Very much for this kind of presentation. And thank you very much for for the invitation and thanks to everyone for being here.
It is a great pleasure for me to be giving this presentation to to this group.
And I'm sorry, I can't physically be in Oxford with you.
Of course, we wouldn't have some of the participants that we have today.
So without further ado, I'm going to go into the presentation.
So I'm going to discuss equity in international law, and I will I will indeed draw from the recent book,
my recent book on the function of equity in international law. But that said, I'm not going to present the book.
I'm going to present part of the argument that I developed in the book.
And that is that equity is part of international law.
So this is a position that may be contested and not everyone will agree with me.
So I will again focus on part of of of this argument, which is the main argument in the book.
I would like to start by saying that my interest in equity is part of a bigger interrogation about justice in international law.
The purpose of equity is to do justice. And the question that one can ask is, you know, does international law do justice?
Does international law have the potential to do justice?
And even can we even perceive of a concept of justice as such an international law, a concept that may be understood in the same way by everyone?
I'm not going to. I don't even pretend to try to answer these questions.
I just wanted to give the context for equity.
And in the times that I have, what I'm going to do is first, I'm going to discuss what equity is.
I will not try to give a definition of equity,
equities and understood in so many different ways that I think that an attempt to define equity is not particularly useful.
I will try to focus on the content of equity, and I will try to focus on examples or two to show what equity can do,
and that would be the first part of my presentation.
And in the second part, I'm going to discuss again part of my argument why equity is part of international law today.
So I start with what equities, what we understand by equity.
Many definitions have been given so different authors have said any of the following things equity
is that which is fair and equitable or fair and reasonable in the administration of Justice.
It is the installation of reasonableness and good faith in legal relations.
It is an attribute of a developed legal system and agent of legal change and an element in the progressive development of international law.
I like particularly these last two elements an agent of legal change and an element
in the progressive development of international law is descriptions of equity,
and I'm going to come back due to these bonds.
A direct emanation of the idea of justice is what the Court of Justice, the International Court of Justice,
said about equity, which is a direct emanation of the idea of justice. Equity requires a balancing of competing interests.
It encompasses a body of legal principles designed to critique the law and to encourage fairness in international relations.
It is what is just and fair an element of law that Asha's ethical values into the legal norms.
It is justice normatively expressed as law.
These are just some of the the definitions or descriptions of equity that have been given, and equity can be all that.
And yet none of these descriptions, or almost none, captures the essence of what equity is because equity is so many things,
and even some of these definitions are contradictory between them.
So, for example, to say that equity is an element that critiques the law is, of course,
something that goes contrary to to my argument that equity is part of the law.
And yet there are instances where equity can have a corrective function.
And so I think we need to move beyond the, you know, trying to give a definition of equity,
and we should focus rather on on the content of equity, on the function of functions of equity and what equity does and what it can do.
Now, in part because of the uncertainty that surrounds equity, its use has generally been accompanied by statements of caution.
We have a fear of judicial discretion being exercised at the expense of legal certainty.
And this has made international judges and arbitrators wary about invoking equity too often, at least outside the context of a maritime boundary.
Limitations where it has become traditional eye, so to speak, to actually invoke equity.
But generally, judges and arbitrators, especially judges, when they invoke equity,
there are pains to stress that, in fact, they're applying equity within the law.
I would like to to move on with the description of equity and give an example of a particular type of equity corrective equity.
And for this, I need you to go to Aristotle and mention a quote,
something that Aristotle said and which gives a good example of how equity can can work.
So knowing that this is not again, this is a description of part of what equity I can do.
So Aristotle said when the Legislature passes a law, this law is general in nature.
And so when the law makes a universal statement and a particular case arises,
it falls outside this statement, it is appropriate to correct the legislators omission or error,
omission or error that were due to the generality of they are the legal norm by acting
as the legislator would have acted if the legislator were present and had known.
So this is a description of a particular type of equity, corrective equity or corrective justice equity as corrective justice.
And of course, immediately it reveals all these concerns that we tend to have about equity that I don't
know the judges and arbitrators may be replacing the legislator or in international law.
Really, they, you know, states and treaty parties.
And yet equity is all about. The application of an application interpretation of law in.
Well, having regard to the specific circumstances of a case, and today I will be using a lot, ancient authors show.
I will continue with an example from from Cicero.
So disgusting. Zoom used to my new area.
Cicero gave the example of a truce called between Sparta and Argus for a number of days,
so they truce specified that it would last for a number of days.
So they the Spartan King, ambushed the archives by night and the Spartans killed some and the took others as prisoners.
And so when his disgruntled enemies confronted him with a reproach that he had breached his oath,
he said that in fact, he had never agreed not to attacked by night since the truce stipulated days.
And so this is an example of how, again, it's an example that Cicero brings.
And it's an example of how equity action could function in a corrective manner by, you know,
if we try to apply what Aristotle said by saying that while the truths stipulated days, the truth would last for X number of days.
But in fact, if the if, if same, the treaty bodies had known that such an interpretation might be put upon this clause by by the Spartans,
they would probably have included days and nights because clearly the the truce was meant to not only last during the day, but also during the night.
And it could arrive, of course, at the same result by a symbol good faith interpretation of the truce.
And as I may have the time to to explain later, good faith for me is also an equitable principle.
Good faith itself is a manifestation of equity. Right, so I'm.
We do have, though, problems accepting equity as part of the law.
I do hope that the example that I gave shows that the application of even corrective equity and need not be something that scared me,
that, you know, in this case, it would follow the, you know, a good faith interpretation of the of the terms of the truce.
And one would meet any white to interpret a treaty in good faith in accordance with the Vienna Convention on the Law of Treaties.
And equity has to look at the specific circumstances of the case.
So. With this, I hope I have given a general idea of what what equity is, again, my purpose here is not to be comprehensive.
This is what I try to do in the book.
But now I'm just raising some elements that I can hope can create a discussion, can lead to discussion and create a debate.
But equity is generally seen as being something outside,
most of you will probably know we have this traditional distinction of equity in relation to equity within the low equity pret a leg.
So equity that exists alongside the love that fills the gaps that exist in the law and equity contract.
And in fact, this is a very useful Harry Stick device, but it is also something that in the book I have addressed in in in one chapter,
this traditional distinction of equity and it is something that I have rejected because I think that equity can ever exist, really.
It is a contradiction to to discuss of inequity that contradicts the law and what it can do is contradict the letter of the law.
For instance, when we have a a technological interpretation and the interpretation may at the end contradict the letter of the law,
but it does not that equity does not and does not go against the law itself.
She's. One of the reasons besides what I mentioned, that's why we're afraid of equity, and I mentioned this,
this fear of the fact that we see equity is something that can lead to a judicial discretion that that ends up not respecting a treaty.
Terms that is seen as very much something subjective is also that it's also this idea that equity is something that belongs to natural law,
whatever that is. I think that this this fear is actually exaggerated.
And. For one thing,
I think we need to to move beyond this idea that at the judge of the arbitrator
invokes or applies equity when they mention when we use the words equity,
when they use the word equitable. So I think that the judge was the arbitrator in order to apply.
Equity does not have to to use the terms equity and that it is wrong to to only
look for equity when when the very word is used in a judicial decision and so on.
So we have many equitable principles and I will give you some some examples.
So we have I already mentioned good faith. Good faith is an equitable principle.
We have a stockpile. We have a quiescence of clean hands doctrine and so on.
And this is just to give an example of the fact that we have these principles that are equitable
principles and that are being used every day by international judges and arbitrators.
And without batting and not now, so to speak. And these are the end of the day applications of equity.
So the judge or the arbitrator does not need to to invoke equity human rights themselves at all.
They they derive from equity. Human rights come from equity.
And so when we have one of these, when these principles stop all acquiescence, good faith are obliged, we don't necessarily see what they could.
I think most likely we don't. I think of equity, which is that there are so well-established in international law that.
If we see them as something autonomous rather than as forming part of an abstract concept of.
Of course, there is also an extra legal concept of equity.
We have equity in philosophy, we have equity in, I don't know, even religion, equity in morals.
But my argument is that the legal concept of equity equity as we resort to it in
international law as it is resorted to by international courts and tribunals.
This concept is part of international law and I think one of the ways in which we can can better understand.
Why, for one thing, we may think that equity is not part of international law and also a way of understanding at the same time,
why equities is part of international law, according to my argument, at least, is to consider the history of the evolution of equity.
So I think that. Part of the reason why equities sometimes seen as something that is outside the norm,
something that contradicts the law and by the same token is something that sometimes needs to be feared.
Comes from the division of equity in common law systems, the division between equity and and the Commonwealth.
And I think for this reason, it is interesting to consider the history of the evolution of equity in this way, I said at the beginning.
I will be referring a lot to to to ancient times today.
And so I would like to take us back to two Roman law to consider the evolution of equity in in a very broad manner from then to out today.
So. In Roman Times.
The equity it was expressed in Roman, a praetorian law Roman pictorial law was made by the Praytor, who was a magistrate, and so upon taking office,
they prayed you would would issue an edict introducing the actions and remedies that you would accept,
and he would also announce the principles that would guide his actions.
So this was a system that would be in parallel to the use similar and the use of, of course, has given its name to two civil law.
But at the same time, it can also be seen as an equivalent of the common rule.
So in Roman times, we have this development of two separate systems.
I want the use civil. They again, for the sake of simplicity, the common law, let's say.
And them they use spray two-room, which is this law made by the preachers.
So Praetorian edict would normally be valid for one year, but they tended to be renewed from one year to the next.
And the new apparatus would tend to add to the the actions and remedies that their predecessors would have already created.
Preacher in law was intended to soften the rigidity of the use of law, which was a combination of statutory and customary law and.
As time went on. The role is greater and more diminished.
And during the reign of the Emperor Hadrian, there was a codification.
We had the Julian codification and with the codification, the division between the U.S. and the U.S. Praetorian and it.
And I would like to to remind you of a I in certain ways,
similar development that happened with the distinct strains of equity and the common law in the 18th century in common law systems.
And so with a codification, with the a codification,
the distinction between the use of Villa and the the equitable law the Pretoria law ended and
the equitable principles that underlay the praetorian edicts were subsumed in the codification.
So equity what was seen as a separate remedy, as a separate right, as an equitable remedy and an equitable right became part of the Harvard law and.
It's generally. Sorry.
So we have a number of Roman equitable remedies that are actually part of international law acting today, I will give you three examples.
The equitable Roman remedy of the verdict, which corresponds to the English Channel tres injunction,
is reflected in the ability today of international courts and tribunals to order provisional
measures when an international court or tribunal issues orders provisional measures.
Do we think that this is an application of equity? No, we don't.
And this is so commonplace and yet.
These provisional measures started as an equitable remedy.
Another example, the equitable Roman remedy of restitution intergroup is part of the contemporary law on state responsibility,
and we have even kept the Roman name.
So these remedies so way rooted in international law in the international law mainstream that we no longer perceive them as manifestations of equity.
And the impact of Roman equitable rights, such as lashes, acquiescence, estoppel are also parallel this development.
And so this is another way in which international law has incorporated equity or equity has become a part of the hard law of today.
And of course, what happened in Bali? What happened later was that in civil law systems.
If it were, we were inspired by the Julian Codification equity became part of the legal norms and so the the court systems themselves included equity.
Of course, this is not what happened in common law jurisdictions.
So I realise we have a we have a mixed group of people today and probably not everyone is familiar with with some English.
English law and equity in English law.
So I will just very briefly give you an overview of how equity came to actually be and function a number in English law.
So the chancellor, who was a member of the Kings Council, was involved in the Administration of Justice.
And one of them was when someone needed to commence an action in the common law courts.
It was necessary to obtain a royal writ.
The royal writ was issued by the Office of the Chancellor and from the middle of the 14th century, there was an attempt to to reign the chancellor in.
And so too, to limit the chancellor's power.
And so the chancellor could no longer award new reach for the common law courts unless a king and council had consented.
And so in order to bypass this limitation on his power,
the chancellor essentially decided to act to keep the petitioners requests within his chancery.
And so he started to develop these equitable remedies and actions.
And the petitions that such known as bills were initially addressed to the King.
Then they started to be addressed to the chancellor.
And so this lady created sorry led to the creation of the first the establishment of the first equity courts in the middle of the 14th century.
And by that time, the common law had lost its flexibility owing to the strict,
strictly formulated rules and possibly especially by the way, at the hardening effect of binding precedent.
And so it was necessary to have this a parallel system that would introduce some flexibility due to the legal system.
And so equity developed as an alternative jurisdiction, very much like in Roman law,
in order to furnish relief to those who did not have an adequate remedy at Commonwealth.
And so. Of course, later, more recently in the 18th century, the medium 18 had roots in the United States a little later in England.
If I remember the dates correctly, the two systems became merged, the common law and equity.
But I think this centuries old distinction has to some extent led to this perception.
This perception, which is which is not limited to two to common law systems, but also as civil lawyers may.
Things like that is there is no clear distinction, I think,
between how common law is worth seeing and how civil lawyers will think about equity and equity's relationship due to law.
And so I think this centuries old division between equity and the common law has led to this perception has carried over into international law,
and many will now see equity as something that is that stands outside the law, something that is inferior to international law.
And I think it is important to to consider as this development of equity, and it is important to separate exceptions from from the content of equity.
Of course, you can tell me that I come from a common story. I come, I don't come from a common home jurisdiction.
I come from a civil law jurisdiction. And maybe this is why I think the way I do this is a possibility.
But I do think that this is something that doesn't ultimately have to do with
whether one comes from a common law jurisdiction or a civil or jurisdiction.
Because when we look at the international scholarly writings, we see that common lawyers thing may think that equity is part of international law,
and we have civil lawyers who who may think that equity in law are separate.
I was just trying to say that I think that the the distinction the division between equity
and the common law is something which somehow has trickled in to international law.
And there is a persistent perception amongst some international lawyers that equity is in fact something that's a separate from.
And. I think that I feel that I see that I still have more time, but I'm drawing to a close, so in a few minutes, not, not yet.
Again, this is this is part of my argument,
why equity is part of international equity is continuously a continually incorporated in law and what in the past
were equitable innovations that could create fear and resentment that could appear to be something outside the law.
In fact, today formed part and parcel of international law and provisional measures and restitution and degree are only two examples of that.
Again, estoppel, acquiescence, clean hands, good faith.
We can think of other principles that are more or less recognised proportionality.
For example, again, another another equitable principle.
And again, when international judges and arbitrators apply them.
We don't think of equity, but equities, their equities actually is the foundation of these principles.
And I would just like to stress that this is only in the book.
This is only one small part of my argument as to why equity is part of international law.
So, for instance, I consider whether equities can be seen as a source of international law in light of
Article 38 of the statute of the International Court of Justice and what type of source.
And I respond to this in the positive. But this is this is for a whole different discussion.
So I will I will close with some final remarks, and that is that equity is continuously incorporated in international law.
I've already said this, but I would like to add that. And as equities incorporated in international law, it tends to harden.
So one can ask, OK? Provisional measures were an equitable remedy when they were invented for the first time.
Are they still a manifestation of equity? I mean, they originate in equity, but do they, you know,
is is our perception of equity today such that it encompasses provisional measures are all provisional
measures are not really equitable because some because we don't perceive them as a is a function of equity.
Because it's something that that has hardened into law and it is no longer flexible in a way.
It depends on the procedural rules. And of course, maybe it's not a very good example.
In fact, because provisional measures tend to be in international court or tribunal can order provisional measures when it considers
that the circumstances require the imposition of such measures and or when we're looking at the particular circumstances.
We are very often considering equity. So equity is this the the consideration of the specific circumstances they taking into account
of the particular circumstances is something which I can point to an application of equity.
And so equity incorporated in law hardens. And that means that there is a need for a new need for equity continuously.
So they, you know, this work of incorporating equity into the law, a new equity into the law is not finished.
And I will close with a quote from Roscoe Pound.
He wrote many, many years ago that law is stable yet cannot stand still.
Laws need to change, society evolves, our ethics rules and law needs to change and society changes,
and equity is an element that helps law evolve and help slow develop.
And it is allowing ultimately between what the law was in the past and to what the law is going to be tomorrow.
Thank you very much.