not,
the most appropriate criteria, and the method or combination of
methods most likely to yield a result consonant with what the law
indicates, can only be determined in relation to each particular case
and its specific characteristics.” (1.C.J. Reports 1984, p. 290, para. 81.)

Thus, there is “no legal limit to the considerations which States may take
account of for the purpose of making sure that they apply equitable pro-
cedures” (I.C.J. Reports 1969, p. 50).

(c) Equitable methods

28. Among the practical methods listed by the Chamber in the Gulf of
Maine case, as distinct from criteria and rules or principles which should
be used for achieving an equitable result, are the drawing of an equidis-
tance or median line, the division of the area in various segments using
different methods in respect of each sector and the method of drawing a
line perpendicular to the coast or to the general direction of the coast!.

29. Many other suggestions appear in the literature, which could be
described as methods stemming from equitable considerations?. As
the jurisprudence on maritime delimitation develops, a refinement of
methods appropriate to particular types of dispute may well emerge?.

30. Inthe present case, the Court has used as its method the provisional
adoption of the median line as its starting point and, having regard to its
evaluation of the various considerations before it, moved that line east-
wards, carefully dividing the relevant space into segments which again

1 J.C.J. Reports 1984, p. 313, para. 159.
2 See, for example, the five separate tasks devolving on the Court, as analysed by
J. I. Charney, of which the last three may be classified as methods:

“(3) To the extent possible, each piece of information identified in the prior
paragraph should be used to construct a line or range of lines that best suits the
function to which it relates.

(4) These alternative lines and previously identified factors should be studied
and weighed according to their importance. In a process that might even approach
vector analysis, a line that best reflects all the relevant factors in light of their
importance to the zone should be sought.

(5) A cartographical method should be selected to describe the line accurately
and reliably.” (J. 1. Charney, “Ocean Boundaries between Nations: A Theory for
Progress”, 78 American Journal of International Law (1984), p. 597.)

3 One could, if so disposed, draw a distinction between a merely geometrical norm
and a juridical norm as Judge Tanaka did in his dissenting opinion in the North Sea
Continental Shelf cases (I.C.J. Reports 1969, p. 183). However, if the geometrical norm
stems from equitable considerations, it is for the purposes of this discussion classed as
an equitable method. Judge Tanaka was referring to the distinction between the rule of
equidistance as a mere technique and as a norm of law.

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222 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

have been differently divided having regard to the considerations
involved, such as the seasonal movement of fish and equitable access to
fishery resources (para. 91). These methods are all grounded in equitable
considerations and are, for the purposes of the present discussion, treated
as equitable methods.

(d) Equitable results

31. The first three aspects mentioned are only the means towards the
last, which, as the object and test of every determination according to
equitable principles, calls for considered attention. As this Court
observed in the Continental Shelf (Libyan Arab Jamahiriya/Malta) case:

“It is however the goal — the equitable result — and not the
means used to achieve it, that must be the primary element . . .”
(CJ. Reports 1985, pp. 38-39, para. 45.)

32. The Court has at numerous points in its Judgment referred to the
importance of achieving an equitable result. Some of these references are
detailed in paragraphs 7 and 8 of this opinion. In paragraph 54, the Judg-
ment states that “The aim in each and every situation must be to achieve
‘an equitable result’” and in paragraph 56 it concludes that:

“there is inevitably a tendency towards assimilation between the
special circumstances of Article 6 of the 1958 Convention and the
relevant circumstances under customary law, and this if only
because they both are intended to enable the achievement of an
equitable result”.

33. Articles 74 (1) and 83 (1) of the 1982 Convention also highlight
the importance of achieving an equitable solution. The Judgment, after
referring to the “correction” of a median line delimitation in the Gulf of
Maine case}, similarly rejects the application of the median line in this
case as leading to “manifestly inequitable results” (para. 68) in view of
the great disparity of the lengths of coasts.

34. This concern with equitable results, despite the application of equi-
table principles, procedures and methods, is well founded in the Court’s
jurisprudence. The object of equitable principles is to obtain an equitable
result. However equitable each principle may appear to be when consid-
ered in isolation, it may not necessarily produce an equitable result, as is
demonstrated by the application of the equidistance principle to two
opposite coastlines which are vastly different in length. As this Court has
observed, “the term ‘equitable principles’ cannot be interpreted in the

1 1CJ. Reports 1984, p. 336, paras. 221-222.

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223 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

abstract; it refers back to the principles and rules which may be appropri-
ate in order to achieve an equitable result” (Continental Shelf (Tunisia/
Libyan Arab Jamahiriya), I.C.J. Reports 1982, p. 59, para. 70; emphasis
added).

35. Even though, in the North Sea Continental Shelf cases, the Court
appeared to stress the methods used, it also emphasized the importance of
an equitable result, for, while it said that resort could be had “to various
principles or methods, as may be appropriate, or a combination of
them”, this was subject to the proviso that “by the application of equitable
principles, a reasonable result is arrived at” (.C.J. Reports 1969, p. 49,
para. 90). So, also, the Court said: “it is necessary to seek not one
method of delimitation but one goal” (ibid., p. 50, para. 92).

36. This aspect was stressed also by this Court in the case concerning
the Continental Shelf (Tunisia/Libyan Arab Jamahiriya):

“The result of the application of equitable principles must be equi-
table. This terminology, which is generally used, is not entirely satis-
factory because it employs the term equitable to characterize both the
result to be achieved and the means to be applied to reach this result.
It is, however, the result which is predominant; the principles are
subordinate to the goal.” (.C_.J. Reports 1982, p. 59, para. 70.)

37. The difference between the use of an equitable method and the
achievement of an equitable result was well brought out in the joint sepa-
rate opinion of Judges Ruda, Bedjaoui and Jiménez de Aréchaga in the
Continental Shelf (Libyan Arab Jamahiriya/Malta) case:

“To assert, as Malta has done, that the equidistance method
should be applied, even if it produces a delimitation which is grossly
disproportionate to the length of the relevant coasts, is an attempt to
subordinate the equitable result to be achieved, to the method
adopted. This is precisely the opposite of the fundamental rule of
delimitation, namely, that the method to be adopted should be justi-
fied by the equity of the result.” (.C.J. Reports 1985, pp. 82-83,
para. 20.)

38. The Gulf of Maine case drew a clear distinction between the appli-
cation of equitable criteria and the reaching of an equitable result. The
process by which the Chamber determined the boundary line has been
analysed as consisting of:

(1) the delimitation of the boundary line through the use of equitable cri-
teria — primarily the use of geographical configurations to set out the
affected area and the subsequent equal division of that area;

(2) the adjustment of that line, by the consideration of relevant circum-

stances including geographic “anomalies” and the proportionality of
maritime area to coastal frontage;

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(3) the checking of the equitableness of the result so reached, by examin-
ing other factors such as economic impact and resource use patterns !.

39. The Judgment was specially useful in separating some of the differ-
ent elements included in the equitable process and showing how more
than one element could be used in combination2.

40. It is interesting also to note from the opinion of Judge Oda in
Tunisia/Libya that even as early as the 1958 Convention

“the idea of an equitable solution, although not specifically men-
tioned in Article 6 of the 1958 Convention, lay at the basis of that
provision . . .” (LCJ. Reports 1982, p. 246, para. 144; emphasis
added).

It is to be noted also that the Law of the Sea Convention uses the term
“equitable solution” thus turning the spotlight on the equity of the result
(see Arts. 74 and 83).

41. Having regard to the overall importance of the equitable result,
it is not without interest that there is support in legal philosophy for
the method of testing a solution by taking a view at its results. This addi-
tional juristic basis for checking a result for its equity or inequity comes
from the “sense of injustice” which has an ancient history in the
philosophy of jurisprudence. This is briefly considered in Section V, para-
graphs 104-109, below.

42. The foregoing discussion shows that all four aspects of equity dealt
with in this section come into play in this case, and an approach to the
application of equity in this fashion helps to focus attention upon the par-
ticular aspect under examination.

II. Inapplicability of Equity as a System Separate from Law

43. Itscarcely needs to be mentioned that the term equity, as used in the
Court’s Judgment or in the context of international law, is quite distinct
from its use to designate separate systems of judicial administration such
as existed in some legal systems for the purpose of correcting insufficien-
cies and rigidities of the law.

44. The equity of the common law system and the aequitas of the
Roman law, exercised by the Chancellor and the praetor respectively,
were the systems par excellence which give the word equity such overtones
of interference with the law. The term equity as used in the law of the sea
naturally does not absorb such associated meanings.

1 See T. L. McDorman, P. M. Saunders and D. L. VanderZwaag, “The Gulf of Maine
Boundary: Dropping. Anchor or Setting a Course?”, 9 Marine Policy (1985), p. 100.
Ibid.

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45. In view of the substantial influence exercised by these systems on
the development of international law, the heavy overtones of equity’s cor-
rective influence over law tend to spill over into international law, necessi-
tating a constant vigilance against this tendency. This is especially
important, in relation to maritime delimitation, where there is a constant
questioning as to whether the Court, in using equity, is overstepping its
authority. As this Court observed in Tunisia/Libya:

“In the course of the history of legal systems the term ‘equity’ has
been used to define various legal concepts. It was often contrasted
with the rigid rules of positive law, the severity of which had to be
mitigated in order to do justice. In general, this contrast has no
parallel in the development of international law; the legal con-
cept of equity is a general principle directly applicable as law.”
(CJ. Reports 1982, p. 60, para. 71.)

46. In view of the importance of equity in these two systems, a brief
note upon them ensues.

(a) Equity in common law

47. Inthe Norwegian Shipowners’ Claims case, the Permanent Court of
Arbitration said:

“The words ‘law and equity’ used in the special agreement of 1921
can not be understood here in the traditional sense in which these
words are used in Anglo-Saxon jurisprudence.

The majority of international lawyers seem to agree that these
words are to be understood to mean general principles of justice as
distinguished from any particular system of jurisprudence of the
municipal law of any State.” !

48. Some of the principles of equity, as evolved by the English Court of
Chancery, may, however, be relevant to a matter concerning the law of the
sea, not because they are part of the English law of equity, but because
those principles accord with the concepts of general equity as more widely
understood. Such concepts might conceivably include such notions as
that equity looks to the intent rather than to the form, or that a person must
not act contrary to his own representations on the faith of which others
have acted. Items of State conduct, for example, may attract general prin-
ciples of equity such as these.

(b) Equity in civil law

49. The jus honorarium built up by the Roman praetor, through his
praetorian edict, served the purpose, according to Papinian, of aiding,

1 Reports of International Arbitral Awards (RIAA), Vol. I, 1922, p. 331.

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supplementing or correcting the jus civile! — a useful summary of three
different functions served by Roman equity. Roman equity thus stood as a
system separate from the jus civile, at any rate until Hadrian in a.p. 125
froze the form of the edict, after which it ceased directly to be a source of
new law. The corrective function of aequitas up to that time included
action contra legem.

50. Though equity continued to fertilize the Roman law thereafter, this
was achieved largely through the work of the jurists acting through the
interpretation and adaptation of the law rather than by standing in oppo-
sition to it2.

51. In view of the immense influence of the civil law upon international
law, it bears repetition that the aequitas of the era of praetorian equity — a
corrective equity standing separate from the law — is not an analogy for
the equity of international law. The later tradition of the civil law, of law
and equity integrating with each other to produce a harmonious whole,
would be a truer analogy.

III. The Categories of Equity

52. As observed earlier, the Court in its Judgment has not used equity
ex aequo et bono. Nor has it used absolute equity or equity contra legem.

(a) Equity ex aequo et bono

53. The issue has frequently been raised, in the context of maritime
delimitation, as to whether the Court is resorting to a concept of equity
more liberal than that which it is entitled to administer. This issue has
come indeed to acquire the appearance of a question mark hanging over
the use of equity in such cases and has resulted in frequent disavowals, in
the jurisprudence of maritime delimitation, of resort to equity ex aequo et
bono’.

54. The extent of the concern registered in this regard is indicated in
juristic literature which specifically raises the question whether there is
indeed a difference between the equity administered by the Court and
equity ex aequo et bono. Judge Jennings alerts us to the attendant dangers
of litigants obtaining a decision ex aequo et bono whether they wanted it or
not, and observes:

1 “Adjuvandi, vel supplendi, vel corrigendi juris civilis” (D.1.1.7.1).

2 The equitable work of the jurists was fruitful, and important doctrines such as sub-
rogation, estoppel and constructive notice resulted from their efforts. See W. W. Cook,
in Encyclopedia of the Social Sciences, ed. Seligman, 1931, Vol. 5, p. 584. Equity can do no
less in international law.

3 See LC.J. Reports 1974, p. 33, para. 78, and p. 202, para. 69; I.C.J. Reports 1982,
p. 60, para. 71, and p. 92, para. 133 A(1); 1. C.J. Reports 1984, p. 278, para. 59, and p. 299,
para. 112; .C.J. Reports 1985, pp. 38-39, para. 45, and pp. 56-57.

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“At any rate, the very serious question arises of what exactly is the
difference between a decision according to equitable principles and
a decision ex aequo et bono?” |

The question raised is truly a very serious one, for if this is indeed the case,
the Court is extending itself into an area which it can only reach by the
consent of parties”. Such uncertainties necessitate a close examination of
the ex aequo et bono provision in Article 38, paragraph 2, of the Statute of
the Court.

55. This phrase, which has its origins in the Roman law? is defined in
the standard works of reference in terms that involve justice, fairness and
conscience. Thus Black’s Law Dictionary (5th ed., 1979, p. 500) defines it
as a “phrase derived from the civil law, meaning, in justice and fairness;
according to what is just and good; according to equity and conscience”.
It will be seen that equity ex aequo et bono is thus not confined within
limitations of existing rules of law but extends more widely, leaving aside
considerations of what the law may be, regarding the matter under refer-
ence. It enters into the area of equity contra legem, as discussed below.

56. Equity ex aequo et bono, in the context of the Court’s jurisprudence,
is perhaps best approached through a perusal of the drafting history of the
ex aequo et bono provision in the Statute of the Court.

57. One could perhaps identify three stages in the travaux préparatoires
leading to the adoption of Article 38 (2) of the Statute:

(1) Earlier drafts of Article 38 of the Statute of the Permanent Court*
did not contain a subsection dealing with decisions ex aequo et bono. The
draft section read as follows:

“Dans les limites de sa compétence, telle qu’elle est déterminée
par l’article 34, la Cour applique en ordre successif:

1. Les conventions internationales soit générales, soit spéciales,
établissant des règles expressément reconnues par les Etats en litige;

2. La coutume internationale, attestation d’une pratique com-
mune acceptée comme loi;

! R. Y. Jennings, “The Principles Governing Marine Boundaries”, op. cit., p. 401.
2 See Encyclopedia of Public International Law, op. cit., p. 77.
3 The related expression bonum et aequum means “right and equitable, fair(ness) and
just(ice)” (Adolf Berger, Encyclopaedic Dictionary of Roman Law, 1952, p. 377) and
‘ appears, in Celsus’ celebrated definition of jus as “ars aequi et boni”, cited at the very
commencement of Justinian’s Digest (D.1.1.pr.). It appears, also, in the formula of
actiones in aequum et bonum conceptae (Berger, ibid.).

4 Draft Scheme for the Institution of the Permanent Court of International Justice

Presented to the Council of the League of Nations by the Advisory Committee of
Jurists, Art. 35 (corresponding to the later Article 38).

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3. Les principes généraux de droit reconnus par les nations civili-
sées;

4. Les décisions judiciaires et la doctrine des publicistes les plus
qualifiés des différentes nations, comme moyens auxiliaires de déter-
mination des règles de droit.” !

(2) The discussions among the distinguished international jurists par-
ticipating in the drafting Committee’s meeting of 1 December 1920? are of
great interest. Mr. Fromageot (France) wished to widen the wording of the
then Article 35 in order to enable a judgment of the Court to confirm an
arrangement reached by the parties —- a result which was not possible
under the existing wording of the Article. In the course of the ensuing dis-.
cussion, serious concerns were voiced about the effect of such an amend-
ment. The Chairman (Mr. Hagerup) expressed the view that Mr. Froma-
geot’s idea belonged rather to the sphere of arbitral jurisprudence and that
its application would jeopardize the authority of a Court of Justice.
Mr. Fernandes (Brazil) expressed a fear that the amendment would open
the way to arbitrary decisions. Mr. Loder (the Netherlands) pointed out,
however, that the Court would evidently not confirm proposals which
were not well founded. During further discussion, Mr. Fromageot
amended his proposal to add to Article 35 (3) the further words “the gen-
eral principles of law and justice”. He explained that the effect of his
amendment would be to enable the Court to state as the sole reason for its
judgment that the award had seemed to it to be just. He explained further
that this did not mean that the Court might disregard existing rules.
Mr. Fromageot’s amendment was adopted3.

(3) However, the amended Article 35 continued to cause concern. At
the meeting of the Sub-Committee held on 10 December 1920, to adopt
the final draft for submission to the Main Committee, it was the sole sub-
ject of further discussion. That discussion is recorded as follows:

“During the discussion on the President’s report, M. Pozrris
(Greece) raised the question whether the text of Article 35, No. 3,
adopted by the Sub-Committee, did actually express the Sub-Com-
mittee’s opinion on the subject. This opinion was, according to
M. Politis, that the Court should have the right to apply the general
principles of justice only by virtue of an agreement between the par-
ties. The actual text was wider, in so far as it left it to the discretion

! Documents concerning the Action Taken by the Council of the League of Nations under
Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent
Court, Geneva, 1921, p. 41, Annex.

2 Seventh Meeting of the Sub-Committee of the Third Committee of the First
Assembly Meeting held on 1 December 1920.

3 Documents concerning Action Taken .. ., op. cit., p. 145.

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229 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

of the Court to decide when those principles could be applied.
M. Politis consequently proposed to alter the paragraph as follows:

The general principles of law and with the consent of the parties, the
general principles of justice recognised by civilised nations.

After some discussion, M. FROMAGEOT (France) proposed to meet
M. Politis’ point by adding at the end of Article 35, No. 3, the follow-
ing:

This provision shall not prejudice the power of the Court to decide a
case ex aequo et bono if the parties agree thereto.

The Article thus amended was adopted.” |

58. In reporting this Article (renumbered Article 38) to the Main Com-
mittee, the Sub-Committee stated as follows:

“The Sub-Committee has : .. made the following changes in the
Article:

(2) At the end of No. 3 it has added a new clause in order to give a
more flexible character to this provision and to permit the Court, if
necessary and with the consent of the Parties, to make an award ex
aequo et bono.”?

Such was the genesis of the ex aequo et bono provision in Article 38 which
has provoked so much reference in the cases on the application of equity
in maritime boundary delimitations.

59. Itis clear from this drafting history that earlier drafts of the Article
were amended to allow for the possibility that parties could make their
own agreements and ask the Court to embody them in a judgment, which
the Court would do provided it conformed to general principles of
law and justice. Thereafter even more flexibility? was introduced by
introducing a separate ex aequo et bono provision not necessarily tied
to “general principles of law and justice”, and enabling the Court to
make an order in accordance with its sense of justice if the parties so
consented. There was clearly an ampler latitude given to the Court in an
ex aequo et bono provision standing on its own rather than if the
Court were to depend on a clause merely enabling it to decide in accor-
dance with general principles of law and justice. However the greater

1 Documents concerning Action Taken .. ., op. cit., p. 157.
2 Ibid. p.211.

3 “The notion ex aequo et bono had been little used before its addition to the PCLJ’s
Statute and was included there, with little debate, arguably to give the Court some-
what greater flexibility.” (Janis, Encyclopedia of Public International Law, Vol. 7,

_ p.75.)

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reach of that clause necessitated the safeguard of resting it upon the
agreement of parties.

60. The expression ex aequo et bono, viewed against this drafting his-
tory, shows quite clearly that the concept travels far beyond equity intra
legem or praeter legem as discussed below!. It refers to a decision untram-
melled by rules of law but depending purely on the tribunal’s sense of
justice. When, as in the present case, the Court uses equitable concepts
and procedures which enter its jurisdictional field through routes other
than Article 38 (2) and so long as the Court does not act contra legem, it is
acting in a field far removed from the vast expanses of equity ex aequo et
bono. However, within its far more limited field of operation, it is well
entitled to use the full and appropriate range of equitable principles,
procedures and methods without being inhibited by concerns that it is
travelling beyond its jurisdiction.

61. Ifthe conceptual roadblock represented by ex aequo et bono is out
of the way, a clearer path opens out for a fuller and more confident use of
equity in the development of the law of the sea. This aspect was well sum-
marized in the North Sea Continental Shelf cases, where the Court
observed in the clearest terms:

“when mention is made of a court dispensing justice or declaring the
law, what is meant is that the decision finds its objective justification
in considerations lying not outside but within the rules, and in this
field it is precisely a rule of law that calls for the application of equi-
table principles. There is consequently no question in this case of any
decision ex aequo et bono, such as would only be possible under the
conditions prescribed by Article 38, paragraph 2, of the Court’s
Statute.” (I.C.J. Reports 1969, p. 48, para. 88.)?

(b) Absolute equity

62. This term, also inapplicable to the present case, connotes the appli-
cation of a just and fair solution irrespective of whether it overrides exist-

! Chaim Perelman, in his study of lacunae in the law, makes the point in the context
of arbitrations and judicial decisions in public international law, that a request for a
decision ex aequo et bono could be read “dans le sens contra legem” (Le problème des
lacunes en droit, 1968, p. 327).

2 For similar expressions by other tribunals, see the statement of the Court of Arbi-
tration in the Anglo-French Continental Shelf Arbitration Award (RIAA, Vol. XVIII,
paras. 70 and 245; see, also, Guinea/Guinea-Bissau Arbitral Award (Revue générale de
droit international public (1985), Vol. 89, paras. 88 and 90) referring to the Judgment of
this Court in the North Sea cases, and holding that its own function, likewise, was not to
decide ex aequo et bono.

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ing rules or principles of positive law, however well entrenched they may
be. It is a disregard of the letter for the spirit of the law, a disregard of
technicalities in favour of justice!. This would come close to the connota-
tion of equity ex aequo et bono as discussed in the preceding section.

63. An illustrative and well-known example in the jurisprudence of
international law of the use of the expression “absolute equity” is to be
found in the Orinoco Steamship Co. case, 1910, where, in the words of the
Permanent Court of Arbitration, the compromis required the US-Vene-
zuelan Mixed Claims Commission to “give their decisions on the basis of
absolute equity without regard to objections of a technical nature, or to the
provisions of local legislation . . .”. The umpire’s recognition of local
legislation in dismissing the claims on account of failure to exhaust
local remedies and the debtor’s failure to notify the cession of the
debt in accordance with local legislation, was held to be a decision not
in accordance with absolute equity and thus to be in disregard of the
compromis?.

64. The methods of equity ex aequo et bono and of absolute equity are
not the methods of international law. “Above all, it is necessary to stop
viewing equity as something which is in opposition to the law or as supply-
ing a corrective to the law.” 3

(c) Equity praeter legem

65. This sense of equity refers to filling in gaps and interstices in the
law. Even where there is no rule of law to provide for a matter, a decision
has nevertheless to be reached, for the judicial function does not permit
the court to abdicate the responsibility of judgment because the law is
silent*. Consequently, the gap has to be filled in some manner. Some
would say that the judge is free to act in his discretion. Others would say

! See also Bin Cheng, “Justice and Equity in International Law”, Current Legal
Problems, 1955, p. 203.

2 1 Scott, Hague Court Reports (1916), p. 226.

3 Shabtai Rosenne, “The Position of the International Court of Justice on the Foun-
dations of the Principle of Equity in International Law”, in A. Bloed and P. van Dijk
(eds.), Forty Years International Court of Justice : Jurisdiction, Equity and Equality, 1988,
p. 108.

4 See O. Schachter, “International Law in Theory and Practice”, 178 Recueil des cours
(1982-V), Chap. IV, “General Principles and Equity”, p. 85.

5 The question whether there is a “gap” in the law or whether there is always a rule or
principle of law which is capable of extension and application to the case in hand is a
nice jurisprudential one which it is not necessary to examine here at length. For a fuller,
and perceptive, discussion, see Vaughan Lowe, “The Role of Equity in International
Law”, 12 Australian Yearbook of International Law (1988-1989), pp. 58-63.

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the judge then falls back upon equity as a guide. It is in this latter sense that
the expression equity praeter legem is generally used.

66. In support of the view that equity should guide the judge in such
cases, it could be said that judicial discretion does not then roam un-
bridled and at large, but, rather, is used in a disciplined way along the
lines indicated by equitable concepts and principles. Within the para-
meters of those guidelines, that discretion will then be exercised though
no rule of law has so far been formulated to govern the case.

67. Equity praeter legem receives juridical justification also from the
fact, outlined elsewhere in this opinion, that the body of general equitable
principles, as part of “general principles of law”, is itself part of interna-
tional law. Indeed, viewed strictly from that point of view, it ceases to be a
category of its own but is merely an application of the law itself.

68. In the context of maritime delimitation, there are dicta in the juris-
prudence of the Court that strongly support the view that the process in
operation is one of the application of equity praeter legem:

“Is not the conclusion therefore justified, to round off the enumer-
ation of those international acts which refer to equity, that these acts
constitute applications of the general principle of law which author-
izes recourse to equity praeter legem for a better implementation of
the principles and rules of law? And it would not be premature to say
that the application of the principle of equity for the delimitation of
the areas of the continental shelf in the present case would thus be in
line with this practice.” (North Sea Continental Shelf, I.C.J. Reports
1969, p. 141, Judge Ammoun, separate opinion.)

This aspect also receives some attention in the discussion, under item
head VII (f) below, of the methods of equity.

(d) Equity infra legem

69. This is the category most relevant to the Judgment of the Court, for
itis within its confines that the equity used by the Court has been adminis-
tered. As the Court observed in the North Sea Continental Shelf cases:

“when mention is made of a court dispensing justice or declaring the

1 See, also, the separate opinion of the same judge in Barcelona Traction, Light and
Power Company, Limited, Second Phase (I.C.J. Reports 1970, pp. 332-333), in relation
to equity praeter legem and the sense which Papinian, the author of that expression, gave
to it.

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law, what is meant is that the decision finds its objective justification
in considerations lying not outside but within the rules” (1.CJ.
Reports 1969, p. 48, para. 88).

This was clearly a reference to equity infra legem!.

70. In relation to the general jurisprudence of the Court, the operation
of equity infra legem has been well summarized by Shabtai Rosenne in
terms that:

“Tt [the Court] has permitted the first steps to be taken towards
creating a conception of international equity, not contra legem in the
sense that it is sometimes said that a decision ex aequo et bono may be
a decision contra legem; but intra legem, it being the substantive law,
and not the agreement of parties, that calls for its application.” ?

71. Judge Ammoun offered an important warning against exceeding
the limits of equity infra legem when he said, with reference to its opposite,
equity contra legem:

“This conception of Equity, which really consists of a possible
derogation from general law in a particular case, has never been
applied in international law. An international court which conferred
such jurisdiction upon itself would appoint itself a legislator.”
(Barcelona Traction, Light and Power Company, Limited, I.C.J.
Reports 1970, p. 333, para. 42.)

72. With special reference to maritime delimitation, a comprehensive
doctrinal study has noted that:

“the doctrine of equitable principles applicable to maritime delimi-
tation has already achieved, both with regard to its procedural and
substantive elements, a degree of clarity and predictability which is
sufficient for it being recognized as a fundamental norm operating
within, and not outside, the law”?.

(e) Equity contra legem

73. Needless to say, equity as used in the Judgment is not of this cat-
egory. The notion of equity being in opposition to the law and competing
with it in some way by offering a set of alternative principles is not the

1 The fact that the judge must function infra legem, while the arbitrator is free of those
constraints, is mentioned by Aristotle in a passage quoted by Grotius : “‘For the arbitra-
tor has regard to what is fair, but the judge follows the law’” (De Jure Belli ac Pacis,
Bk. III, Chap. XX, sec. XLVII, Kelsey, trans., Classics of International Law).

2 Shabtai Rosenne, The Law and Practice of the International Court, 1965, Vol. II,
p. 605.

3 Barbara Kwiatkowska, “The International Court of Justice Doctrine of Equitable
Principles Applicable to Maritime Delimitation and Its Impact on the International
Law of the Sea”, in A. Bloed and P. van Dijk (eds.), Forty Years International Court of
Justice: Jurisdiction, Equity and Equality, p. 158.

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image of equity that properly sets out the role of equity in international
law. This aspect has already been discussed in Section II. In international
law, equity is rather a force that supplements the law and helps it forward
on its course of delivering just results in disputes between parties.

“[Tlhe International Court has been very careful — and in this
respect it may be possible to speak of a ‘position’ since fundamental
questions of judicial policy are involved — to formulate its resort to
‘equity’ not in terms of ‘opposition’ to ‘law’, but in terms of fulfilling
the law and if necessary supplementing it.”!

Judge Hudson, in the Diversion of Water from the Meuse case, also stressed
this aspect when he said,

“A sharp division between law and equity, such as prevails in the
administration of justice in some States, should find no place in inter-
national jurisprudence.” (P.C_LJ., Series A/B, No. 70, p. 76, separate
opinion.)

IV. The Routes of Entry of Equity

74. There are many routes of entry of equity into international law, and
equity has been drawn into the judgmental process in this case through
several of them. A concentration of attention on only one or other of these
routes of entry can constrict the full scope of operation of equity in a given
case.

(a) Equity as required to be applied by treaties

75. In relation to the matter before the Court, there is, of course, the
pre-eminent example of Articles 74 and 83 of the 1982 Law of the Sea
Convention expressly making equity applicable in the delimitation of
maritime boundaries.

76. The invocation of equity by treaty is often a means by which a devel-
oping branch of the law is brought into line with contemporary thinking,
thereby enabling perspectives which have not yet crystallized into legal
rules to make their impact upon the law in question. The Law of the Sea
Convention exemplifies this process, which can also be seen in treaties
regarding contemporary concerns relating to earth resources such as food
and space and in regard to economic matters and the settlement of dis-
putes. Thus, the International Covenant on Economic, Social and Cul-
tural Rights, 1966, deals with the “equitable distribution” of world food
supplies (Art. 11); and the Convention on International Liability for
Damage Caused by Space Objects requires compensation to be deter-
mined in accordance with “international law and the principles of justice

! Shabtai Rosenne, “The Position of the International Court of Justice on the
Foundations of the Principle of Equity in International Law”, op. cit., pp. 88-89.

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and equity”. The Charter of Economic Rights and Duties of States, 1974,
likewise uses terms such as “equity”, “equitable”, “just”, “equitable shar-
ing”, “equitable prices”, “equitable terms of trade” (see Arts. 10, 14, 26,
28, 29); and the Protocol of the Commission of Mediation, Conciliation
and Arbitration of the Organization of African Unity specifically draws

equity into the settlement of disputes (Arts. 29 and 30)!.

77. The specific invocation of equity by the Montego Bay Convention
thus follows a time-honoured practice in international law, which can be
traced back through the centuries.

(b) Equity as contained in customary international law

78. Customary international law has been invoked in the Judgment as a
source of equity, especially in the context of giving meaning to the expres-
sion “relevant circumstances” under international law (Judgment,
para. 56). Those relevant circumstances have been shown to be assimi-
lated with the special circumstances of Article 6 of the 1958 Convention,
as both are intended to enable the achievement of an equitable result
(ibid.).

79. The Court is required by Article 38 (1) of its Statute to decide such
disputes as are submitted to it “in accordance with international law”.
There is an impressive body of authority to the effect that equity is part of
customary international law. Friedmann, writing of the changing struc-
ture of international law, has observed:

“There is thus overwhelming support for the view developed by
Lauterpacht, Manley Hudson, De Visscher and Dahm that equity is
part and parcel of the modern system of administration of justice.” 3

1 See, further, Monique Chemillier-Gendreau, “Equity”, in Bedjaoui (ed.), Interna-
tional Law: Achievements and Prospects, 1991, pp. 274-275.

2 Cf. the Jay Treaty of 1794, which, by Article 7, provided that the Commissioners
appointed under the Treaty to decide the matters in contention between Britain and the
United States should decide the claims “according to the merits of the several cases and
to Justice, Equity and the Law of Nations”. Judge Hudson has listed numerous bilateral
treaties entered into during the intervening centuries which provide for the application
of equity — such as the 1795 United States-Spain Treaty, the 1840 Great Britain-
Portugal Treaty and the 1926 and 1930 Danish Treaties with Finland and Iceland,
respectively. See M. O. Hudson, The Permanent Court of International Justice, 1920-
1942, 1943 (1972 reprint), p. 616 (footnotes).

3 Friedmann, The Changing Structure of International Law, 1964, p. 197, citing
Hersch Lauterpacht, Private Law Sources and Analogies, 1927, para. 28; Manley Hud-
son, The Permanent Court of International Justice, 1972 ed., p. 617; Charles De Visscher,
“Contribution à l'étude des sources du droit international”, 60 Revue de droit interna-
tional et de législation comparée (1933), pp. 325, 414 et seq.; Dahm, 1 Vélkerrechts (1958),
pp. 40 et seq.

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So, also, Judge Hudson observed in his individual opinion in the Diversion
of Water from the Meuse case, “What are widely known as principles of
equity have been long considered to constitute a part of international
law ...”! — a view which received the support of Judge Jessup in the
North Sea Continental Shelf cases”. In the Fisheries Jurisdiction case
(United Kingdom v. Iceland}3, Judge Dillard cited this opinion with
approval. Judge Hudson, writing extra-judicially, has observed, “equity is
an element of international law itself” 4.

80. In regard to the law of the sea and the delimitation of boundaries of
the continental shelf and the exclusive economic zone, equity has been
recognized by this Court as part of international law — asin the North Sea
Continental Shelf cases”, and the Tunisia/Libya case®. Thus in the North
Sea Continental Shelf cases, the Court considered it inequitable that the
convexity or concavity of a coastline should deny equal treatment to
States with coastlines that are comparable in length’. The requirement of
a degree of proportionality between the shelf awarded to a State and the
length of its coastlines was likewise looked upon as a principle of equity.
So, also, equity did not require a “refashioning” of geography®.

(c) Equity as a general principle of law®

81. There are several categories of general principles of law applied by
international law; and equitable principles, concepts and procedures,
such as have been applied in the Judgment, find a place in more than one
of them.

82. Citing the Gentini case concerning international law’s recognition,
through equity, of the principle of prescription, while denying recognition
of local laws of prescription, Professor Bin Cheng states:

“The process applied in the Gentini Case! of tracing a general
principle from rules of positive law universally applied in foro do-

1 Loc. cit.

2 LCJ. Reports 1969, p. 84.

3 ICT. Reports 1974, p. 63, fn. 1.

4 The Permanent Court of International Justice, 1920-1942, 1972 ed., p. 617.

5 I.C.J. Reports 1969, p. 48, para. 88.

6 IC.J. Reports 1982, p. 60, para. 71.

7 LC.J. Reports 1969, pp. 49-50, para. 91.

8 Ibid.

9 The phrase is used in this form rather than in the now inappropriate phraseology
referring to “civilized nations”. Sir Humphrey Waldock preferred the expression
“general principles of law recognized in national legal systems”, and the shortened
expression “the general principles of law” is perhaps adequate for present purposes
(see North Sea Continental Shelf, I.C.J. Reports 1969, p. 136, Judge Ammoun, separate
opinion).

10 Venezuelan Arbitrations of 1903, p. 720.

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mestico through the general feeling of mankind for the requirements
of equity and to equity itself, is a striking reminder of Descamps’ pro-
posal for the application in international law of ‘objective justice’ or
‘equity’ as evidenced by the ‘conscience juridique des peuples civilisés’
and confirms the belief drawn from the travaux préparatoires of the
Statute of the Permanent Court of International Justice that this
proposal is not very different from the ultimately adopted formula
of ‘the general principles of law recognised by civilised nations’ in
Article 38 I (c) of the Court’s Statute.” !

Many classifications of such general principles are possible and the first
three items in a five-fold classification by Schachter? show again under
how many heads of this classification the principles of equity used by the
Court could have been drawn:

“(1) The principles of municipal law ‘recognized by civilized
nations’.
(2) General principles of law ‘derived from the specific nature of
the international community’.
(3) Principles ‘intrinsic to the idea of law and basic to all legal sys-
tems’...”

83. Equity in its general sense, such as the Court has used, finds a place
in all of these categories. Regarding the first clause, which of course is the
language of Article 38, paragraph 1 (c), of the Statute of the International
Court of Justice and the Permanent Court of International Justice,
Schachter points out that some of the participants at the drafting stage of
this clause had in mind equity and principles recognized by the “legal con-
science of civilized nations”. Elihu Root, who prepared the draft finally
adopted, had intended however to refer to principles actually recognized
and applied in national systems‘. It would be correct to say also that inter-
national law, as discussed by eminent commentators> and by this Court,
has looked for universal acceptance by legal systems rather than purely
municipally adopted principles for this purpose. Equity clearly comes
under this head . Part C of this opinion deals with the universal aspect of
equity in some greater detail.

1 General Principles of Law as Applied by International Courts and Tribunals, 1987,
pp. 377-378. .

2 Op. cit. p. 75.

3 Ibid.

4 Ibid. p. 76.

5 See Wilfred Jenks, Common Law of Mankind, 1958, p. 106; Wolfgang Friedmann,
The Changing Structure of International Law, 1964, pp. 188-210; and Bin Cheng, General
Principles of Law as Applied by International Courts and Tribunals, 1987, p. 377.

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84. The second category would comprise such principles as pacta sunt
servanda! which came into international law from the natural law tradi-
tion which was inextricably linked with equity in the broader sense. The
third category includes such ideas as reciprocity and equality of parties
before a tribunal, which are basic to all law.

85. The special influence of equity in its general sense is evident in all
these categories and as the concept of a common law of mankind gathers
momentum and principles relating to an equitable sharing of resources
become more urgently required, this route of entry of equity will perhaps
assume increasing importance in developing the law of the sea.

86. Schwarzenberger, in commenting on “general principles of law
recognised by civilised nations” as contained in the Statute of the Court,
lists seven achievements of the draftsmen of that clause. One of them,
which fittingly summarizes this discussion is that, “They [the draftsmen]
opened a new channel through which concepts of natural law could be
received into international law.” Equity would represent a heavy item of
traffic along that channel.

(d) Equity as embodied in the decisions of courts and tribunals

87. Article 38, paragraph 1 (d), of the Court’s Statute mentions that,
subject to the consideration that decisions of the Court shall have no bind-
ing force except between the parties and in respect of the particular case,
judicial decisions shall be a subsidiary means for the determination of the
law.

88. The jurisprudence of this Court has now reached a stage where a
considerable body of equitable principles is contained within the deci-
sions of the Court and where there is frequent resort to equity as an aid
towards the process of decision?. Through their adoption by the Court,
they have thus entered the mainstream of international law.

89. The Fisheries case (I.C.J. Reports 1951, p. 116) is an outstanding

! Schachter, op. cit., pp. 79-80.
2 As set out in his Foreword to Bin Cheng’s General Principles of Law as Applied by
International Courts and Tribunals, 1987, p. xi.

3 See, for example, Barcelona Traction, Light and Power Company, Limited, Second
Phase, I.C.J. Reports 1970, p. 48, para. 94: :

“It must first of all be observed that it would be difficult on an equitable basis to
make distinctions according to any quantitative test ... The protector State may, of
course, be disinclined to take up the case of the single small shareholder, but it
could scarcely be denied the right to do so in the name of equitable considera-
tions.”

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early example!, but since then there has been much development of this
concept in the context of maritime delimitation through a series of deci-
sions of this Court making explicit references to the application of equi-
table principles.

90. The heavy reliance in the Judgment on judicial decisions thus
draws in equity through yet another source. Dependence on such cases as
the North Sea Continental Shelf cases, the Libya/Malta case and the Gulf
of Maine case has provided avenues not only for the entry of equity into
maritime delimitation but for the construction, out of those equitable
principles, of a coherent body of equity-based maritime jurisprudence.
Any consideration of problems relating to the law of the sea must thus, as
in this case, have regard to this considerable body of decisions which,
through their adoption of equitable principles, have made the fertilizing
influence of equity an integral part of maritime law.

(e) Equity as expounded in the writings of the publicists

91. Going back to the fountainheads of international law, one sees that
Grotius incorporated into international law the idea that equity could
complement the administration of international justice, for he cites Aris-
totle’s references to “the perception of what is fair”, “the quality of fair-
ness”, and “justice”2. Aristotle’s definition of justice as “the correction of
that in which the law, by reason of its general character, is at fault” is also
cited. Indeed, Grotius’ comment goes so far as to suggest even the applica-
tion of equity “outside the rules of justice, properly so-called”. Grotius is
no doubt here using the term “rules of justice” in the sense in which we
would speak of “rules of law”.

92. One cannot fail to note, in this regard, the heavy reliance by Grotius
on natural law, in his pioneering work on the construction of the basic
principles of the law of the sea. The law of the sea may perhaps be
described as an area of international law which is particularly sensitive to
equitable influences.

93. The process initiated by Grotius goes on to this day and the great
publicists of each generation have, through their own writings, incorpo-
rated considerations and principles of equity into their contributions,
which have been assimilated into the corpus of public international law?.

! See S. Rosenne, The Law and Practice of the International Court, 1965, Vol. II, p. 605.

2 Grotius, De Jure Belli ac Pacis (1646), Bk. II, Chap. XVI, sec. XXVI; see, also,
Bk. III, Chap. XX, sec. XLVII (Kelsey, trans., Classics of International Law, 1925,
pp. 425, 824).

3 With specific reference to the law of the sea, a number of eminent modern publi-
cists, some of whom have been referred to in this opinion, are keeping up this tradition
and making a distinguished contribution to this fast-developing field.

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(f) Equity as justice

94. In the North Sea Continental Shelf cases, the Court stated, “What-
ever the legal reasoning of a court of justice, its decisions must by defini-
tion be just and therefore in that sense equitable.” (C.J. Reports 1969,
p. 48, para. 88.) Equity as part of justice which the court is bound to
administer then becomes part of its general jurisprudence. Equity in the
sense of a quest for the just solution offers a firm substratum for a con-
siderable part of the Court’s reasoning.

95. In his separate opinion in Barcelona Traction, Light and Power
Company, Limited, Second Phase, Judge Fitzmaurice, citing a standard
work on equity (Snell's Principles of Equity, 26th ed., 1966, pp. 5-6), said:

“as the author of the passage cited points out . . . equity is not
distinguishable from law ‘because it seeks a different end, for both
aim at justice ...’. But, it might be added, they can achieve it only if
they are allowed to complement one another.” (1.C.J. Reports 1970,
p. 86, para. 36.)

96. In Continental Shelf (Tunisia/Libyan Arab Jamahiriya), this Court
observed,

“Equity as a legal concept is a direct emanation from the idea of
justice. The Court whose task is by definition to administer justice is
bound to apply it.” (Z.C.J. Reports 1982, p. 60, para. 71.)

This Court and its predecessor have of course been careful to point out
that the fact that it dispenses justice does not entitle it to ignore the rules of
law. The need to administer justice does not, in the words of the Perma-
nent Court, entitle it to “base its decision on considerations of pure expe-
diency” (Free Zones of Upper Savoy and the District of Gex, P.C.LJ.,
Series A, No. 24, p. 15).

97. Kelsen and some other authorities! have expressed the view that
the Court’s function is to decide cases in accordance with international
law and on no other grounds. Kelsen says, for example, that the Statute of
the Court requires that the Court decide disputes in accordance with
international law and does not mention justice, thus leading to the view
that the Court is not authorized to decide disputes in accordance with
justice.

98. Such views, with great respect, do not take into account the fact that
much of international law already embodies equity, and that equity was a
principal route through which many basic concepts entered the corpus of

l E.g., Judge Koretsky in North Sea Continental Shelf cases (Federal Republic of
Germany/Denmark; Federal Republic of Germany/ Netherlands, I.C.J. Reports 1969,
p- 165.

2 Kelsen, The Law of the United Nations, 1950, p. 366.

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international law and became part of it. They also do not take into account
the fact that to shut the gates to the entry of this stream of influence into the
corpus of international law is to cramp the development of the latter.

(g) Equity as drawn in by the United Nations Charter

99. The Charter of the United Nations in Article 1 sets out as one of the
Purposes of the United Nations that “To maintain international peace
and security” it shall “bring about by peaceful means, and in conformity
with the principles of justice and international law, [the] adjustment or
settlement of international disputes . . .”. The International Court has
been set up within that framework as one of the principal organs of the
United Nations and is thus obliged to act in the adjustment and settlement
of international disputes “in conformity with the principles of justice and
international law”. Equity as an inherent part of justice, if not of interna-
tional law itself, thus enters into the Court’s jurisprudence. Its signifi-
cance in this regard can be measured from the fact that the maintenance of
international peace and security being among the foremost of the objects
of the United Nations and all its agencies, a primary means of achieving
this object, namely, the principles of justice and international law must
themselves have primary importance. Indeed, justice and equity are
inherent attributes of peace itself, which is foremost among the objects
international law aims at achieving !. The obligatory nature of this aspect
becomes clearer when one considers also that the earlier draft of the Char-
ter contained the words “with due regard to justice and international law”
which were changed to “in conformity with” as the earlier phrase was not
considered to be sufficiently emphatic?.

100. So, also, the Preamble to the Charter expresses as one of the
fountainheads of the whole concept of the United Nations the deter-
mination of the peoples of the United Nations “to establish conditions
under which justice and respect for the obligations arising from treaties
and other sources of international law can be maintained”. Shabtai
Rosenne rightly uses this aspect to point out that the unity of equity
with law and justice must therefore be seen in terms of a “monad” of
equity, law and justice (connoting a lack of opposition among them)

1 See Annuaire de l' AAA, 1972/1973, Vol. 42/43, Editorial by Boutros Boutros-Ghali,
p. 4, on the need for international lawyers of the future “à affronter les problèmes com-
plexes d’un monde nouveau, où le droit international devrait établir une paix durable,
Juste et équitable”.

2 Documents of the United Nations Conference on International Organization, Vol. VI,
San Francisco, 1945, p. 454.

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rather than the “triad” of law, justice and equity conceptualized by
Sohn!.

101. It needs scarcely to be stressed that every portion of the Charter is
as basic to the operation of the Court as the Court’s own Statute, for the
two are one integrated document. The Court’s warrant to use equity in this
case as in all others is thus mandatory and comes direct to it from its funda-
mental statutory source. It is worthy of note, also, that the intimate link-
age of justice and equity as set out in the United Nations Charter, with
the law of the sea, was eloquently underlined by the President of
UNCLOS III, Mr. H. S. Amerasinghe, at the very commencement of the
Conference, when he said, in his opening address as President:

“Tf the Conference resolved to be guided by the principles of jus-
tice and equity, and if it showed a spirit of mutual understanding,
goodwill and compromise, it would not only be living up to the high
expectations of the United Nations Charter but also handing down
to posterity one of the supreme achievements of the Organization.” ?

(h) Equity as embodied in State practice

102. A number of items of State practice have been placed before the
Court in support of propositions concerning their respective positions
which the Parties seek to infer from them. State practice would within
limits be evidentiary of customary international law. In so far as the State
practice relied upon relates to the delimitation of maritime boundaries, it
is important to note that equitable considerations, such as the principle of
equidistance, often provide the background against which States nego-
tiate on such matters. The resulting arrangements may therefore incorpo-
rate principles of equity. To the extent that State practice helps to build up
international law, international law would then have, built into it through
this source, some of the principles of equity. Concretized in this fashion,
their equitable origins may be obscured, but we may nevertheless some-
times recognize them in the State practice they helped to evolve.

1 S. Rosenne, “The Position of the International Court of Justice on the Foundations
of the Principle of Equity in International Law”, op. cit., pp. 88-89. Sohn’s view was
expressed in “The Role of Equity in the Jurisprudence of the International Court of
Justice”, in Mélanges Georges Perrin (1984), p. 303.

2 Official Records of the Third United Nations Conference on the Law of the Sea, Vol. 1,
p. 4, para. 16.

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V. A priori and a posteriori Employment of Equity
(a) The positive or a priori use of equity to construct a result

103. The positive use of equity would of course be illustrated in the
Court’s Judgment by the application of equitable concepts and the use of
equitable procedures and methods towards the achievement of an equi-
table result.

(b) The negative or a posteriori use of equity to test a result

104. This has been touched on already in paragraphs 31-42. It was there
pointed out that the application of the equidistance principle, itself a
principle of equity, can on occasion yield a result which is not equitable,
as pointed out by this Court on more than one occasion. Where there is a
vast disproportion in coastlines, as in the Libya/Malta case, that would be
a means for using equity in the sense of testing whether the result would be
inequitable. So, also, in the present case, the vast disproportion between
the lengths of the coastlines of Greenland and Jan Mayen has been used in
testing whether the result obtained by equitable principles and methods is
in fact inequitable. Such a role of equity can indeed be looked at as “not so
much the positive assurance of an equitable result as the negative avoid-
ance of an inequitable one” !, but it has both practical value and theoreti-
cal justification.

105. The use of equity in this sense is analogous to the use of injustice as
a test of justice, which has a long history in philosophical thought.
Although justice by its very nature is incapable of comprehensive formu-
lation, injustice by its very nature is often a matter of instant detection.
Likewise, though that which is equitable cannot be formulated in advance
in terms of a comprehensive set of rules”, that which is inequitable can be
readily identified as such when a situation has occurred or a proposal is
mooted.

106. This line of thought regarding justice has an ancient lineage?.
Aristotle wrote in the Nicomachean Ethics regarding the sense of injus-
tice that, “The many forms of injustice make the forms of justice quite

1 Prosper Weil, The Law of Maritime Delimitation : Reflections, 1989, p. 166.

2 Cf. Kelsen, Was ist Gerechtigkeit ?, 2nd ed., Vienna, 1975, p. 43 — “Ich weiss nicht
und kann nicht sagen was Gerechtigkeit ist ... und kann nur sagen was Gerechtigkeit fiir
mich ist” (“I do not know and cannot say what justice is ... and can only say what justice
is to me”).

3 See Julius Stone, Human Law and Human Justice, 1965, p. 316.

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clear” !, a theme also taken up by modern jurists2. Whereas the response
to the concept of justice is merely contemplative, the response to a situa-
tion one senses as unjust is a more positive one. The enlistment of the
sense of injustice in the service of justice thus enjoys strong philosophical
justification. The “sense of injustice” is “largely retrospective and cor-
rective”, while “the deficiencies it identifies can be finally repaired only
by a body of doctrine that is prospective and creative” *. This is an illustra-
tion of the fact that “theories of justice in all their rich diversity of content
and mode of presentation, cannot safely be discarded even from the
most practical concern”>.

107. In short,

“We are confronted here with the difference between, on the one
hand, the question of the definition of equity in abstracto and, on the
other hand, the question of whether a concrete situation, measure or
decision is equitable.” 6

108. All this is not to say, however, that relevant rules of equity appli-
cable to a given object can never be formulated in advance. They can, up
to a point, as the juristic learning on that topic matures, but they can never
be formulated totally and the sense of injustice or the sense of the inequi-
table will always continue to offer assistance in the pursuit of the equitable
solution.

109. With reference to boundary delimitation, no code of justice or
equity, however precisely formulated, can cover all possibilities in
advance. However, a solution once presented, can immediately attract
a sense of injustice, which would then result in its rejection and the
search for another which does not produce the same reaction. The stress
upon the need for an equitable solution and the rejection of any solu-
tion which, though reached in accordance with equity, is inequitable,
is thus one which has philosophical support.

1 Nicomachean Ethics, V.i.5. See, also, Aquinas’ Commentary on the Nicomachean
Ethics, 5.1. Cf. Plato’s Republic, 440C-D.

2 See E. N. Cahn, The Sense of Injustice, 1949; Julius Stone, op. cit., p. 316.

3 Cahn, op. cit., p. 13.

4 I. Jenkins, “Justice as Ideal and Ideology”, in Nomos, Justice 191, cited in Stone,
op. cit., p. 317.

5 Stone, op. cit., p. 321.

6 P. van Dijk, Nature and Function of Equity in International Economic Law, Grotiana
New Series, 1986, Vol. 7, p. 5.

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VI. The Uses of Equity

110. The uses of equity are manifold and more than one of them may be
in operation simultaneously in a given case such as that before the Court.
This aspect of equity is best appreciated by using any of the well-known
classifications of the use of equity. Oscar Schachter’s analysis, for
example, in his course on general international law at the Hague
Academy in 1982 itemized five uses!:

(a) equity as a basis for “individualized” justice tempering the rigours of
strict law;

(b) equity as introducing considerations of fairness, reasonableness, and
good faith;

(c) equity as offering certain specific principles of legal reasoning asso-
ciated with fairness and reasonableness, to wit, estoppel, unjust
enrichment and abuse of rights;

(d) equity as furnishing equitable standards for the allocation and
sharing of resources and benefits;

(e) equity as a broad synonym for distributive justice and to satisfy
demands for economic and social arrangements and redistribution of
wealth.

111. To this list may be added some others such as those listed below as
methods of operation of equity. There may be some overlap between the
two groups, for some of these uses of equity may also be listed as methods
and vice versa.

112. Of the five categories listed above, it is clear that at least the first
four have relevance to this case.

113. (a) Though Schachter mentions “individualized justice” in the
sense of tempering the rigours of strict law, equity can be used to deliver
“individualized justice” without in fact operating in conflict with a rule of
law. The use of equity in this sense for maritime delimitation was well put
by Judge Jiménez de Aréchaga in the Tunisia/Libya case:

“the judicial application of equitable principles means that a court
should render justice in the concrete case, by means of a decision
shaped by and adjusted to the relevant ‘factual matrix’ of that
case. Equity is here nothing other than the taking into account of a
complex of historical and geographical circumstances the considera-
tion of which does not diminish justice but, on the contrary, enriches
it.” UL.CJ. Reports 1982, p. 106, para. 24, separate opinion.)

! Schachter, op. cit., p. 82.

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114. In many cases of maritime disputes including the present this
aspect is of great relevance, for each case calls for individualized treat-
ment within the context of whatever rules of customary or treaty law may
be relevant. No conflict with those rules is implied but an operation within
them, as more fully discussed in the section on equity intra legem. This use
of equity to help shape the decision to the “factual matrix” of the case is
very much in use in the present case as evidenced by the variety of factors
considered by the Court, at least one of which — the ice factor — has
perhaps not been considered in the Court’s jurisprudence before.

115. The rationale of the individualized approach was also well
expressed by Judge Jiménez de Aréchaga in the following terms:

“Its [the Court’s] having authority to apply equitable principles
does not entitle a court to reach a capricious decision in each particu-
lar case, but to reach that decision which, in the light of the individual
circumstances, is just and fair for that case. Equity is thus achieved,
not merely by a singular decision of justice, but by the justice of that
singular decision.” !

116. (6) Equity as considerations of fairness and reasonableness is also
clearly in operation in this case.

117. (c) Equity as the basis of specific principles of legal reasoning has
also been used, as when the Court considers whether the conduct of
parties has been such as to amount to an estoppel. This becomes relevant
in the present case in assessing, for example, the effect of the past conduct
of the Parties in relation to equidistance in demarcating boundaries.

118. fd) Equitable standards for the allocation and sharing of
resources and benefits of course lie at the heart of this dispute and in the
context of the sharing of natural resources it has been shown elsewhere in
this opinion that equity is playing an increasingly important international
role.

119. Useful analogues to equity’s role in relation to the sharing of mari-
time space come from space law and riparian law. Space law takes in the
concept in the Moon Treaty, 1979 (Agreement governing the Activities of
States on the Moon and other Celestial Bodies), which prescribes “the
equitable sharing by all States parties” in the benefits derived from those
resources and also in the allocation of “slots” for the geostationary com-
munication satellites in outer space. The relevant treaties dealing with the
allocation of these slots, such as the Convention of the International

! E. Jiménez de Aréchaga, “The Conception of Equity in Maritime Delimitation”, in
International Law at the Time of Its Codification : Essays in Honour of Roberto Ago, 1987,
Vol. II, p. 232.

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Telecommunication Union, invoke equity for this purpose through their
reference to “equitable access” as a goal!.

120. A closer analogy, where a resource is to be divided between two
States, would be the rights of littoral and riparian States to lakes and
rivers. The Lac Lanoux Arbitration of 1957 between France and Spain? is
an illustration of equitable principles of good faith and a just balance
between the interests of the parties being used to determine the respective
rights of two States. The Helsinki Rules on the Uses of the Waters of Inter-
national Rivers (adopted by the International Law Association in 1966)
and the Resolution on Pollution of Rivers and Lakes (adopted by the
Institut de droit international in 1979) show a heavy dependence on equity
in relation to the sharing of resources.

121. fe) Equity in the sense of distributive justice and redistribution of
wealth is not involved in the present case. With reference to maritime
boundary delimitation, this Court has observed:

“While it is clear that no rigid rules exist as to the exact weight to be
attached to each element in the case, this is very far from being an
exercise of discretion or conciliation; nor is it an operation of distrib-
utive justice.” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya),
LCJ. Reports 1982, p. 60, para. 71.)

VII. The Methods of Operation of Equity
(a) Through balancing the interests of the parties

122. True equity, it has been said, “consists in holding in the best equi-
librium the considerations of equity invoked by both parties”. The Judg-
ment in this case has considered a number of circumstances and evaluated
their resultant effect in a manner that can be so described. This is not only
a well-accepted method of equity, but has ample support from the juris-
prudence of this Court and of arbitral tribunals in maritime delimitation
cases.

123. In the Tunisia/Libya case, the Court defined its task as an obliga-

1 M. A. Rothblatt, “Satellite Communication and Spectrum Allocation”, 76 Ameri-
can Journal of International Law (1982), p. 56.

2 International Law Reports, 1957, pp. 139, 141.

3 Bin Cheng, General Principles of Law as Applied by International Courts and
Tribunals, 1987, pp. 48-49, citing the Pinson case (1928) as contained in Jurisprudence de
la commission franco-mexicaine des réclamations (1924-1932), p. 133.

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tion “to balance up the various considerations which it regards as relevant
in order to produce an equitable result” (C.J. Reports 1982, p. 60,
para. 71).

124. Judge Jiménez de Aréchaga, in his separate opinion in the same
case, pointed out that:

“To resort to equity means, in effect, to appreciate and balance the
relevant circumstances of the case, so as to render justice, not through
the rigid application of general rules and principles and of formal
legal concepts, but through an adaptation and adjustment of such
principles, rules and concepts to the facts, realities and circum-
stances of each case.” (Ibid., p. 106, para. 24. See, also, ibid., Judg-
ment, paras. 71 and 107 on the “balancing process”)

The process outlined by Judge Jiménez de Aréchaga describes very
closely the process followed in the Judgment of the Court.

125. This notion of the balancing of considerations to reach an equi-
table result goes back very far in international law. The decisions of the
Commissions set up under the Jay Treaty of 17941, and authorized to
employ equity in their determinations, have been analysed as having been
reached through “the necessary process of adjustment, of the weighing of
one consideration against another”.

126. A reference to the process of balancing up all relevant considera-

tions was made also in the North Sea cases where the Court observed:

“In fact, there is no legal limit to the considerations which States
may take account of for the purpose of making sure that they apply
equitable procedures, and more often than not it is the balancing-up
of all such considerations that will produce this result rather than
reliance on one to the exclusion of all others.” (C.J. Reports 1969,
p- 50, para. 93.)

127. The Tribunal hearing the Delimitation of the Continental Shelf
between the United Kingdom and France case? also engaged itself specifi-
cally in the task of balancing the factors presented to it by the respective
parties in determining the boundary line in the Channel Islands.

128. Of comparative interest, from a related area of the law, is the fol-
lowing methodology described in Article V, paragraph 3, of the Helsinki
Rules on the Uses of Waters of International Rivers:

1 A Treaty of Amity, Commerce and Navigation between the United States of
America and Great Britain providing for the creation of three mixed commissions of
American and British nationals to settle a number of outstanding questions between the
two countries.

2 Moore’s analysis, as cited by H. Lauterpacht in The Function of Law in the Interna-
tional Community, 1933, p. 121, fn. 4. See, also, p. 132.

3 Decision of 30 June 1977, RIAA, Vol. XVIII, pp. 87-95, paras. 180-202.

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“The weight to be given to each factor is to be determined by its
importance in comparison with other relevant factors. In determin-
ing what is a reasonable and equitable share, all relevant factors are
to be considered together and a conclusion reached on the basis of
the whole.”

(b) Through an equitable interpretation of a rule of law or of a treaty or set of
facts

129. One of the important functions of the equitable approach in all
judicial processes is to provide a method of interpretation. This can relate
to the interpretation of a rule of law or of a document, or indeed of a set of
facts. Literal interpretations, wedded to the letter of the law and to formal-
ism, contrast with liberal interpretations, based upon an equitable
approach. Whether it be a rule of law or a treaty or a factual situation that
is under interpretation, the same duality of approach is possible, with
widely varying consequences.

130. Schwarzenberger spells out this aspect of equity in terms that,

“The rule of equity, as it has grown, demands reasonableness and
good faith in the interpretation and application of treaties.” !

131. This could be more specifically addressed in terms of a choice not
between two but among several available interpretations. In the words of
De Visscher:

“Equity can be something other than an independent basis of deci-
sion, as when in a decision which in other respects is founded on pos-
itive law (intra legem), the judge chooses among several possible
interpretations of the rule the one which appears to him, having
regard to the particular circumstances of the case, most in harmony
with the demands of justice.”

132. In this case, one of the major questions addressed by the Court has
been the interpretation, in accordance with equity, of the “special circum-
stances” mentioned by the 1958 Convention.

(c) Through tempering the application of strict rules

133. This is the classical Aristotelian concept of equity, described thus
by Aristotle, in the Nicomachean Ethics:

“The reason for this is that law is always a general statement, yet
there are cases which it is not possible to cover in a general

1 Schwarzenberger, “Equity in International Law”, Yearbook of World Affairs, 1972,
p. 346, at p. 357.

2 Charles De Visscher, Theory and Reality in Public International Law, trans.
P. E. Corbett, Princeton, 1957, p. 336.

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statement ... This is the essential nature of the equitable: it is a recti-
fication of law where law is defective because of its generality.” !

134. Equity could thus adopt a dominant attitude and correct a law that
is defective, or adopt a soft or more lenient interpretation of a law, thus
tempering its rigidity without conflicting with it. The former attitude is, as
already noted, inapplicable to international law.

135. However, the latter aspect of flexibility, which is relevant, is cap-
tured by Aristotle in the same work in his comparison of the indefinite-
ness of equity to the “leaden rule used by Lesbian builders”, which “is not
rigid but can be bent to the shape of the stone”? . In the context of mari-
time delimitation, each case presents upon the facts a different shape from
every other, and equity adjusts itself around that shape in the manner
described because it is flexible, where a rigid rule would scarcely do it
justice. The Judgment in this case does no less.

(d) Through the choice of an equitable principle

136. This is an aspect relevant to the judicial processes involved in the
present case, for there are many equitable principles (and procedures and
methods) that can be used. The Court, for reasons stated, has made its
choice among these in deciding upon the line of delimitation it has
chosen.

137. The judicial function by its very nature involves a choice among
competing principles all of which in one way or another have relevance to
the matter in hand. What principles a court adopts from the range of
choice available is determined by a weighing of considerations such as
those of relevance, immediacy to the problem, practical value in the par-
ticular circumstances, and the degree of authority of the principle. These
are matters in which a court’s experience and sense of judgment will pro-
vide it with guidance. In such situations, an important additional guide
would be, within the limits of choice available in law, the court’s sense of
justice, fairness and equity.

138. In relation to maritime delimitation, apart from a few specific
principles such as the equidistance-special circumstances rule (which
have already emerged), it would be a matter for the court, among the range
of general principles (and procedures and methods) available, to make
such a choice as is in accordance with law and its sense of justice.

139. This is another illustration of what Julius Stone describes as the
“element of evaluative choice” that is part and parcel of the judicial pro-
cess>. To use another expression of that eminent jurist, “leeways of judi-

! Aristotle, The Nicomachean Ethics, H. Rackham (trans.), Loeb Classical Library,
revised ed., 1934, pp. 315 and 317.

2 Ibid.

3 See Julius Stone, Legal System and Lawyers’ Reasonings, 1964, p. 305.

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cial choice”! exist within the concept of equity, as indeed they do in most
departments of the law. The fact that international law is involved, rather
than domestic law, does not alter the nature of the judicial process. Equity
never was nor ever will be a completely objective department of legal
knowledge. In the words of a well-known treatise, “Equity may play
a dramatic role in supplementing the law or appear unobtrusively as
part of legal reasoning.”2

(e) Through the use of judicial discretion

140. Some aspects of this have already been dealt with in so far as judi-
cial discretion relates to the choice of an appropriate principle for appli-
cation. Judicial discretion also comes into operation in regard to the
choice of an appropriate solution from among a range of choices, all of
them equally available on the basis of the Court’s reasoning. Indeed, this
aspect is particularly relevant in the present case, for, in theory, an infinite
number of possible lines of delimitation would be available within the
framework of the principles which the Court has chosen to follow.

141. This aspect assumes even more relevance having regard to the
express averment in paragraph 90 of the Judgment that the adjustment of
the median line would be within “the measure of discretion conferred on
the Court by the need to arrive at an equitable result”. I agree with this
assertion of judicial discretion, for it is an explicit averment of what is
often an implicit assumption. It is essential to point out, if one may borrow
the combined judicial and academic wisdom of O. W. Holmes and
Julius Stone, that, in matters such as this, there are no unique answers
which are “‘right in some absolute sense, as if judgment consists of
‘adding up one’s sums correctly’”3. The court, as distinct from an arbitra-
tor or conciliator, works within certain parameters set by law‘. It exercises
its discretion within the parameters thus set, and, where it uses the flexible
tools of equity, it uses them infra legem. But yet, as with every exercise of
judicial discretion, there is a range of choices available to the judge within
a broad framework of permissible limits. Where the choice falls within
that range depends upon the judge, and how he makes his choice depends
on the guiding principles he employs. This is not an area of lacunae in the
law, for, though the law can offer guiding principles, it is by its very nature
incapable of covering entirely the innumerable permutations and combi-
nations of fact that present themselves in a given case.

! Julius Stone, Legal System and Lawyers’ Reasonings, 1964, p. 304.

2 Jan Brownlie, Principles of International Law, 4th ed., 1990, p. 26.

3 Julius Stone, Legal System and Lawyers’ Reasonings, 1964, p. 305; and
O. W. Holmes, Jr., “Path of the Law”, 10 Harvard Law Review (1897), pp. 465-466.

4 This distinction between the modes of operation of a judge and arbitrator was noted
by Aristotle in a passage picked up by Grotius (see p. 233, footnote 1, above).

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142. The use of judicial discretion may not be one of the great illumi-
nated places of the law but, within it, equity is par excellence one of the
lights! available to a judge in determining his preference amidst the lee-
ways of choice available. Equity here may consist of specific principles
that have emerged from equity, or equity in the broad and general sense
already discussed. Either way equity can enter international law and make
a vital contribution to its continued development. Since the use of judicial
discretion within the prescribed parameters is thus a necessary and intrin-
sic part of the judicial process, a court exercising its discretion in a case
such as this does not exceed its judicial function in making its considered
choice, within those limits, on the basis of its sense of the fair and equi-
table. Nor does it need to feel inhibited, in the exercise of that very proper
function, by concerns that it is trespassing beyond the limits of the judicial
function. Viewed thus, the whole spectrum of equitable applications, uses
and methods stretches out before the Court, enabling the best choice to be
made from the range available within the limits of its authority.

(f) Through filling in gaps and interstices in the law

143. This has already been dealt with in the context of equity praeter
legem.

(g) Through following equitable procedures
144. This has already been dealt with in classification I (b) above.

(h) Through the application of equitable principles already embedded in the law

145. Many principles of equity such as unjust enrichment, good faith,
contractual fairness and the use of one’s property so as not to cause
damage to others are already embedded in positive law. In the field of
international law the position is the same. When one applies such a rule of

! There could of course be several others, especially in a municipal forum, where a
judge may consciously or unconsciously lean towards, for example, a utilitarian, an
analytical positivist, a realist, or other philosophical stance in making his decision. See
C. G. Weeramantry, “The Importance of Philosophical Perspectives in the Judicial
Process”, 6 Connecticut Journal of International Law (1991), p. 599.

2 On leeways of choice in judicial discretion, see, generally, Julius Stone, Human Law
and Human Justice, 1965, pp. 304-312. See also Lon L. Fuller, The Morality of Law,
revised ed., 1969, for a view of the choices available, ranging from what Fuller calls
the morality of aspiration, high up on the scale, to the morality of duty lower down.
The more idealistic judge would make his choice higher up the scale than the more
pragmatic. The highest points of the scale would be unsuitable for practical use.

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positive law, one is thus giving effect at the same time to a principle of
equity. At what precise time a particular rule of equity takes on also the
mantle of a rule of law is often a difficult question to decide. The results
reached would often be the same, and probing the matter further may then
be a merely academic exercise.

(i) Through its use in negative fashion to test a result

146. This has already been dealt with in classification V (b} above.

VIII. The Stages of Equitable Decision-Making!

147. Itis perhaps helpful, in analysing a judgment involving the use of
equity, to note that equity has not been applied in one sweeping operation,
but that it is a careful and ordered process involving sequential stages
which can be separately examined. The Judgment of the Court in this case
applies equity in this ordered fashion and has my support in regard to the
decision taken at each of these stages. These stages could of course be
differently analysed, but the following stages perhaps represent the
Court’s approach to the problem.

(a) The identification of the area of the dispute

148. The earlier part of the Judgment carefully considers this aspect in
some detail (para. 21), specifying the three areas involved. The extent of
the relevant area is also specified.

(b) The preparatory phase of assembling the relevant circumstances

149. As in this case, the next task that presents itself is to assemble the
relevant circumstances. In so doing, the Court would independently
assess the relevance of each circumstance. The Judgment of the Court
indicates what circumstances it considers relevant. The particular circum-
stances involved in this case are referred to in Part B of this opinion.

150. In working on this preparatory phase the Court would be guided
by the equitable procedure of considering every item relevant to the
matter under examination. The decision whether a matter has relevance
or not would naturally be dependent also on any applicable rules of law,
for the equity the Court is here using is not equity contra legem. This

1 See, on this aspect, Michel Virally (“L’équité dans le droit. A propos des problèmes
de délimitation maritime”, in International Law at the Time of Its Codification : Essays in
Honour of Roberto Ago, 1987, Vol. II, pp. 526-530), which makes a three-fold division.
For a more elaborate analysis into five stages, see J. Charney, “Ocean Boundaries
between Nations: A Theory for Progress”, op. cit. See, also, for a four-fold classification
into identification of area, identification of method, application of practical method
and assessment of equitability, M. D. Evans, Relevant Circumstances and Maritime Deli-
mitation, 1989, pp. 87-88.

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aspect is of crucial importance in determining for example whether such
circumstances as population or economic factors should be taken into
account.

(c) The decisional phase

151. This has a three-fold aspect — decisions in regard to the appropri-
ate rules, whether of law or equity that have to be employed; decisions in
regard to the assessment of the facts found to be relevant under head (b);
and the application of rules of law or equity to those facts to produce a
practical result.

152. Once the relevant circumstances are determined, their weight has
to be assessed. What weight would, for example, be given to the ice factor
in this case in working out a principle of fair division? What is its weight
both intrinsically and when matched against the other relevant factors?
What is the weight to be given to proportionality in the light of the dispro-
portionate coastal lengths involved?

153. Thus each factor needs to be assessed for its intrinsic importance
and for the weight it carries amidst the totality of relevant factors.

(d) The confirmatory phase

154. The Court would then reach a result, but that result needs to be
tested, for equitable principles or procedures do not automatically lead to
an equitable result. As already noted, while equidistance might represent
an equitable principle or method, it could lead to a result which is not
equitable. A result must not be unjust. The philosophical underpinnings
of this concept have already been discussed in relation to the a posteriori
use of equity in category V above.

155. This short survey of the handling of equity in the Judgment, and of
possible approaches to the application of equity, will show the multitude
of heads and the diversity of routes through which equity becomes avail-
able to the Court. It is hoped, also, that this analysis will have shown the
inevitability of the entry of equity into a problem such as that confronting
the Court, the productive role it can play through judicial decision and
otherwise in constructing the law of the future and the fact that equity is a
vital and integral part of positive law which one neglects only at the cost of
legal development.

UNCERTAINTIES IN THE USE OF EQUITY

156. It is intrinsic to the operation of equity that there are some uncer-
tainties in regard to the extent of its application and the results which
emerge. This has already been noted in an earlier part of this opinion.

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255 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

Some of the causes of these uncertainties, with special reference to mari-
time delimitation, are separately considered below with a view to address-
ing the question whether there is in equity, as is sometimes alleged, a
quality of uncertainty which renders it an unsuitable instrument for deter-
mining the claims of parties in a matter such as this.

(a) Absence of mechanisms for precise quantification

157. To expect greater precision is to ignore the very nature of equity!.
One is reminded here of the Aristotelian aphorism that only so much
precision can be achieved as the subject-matter will allow. The factual
material which equity deals with is in most cases rarely assessable in
quantifiable terms. Equity has no fine balances at its command to
weigh human conduct, no graded units of value with which to measure
the particular mix of varied factors a given case may present. It makes in
most cases an overall assessment on the basis of legal principle and human
experience and will not be able, in mathematical fashion, to produce a result
precisely calibrated to match the circumstances, if, indeed, such a result
were at all possible, having regard to the nature of the subject-matter.

158. When therefore a court, as in this case, translates an equitable
finding into a delimitation, it is only in terms of an assessment of the equi-
ties as closely as it can and not with any suggestion that the resulting
cartographic delimitation mirrors the exact ratio of equities involved.
Certainties such as are contended for here do not exist even in the realm
of the law, leave alone the realm of equity.

(b) Lack of definiteness in the scope of equity

159. Equity’s seeming weakness in defying comprehensive definition,
or precise quantification is at the same time one of its strengths, for it has

1 Judge Manley Hudson points out:

“The conceptions introduced into the law as principles of equity cannot be listed
with definiteness; but they are not to be discarded because they are vague, for that
is a quality attaching to international law itself . . .” (The Permanent Court of Inter-
national Justice, 1920-1942 (1972 reprint, intro. by L. B. Sohn), p. 617.)

2 On the belief in legal certainty even in law, as opposed to equity, see Julius Stone,
The Province and Function of Law, 1946, pp. 204-205:

“{T]he defence of legal ‘certainty’ insofar as it assumes that certainty can be
attained by continuing to adhere closely to logical development of the ‘principles
of law’, is defending what has never existed. The appearance of certainty and
stability in legal rules and principles conceals existing uncertainty.”

3 O. Schachter, op. cit. p. 82: “No concept of international law resists precise defini-
tion more than the notion of equity.”

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given it the flexibility to make a prime contribution to the development of
the law. Try as one may to achieve the desirable goal of certainty, this
remains elusive, for

“the finest legal dissertations on equity will never succeed in com-
pletely eliminating what is perhaps an irreducible core of judicial
subjectivism ...” (Continental Shelf (Libyan Arab Jamahiriya/ Malta),
LCJ. Reports 1985, p. 90, para. 37, joint separate opinion of
Judges Ruda, Bedjaoui and Jiménez de Aréchaga).

Elsewhere in this opinion, reference has been made to the series of semi-
nal principles equity has contributed to international law. These have pro-
ceeded from its quality of flexibility, its ability to handle new situations for
which legal precedent affords no guidance, and its conformity with justice
and fairness. In maritime delimitation law, likewise, these qualities will no
doubt assist it in shaping that body of law in equitable fashion, and each
individual decision based on equity, such as the present case can contri-
bute to this end. The day equity is completely captured in a definition or
formula, its creativity would be at an end.

(c) Lack of crystallization of equitable results

160. In the special field of the law of the sea, equitable concepts remain
largely undefined and their theoretical foundations unclear. This is but
natural, particularly in such an actively developing field, for as
De Visscher has observed,

“if one views the matter historically, rules of law have at all times
been largely the offshoots of equity before being crystallized within
the positive legal order” !.

The danger of overconceptualization of equitable principles has indeed
been noted by this Court in the context of the law of the sea2, however
great the apparent need to concretize the application of equity in this field.

(d) Changing nature of the law of the sea

161. An additional circumstance making for uncertainty in this field
should also be noted — namely that the uncertainties of equity are com-

1 Charles De Visscher, De l’équité dans le règlement arbitral ou judiciaire des litiges de
droit international public, 1972, pp. 8-9:

“envisagées du point de vue de la formation historique de leur contenu, les règles
de droit ont de tout temps été largement tributaires de l’équité avant de se cristal-
liser dans l’ordre juridique positif.”

See, also, M. D. Blecher, “Equitable Delimitation of Continental Shelf”, 73 American
Journal of International Law (1979), pp. 83-88.
2 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), I.C.J. Reports 1982, p. 92.

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pounded, in relation to the law of the sea, by the fact that the law of the sea
itself has been undergoing a process of spectacular change. Some cases
such as the 1969 North Sea Continental Shelf cases and the 1982 Continen-
tal Shelf (Tunisia/Libyan Arab Jamahiriya) case occurred before the Law
of the Sea Convention was signed, whereas others such as the 1985 Conti-
nental Shelf (Libyan Arab Jamahiriya/Malta) case and the 1985 Guinea/
Guinea-Bissau cases occurred after. Maritime delimitations such as are
sought in this case straddle the Geneva Convention of 1958 and the
Montego Bay Convention of 1982, with all the conceptual changes occur-
ring between 1958 and the present day.

162. Not only was a new dimension given by that Convention to the
applicability of equity but the very concepts to which it was being
applied — such as that of the exclusive economic zone — were in a state of
dynamic evolution. New concepts unknown in the 1950s such as that of
the exclusive economic zone were gathering strength even as older con-
cepts such as that which based the continental shelf on a natural prolonga-
tion were losing momentum. It is no cause for surprise that flexible
principles superimposed upon so fluid a subject should have failed to pro-
duce a greater predictability of legal result.

(e) The resort to fact-intensive rather than rule-intensive procedures

163. An important aspect which the Court must address in maritime
delimitation cases is the extent to which it should concentrate on the vari-
able facts of each separate case rather than on a search for overriding
rules which are common to all!. The juristic literature describes the for-
mer as fact-intensive rather than rule-intensive procedures, and points to
the concentration on fact-intensive procedures as an additional cause of
uncertainty in this area of the law. However, the type of enquiry involved
in the present case necessarily requires heavy reliance on fact-intensive
procedures. Additionally, the crystallization of equitable rules relating to
delimitation has not yet reached a stage of sufficient maturity to be a com-
prehensive guide2. Fact-intensive procedures must therefore continue to
play a significant role in maritime delimitations.

164. In the history of maritime delimitation, there have indeed been
attempts to reduce the solution of this problem to rule-intensive pro-
cedures specified with nearly mathematical precision?. The effort at one

1 Schachter, op. cit. p. 87.

2 See, generally, Schachter, ibid..

3 As perhaps best illustrated by J. L. Azcarraga’s suggestions running to three pages
of mathematical formulae titled “Nuestra Formula Matematica”, in La Plataforma Sub-
marina y el Derecho Internacional, 1952, pp. 82-84. The formulae allocate different areas
of shelf according to three fixed factors — number of inhabitants, length of coast and
area of territory.

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stage to erect the concept of equidistance into a rigid rule was another
attempt at rule-intensive solutions aimed at achieving a predictable cer-
tainty of result.

165. The self-limiting nature of such formulae is clear, especially in the
light of later experience revealing the relevance of numerous factors,
some of which may not have been foreseen, and some of which — such as
State conduct — cannot possibly be the subject of pre-set assessments.
Legal concepts cannot thus be locked into the rigours of mathematical
method.

PART B. PARTICULAR INVOCATIONS OF EQUITY
IN MARITIME DELIMITATION

Long-standing Recognition of Equity in the Law of the Sea

166. Apart from the general applicability of equity in international law
which would, in any event, draw it into disputes in relation to the law of
the sea, it has also been specifically drawn into the law of the sea by treaty,
proclamation, judicial and arbitral decisions and State practice. Equity
has long been specifically drawn into the law of the sea in this fashion.
This aspect is dealt with in the Judgment of the Court and I shall deal with
it only in outline. It will suffice for present purposes to note that its invoca-
tion in the Truman Proclamation (of 28 September 1945) was coeval with
the very birth of the continental shelf doctrine. The statement in that Proc-
lamation that the determination of boundaries, where the continental
shelf extended to the shores of another State or was shared with another
State, was to be in accordance with equitable principles was a significant
early indication that the law of the sea would, in its formative phase, lean
heavily on equity.

167. A landmark event was the Geneva Convention of 1958 which will
be considered below. However, even before this, the régime of equity in
this field was well established:

“Tt is generally admitted that in State practice prior to the Gen-
eva Conference of 1958 the tendency was to refer in general terms to
the delimitation of continental shelf boundaries or ‘equitable prin-
ciples’. . .” (North Sea Continental Shelf, I.C.J. Reports 1969, p. 91,
Judge Padilla Nervo, separate opinion.)

168. In the jurisprudence of this Court in maritime disputes, the equi-
table approach received recognition in 1951 in the Anglo-Norwegian
Fisheries casel. The development of this trend, through a series of

1 LC J. Reports 1951, p. 142. See, also, S. Rosenne, The International Court of Justice,
1957, pp. 427-428.

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cases! until the latest decisions of this Court, has entrenched equity as
a key legal factor in this field. This trend is evident also in the arbitral
decisions?.

169. In the deliberations during UNCLOS III, the role of equity in
relation to the law of the sea progressively achieved increasing recogni-
tion, till it became enshrined as a cardinal principle in the final draft of the
Convention, in Articles 74 and 83. In achieving this status, equity dis-
placed other suggested criteria such as equidistance which had appeared
in earlier drafts as the prime consideration for delimitation. Indeed, a
deep concern for equitable considerations permeates the Convention (see
Arts. 160 (2) {d), 161 (1) (e), 162 (2) (d), 163 (4), 274 (a)).

170. So much importance has equity gained in this regard that it has
been described as “currently gaining ground as the central principle of
maritime boundary delimitation over the 1958 equidistance-special cir-
cumstances rule”3.

The Use of Equity in the 1958 Geneva Convention

171. The 1958 Geneva Convention on the Continental Shelf provides
by Article 6 that, where the same continental shelf is adjacent to the
territories of the two States whose coasts are opposite to each other, the
boundary of the continental shelf appertaining to such States shall be
determined by agreement between them:

“In the absence of agreement, and unless another boundary line is
justified by special circumstances, the boundary is the median line,
every point of which is equidistant from the nearest points of the
baselines from which the breadth of the territorial sea of each State is
measured.”

172. Judge Oda has observed that, although not specifically mentioned
in Article 6, the idea of an equitable solution lay at the basis of that provi-
sion’ which can perhaps be regarded as having inferentially attracted
equity into delimitation.

! North Sea Continental Shelf cases, I.C.J. Reports 1969, p. 3; Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) case, I.C.J. Reports 1982, p. 18; case concerning Deli-
mitation of the Maritime Boundary in the Gulf of Maine Area, I.C.J. Reports 1984, p. 246;
and Continental Shelf (Libyan Arab Jamahiriya/Malta) case, I.C.J. Reports 1985, p. 13.

2 See, in particular, the decisions of the Court of Arbitration in the Delimitation of the
Continental Shelf between the United Kingdom and France case, RIAA, Vol. XVIII,
pp. 3 ff.; and Chile/Argentina Beagle Channel Arbitration, International Legal Materials,
1978, pp. 36 ff.

3 H. W. Jayewardene, Regime of Islands in International Law, 1990, p. 316.

4 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), I.C.J. Reports 1982, p. 246,
para. 144, dissenting opinion of Judge Oda.

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173. There are two pointers in the Article to the area of enquiry in
which the Court should engage itself —

(i) any agreement between the parties, and,
(ii) in the absence of such agreement, whether any line other than the
median line is justified by special circumstances.

174. Under each of these heads, there are matters which arise for con-
sideration.

175. Under the first head, there is the Agreement of 1965 between Nor-
way and Denmark which is considered in the Judgment of the Court.
I respectfully express my agreement with the conclusion of the Court that
that Agreement does not relate to the maritime area in dispute in the
present case.

176. Under the second head, the Court has been addressed on a num-
ber of factors — relative populations, proportionality of coastlines,
respective landmasses and economic importance to the appurtenant
coast, to mention a few. These matters will receive consideration later in
this opinion. It is my view that none of them can be ruled out in limine on
the basis of a general principle of irrelevance relating to any one category.

177. As was observed by the Court of Arbitration in Delimitation of the
Continental Shelf between the United Kingdom and France in 1977:

“the réle of the ‘special circumstances’ condition in Article 6 is to
ensure an equitable delimitation; and the combined ‘equidistance-
special circumstances rule’, in effect, gives particular expression to a
general norm that, failing agreement, the boundary between States
abutting on the same continental shelf is to be determined on equi-
table principles” !.

The Use of Equity in the 1982 Montego Bay Convention

178. The “equitable solution” formula contained in the Convention
(Arts. 71 (1) and 83 (1)) — a compromise between that favoured by the
equidistance group? and that favoured by the equitable principles
group? — gave further recognition to the role of equity.

! RIAA, Vol. XVIII, p. 45, para. 70.

2 “The delimitation of the Exclusive Economic Zone/Continental Shelf between
adjacent or opposite States shall be effected by agreement employing, as a general
principle, the median or equidistance line, taking into account any special circum-
stances where this is justified.” (Doc. NG 7/2/Rev.2, 28 March 1980, cited by
Brown, “Delimitations of Offshore Areas: Hard Labour and Bitter Fruits at
UNCLOS III”, Marine Policy (1981), p. 180.)

3 “The delimitation of the exclusive economic zone between adjacent or/and oppo-
site States shall be effected by agreement, in accordance with equitable principles
taking into account all relevant circumstances and employing any methods where
appropriate, to lead to an equitable solution.” (Doc. NG 7/10/Rev.2, 28 March
1980, cited by Brown, op. cit.)

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261 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

179. As is observed in a contemporary text on the régime of islands
under international law:

“The most distinctive feature of the provision [on the economic
zone and continental shelf in the Informal Single Negotiating Text]
was the abandonment of the 1958 equidistance-special circum-
stances model in favour of a formula based on the principle of equi-
table delimitation.” !

180. The acceptance by both groups? of phraseology including “an
equitable solution” despite the wide disparities in the positions of the two
groups gives equity a position of special importance in this sensitive and
controversial area of international law, thus creating a special need for a
fuller investigation of all the implications of the phraseology so adopted?.

Categories of Relevant Factors Are Not Closed

181. In paragraphs 122-128 above dealing with the operation of equity
through the balancing of interests, attention has been given to the way in
which the various relevant circumstances are weighed against each other.
Reference was there made to the North Sea cases which stated that there
was no legal limit to the considerations which States take account of for
this purpose‘. So, also, in the Libya/Malta case, this Court observed:

“For a court, although there is assuredly no closed list of consider-
ations, it is evident that only those that are pertinent to the institution
of the continental shelf as it has developed within the law, and to the
application of equitable principles to its delimitation, will qualify for
inclusion.” (1.C.J. Reports 1985, p. 40, para. 48.)

182. Nocomplete list can be made, if for no other reason than that each
case is unique and one can never foretell what circumstances may surface
or achieve importance in the unknown disputes of the future. Moreover,

1 H. W. Jayewardene, The Regime of Islands in International Law, 1990, p. 320.

2 See Official Records of the Third United Nations Conference on the Law of the Sea,
Vol. XV, pp. 39-42, for the discussion on the compromise text formulated by the Presi-
dent, and for its acceptance by the two groups concerned.

3 It is not necessary for present purposes to enter into discussions of the question
whether the provisions of the Convention have acquired the force of customary interna-
tional law. That question is not free of controversy — see Jennings, “Law Making
and Package Deal”, in Mélanges offerts à Paul Reuter, Paris, 1981, pp. 347-355;
L. A. Howard, “The Third UN Conference on the Law of the Sea and the Treaty/
Custom Dichotomy”, 16 Texas International Law Journal (1981), pp. 321-345;
H. Caminos and M. R. Molitor, “Progressive Development of International Law and
the Package Deal”, 79 American Journal of International Law (1985), pp. 871-890; and
M. C. W. Pinto, “Maritime Security and the 1982 UN Conference on the Law of the
Sea”, Maritime Security, The Building of Confidence, UNIDIR, 1993, p. 9, at pp. 40-46.

4 CJ. Reports 1969, p. 50, para. 93.

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262 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

each item — such as State conduct or national security — is infinitely
variable and, more often than not, is itself a conglomerate of factors
which themselves need to be assessed and evaluated. This Court’s descrip-
tion of each as “monotypic”! thus aptly captures its individuality.

183. It may be noted that, although the 1961 Helsinki Rules on the Uses
of Water of International Rivers, contained in Article V, paragraph 2, a list
of relevant factors, the list is expressly stated to be non-exhaustive.

184. From these preliminary observations to what extent can the pro-
cess be carried forward of developing equitable principles in relation to
maritime delimitation?

185. Since “there is no legal limit to the considerations which States
may take account of”?, it would seem, for example, that they cannot be
limited to the purely geographic. Geographic factors may perhaps be used
as the starting point for an enquiry of this nature, and it is right to stress
their importance. However the equitable solution yielded by the applica-
tion of the principles of equity is not attained by the mere application of
geographically based principles such as the equidistance principle. In the
anxiety to concretize equitable principles by relating them to demon-
strable and quantifiable data such as geographic data we may perhaps
shut out important considerations relevant to equity. Definiteness of
principle is no doubt an important value to be striven after, but it could
be bought at too high a price at an incipient stage of development of a legal
concept.

186. Among the factors taken into consideration in the Tunisia/ Libya
case were not merely geographical factors but historical and political fac-
tors as well. Among these were the history of the enactment of petroleum
licensing by each party and the grant of successive petroleum conces-
sions*, and such indicia as were available of the line or lines which the
parties themselves had considered equitable or acted upon as such.

187. When one ventures outside the areas of pure geography and geo-
logy, one encounters considerations which are of immense importance in
the real world — matters such as population, security, history, practical
usability, political status and economic dependence. Doubtless they will

1 L.C.J. Reports 1984, p. 290, para. 81.

2 North Sea Continental Shelf cases, I.C.J. Reports 1969, p. 50, para. 93.

3 See Shigeru Oda, “Delimitation of a Single Maritime Boundary”, in International
Law at the Time of Its Codification: Essays in Honour of Roberto Ago, 1987, Vol. II,
p. 349.

4 See Continental Shelf (Tunisia/Libyan Arab Jamahiriya), I.C.J. Reports 1982, p. 83,
para. 117.

5 Ibid. p.84, para. 118. See, also, Jiménez de Aréchaga, “The Conception of Equity in
Maritime Delimitation”, in International Law at the Time of Its Codification: Essays in
Honour of Roberto Ago, 1987, Vol. IL, p. 232.

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263 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

have different values in individual cases varying from the minimal to the
immensely influential and these will need to be taken into consideration
and evaluated.

188. In the Delimitation of the Continental Shelf between the United
Kingdom and France, the United Kingdom relied upon such matters as
demography and economics! and, though the court did not regard them
as exercising a decisive influence on the delimitation, it held that they
could support and strengthen, but not negative, any conclusions indicated
by the geographical, political and legal circumstances”. To quote
Judge Jiménez de Aréchaga again:

“Ali the relevant circumstances are to be considered and balanced;
they are to be thrown together into the crucible and their interaction
will yield the correct equitable solution of each individual case.”
(CJ. Reports 1982, p. 109, para. 35.)

189. Equity was by very definition the process by which situations
which could not be provided for by the specific letter of a legal rule were
taken into account where the purely mechanical application of the rule
would shut them out. It would be a negation of that flexibility which is a
characteristic of equity if we were at this early stage in the development of
maritime demarcation to introduce into it the very element of rigidity
which equitable doctrine was devised to prevent. As this Court observed
in Tunisia/Libya, no attempt should be made to overconceptualize the
application of the principles and rules applicable to the continental shelf
(ibid., p. 92, para. 132).

The Equidistance Principle

190. It is necessary to consider the status of the equidistance method, as
Norway lays great store by it, not only in its own right but also by virtue of
the 1965 Agreement between the Parties.

191. Speaking in general terms, three possible ranks may be assigned to
this rule:

(i): the status of a mandatory rule either under customary international
law or, where parties are bound by the Convention, in the absence
of agreement or justification of a different rule by other circum-
stances;

(ii) astatus of priority over other equitable factors to be considered;

(iii) astatus of parity with other equitable factors.

| RIAA, Vol. XVIII, pp. 84-85, paras. 171-173.
2 Ibid., p.90, para. 188.

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264 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)
(i) Is it a mandatory rule?

192. Inthe North Sea Continental Shelf cases, this Court, while viewing
the equidistance rule as one of great practical convenience and wide
applicability, held that the equidistance method was neither prescribed by
a mandatory rule of customary international law U.C.J. Reports 1969,
p. 46, para. 83, p. 53, para. 101) nor an inherent necessity of continental
shelf doctrine (ibid., pp. 35-36). Placing the rule in the context of its equi-
table origins, the Court observed:

“Tt was, and it really remained to the end, governed by two
beliefs; — namely, first, that no one single method of delimitation
was likely to prove satisfactory in all circumstances, and that delimi-
tation should, therefore, be carried out by agreement (or by reference
to arbitration); and secondly, that it should be effected on equitable
principles. It was in pursuance of the first of these beliefs that in the
draft that emerged as Article 6 of the Geneva Convention, the Com-
mission gave priority to delimitation by agreement, — and in pursu-
ance of the second that it introduced the exception in favour of
‘special circumstances’. Yet the record shows that, even with these
mitigations, doubts persisted, particularly as to whether the equi-
distance principle would in all cases prove equitable.” (Jbid.,
pp. 35-36, para. 55.)

193. The Gulf of Maine case also made this clear:

“The Chamber must therefore conclude in this respect that the
provisions of Article 6 of the 1958 Convention on the Continental
Shelf, although in force between the Parties, do not entail either for
them or for the Chamber any legal obligation to apply them to the
single maritime delimitation which is the subject of the present case.”
(C.J. Reports 1984, p. 303, para. 125.)

194. This Court tersely summarized the jurisprudence on this point
when it observed in the Libya/Malta case,

“The Court is unable to accept that, even as a preliminary and pro-
visional step towards the drawing of a delimitation line, the equidis-
tance method is one which must be used...” (LCJ. Reports 1985,
p. 37, para. 43.)

195. Ifthe rule is to have a mandatory status under the Convention, this
can only occur in the absence of agreement and in the absence of justifica-
tion by special circumstances. Where special circumstances exist, as they
do in this case, the equidistance rule cannot in any event be mandatory.

196. Although the equidistance rule may be basically equitable in con-
ception and origin, it is by its very nature and definition inflexible, con-
trasting in this respect with the flexibility of equity which enables the latter

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to accommodate itself to varying and unforeseeable conditions which
must depend on each particular case.

(ii) Does it have priority over other factors ?

197. This Court also expressed itself on this aspect in the North Sea
Continental Shelf cases, when it said that this rule did not have a privileged
status in relation to other methods!. State practice, as the Court observed,
often resorted to this rule but it showed also that in many cases other
criteria had been resorted to, when they were found to offer a better
way to reach agreement.

198. As the Chamber observed in the Gulf of Maine case, “Nor is there
any method of which it can be said that it must receive priority”
(LCJ. Reports 1984, p. 315, para. 163).

199. In the Libya/ Malta case, this Court observed that

“the equidistance method has never been regarded, even in a delimi-
tation between opposite coasts, as one to be applied without modifi-
cation whatever the circumstances” (LC.J. Reports 1985, p. 48,
para. 65).

(iii) Does it have parity with other factors ?

200. The previous discussion shows that the equidistance rule, impor-
tant though it be, is one of the multiple factors that need consideration in
the context of any delimitation case. What can be said of these different
factors is that they may assume different degrees of importance in the con-
text of different cases, but that there is no ranking order among them. This
was the position under the 1958 Convention but, after the 1982 Conven-
tion, the matter has been made clearer still.

201. It is perhaps not without significance that the equidistance rule
does not appear in either Article 74 or Article 83 of the Convention on the
Law of the Sea, 1982, although the Revised Single Negotiating Text
(RSNT) of 19762, and the Informal Composite Negotiating Text (ICNT)
of 19773 as well as the two revised texts of the latter contained a reference
to the median or equidistance line “where appropriate”+.

202. The Court of Arbitration in Delimitation of the Continental Shelf
between the United Kingdom and France, 1977, placed the equidistance
rule in context when it observed that:

1 CJ. Reports 1969, pp. 45-46, para. 82.
2 See Official Records of the Third United Nations Conference on the Law of the Sea,
Vol. V, pp. 164 and 165. Articles 74 and 83 were then numbered 62 and 71, respectively.

3 See ibid., Vol. VIIL, pp. 16 and 17.
4 See ibid. Vol. XIII, pp. 77-78.

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266 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

“even under Article 6 [of the 1958 Convention] it is the geographi-
cal and other circumstances of any given case which indicate and jus-
tify the use of the equidistance method as the means of achieving an
equitable solution rather than the inherent quality of the method as a

legal norm of delimitation” !.

The Court went on to observe that the equidistance method, like any other
method, was “a function or reflection of the geographical and other rele-
vant circumstances of each particular case”.

203. The status of parity of the equidistance method when compared
with others was well expressed by the Arbitral Tribunal in the dispute
between Guinea and Guinea-Bissau, 1985, when it said:

“Le tribunal estime pour sa part que l’équidistance n’est qu’une
méthode comme les autres et qu’elle n’est ni obligatoire niprioritaire,
même s’il doit lui être reconnu une certaine qualité intrinsèque en
raison de son caractère scientifique et de la facilité relative avec
laquelle elle peut être appliquée.” >

The “Special Circumstances” Principle

204. “Attempts made at the Geneva Conference on the Law of the Sea
to strike out the alternative of ‘special circumstances’ and to make the
equidistance method the only rule were rejected by a large majority.”
(North Sea, I.C.J. Reports 1969, p. 93, Judge Padilla Nervo, separate opin-
ion.) This is readily understandable when one considers that

“in certain geographical circumstances which are frequently met
with, the equidistance method, despite its known advantages, leads
unquestionably to inequity . . .” (ibid., Judgment, p. 49, para. 89).

205. This principle articulates the rule of procedural equity that all
material circumstances relevant to the matter in hand should be taken into
account in reaching an equitable result and that no legally relevant cir-
cumstances should be left out of consideration unless there is compelling
reason to do so.

206. As was observed by the Court of Arbitration in Delimitation of the
Continental Shelf between the United Kingdom and France in 1977:

“the rôle of the ‘special circumstances’ condition in Article 6 is to
ensure an equitable delimitation; and the combined ‘equidistance-
special circumstances rule’, in effect, gives particular expression to a

1 RIAA, Vol. XVIII, pp. 45-46, para. 70.
2 Ibid., p. 57, para. 97.
3 Revue générale de droit international public (1985), Vol. 89, p. 525, para. 102.

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general norm that, failing agreement, the boundary between States
abutting on the same continental shelf is to be determined on equi-
table principles” !.

207. Every case is different and, while general guidelines exist such as
the equidistance principle in the absence of other or competing factors, it
is for the Court to decide in each case what are the appropriate factors to
be taken into account and what weight should attach to them. It is too
early in the history of maritime delimitation for any determining prin-
ciples to be laid down by this Court as to the relative importance of one
factor over the other. It may be that when these determinations are made
on a case-by-case basis, some guidelines will in course of time emerge.

The “Relevant Circumstances” Principle

208. As the Court of Arbitration observed in 1977 in Delimitation of the
Continental Shelf between the United Kingdom and France:

“The choice of the method or methods of delimitation in any given
case, whether under the 1958 Convention or customary law, has
therefore to be determined in the light of those circumstances
E.e., geographical and other relevant circumstances of each particu-
lar case] and of the fundamental norm that the delimitation must be
in accordance with equitable principles.”

209. It is also to be stressed, before approaching a consideration of
each of these factors, that they will be approached not from the standpoint
of either Norway or Denmark but from the standpoint of the two territo-
ries in question — Jan Mayen and Greenland — as if these were inde-
pendent territories competing for maritime rights, for it is clear that
whatever maritime rights these territories enjoy are generated by their
relevant coastlines and not by considerations that they are part of some
larger political entity.

210. I agree with the Court in its careful consideration and overall
evaluation of the various relevant factors enumerated by it. While doing
so, I would like, however, to emphasize that consideration should not
be limited to factors which are geophysical in their nature.

211. In each case there surfaces for consideration a varied mix of fac-
tors. Apart from the different nature of the mix in each case, any one fac-
tor, such as population or economy, will naturally present itself differently
in each case. For example, the population factor may be of little relevance
or no relevance in one case, while in another it may assume considerable

! RIAA, Vol. XVIII, p. 45, para. 70.
2 Ibid., p. 57, para. 97.

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268 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

significance. So, also, with economic factors or indeed any other factor
one may care to name. Any general proposition that population or econ-
omy are irrelevant because, unlike geophysical configurations, they may
change with time is juristically untenable and not in conformity with the
flexibility of equity.

212. In other words, I respectfully endorse the findings the Court has
reached on the respective items arising for consideration in this case.
Access to fishery resources is a matter to which the Court has rightly
devoted particular care and attention and I am in agreement with this
approach and with its resultant effect upon the overall delimitation.
I would, however, add a few observations on some of the matters con-
sidered.

(a) Population

213. For example, while agreeing with the weight the Court gives to
the population factor in the present case, I would stress that no general
proposition can be laid down that the population factor is in all cases
irrelevant.

214. One can visualize a case where a particular coast has sustained a
teeming population for several centuries and the coast facing it has no
population whatsoever and has been uninhabited as far as historical
memory extends. Cases such as that need to be considered as and when
they arise and cannot be left out of consideration on any general principle
that the population factor is irrelevant. Such an approach would be con-
trary to equitable principles and procedures.

215. Reference may also be made in this context to the Anglo-French
Arbitration, in which it is significant that among the factors advanced by
the United Kingdom was the fact that the Channel Islands were “popu-
lous islands of a certain political and economic importance” !. The Court
observed that it “accepts the equitable considerations invoked by the
United Kingdom as carrying a certain weight”.

216. It is true that factors such as population or lack of it are change-
able over time. A piece of land which is today barren and uninhabited may
in a hundred years be the centre of a numerous and thriving population
just as a thriving population of today may, for reasons which cannot now
be foreseen, be reduced to a few struggling survivors some generations
from today. These are factors inherent in the nature of human life and
settlement but on the basis of such lack of certainty, these factors ought
not, in my view, to be totally disregarded by an overriding general prin-
ciple applicable in all cases.

1 RIAA, Vol. XVIII, p. 93, para. 197.
2 Ibid., p.93, para. 198.

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269 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

217. When the Law of the Sea Convention spelt out in Article 121 (3)
that rocks which cannot sustain human habitation or economic life of
their own shall have no exclusive economic zone or continental shelf, it
was perhaps giving expression to the concept that population and econ-
omic life are relevant to the enjoyment of exclusive economic zones and
continental shelf entitlements. It was not rocks per se that were excluded
from these rights but rocks which lacked the possibility of sustaining habi-
tation or economic life, thus indicating the importance of these factors in
attracting exclusive economic zone and continental shelf entitlements, in
an appropriate case.

218. The Law of the Sea Convention could not have adopted a divided
rationale in its different parts on this vital question, and if it considered
population and economic life to be a vital and determining factor in
regard to the question whether rocks attracted these entitlements, it could
not have considered that in regard to other geographical configurations
population and economic life were irrelevant and to be ignored.

(b) Economic factors

219. Similar considerations apply to economic factors. On this aspect,
it must be pointed out that this is an area in which the jurisprudence of the
Court has not thus far been conclusive, despite the trend of recent deci-
sions to treat economic factors as irrelevant. In the Gulf of Maine!, when
the dispute was clearly about resources, Canada argued for the preserva-
tion of fishing patterns established over the past ten to fifteen years while
the United States contended that it was virtually entitled to a monopoly
over the Georges Bank fishery. Although the Chamber dismissed these
arguments as irrelevant in law, yet it did not altogether ignore them, hold-
ing that data as to human and economic geography, although

“ineligible for consideration as criteria to be applied in the delimita-
tion process itself, may ... be relevant to assessment of the equitable
character of a delimitation first established on the basis of criteria
borrowed from physical and political geography” (p. 340, para. 232).

In other words, these factors could in fact be used to test the equity of the
result. The Chamber placed stringent limitations on such use, limiting it to
cases where the results were

! LC. Reports 1984, paras. 48 and 232 of Judgment.

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270 MARITIME DELIMITATION (SEP. OP. WEERAMANTRY)

“radically inequitable, that is to say, as likely to entail catastrophic
repercussions for the livelihood and economic well-being of the
population of the countries concerned” (1.C.J. Reports 1984, p. 342,
para. 237).

Yet we have here a recognition, however restricted, that such factors can
play a part in the overall result!.

(c) State practice

220. So, also, in considering individual acts of State practice, an
important limiting factor is that the special circumstances and political
considerations that lie behind a particular arrangement between two
countries are often veiled in obscurity unless the parties themselves
record or state those facts?. This is well illustrated in the present case in
relation to Norway’s own treaty with Iceland, for Norway herself accepts
that there were special political considerations lying behind that arrange-
ment. As stated in paragraph 560 of Norway’s Counter-Memorial,
“The political bargain struck between Norway and Iceland was excep-
tional . ..”, and in the same paragraph, the arrangement giving Iceland a
200-mile zone is described as a “concession made in favour of Iceland”
which “produced a boundary which reflects no norm of equitable delimi-
tation”. On Norway’s own submission, these circumstances render an
agreement atypical, which might otherwise be relied upon as an item of
State practice.

221. Another variable factor in relation to State practice is the fact that
the effect given to islands for equidistance purposes has sometimes been a
partial effect, thus introducing an additional element of flexibility. For
example, the Greece-Italy Agreement of 24 May 1977 gives to the Greek
islands involved a varying effect, ranging from full effect for the large
islands of Corfu, Kefallinia and Zakinthos to lesser effects for the islands
of Othonoi and Mathraki.

_ 222. Other instances of partial effect also exist, such as the Iran-Oman
Agreement of 25 July 1974, where the presence of the small island of
Umm al Faiyarin belonging to Oman does not cause a proportional devia-
tion of the demarcation line between Oman and Iran. Had this island been
given full effect, the line would have moved considerably closer to the
Iranian coast than it appears on the map (Reply of Denmark, Ann. 71).

! See, generally on this aspect, D. W. Bowett, “The Economic Factor in Maritime
Delimitation Cases”, in International Law at the Time of its Codification: Essays in
Honour of Roberto Ago, 1987, Vol. I, p. 45, esp. at pp. 58-63, pointing out, inter alia, that
economic interests of States lay at the very heart of the 1982 Convention and that no part
of the Convention is divorced from these economic interests.

2 Rejoinder of Norway, p. 178, para. 605.

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223. So also in the United Kingdom-Ireland Agreement of 7 Novem-
ber 1988 (Reply of Denmark, Ann. 72), the Scilly Isles have not been given
full effect.

224. Nor is the jurisprudence of this Court markedly different in this
regard. The Court itself has in more than one of its judgments given less
than full effect to small islands in relation to the equidistance principle.
The half-effect basis of delimitation was used in Tunisia/Libya! in regard
to the Kerkennah Islands, and in the Gulf of Maine case? in regard to the
Canadian Seal Island. The half-effect basis was also used by the Court of
Arbitration in the case concerning the Delimitation of the Continental Shelf
between the United Kingdom and France in relation to the Scilly Isles, for

“abating the disproportion and inequity which would otherwise
result from giving full effect to the Scilly Isles as a base-point for
determining the course of the boundary”.

(d) The ice factor

225. On the ice factor, likewise, one would hesitate to say that there can
be a general proposition that it can have no bearing. In the present case,
the factors are such that although the ice is a real geophysical factor that
impinges on the usability of the waters in question, it is so situated that it
does not make a difference significant enough to affect the result.

226. However, while in these days of climatic change there may be
some changeability in drift ice patterns, there may well be cases where
drift ice or the freezing of the seas for the greater part of the year have,
throughout recorded history, rendered ice-bound the sector adjacent to
the coastline of one party, while the sector adjacent to the coastline of the
other remains largely unaffected. In such a case this seems indeed to be a
factor pertinent to the question of equitable division, for it intrinsically
affects the usability of the areas to be demarcated.

227. These are but extreme cases. However, they serve the purpose of
showing that possible avenues of enquiry ought not to be foreclosed.

(e) National security

228. Similar considerations apply to factors bearing on national secu-
rity which again will vary from case to case and may in a given case assume
considerable importance. The observation in Libya/Malta cited in the
Judgment (para. 81) to the effect that security considerations are not
unrelated to the concept of the continental shelf bears this out (CJ.
Reports 1985, p. 42, para. 51). |

1 ICJ. Reports 1982, pp. 63-64, para. 79; p. 89, para. 129.
2 LC.J. Reports 1984, pp. 336-337, para. 222.
3 RIAA, Vol. XVIII, p. 117, para. 251.

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(f) The conduct of parties

229. Regarding the conduct of parties, this has been fully dealt with by
the Court. Conduct can, in an appropriate case, assume importance as,
for example, where it amounts to an admission or an estoppel, but I agree
that it does not constitute an element which could influence the particular
delimitation in the present case.

230. While the items of conduct relied upon do not thus become suffi-
ciently significant to affect the present decision, the possibility must
always remain open in future cases that any one or more of such factors
can assume sufficient significance to affect a delimitation.

(g) Disproportion in coastal length

231. The disproportion in length of the coastlines, however, assumes
importance in this case. The Court in its Judgment has dealt with this
aspect at length and I am in agreement with the Court’s reasoning and
conclusion on this matter.

232. The equitable aspects involved in this question of disproportion
or proportionality may be briefly set out as follows:

(a) Disproportion in coastal lengths of the magnitude present in this case
is clearly a relevant circumstance requiring consideration both on the
basis of prior decisions and on the basis of equitable principles.

(b) The principle of proportionality does not mean a division of mari-
time space on a proportionate basis. This Court observed in the
Libya/ Malta case that it rejects any attempt to “define the equities in
arithmetical terms” (1.CJ. Reports 1985, p. 55, para. 75). As the Court
there observed:

“The Court does not consider that an endeavour to achieve a
predetermined arithmetical ratio in the relationship between the rele-
vant coasts and the continental shelf areas generated by them would
be in harmony with the principles governing the delimitation opera-
tion.” (Ibid.)

(c) The factor of proportionality applies only to coastlines and not to
landmass, for “it is the coastal length that matters” (ibid., p. 73,
Judge Sette-Camara, separate opinion).

(d) Proportionality can legitimately be used as a test to verify the equity
of a delimitation.

“In the view of the Court, there is no reason of principle why the
test of proportionality, more or less in the form in which it was used in
the Tunisia/Libya case, namely the identification of ‘relevant coasts’,
the identification of ‘relevant areas’ of continental shelf, the calcula-
tion of the mathematical ratios of the lengths of the coasts and the

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areas of shelf attributed, and finally the comparison of such ratios,
should not be employed to verify the equity of a delimitation between
opposite coasts, just as well as between adjacent coasts.” (CJ.
Reports 1985, p. 53, para. 74.)

fe) The Court would use proportionality as an instrument for correcting
disproportionality where —

“the flagrant disproportion in the lengths of coasts is such that the
correction of any line according to a reasonable ratio is indispensable
for achieving an equitable result” (ibid., p. 73, Judge Sette-Camara,
separate opinion. See, also, Anglo-French Arbitration, RJAA,
Vol. XVIII, p. 58, para. 101).

(f) The application of the principle of proportionality is an instance of
the use of the sense of injustice to test the justice of a result, as
described in paragraphs 104-109 above.

(g) Even though the equidistance principle is based on equitable consid-
erations, equidistance is only a prima facie solution. The fact of gross
disproportionality as in this case would suffice to move the Court
away from that prima facie solution.

(h) Such disproportion constitutes a special circumstance within the
meaning of Article 6, paragraph 1, of the 1958 Convention as well as a
relevant circumstance under customary international law.

PART C. EQUITY VIEWED IN GLOBAL TERMS

233. Atthe conclusion of this survey of the applications of equity in the
Judgment of the Court, it would be appropriate to examine the concept
briefly in global terms. Given the crucial importance of equity to the law
of the sea, and given also that the law of the sea is still at a critical and
formative phase, no examination of equity’s influence upon the law of the
sea is complete without a search for concepts, principles and attitudes that
range further afield in a global sense. Such a universal view can only
strengthen maritime law, both in its conceptual content and in its authori-
tative force. The concepts of equity currently drawn upon by international
law do not represent the totality of the available corpus of equitable
thought wherewith to strengthen the equitable approach to the problems
of maritime law. Such perspectives can also offer insights of value in the
determination of a case such as this.

234. The International Court of Justice, specifically structured to
embody a “representation of the main forms of civilization and of the
principal legal systems of the world” (see Article 9 of the Statute of the
Court), is under a particular obligation to search in all these traditions and

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legal systems for principles and approaches that enrich the law it adminis-
ters, and in the context of the present case, this applies to the contributions
that equity can make to the law of the sea.

235. A search of global traditions of equity in this fashion can yield
perspectives of far-reaching importance in developing the law of the sea.
Among such perspectives deeply ingrained therein, which international
law has not yet tapped, are concepts of a higher trust of earth resources, an
equitable use thereof which extends inter-temporally, the “sui generis”
status accorded to such planetary resources as land, lakes and rivers, the
concept of wise stewardship thereof, and their conservation for the
benefit of future generations. Their potential for the development of
the law of the sea is self-evident.

236. Such perspectives are to be found in many traditions and civiliza-
tions, and the ubiquitous nature of the principle of equity has already
been noted in the jurisprudence of this Court.

237. With special reference to the Law of the Sea, Judge Ammoun
observed in the North Sea Continental Shelf cases:

“Incorporated into the great legal systems of the modern world
referred to in Article 9 of the Statute of the Court, the principle of
equity manifests itself in the law of Western Europe and of Latin
America, the direct heirs of the Romano-Mediterranean jus gentium;
in the common law, tempered and supplemented by equity described
as accessory; in Muslim law which is placed on the basis of equity
(and more particularly on its equivalent, equality) by the Koran and
the teaching of the four great jurisconsults of Islam condensed in the
Shari’a, which comprises, among the sources of law, the istihsan,
which authorizes equity-judgments; Chinese law, with its primacy
for the moral law and the common sense of equity, in harmony with
the Marxist-Leninist philosophy; Soviet law, which quite clearly pro-
vides a place for considerations of equity; Hindu law which recom-
mends ‘the individual to act, and the judge to decide, according to his
conscience, according to justice, according to equity, if no other rule
of law binds them’; finally the law of the other Asian countries, and
of the African countries, the customs of which particularly urge the
judge not to diverge from equity and of which ‘the conciliating role
and the equitable nature’ have often been undervalued by Euro-
peans; customs from which sprang a jus gentium constituted jointly
with the rules of the common law in the former British possessions,
the lacunae being filled in ‘according to justice, equity and good con-
science’; and in the former French possessions, jointly with the law of
Western Europe, steeped in Roman Law.

A general principle of law has consequently become established,
which the law of nations could not refrain from accepting, and which

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founds legal relations between nations on equity and justice.”
(CJ. Reports 1969, pp. 139-140, Judge Ammoun, separate opinion;
footnotes omitted.)

238. The list of sources cited by Judge Ammoun provides a vast
resource from which to quarry the elements of the universal sense of jus-
tice and fairness that underlies the meaning of equity. Some other impor-
tant sources should also be mentioned — the fine analyses of justice in
Greek! and Judaic? philosophy; the equity-impregnated concept of
“dharma” in Hindu jurisprudence?; the elaborately researched concept
of fairness and justice in Buddhism?; the Christian tradition of justice
and conscience as “weightier matters of the law” as opposed to mere
legalism>; and the Qur’anic injunction:

! Cf. the conflict between conscience and the unjust law as highlighted in Sophocles’
Antigone, fifth century B.c. — Sophocles, Antigone, Eliz. Wyckoff (trans.), in Complete
Greek Tragedies IT, ed. D. Grene and R. Lattimore, 1960, University of Chicago Press,
p. 170.

2 “If mankind is to master the greatest of all arts, the art of living together in neigh-
bourliness — if law is to light the march of the human spirit toward a closer under-
standing among nations — we must recognize the truth which was revealed to the
Prophets of Israel, that equity is an integral component of justice.” (Ralph A. New-
man, “The Principles of Equity as a Source of World Law”, 4 Israel Law Review
(1966), p. 631.)

3 The Bhagavad Gita gives righteousness a central place in world order (IV.7) and
the very first word of this classic, described as the glory of Sanskrit literature, is
the word “dharma” — see Juan Mascaro (trans.), Penguin Classics, 1962, p. 37; and
the Brihad Aranyaka Upanishada characterizes dharma as the king of kings (1, 4-14).
Kane’s monumental treatise on the dharmasastra (P. V. Kane, History of Dharmasastra,
1946) sets out among the meanings of dharma the concepts of duty, right, justice
and morality (Vol. 1, p. 1). Fritz Berolzheimer describes the philosophical positions
regarding justice in ancient India as “the antecedents of later legal and ethical
developments among the Greeks and Romans” (Berolzheimer, The World’s Legal
Philosophies, 1968, p. 37).

4 See, generally, K. N. Jayatilleke, “The Principles of International Law in Buddhist
Doctrine”, 120 Recueil des cours (1967-D, pp. 443-567. World rulership is to be under a
“kingless authority”. That “kingless authority” is to be the law (p. 539); and righteous-
ness is extremely important to the Buddhist conception of law (p. 449). Two conceptions
underlie the Buddhist attitude towards law: (a) the rule of righteousness; (6) the happi-
ness and well-being of mankind (L. P. N. Perera, Buddhism and Human Rights, 1991,

p.41).

5 See Matthew 23 : 23. The expositions of conscience by mediaeval churchmen (such
as the Summae Confessorum written to guide priests in assessing the moral conduct of
penitents) were probably an influential source in shaping the thinking of the early
English Chancellors (see A. W. B. Simpson, A History of the Common Law of Contract,
1975, p. 405. See, also, ibid., pp. 377-379 and pp. 397-405). Their primary concern
centred so much on conscience that the rubric under which early Chancery cases are
to be found is not Equity but Conscience (see ibid., p. 398), for in laying the founda-
tions of equity jurisprudence, the Chancellor sat “as a judge of conscience, in a court
of conscience, to apply the law of conscience . . .” (ibid.).

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“Tf thou judge

judge in equity between them
for God loveth those

who judge in equity” !

which has been the subject of extensive commentary over the centuries by
the jurists of Islam2.

239. The sophisticated notions of reasonable and fair conduct cur-
rently being unveiled by modern researches in African}, Pacific{ and
Amerindian> customary law, and the principle of deep harmony with the
environment which underlies Australian Aboriginal customary law® add
to the reservoir of sources available.

240. What emerges is a notion of equity broad-based upon global juris-
prudence which speaks therefore with greater authority. Notions of the
supremacy of international law, its impregnation with concepts of right-
eousness, the sacrosanct nature of earth resources, harmony of human
activity with the environment, respect for the rights of future generations,
and the custody of earth resources with the standard of due diligence
expected of a trustee are equitable principles stressed by those tradi-

! Surah 5, Verse 45, Yusuf Ali’s translation. In particular, the technique of legal rea-
soning called istihsan, referred to by Judge Ammoun, accords an important role to
equity. See, also, John Makdisi, “Legal Logic and Equity in Islamic Law”, 33 American
Journal of Comparative Law (1985), p. 63; H. Afchar, “The Muslim Conception of Law”,
International Encyclopedia of Comparative Law, Vol. VII, pp. 90-96, and the same author
on “Equity in Musulman Law”, in Ralph Newman (ed.), Equity in the World’s Legal
Systems, 1973, pp. 111-123.

2 Their techniques of legal reasoning included givas (reasoning by analogy), istishab
(presumption of continuity), istislah (considerations of public interest) and istihsan
(a concept of equity). See Makdisi, op. cit., pp. 40-45. The relevance to equity of some of
them — such as istislah and istihsan — need scarcely be stressed.

3 The individual’s right of ownership of land is limited by the superior right of the
social group to which he belongs — A. N. Allott, in Cotran and Rubin (eds.), Readings in
African Law, 1970, p. 265. See also, T. O. Elias, The Nature of African Customary Law,
1956, p. 272: “It is this motive of the judge to do equity that is the most persistent charac-
teristic of the African judicial process.” See, also, M. Gluckman, The Judicial Process
among the Barotse of N. Rhodesia, 1955, pp. 202-206; J. H. Driberg (“The African Con-
ception of Law”, Journal of Comparative Legislation and International Law, November
1934, pp. 230-246) discusses African law as an organic growth keeping in tune with the
changing needs of society. On the felt standards of the community which are not them-
selves matters of law entering the process of judgment, see, M. Gluckman, Order and
Rebellion in Tribal Africa, 1963, pp. 178-206.

4 See, generally, Peter Sack, Land between Two Laws, 1973; and P. Hambruch, Nauru:
Results of the South Seas Expedition, 1914. For the trust concept in traditional Hawaiian
land law, see M. K. MacKenzie (ed.), Native Hawaiian Rights Handbook, 1991, p. 26.

5 See K. N. Llewellyn and E. A. Hoebel, The Cheyenne Way, 1941; Charles F. Wilkin-
son, American Indians, Time, and the Law, 1987.

6 See H. McRae, G. Nettheim, L. Beacroft, Aboriginal Legal Issues, 1991, pp. 44-56;
Mabo vy. Queensland (1992), 7 Australian Law Journal 408 (High Court of Australia).

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tions — principles whose fuller implications have yet to be woven into the
fabric of international law. Such an approach can also give to equity, espe-
cially in its application to the increasingly important area of planetary
resources such as the sea, a deeper and more insightful meaning than it
would bear if the search were less than universal. It also emphasizes the
long-term perspectives that need to be kept in view as a developing branch
of the law settles into the conceptual mould which gives it shape for the
foreseeable future.

241. Two examples of such broader perspectives which are specially
relevant to the law of the sea and which are drawn from two widely differ-
ent legal traditions will illustrate this proposition. They highlight the
principles of conservation of earth resources and safeguards against
environmental pollution which are of particular importance to the
law relating to such an important earth resource, and are not without
relevance to maritime boundary delimitation cases. This case itself has
highlighted the importance of conservation as a factor constituting the
background to the dispute before it, for the near extinction of the capelin,
one of the richest resources of this maritime region, was a compelling
circumstance leading to the international negotiations preceding this
case.

242. The first illustration of such a broader perspective comes from
traditional legal systems such as the African, the Pacific, and the Amer-
indian, which contained a deeply ingrained respect for the earth, the
atmosphere, the lakes and the seas, which the evolving law of the sea can
consider with profit!. Among Pacific societies, for example, land had
metaphysical connotations which prevented it from being seen as a sale-
able commodity like items of merchandise?. Respect for these elemental
constituents of the inheritance of succeeding generations dictated rules
and attitudes based upon a concept of an equitable sharing which was
both horizontal in regard to the present generation and vertical for the
benefit of generations yet to come?.

! See, also, E. B. Weiss, In Fairness to Future Generations : International Law, Common
Patrimony and Intergenerational Equity, 1989, for the recognition by diverse cultures
that each generation is a trustee or steward of the natural environment for the benefit of
generations yet unborn, and for the fact that intergenerational fairness can be addressed
under principles of equity in accordance with a long tradition in international law of
using equitable principles to achieve a just result.

2 See P. Sack, op. cit. pp. 33 and 37.
3 See E. B. Weiss, op. cit., p. 37,

“The use of equity to provide equitable standards for allocating and sharing
resources and benefits lays the foundation for developing principles of intergener-
ational equity. These principles can build upon the increasing use by the Interna-
tional Court of Justice of equitable principles to achieve a result that the Court
views as fair and just.”

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243. The second illustration comes from Islamic law which enshrines
another deeply relevant equitable idea — the idea that earth resources
such as land cannot be the subject of outright ownership as is the case with
movables, but are the subject of trusteeship for the benefit of ail future
generations. Such a juristic concept dictates the principle that such
resources must be treated with the care due to the property of others and
that the present must preserve intact for the future the inheritance it has
received from the past. In such equitable principles may lie a key to many
of the environmental concerns which affect the land, the sea and the air
space of the planet.

244, Such transcending equities, as visualized by those systems, add
new dimensions to the equitable framework within which the equities of
the law of the sea can evolve, and add authority to this structure. They
underscore the special responsibility of a tribunal delimiting maritime
areas to pay due emphasis to the universal nature of the material out of
which it is moulding the law of the future.

245. To place these conclusions in an elegant setting:

“Behind the diverse facades of legal systems we discern the sub-
stantial identity of the underlying principles of equity which link
legal systems together, as in a Gothic cathedral the multiplicity of its
rhythms of stone unite with the fundamental impulses of the mind
and of nature.” !

246. Not without reason did the emerging law of the sea find in equity a
general area of agreement among participants at UNCLOS who came to
its meetings representing widely different backgrounds and widely diver-
gent interests.

x * x»

247. This brief survey of a vast topic — the contribution of equity to an
individual decision — is intended to indicate the many ways in which it
contributes to the process of judgment and can contribute to the develop-
ment of the law of the sea. While not intended to be a comprehensive
exposition, it could also serve the limited purpose of drawing attention
to aspects of its operation which, by remaining implicit, may remain
unexplored.

248. International law throughout its history has been richly inter-
woven with equitable strands of thought. Of equity perhaps more than of
any other department of legal thought it could truly be said that, “Under

1 Newman, op. cit., p. 631.

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the surface eddies created by the decisions of individual cases, there
surges a mighty tide of the fundamental principles of justice.” ! That tide

needs to be drawn into service to its fullest potential as the developing law
of the sea moves towards its fuller maturity.

(Signed) Christopher Gregory WEERAMANTRY.

! See R. A. Newman, op. cit. p. 621.

245