Equitable Principles from the Perspective of International Law of the Sea

The notion of equitable principles is considered in public international law as a subsidiary source of law. However, it is nevertheless an autonomous concept in the law of the sea, and particularly in the law of maritime delimitations. However, can this notion in international litigation of maritime delimitation be defined both in form and in substance? Thus, can one say precisely in which legal category it is classified, and can its content be defined?


Introduction
The United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, provides a global legal system for the universal use of the largest resource including regulation of use, International Court of Justice deal with certain problems relating to the law of the sea, in particular maritime delimitation. From the first cases on maritime delimitation came the notions of equitable principles and above all equity, a concept that crosses time, apprehended first by philosophers and later by lawyers to be a particular meaning in law of the sea.
The doctrine distinguishes between three types of equity: equity contra legem, which is used in contradiction with the law; Equity praeter legem, which is used beyond the law to fill gaps; and equity infra legem, which is used under the existing law. The development of the law of delimitation at sea through international justice will be done through a principle of equity infra legem.
If Equitable principles contribute to solve international conflicts, particularly in the field of maritime disputes, the near future implies that they will play a greater role within the many branches of public international law, including international law of the sea. The Developing countries countries are based on the idea of justice in order to rectify the international legal situation, which was established under the domination of European. It remains to mention that despite the role played by justice and equity rules in resolving international disputes, and the role assigned to it to achieve in the future, the justice idea which is surrounded by a dense mystery, given the association with literary values, which in turn is a multi-content and arrangement on the ambiguity of the idea of justice automatically become relative recipe dominate the rules of general international law. These relative requires different solutions used to evaluate international issues only for the formulation or implementation.

Equity as a Palliative of Shortcomings of Positive Law
Equity is the way to fix the positive law in cases in which it appears that its application be severe and grave results, so it should achieved by providing the international conventions on justice and equity condition, or that it should judged in the case fairly, and the rules of this work is to allow the judge to grant compensation to the affected State in cases in which this compensation is not considered a legal obligation. Also, equity is a way to complete the positive law and bridging its gaps, but this task remains associated with the agreement of the parties; the judge can resort to equity to complete a law, but only under a general or private conditions satisfies the parties or to remedy the insufficiencies of international law and fill its logical lacunae.
In this sense, the role of equity has been formally recognized by Article 38 paragraph. 2, of the Statute of the International Court of Justice. Here gives a major role to the international judge-or arbitrator-who will then, has an opportunity to choose a considerable margin of maneuver.
Revealed meditation in the provisions of international jurisdiction that the courts and international tribunals, often resort to the principles of justice and equity as a complement to the rules of international law; the public international law is non-codified law and marred shortage for his lack of international legislator and this necessarily reflects on the task of the international judge who finds in the principles of justice and equity haven so as not to stigmatize his conduct as denial of justice. of justice can be considered as a complement to the law element, where the positive law devoid a judgment, and the fact that the international jurisdiction bodies have often to complete the rules of law rules of justice due to insufficient content of the legal rules.
As an example, the special rules of international responsibility are in principle involve clear rules regarding international liability, but are still vague on the determination of the amount of compensation, so the courts and arbitral tribunals lead to seek equitable solutions on the determination of the amount of compensation. The international Court of Justice in its advisory opinion that confirmed this attitude taken by the Administrative Tribunal of the international labor Organization in one of cases brought before it, the Court prescribed that the Court resorting to the rules of justice and equity, is not out of the bounds of the law. in the case of the free zones noted that this option was character "absolutely exceptional" and had to depend on a "clear and explicit" provision from the disputed parts (Note 2).
The exceptional power of its extent was sometimes also given to arbitrators to set rules in case of gaps or silence of international law, and in the new circumstances. It has a particularly example in Trail smelter case between the United States and Canada in 1941 (Note 3). The Court noted, in this case, "It (the State) has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. … It is not lightly to be presumed to give up quasi-sovereign rights for pay and . … If that be its choice, it may insist that an infraction of them shall be stopped. This court has not quite the same freedom to balance the harm that will be done by an injunction against that of which the plaintiff complains that it would have in deciding between two subjects of a single political power. Without excluding the considerations that equity always takes into account" (Note 4).

Searching for a Clear Concept
The concept of equity is considered in public international law as a subsidiary source of law. It is nevertheless an autonomous concept in the law of the sea. However, can this notion in international litigation concerning the law of the sea be defined? So, can we say precisely what legal category it ranks, and its content can be defined?
It is difficult to classify equity in the hierarchy of standards, but two criteria can help in this task: the legal nature of equity and its function. But both are ambiguous.

Is Equity a Legal Concept?
In an attempt to understand the place of equity in the hierarchy of norms of international law, it is necessary to grasp its relationship to the law. To that end, there are two elements of the answer given by the jurisprudence.
But first, it must be understood that the position of the international judge or arbitrator, who commands in international law the practical interest in questions of equity, is fundamentally different from that of the domestic judge. There is no general recourse to the arbitrator or the judge; its competence can only be based on a voluntary basis and the consent of the States in this matter cannot be presumed; there can be no obligation for the judge or arbitrator to settle a dispute outside his specific mandate and with the means he has received. This is an observation which concerns the exercise of the judicial function only within the framework of the general international community. It will be recognized, therefore, that if equity is an interest in international law, it is in fact only in so far that equity can be manifest in the application of the law.
Each judgment of the International Court of Justice explains in the early days that "The legal basis of that rule in the particular case of the delimitation of the continental shelf as between adjoining States has already been stated. It must however be noted that the rule rests also on a broader basis. Whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable. Nevertheless, 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 equitable 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" (Note 5).
The court made a distinction with the ex aequo et bono of the same, then, since the thing seems there is no mention of Article 38 § 2, even though some authors argue that equity is inexorably related to the concept of ex aequo et bono. Labrecque Georges defines equity as the application of the principles of justice, and as a way to correct the too strict application of the rule of law, if the parties agree, to complete its content, or even to exclude it.
It is therefore necessary to emphasize the importance in international law of a statement which has just been stated in a summary manner. Equity will play a more significant role in the application of legal rules as these legal rules will be formulated in very general terms.
As early as 1969, in the North Sea Continental Shelf case, the ICJ explained that "it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles" (Note 6). So, justice of whom equity is an emanation is not abstract justice, but justice according to the rule of law. The normative character of equitable principles applied as part of general international law is important. This importance, the court gives it a name "the fundamental norm" (Note 7).
The fundamental norm, according to Hans Kelsen, is "due to the custom founded by the mutual conduct of States, a mode of creation of law". It is at the roots of any international rule. Thus, a custom is obligatory because it is based on a higher standard which requires it, but this one is supposed and therefore indemonstrable. Also, Professor Ros sees this fundamental norm as "a judicial invention" which appears "to have realized its fabulous destiny, to incarnate all the law of maritime delimitation, to regulate the delimitation of all maritime spaces, and to unite all the logics of delimitation".
Ultimately what this standard equity may be the origin of customary law as well as conventional law.
And it is enough to assume that a large number of customary or even written rules raise some questions.
These questions could be resolved on the basis of equitable principles.

Equality or Proportionality: What Is the Difference?
Theoretically, it is constant among philosophers and moralists and then theologians that justice is equality not arithmetic but equality in relations and proportions and the distinction between "corrective justice" and "distributive justice" has emphasized this aspect. Other examines specific examples of substantive justice in international law, initially considering its use of equity.
The equivalence was arithmetically speaking a simple notion; the proportionality is more complex and more arbitrary, since it involves the choice of parameters and the quantification of these parameters.
It was the judgment of the International Court of Justice in the North Sea Continental Shelf Cases which revived the problem of equity in public international law in relation to the delimitation of the continental shelf. This judgment, to which reference has already been made, is of a very rich substance and can help us to find an answer.
The Court also found that in order to attribute appropriate meaning to equity, various relevant factors should be considered, as were geological and geographical factors in the present case and a reasonable degree of proportionality among factors should be maintained.
The Court rejected with vigor the idea that, in the event of a dispute between States over the extent of their respective continental shelves, there might be a problem of distribution, which means, a sharing lead necessarily to an equitable result.
The usage of equity is manifested in the reconciliation often effected between equity and equality, imposed, as it were, by the Latin root of the word, aequus, equal. This shows an essential meaning of equity: it is a measure. More precisely, the equality to be taken into consideration in relation to the treatment applied to a given situation. Equity requires that equal things be treated equally, which has a corollary: unequal treatment of unequal things. In other words, equity can not be separated from the idea of proportionality. This is perfectly consonant with the preceding observation: the measure must be taken in each particular case; It can not be applied abstractly to concretely different situations.
The International Court rejected the formula of global equity, based entirely on proportionality whose parameters would be uncertain. This is the same concept of the continental shelf, natural extension of the territory assigned by right therefore to states that it is an obstacle to such a conception; It cannot be for a judge to substitute himself for nature. According the court, "Equity does not necessarily imply equality. There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf; any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline" (Note 10).
It is therefore clear to the Court that the search for proportionality is not the essential element. It will lay down the general formula that, with regard to the fundamental rules. These principles are that delimitation must be the subject of an agreement between concerned states and that this agreement must be achieved on the basis of equitable principles.
Consequently, Equity is central, but it is normally translated by an equivalence equitably served by the equidistance line; however, this is not always the case and it is then that other considerations can be used. And the Court, when it then proceeds to examine the elements involved, will retain the geological belonging to the continental shelf to the riparian countries, the unit of deposit and finally the reasonable relationship that a delimitation carried out by Equitable principles should be reveal between the extent of the continental shelf of the concerned States and the length of their coasts. Only this latter element implements a genuine principle of proportionality. As Louis Balmon quoted "If equality does not necessarily imply equality and there can be no question of distributive justice, the delimitation adopted must also make it possible to arrive at an equitable result verified by means of a proportionality test, The length of the coasts and the extent of continental shelf areas under the coastal State".
In fact, as the Court did not carry the delimitation to itself, it had to indicate only the Parties what directives they should negotiate. Incisive and clear in its negative part, the equidistance is not the only method of delimitation and doctrinal, the equity in question is included in the law. So, the judgment retains a necessary indeterminacy in its positive part the essence equity and timidly and partially advances an application of the idea of proportionality.

Its Judgments?
The  deep search, only two cases of them come under the concept of Equity.

Case Concerning Land Reclamation by Singapore in and around the Straits of Johor
In the case concerning the reclamation of Singapore's land in the Straits of Johor and around (Malaysia against Singapore) dated 5 September, 2003, the International Tribunal issued its Judgment in the case in October 2003, and it considered that it was necessary caution on the part of Malaysia and Singapore on reclamation and assess its effects, and issued a directive to Singapore not to conduct land reclamation activities in a manner that may cause prejudice to the rights of Malaysia or not disproportionately serious harm to the marine environment. On 26 April 2005, Malaysia and Singapore signed an agreement to seek settlement of the dispute by peaceful means of their own choice (Note 11).
In September 2005, it issued a final award in the case, according to the provisions specified in the settlement agreement between the two sides.
It is true that the court did not explicitly refer to the equity, but we confirm that "The ITLOS could hear disputes involving the delimitation of adjacent and opposite maritime boundaries, relying on equity.
[…] The absence of compulsory jurisdiction over such cases, the experience of the ICJ and arbitral tribunals in handling such disputes, and the desire of some states to have the prestige of the ICJ associated with any delimitation may restrict the number of boundary disputes submitted to the ITLOS.
Should the Tribunal hear such disputes, however, it may operate as a court of equity".

Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal
The negotiations on maritime delimitation in the Gulf of Bengal have been underway since 1974 and continued until 2010. These discussions resulted in two proceedings signed by the heads of delegation.
The intervention of International Tribunal therefore consisted above all of determining the legal scope of the two proceedings and determining whether they were mandatory in nature to exclude the Tribunal's jurisdiction over the question of the delimitation of the territorial sea. To this end, the Parties invoke the nature of the documents, their signatories, and the continuity between the 1974 and 2008 protocols (Note 12).
The ITLOS fully associated itself with the jurisprudence of the ICJ which considered in Nicaragua v.
Honduras that "Establishing a permanent maritime boundary is a matter of great importance and an agreement cannot be readily assumed" (ICJ, Nicaragua v. Honduras). It justifies the rejection of the minutes based on the internal mechanisms and on the incompetence of the members of the delegations to engage the State.
The ITLOS also confirmed the need to exercise great caution in dismissing the contention of tacit or de facto agreements as much as the estoppel invoked by Bangladesh with regard to maritime delimitation on the Saint-Martin. Remembering that estoppel consists in the recognition that a State by its conduct has created the appearance of a particular situation and that another State relied in good faith on that conduct has acted or has abstained, act to his detriment.
In its view, Bangladesh saw that "the Tribunal should apply the angle-bisector method in delimiting the maritime boundary between Bangladesh and Myanmar in the exclusive economic zone and on the continental shelf. In its point of view, this method would eliminate the inequity associated with equidistance and lead to an equitable result".
It is worthwhile to say that this problem has been recognized since the decision in the North Sea cases, in which the ICJ explained that "it has been seen in the case of concave or convex coastlines that if the equidistance method is employed, greater than the irregularity and the further from the coastline area to be delimited, the more unreasonable are the results produced. So great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible, being of itself creative of inequity".
For its part, the Tribunal notes that, "on account of the concavity of the coast in question, the provisional equidistance line it constructed in the present case does produce a cut-off effect on the that "Equity as a legal concept is a direct emanation of the idea of justice. The Court whose task is by definition to administer justice is bound to apply it" (Note 14).

Conclusion
The fear of the problem of conflicts over marine resources and potential maritime's wars in the future, leads us toward the interest in the subject of equity in order to overcome the sustainable water conflicts and give attention to develop the rules of international law of the sea. Despite the multiplicity of approaches to international jurisprudence cares water cooperation and conflict on marine resources, and judicial efforts to resolve water disputes, the concept of equity remains these days mysterious and vague.
The particularity of the litigation of maritime delimitations has developed a right based on a notion with indefinable contours but with known content. This development followed a two fold evolution.
While the delimitation rules of the Conventions were more rigid, judges relied on a concept of equity with strong creative power. The conventional rules became more flexible, and equity has gradually faded back to its original virtue, the correction of the law. The latter, which became very pragmatic, almost does not mention equity, even though it transcends the whole process of delimiting boundaries at sea.
Interesting in the strategic vision for the future of water, we are trying to propose the initial principles of an approach most utilitarian, we begin to address the issues of equity in international law of the sea, particularly maritime delimitation to emphasize the importance of cooperation and the importance of developing the principles of this branch of international law, and to defense the vital interests of ensuring the survival of humanity in the present and the future, hoping that these theses secrets more utilitarian approach to all the actors in the maritime issue.
Giving priority to the collective interests of justice is the basis of the seas, where it should not be subject to the politicization; they are an important resource featuring to cross-border and should not be influenced by international conflicts. The future is for justice and equity, and not to the balance of power influence in the process of determining the maritime boundary and the division of wealth.
Through the controversy touched this study, we would like to focus on the most important conclusions: • It is imposed on every law, when positioned and formulated it and its applications, that reflects an approach of equity and a spirit of justice, and that this law combined with achieving a participatory regime between the actors in the maritime affairs, and equitable rules between present and future generations.
• The importance of the application of the international law of the sea primarily is to avoid damage to marine resources and to ensure the fair and equitable distribution of maritime wealth.
• The importance of dealing with the sea as an international and social common resource is not subject to the conflicts, and should not be impeded enjoy it, while ensuring sustainability for present and future generations.
• Swinging the concept of equity between the dynamic of the conflict and international cooperation, requires moving from the defense of sovereign narrow interests to the common and collective interests of humanity.