Issue : Whether equitable principle applied in most national legal system can be treated as a

sources of international law

Whether equity and judicial decision can be treated as one of the equitable principle that is
applied in most national legal system

Rule/Law ;

There are numerous ways that equitable principles might be viewed as a source of
international law. Equitable principles can be utilised to fill in any gaps in current international
legal norms because they are derived from universal principles of justice and fairness.

Firstly, equitable principle can also be considered as general principle of law by

civilized nations, which are one of the sources of international law recognized by the ICJ. The
ICJ has recognized various equitable principle as general principle of law such as the principle of
good faith, the principle of proportionality, and the principle of non-discrimination. Article
38(1)(c) of the Statute of the International Court of Justice (ICJ) is one of the key provisions that
sets out the sources of international law that the Court may apply in its decisions.The general
principles of law recognized by civilized nations are legal principles that are shared by many
legal systems around the world, and that are considered to be fundamental to the concept of
justice and fairness. These principles may be derived from national legal systems or from
international legal instruments. Examples of general principles of law recognized by civilized
nations include principles such as good faith, equity, estoppel, and the principle of res judicata
(i.e. the principle that a matter that has been adjudicated by a competent court may not be
reopened). Article 38(1)(c) has been interpreted by the ICJ to mean that the general principles of
law recognized by civilized nations can be used to fill gaps in existing international law, to
clarify the meaning of existing legal rules, and to provide a basis for the development of new
legal rules.

Furthermore, equitable principle are often applied in the judicial decision by

international tribunals and courts in their decisions. In many cases, these tribunals and courts
have relied on equitable principles to fill gaps in existing legal rules or to resolve conflicts
between legal rules. For example, the ICJ has relied on equitable principles to resolve disputes
over maritime boundaries and to interpret treaties. Article 38(1)(d) recognizes judicial decisions
and the teachings of the most highly qualified publicists of the various nations as subsidiary
sources of international law. This means that these sources can be used by the ICJ to determine
the applicable rules of law in cases where the primary sources of international law (such as
treaties, customary international law, and general principles of law) do not provide clear
guidance or are insufficient to resolve the dispute. Judicial decisions refer to decisions rendered
by national courts, as well as decisions of international courts and tribunals. The ICJ may
consider judicial decisions as evidence of the existence and content of a rule of international law.
Moreover, Article 59 of the statute of ICJ also mentioned that ICJ is not bound by the decisions
of other courts or tribunals, and may depart from them if it deems necessary.

Accordingly, by virtue of Article 38(2) of statute of ICJ "Ex aequo et bono" is a Latin
term that means "according to what is just and good". The principle of ex aequo et bono allows a
court or tribunal to consider the unique circumstances of a case and to fashion a remedy that is
just and equitable, even if it is not explicitly provided for in the law. This principle is often used
in cases where there is no clear rule of international law that is applicable, or where the
application of the law would lead to an unjust or inequitable outcome. Thus, the latin maxim can
be seen applied in both sources of international law which is equity and judicial decision.

APPLICATION :
Equitable principles are relevant to national legal systems as they provide a framework for
interpreting and applying laws in a just and fair manner. A few ways which equitable principles
can vbe related to national legal systems are :
1. By incorporating it into the the domestic law : Some equitable principles are explicitly
incorporated into national legal systems through legislation, case law, or constitutional
provisions. For example, the principle of good faith is recognized in many national legal
systems and is often invoked in contract law and administrative law cases.
2. Application in judicial decisions: Equitable principles are often applied by courts in their
decisions, even if they are not explicitly incorporated into national legal systems. In many
cases, courts rely on equitable principles to fill gaps in existing legal rules or to resolve
conflicts between legal rules. For example, a court may use the equitable principle of
unconscionability to strike down a contract that is grossly unfair or oppressive.

Hence, By promoting justice and fairness, equitable principles play an important role in ensuring
that national legal systems serve the needs and interests of society.

Illustration can be seen in a few international cases where equitable principles have been applied
by international tribunals and courts. Firstly in the case of frontier dispute which is the case
between burkino fasi and mali. In this case, the International Court of Justice (ICJ) used the
equitable principle to determine the boundary between Burkina Faso and Mali. The principle
provides that newly independent states should inherit the boundaries established by their former
colonial rulers unless they agree to modify them.

Besides that, the case of the north sea continental shelf is also the landmark case which establish
the principle of equity. The fact of the case is that The North Sea continental shelf dispute was a
disagreement between the UK, Norway, Denmark, Germany, and the Netherlands over ownership of
oil and gas reserves in the North Sea. After years of negotiation, agreements were made establishing
maritime boundaries and allocating ownership of resources. The North Sea remains a productive oil
and gas field today. This case is the landmark case that establish equitable principle in the
allocation of natural resources. The involved countries considered factors such as coastlines and
economic needs to determine ownership. This demonstrated the importance of fairness in
international law.

Not just that, The Eichmann case raises important questions about the equitable principle in
judicial decision-making, particularly with regard to the responsibility of individuals in times of
war and conflict. The Eichmann case highlights the equitable principle that individuals are
responsible for their own actions, even if they were following orders. The court found Eichmann
guilty of crimes against humanity, reflecting the principle of proportionality. The case
demonstrates how individuals can be held accountable for their actions, even in the context of
war crimes and international law.

CONCLUSION :
The equitable principle is not a standalone source of international law but rather a guiding
principle that applies to all sources of international law. It provides a lens through which the
other sources of international law should be interpreted and applied, ensuring that the law is
consistent with broader considerations of fairness and justice.

Thus, the equitable principle plays a crucial role in the interpretation and application of the
sources of international law. It provides a framework for courts and tribunals to balance the
rigidity of legal rules with the need to achieve justice and fairness in individual cases, and it
ensures that the law is consistent with broader considerations of fairness and justice.