Date: 16th Sept, 2020
by Riya Wasade
"Settlement of a dispute ex aequo et bono rather than on the basis of law, results neither from the nature of the dispute, nor from lacunae in international law, but solely from the decision of the parties to obtain such a solution." - Vladimir D. Degan (translated by Aron Broches)
International law is a wide array of rules and regulations which is based on the common consensus of acceptance in the international community. These regulations arise out of the sources of international law, the basis of the international legal system.
While there are numerous sources accepted by different authorities, those that are widely accepted are laid down by the Statute of International Court of Justice. According to Article 38 of The Statute, the Court while adjudicating shall consider, (a) international conventions;
(b) international customs;
(c) general principles of law recognised by civilised nations and;
(d) judicial decisions and teachings of highly qualified publicists of various nations.
Apart from these sources so given, Article 38 (2) mentions the principle of ex aequo et bono, and how the Court has the ability to refer to this principle, if the parties so agree.
The idea of equity through fairness is what gave birth to this ancient concept of ex aequo et bono.
In simple terms, this principle allows judges or arbitrators to decide matters before them, not on the point of the law, but according to what is good and fair, as is its literal translation. It allows the settling of conflicts through justice and good conscience, notwithstanding the written word of law.
While it is predominantly used in arbitration, this principle also follows in other methods of international adjudication.
Although Article 38 (2) of The Statute has hardly ever been invoked specifically, it has been applied implicitly in various cases, in consonance with the principle of equity, such as, the Barcelona Traction, Light and Power Co. Ltd. Case (Second Phase): Belgium v. Spain, the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, among others.
While this principle can work in congruence with the principle of equity, it is often avoided, as it is considered to be outside the working of the law, or even, contrary to it; but the idea behind this concept is to supplement the dispensation of justice when the law fails to, and is integral in the legal system.