| This dissertation investigates the role of equity in international law and considers the variety of usages that spring from the major religious traditions, modern and ancient municipal legal systems, doctrine, the powerful mainstream methodologies of positivism and naturalism, and the work of the United Nations General Assembly in the field of maritime boundary delimitation. The central question addressed is whether equity, properly conceived, is a source of international law. Through a consideration of the lingering ambiguity of the concept, two constitutive elements are discerned. One element involves the rational application of equitable principles, the other element stresses the volitional application of equitable rules. Because both elements relate to the function of decisionmaking, the dissertation asserts that the true meaning of equity obtains from the awards and judgments of international decisionmakers. From within this context it is argued that equity is indeed a source of international law (a general principal of law) because decisionmakers choose to employ it as such.; In opting for a methodological approach based on legal realism, this dissertation contends that decisionmakers employ equity as a source of law to fulfil their primary function, which is the settlement of disputes, or alternatively stated, the avoidance of a declaration that the law is unclear (non liquet). This contention is supported by an analysis of arbitral and judicial case law and the development of an interpretative theory of incorporation, which details why and how decisionmakers seek recourse to equity. Central to this theory is the doctrine of implied powers.; In addition to a consideration of the sources of international law, as enumerated in Article 38 of the Statute of the International Court of Justice, this dissertation investigates the jurisprudential and pragmatic hazards that attend the incorporation of equity. This dissertation argues that this process of incorporation must be considered against the backdrop of the disparate claims of the developing and developed countries, particularly the demand for distributive justice, as advocated by States aligned with the New International Economic Order, and the concern expressed by developed States regarding the consequences of excessive judicial legislation. |
