Thomas Cottier, Equity Revisited: An Introduction, in: Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law (Cambridge University Press 2015, 798 pages) pp 1-41.
Background
The legal principle of equity (Billigkeit, équité) emerged after World War II as the main normative foundation in the field of maritime boundary delimitation of the continental shelf and the exclusive economic zone (EEZ) in the law of the sea. The principle is applied in the interest of fair allocation of natural resources (oil, gas, fisheries, genetic resources), and has the potential to become relevant in other areas of international economic law. Equity, in the law of maritime boundary delimitation, developed a particular methodology based upon equitable principles which either construct a boundary line or serve as a justification to deviate from rigid rules, in particular equidistance. This methodology stands for the proposition of topical jurisprudence in international law, taking into account all pertinent facts and interests, seeking justice in balancing these appropriately. Topical jurisprudence can be equally and implicitly found in other areas of international law, e.g. international trade regulation, yet falling short of taking recourse to equity and equitable principles.
The prominent role of equity in the law of the sea has to the potential to inspire other regulatory areas and gain back some of the importance it had prior to the advent of human rights as the main standards of justice in contemporary international law. The concept has the potential to provide the foundation for topical and fact-intensive jurisprudence well beyond the field of natural resource management, leading to a revival of this age-old companion in law and jurisprudence.
Summary
The introductory chapter of the book, published in 2015, which expounds upon the law and methodology of maritime boundary delimitation, depicting the evolution of equity as a general principle of law, as recognised in international law. The author elaborates on the notion and functions of equity in different periods and sets out its potential as a foundation for topical jurisprudence as opposed to rigid rules which often produce unjust results. Ever since Roman law, the concept of equity has assisted in interpreting the law (equity in legem) and completing the law (equity praeter legem), but also in deciding against positive law where the latter produces unjust results (equity contra legem). Found in all legal systems of the world, equity has been recognised as a general principle of law in international law, inspiring arbitration in the 19th and early 20th Centuries. Subsequently, it was largely replaced in legal theory and jurisprudence by human rights, which emerged as the main tenets of corrective justice after World War II. The concept enjoyed a renaissance in the field of natural resource allocation, and in the law of the sea and maritime boundary delimitation particularly, yielding equitable principles derived from the conceptual underpinnings of the continental shelf and the EEZ. It gave rise to the substantial body of jurisprudence which is analysed throughout the book.
The introduction delineates the evolution and different layers of equity and the impact of different schools of jurisprudence in addressing the concept and its relationship to hard-and-fast rules. The author discusses the failure of equity to address issues of global justice invoked by the developing world. The operation of equity remains limited to the facts of a particular case. The concept provides a foundation for topical jurisprudence beyond the field of natural resource allocation in international law.