The Function of Equity in International Law
CATHARINE TITI
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For Mum and Dad
Foreword
Aequitas soror iuris. If equity is the sister of the law, she is a much-neglected sibling. Only rarely does equity step out of the shadow of the law to make an independent appearance. Most of the time, equity is seen as a natural attribute of the law that does not require much attention. But equity has a far more active life than would appear at first sight.
Equity is hidden and yet ubiquitous. It influences legislators as well as adjudicators. Both are driven by considerations of equity. The legislator strives to make laws that are equitable in the sense of distributive justice. The adjudicator attempts to make decisions that are not merely correct but also just. It is no coincidence that the Latin aequitas stands not just for equity but also for equanimity. Our conscience demands equity. Fairness is essential for our peace of mind.
Sometimes equity is in a state of tension with the strictures of the law. Roman law developed a separate body of law the ius honorarium or ius praetorium to soften the rigidity of the ius civile. Over time, the two bodies of rules merged, and their separate existence disappeared. Similarly, in English law, the Court of Chancery supplemented and softened the inflexible common law and statute law through the development of equity. In both these systems, equity was ultimately absorbed into the mainstream of the law.
International law is a relatively young discipline and its relationship to equity appears still unsettled. Concepts like equity contra legem and the exceptional power of tribunals to decide ex aequo et bono appear to juxtapose law and equity suggesting their separate existence.
International courts and tribunals have been bashful and cautious about relying on equity. They do refer to equitable considerations, but only sparingly. Authorisations to decide ex aequo et bono are seldom given and even where they exist, tribunals are reluctant to make full use of them.
A closer look, however, reveals that equity plays a central role in international law. In some areas of international law, equity has traditionally been dominant. Equitable considerations have for some time governed the calculation of damages, although there is a clear trend towards specific rules. The requirement to state detailed reasons reinforces this trend. Maritime delimitation depends in large measure on equity, although the jurisprudence of the ICJ
shows an increasing dependence on consistent methods. These methods are in the process of solidifying into recognised rules. Some of the equitable innovations of the past are in the process of becoming hard law.
Some developments in the field of international law are driven by equitable considerations. One example is the demand for a New International Economic Order, especially when it comes to the distribution of natural resources and the common heritage of mankind principle. Other examples are the evolving law governing cultural heritage and international waterways. In a wider sense, the development of international human rights goes back to considerations of justice and equity.
The standard of fair and equitable treatment in international investment law is a good illustration of the process of solidification of broad equitable principles into specific rules of law. Over a relatively short period of time, tribunals have given concrete meaning to this precept, developing several specific standards such as the requirements to protect legitimate expectations, to guarantee procedural fairness, and to desist from coercion, harassment, and discrimination.
Catharine Titi’s monograph is the first systematic and comprehensive study of the role of equity in contemporary international law. She diagnoses three major functions of equity: equity as corrective justice, equity as distributive justice, and equity as supplementary justice. The first category is designed to correct injustice that would otherwise result from the strict application of the law. Often this can be achieved by selecting from a range of available options. Distributive justice looks at the allocation of resources and the distribution of benefits and burdens. Supplementary justice essentially serves the filling of gaps. At the same time, she discards the traditional triad of equity infra, praeter, and contra legem. Not only are the boundaries between these categories fluid. Most importantly, all types of equity are elements of the law and, consequently, equity contra legem is a contradiction in terms.
The central theme of this book is that equity is part of international law. It is a general principle of international law of a customary law nature. At the same time, equity is one of the most important sources of international law. Equity permeates international law and is inherent in its sound application. It is part of the jurisprudence constante of international courts and tribunals.
Several norms that are obvious manifestations of equity have become wellestablished parts of international law. Examples are the principles of equality, reasonableness, estoppel, acquiescence, good faith, unjust enrichment, the clean hands doctrine, the prohibition of abuse of rights, and proportionality. To these, one may add the principles of humanity, respect for life, and human
dignity. International courts and tribunals apply these equitable principles as part of the established body of international law, usually without invoking equity.
Therefore, equity is not an extra-legal concept. It does not stand in contrast to international law. Rather, it is part of the fabric of international law. It is a source of international law – perhaps the source of international law: aequitas mater iuris.
Christoph Schreuer
Acknowledgements
Many people have supported me in this book project. I would like to thank especially Charalampos Apostolidis, Freya Baetens, Joanne Gabrynowicz, Anastasios Gourgourinis, Ted Gleason, Clifford Hendel, August Reinisch, Calliope Sudborough, Christian Tams, Tullio Rodolfo Treves, and Frans von der Dunk for taking the time to consider, review, and discuss different parts of the book. I am particularly indebted to Christoph Schreuer for his generous support and counsel and to Attila Tanzi for encouraging me to turn to the sources of international law, for his support, advice, and thoughtful comments throughout this project. From Oxford University Press, I am grateful to Emma Collison, Elissa Connor, Libby Holcroft, and Arokia Anthuvan Rani and, in particular, to my wonderful editors, Merel Alstein and Jack McNichol.
PART III SPECIFIC ASPECTS OF EQUITY
Abbreviations
AFDI Annuaire français de droit international
AJCL American Journal of Comparative Law
AJIL American Journal of International Law
ARIEL Austrian Review of International and European Law
ASDI Annuaire suisse de droit international
AU ILR American University International Law Review
BIT Bilateral investment treaty
BYIL British Yearbook of International Law
CETA Comprehensive Economic and Trade Agreement between the European Union and its Member States and Canada
CJEU Court of Justice of the European Union
CJTL Columbia Journal of Transnational Law
CLJ Cambridge Law Journal
CPTPP Comprehensive and Progressive Agreement for Trans-Pacific Partnership between the European Union and Canada
CUP Cambridge University Press
DRC Democratic Republic of the Congo
Duke JCIL Duke Journal of Comparative & International Law
ECHR European Court of Human Rights
EJIL European Journal of International Law
FCN Friendship, commerce and navigation
HUP Harvard University Press
IAReporter Investment Arbitration Reporter
ICC International Criminal Court
ICJ International Court of Justice
ICLQ International & Comparative Law Quarterly
ICLR International Community Law Review
ICPRCP Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation
ICSID International Centre for Settlement of Investment Disputes
ICSID Convention Convention on the Settlement of Investment Disputes between States and Nationals of Other States
IJCP International Journal of Cultural Property
ILA International Law Association
ILC International Law Commission
ILJ International Law Journal
xviii Abbreviations
ILO International Labour Organization
ILR International Law Reports
Intl International
ITLOS International Tribunal for the Law of the Sea
IUSCT Iran-US Claims Tribunal
IYHR Israel Yearbook on Human Rights
JIDS Journal of International Dispute Settlement
JIL Journal of International Law
JILP Journal of International Law & Policy or Politics
JWIT Journal of World Investment & Trade
LCIA London Court of International Arbitration
LJ Law Journal
LJIL Leiden Journal of International Law
LRev Law Review
MaxPlanckEPIL Max Planck Encyclopedia of Public International Law
NAFTA North American Free Trade Agreement
OECD Organisation for Economic Co-operation and Development
OJLS Oxford Journal of Legal Studies
OUP Oxford University Press
PACER Plus Pacific Agreement on Closer Economic Relations Plus
PCA Permanent Court of Arbitration
PCIJ Permanent Court of International Justice
QUTLJJ Queensland University Technology Law & Justice Journal
RBDI Revue belge de droit international
RIAA Reports of International Arbitral Awards
SCC Stockholm Chamber of Commerce
U University
UN United Nations
UNCITRAL United Nations Commission on International Trade Law
UNCLOS
United Nations Convention on the Law of the Sea
UNCTAD United Nations Conference on Trade and Development
UNECE United Nations Economic Commission for Europe
UNESCO United Nations Educational, Scientific and Cultural Organization
UNGA United Nations General Assembly
UNIDROIT International Institute for the Unification of Private Law
USMCA United States-Mexico-Canada Agreement
VCLT Vienna Convention on the Law of Treaties
VJIL Virginia Journal of International Law
WTO World Trade Organization
YB Yearbook or Year Book
1 Introduction
I. Equity in International Law
A. The Concept of Equity
Few legal concepts have sustained heated controversy and impassioned debate over such protracted periods of time. But equity has spanned the ages both serving as a torchlight in the quest for justice and breeding disagreement. Expression of the maxim summum ius, summa iniuria, 1 protean and chameleon-like, equity takes different shapes in the eye of the beholder. Agreement about its semantic content is obtained only at a high level of abstraction and defining it can prove an insuperable challenge. Almost nowhere is equity used with the exact same meaning. Equity is that which is ‘fair and reasonable in the administration of justice’;2 it is the instillation of reasonableness and good faith in legal relations;3 an attribute of a developed legal system;4 an ‘agent of legal change’;5 and ‘an element in the progressive development of international law’.6 A ‘direct emanation of the idea of justice’,7 equity requires a balancing of competing interests;8 it encompasses a body of legal principles ‘designed to critique the law’ and to encourage fairness in international relations.9 It is what is ‘fair and just’, ‘an element of law’ that ushers ‘ethical values into the legal norms’.10 It is ‘justice normatively expressed as law’.11 Equity also
1 Cited in Cicero, De Officiis, Book I, 33.
2 Francesco Francioni, ‘Equity in International Law’ (2013) MaxPlanckEPIL, para 1.
3 Georg Schwarzenberger, ‘Equity in International Law’ (1972) YB World Affairs 346, 347.
4 ibid (‘The movement from primitive and archaic legal systems to mature and developed legal systems tends to be accompanied by a change in emphasis from jus strictum to jus aequum’).
5 Henry Sumner Maine, Ancient Law (16th edn, John Murray 1897) 44.
6 Francioni, ‘Equity’ (n 2) para 29.
7 Continental Shelf (Tunisia/Libya) (Judgment) [1982] ICJ Rep 18 [71]. See also Continental Shelf (Libya/Malta) (Judgment) [1985] ICJ Rep 13 [45]; Norwegian Shipowners’ claims (Norway v United States) (1922) 1 RIAA 307, 331.
8 Hugh Thirlway, The International Court of Justice (OUP 2016) 28.
9 Thomas Franck, ‘Fairness in the International Legal and Institutional System’ (1993) 240 Recueil des Cours 9, 62.
10 Ralph Newman, ‘Introduction’ in Ralph Newman (ed), Equity in the World’s Legal Systems (Bruylant 1973) 15.
11 Anastasios Gourgourinis, ‘Delineating the Normativity of Equity in International Law’ (2009) 11 ICLR 327, 346.
The Function of Equity in International Law. Catharine Titi, Oxford University Press. © Aikaterini Titi 2021. DOI: 10.1093/oso/9780198868002.003.0001
refers to the power conferred on certain courts and tribunals to decide a dispute ex aequo et bono without necessary reference to legal norms.12 Equity can be all that, and yet none of these descriptions captures the fulcrum of what equity is. Antinomies are observed13 and only the most munificent reading can push beyond such disparate understandings and focus on the content of equity.
Partly because of the uncertainty that surrounds it, the use of equity has been accompanied by statements of caution. An identified potential problem, a whiff of judicial discretion exercised at the expense of legal certainty, has made the international judiciary wary about invoking it too often. International courts have trod circumspectly around equity, at least outside disputes concerning maritime boundaries and to some extent the allocation of scarce resources. When they do refer to it, they are at pains to stress that what they apply is equity within the law.14 Sometimes, they prefer not to address it, although the disputing parties raise it in their pleadings.15 Ex aequo et bono adjudication on the basis of Article 38(2) of the Statute of the International Court of Justice (ICJ) – and its predecessor, Article 38 of the Statute of the Permanent Court of International Justice (PCIJ) – has notoriously never been used: the political connotations of an ex aequo et bono mandate were said to threaten to diminish the authority of the Court’s judicial function.16 Ian Brownlie’s vehement denunciation of equity still resounds decades after it was pronounced: ‘Whatever the particular and interstitial significance of equity in the law of nations, as a general reservoir of ideas and solutions for sophisticated problems it offers little but disappointment.’17 Such an understanding of equity is disappointing indeed.
Whatever its real or perceived failings, equity permeates the fabric of international law. Inherent feature of this law, it is present in the reasoning of international courts and tribunals, sometimes called by its proper name and sometimes cloaked under its aliases and variations: good faith, reasonableness,
12 Francioni, ‘Equity’ (n 2) para 1.
13 For instance, to canvass equity as ‘an element of law’ and to state that equity is ‘designed to critique the law’ points to two different understandings of the relationship between equity and law. This topic is discussed in ch 6, section II Equity and Law.
14 See ch 5.
15 Eg see Obligation to Negotiate Access to the Pacific Ocean (Bolivia v Chile) (Judgment) [2018] ICJ Rep 507 [44], [73], where both Chile and Bolivia invoked equity to buttress their respective position. In the Memorial of the Bolivian Government (17 April 2014) vols I–II, pts I–II, the term ‘equity’ and its derivatives appeared no less than 43 times. However, equity’s relevance to each and every case must not be taken for granted. In casu, the ICJ did discuss equitable principles underlying the respective arguments, notably acquiescence and estoppel, Judgment, [149]–[159].
16 Markus Kotzur, ‘Ex Aequo et Bono’ (2009) MaxPlanckEPIL, para 7; ch 7, section VI Compatibility with the Judicial Function.
17 Ian Brownlie, ‘Legal Status of Natural Resources in International Law (Some Aspects)’ (1979) 162 Recueil des Cours 247, 288.
clean hands, unjust enrichment, proportionality, estoppel, fair and equitable treatment, equitable sharing – to name but a few. Despite an apparent disinclination to expressly rely on equity, its reach stretches well beyond the boundaries of maritime delimitation and the allocation of resources. But this simple truth often goes unnoticed. From international cultural heritage law to environmental law, from judgments on transboundary disputes to procedural decisions on security for costs in investment arbitration, the relevance of equity is more far-reaching than has previously been conceded. Moreover, as the importance of international law increases, continuously covering new domains, the value of equity increases with it. Equity influences international law at its ‘formative stage’,18 it infuses it during its lifetime, such as through treaty amendment, and it intervenes when international law is applied.19 New equity is continually incorporated in legal norms, it ‘is a stage in the growth of law’.20 As equity becomes embedded in legal norms, it loses some of its flexibility and new equity is still necessary. That said, equity is also needed where international law is the least developed. Examples include the incipient international law on food security and health21 and, in environmental law, the legal framework going forward on climate change. Resort to equity can further mark an absence of regulation and serve to identify the need for an enabling legal framework to guide the international judiciary in decision-making. And so long as much of international law remains a blank slate, and new areas are yet to be regulated, equity has a place and a role to play. It is this new function of equity in the international law of the 21st century that this book explores.
B. Equity, Law, and Justice
One of the most controverted discussions about equity, and one that remains at the core of this book, concerns the relationship between equity, law, and justice. The bulk of this debate has focused on the binomials ‘law and justice’, ‘equity and justice’, and ‘law and equity’. While the first binomial, ‘law and justice’, is
18 Francesco Francioni, ‘Compensation for Nationalisation of Foreign Property’ (1975) 24(2) ICLQ 255, 256.
19 ibid.
20 Roscoe Pound, ‘The Decadence of Equity’ (1905) 5(1) Columbia LRev 20, 21.
21 To this effect, UN General Assembly (UNGA) Res 74/274 (20 April 2020) UN Doc A/RES/74/ 274, issued in the thick of the COVID-19 pandemic, provides for equitable access to, inter alia, health products, preventive tools, laboratory testing, medical supplies, drugs, and vaccines, and sets targets for research and development funding, international scientific cooperation and coordination, while ‘adhering to the objectiv[e] of . . equity’, recitals, paras 2–3.
mostly beyond the scope of this book, ‘equity and justice’ and ‘law and equity’ provide the backbone for its narrative and are the focus of dedicated parts. A few introductory words are apposite at this point.
As to the first pair, ‘law and justice’, the Charter of the United Nations, of which the Statute of the ICJ is an integral part, states that one of the purposes of the United Nations is ‘to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations that might lead to a breach of the peace’.22 The Preamble to the Charter refers to the establishment of ‘conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’.23 But the hendiadys of international law and justice has given some scholars reason to pause and somewhere along the line it has begged the question of whether justice, on the one hand, and treaty law or obligations arising from other sources of international law, on the other, are two distinct animals. Hans Kelsen argued that to announce respect for justice and international law simultaneously is problematic.24 Either ‘justice’ and ‘international law’ are the same, in which case one of the two is superfluous, or they are not. If they are not, which seems more credible, there can be situations in which the one may oppose the other.25 Kelsen deduced that the organs of the United Nations called upon to apply such provisions would be able to choose between international law and justice; this would weaken respect for international law.26 Nonetheless, the precept or obligation is directed among others to the ICJ, as the ‘principal judicial organ of the United Nations’.27 Article 38(1) of the Statute of the ICJ enjoins the Court to decide ‘in accordance with international law’ but is agnostic about ‘justice’.28 Since ‘justice’ is not listed in Article 38 of the Statute, would that mean that for the Court international law always trumps justice?29 The dilemma points to a high degree of sophistication in the philosophy of law but may have little practical significance. As a way of solving it, and in accordance with an interpretative presumption against normative conflict,30 it has been suggested that law and justice are two parts of a triad, of which the
22 UN Charter art 1(1). See also art 2(3) (‘All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered’).
23 Emphasis added.
24 Hans Kelsen, The Law of the United Nations (Lawbook Exchange 1950, 2000) 16–17.
25 ibid 17–18.
26 ibid 18.
27 UN Charter art 92.
28 Kelsen (n 24) 365–366.
29 This view was criticised in Maritime Delimitation in the Area between Greenland and Jan Mayen (Separate Opinion Weeramantry) [1993] ICJ Rep 211 [97]–[98] (‘Such views, with great respect, do not take into account the fact that much of international law already embodies equity’).
30 Robert Kolb, The Law of Treaties (Edward Elgar 2016) 183.
third part is equity.31 Indeed sometimes law, equity, and justice are mentioned simultaneously.32 It is possible that international law and justice need not be in opposition to each other and the introduction of equitable principles in the application of international law can ensure respect for both. According to Shabtai Rosenne, no opposition can be admitted between ‘justice’ and ‘obligations arising from treaties and other sources of international law’ ‘for what we have is a “monad” of equity, law and justice’.33 But the unity, if unity it is, of justice, law, and equity tells us little about how to do justice, how to apply the law (and equity), if in a concrete case there is a conflict between them. Is an application in tandem always possible?
Turning to the second binomial, the close relationship between ‘equity’ and ‘justice’ has been repeatedly observed. It goes back to the Aristotelian legacy of distinguishing between different types of justice and the discussion of equity as corrective, distributive, and supplementary justice.34 The purpose of equity is to do justice. Justice is the rationale of equity and its ethical foundation. The ICJ has remarked that it must apply equity because it is its duty to administer justice,35 although such justice must be in accordance with the rule of law.36 Equity then is the link that tethers international law to justice. The relationship between equity and justice is addressed in Chapter 4.
But probably the most formidable challenge is posed by the relationship between ‘law’ and ‘equity’. According to a well-known aphorism, if men were perfect, there would be no need for laws; if laws were perfect, there would be no need for equity.37 If one is to rely on this statement, then equity may at first
31 Louis Sohn, ‘The Role of Equity in the Jurisprudence of the International Court of Justice’ in Bernard Dutoit and Etienne Grisel (eds), Mélanges Georges Perrin (Payot 1984) 304.
32 Eg Tunisia/Libya (n 7) [71]; North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3 [88]; Barcelona Traction, Light and Power Company (Separate Opinion Fitzmaurice) [1970] ICJ Rep 64 [36].
For an earlier example, see Aroa Mines, Mixed Claims Commission (Great-Britain-Venezuela) (merits) (1903) 9 RIAA 402, 445. See also Treaty of Amity, Commerce and Navigation between his Britannick Majesty and the United States of America (19 November 1794) (Jay Treaty) art 7, according to which claims should be decided according to ‘Justice, Equity and the Laws of Nations’. See further Emer de Vattel, The Law of Nations (6th American edn, Johnson 1844); Hersch Lauterpacht, Private Law Sources and Analogies of International Law (Longmans, Green & Co 1927) 63–67; Sohn, ‘Role of Equity’ (n 31) 305–306, n 7; Louis Sohn, ‘The Function of International Arbitration Today’ (1963) 108 Recueil des Cours 1, 43; Eric Agostini, ‘L’équité’ (1978) (Chronique II) Recueil Dalloz-Sirey 7, 8; Bin Cheng, ‘Justice and Equity in International Law’ (1955) 8 Current Legal Problems 185, 211; William Bishop, ‘Sources of International Law’ (1965) 115 Recueil des Cours 148, 246; Gourgourinis, ‘Normativity of Equity’ (n 11) 346.
33 Shabtai Rosenne, ‘The Position of the International Court of Justice on the Foundations of the Principle of Equity in International Law’ in An International Law Miscellany (Martinus Nijhoff 1993) 204.
34 See ch 4.
35 Tunisia/Libya (n 7) [71].
36 Libya/Malta (n 7) [45].
37 Magdi Sami Zaki, ‘Définir l’équité’ (1990) 35 Archives de philosophie du droit 87, 87.
appear to be distinct from law. But this leaves us in a different kind of quandary: is it really possible and theoretically sound to view equity as distinct from law? Is equity to be pressed into service to avoid compliance with the law? Can equity actually be applied contra legem? The Statute of the ICJ, as the Statute of the PCIJ before it, does not contemplate the application of equity as distinct from law;38 equity itself is not listed as a source of law in Article 38 of the Statute. The ICJ has felt its way cautiously, formulating its recourse to equity as fulfilling or supplementing the law rather than in terms of opposition to the law.39 This prophylactic approach did not preserve the ICJ from criticisms,40 and there are authors who discuss equity as distinct from the law.41
Whilst the opposition between equity and law can prove unpalatable on many a ground, different functions of equity are typically placed on a continuum between perfect identity with the law (infra legem) and effective departure from it (contra legem). For example, teleological interpretation that introduces equitable considerations can be seen as consonant with the law if its purpose is to reconcile the letter of the law with its spirit but it may also be seen as contra legem interpretation – or as nonapplication of the law. However, this book argues that what is canvassed as a digression from the law is a departure from the mere letter of the law. Equity is a general principle of international law and as such it is applicable in international relations. The relationship between equity and law, and equity as a source of law, are assessed in Chapter 6.
The book will leave aside the age-old philosophical discussion about the relationship between law and justice but the relationship between equity and justice and, especially, law and equity is fundamental to any understanding of the function of equity in international law.
II. Scope of the Book
A. Overall Purpose
The book provides a systematic and comprehensive study of the role of equity in contemporary international law, while challenging some unquestioned assumptions about it. One of them is the common premise that equity is an
38 Diversion of Water from the Meuse (Netherlands v Belgium) (Individual Opinion Hudson) PCIJ Series A/B No 70 (28 June 1937) [322].
39 Rosenne (n 33) 204.
40 For the criticisms, see ch 3, section IV The International Court of Justice.
41 Eg Robert Jennings, ‘Equity and Equitable Principles’ (1986) XLII ASDI 27, 30.
extra-legal concept operating at a remove from law – or an appeal to natural justice – a position that is disproved in this book. Since equity is polysemous and, as a form of particularised justice, circumstance-specific and malleable, the book does not attempt to define it but explores the kinds of function that it assumes in international law.
There is a common approach to equity across a number of international courts and tribunals and the book documents it for the first time in a detailed comparative setting. International law has never been so important. The body of judicial and arbitral case law is larger and more varied than it had been: while international adjudication is still concerned with land and maritime boundary delimitation, new disputes arise from conflicts relating to the distribution of wealth and the exercise of regulatory power within states.42 The boom of investor-state disputes has produced a rich case law that tends to be ignored in public international law scholarship and has certainly not previously been considered in any general analysis of equity. Investment decisions can make an appreciable contribution to the development of international law, if only because of their sheer number and the variegated issues they address. The book draws extensively on this case law, especially in Part III. Furthermore, equitable considerations present in the reasoning of international courts and tribunals have been integrated in conventional law,43 and new avenues to the application of equity are opened constantly.
The book covers a number of fields of public international law, including new fields of international law. Modern international law is increasingly concerned with ‘matters internal to the state’, such as the protection of the environment.44 Such new fields have generally been left outside the study of equity. Little is known for instance about equity in international space law or in international cultural heritage law. The book further questions the premise that equity is relevant only when called by its proper name and explores it even when camouflaged with its various manifestations. The tendency to disregard equity unless expressly mentioned has carved out of the field very significant developments in international law in the last forty years. It has also led to a fragmentation of our understanding of equity. For example, to regard the clean hands doctrine as part of equity is conducive to appreciably different exegeses of both the doctrine and equity than to consider that it is something apart. The book turns to such variations on equity.
42 James Crawford, ‘International Law and the Rule of Law’ (2003) 24(3) Adelaide LRev 3, 7.
43 See ch 6, section IV A Treaty Law.
44 Crawford (n 42) 7.
