Equity as Fairness1
One approach to an inquiry into the justice of international law is to study the emerging role of equity in the jurisprudence of international tribunals. In fairness discourse, the most restrained justice-based claims may be advanced in the form of equity, which embodies a set of principles designed to analyse the law critically without seeming to depart too radically from the traditional preference for normativity in the exercise of authority, nor to present too bold a challenge to the community's expectations of legitimacy in legal rules and processes. This chapter surveys the development of equity in the international system since the turn of the century. First, it discusses equity as an instance of ‘law as justice’, encompassing such concepts as ‘unjust enrichment’, estoppel, and acquiescence. Secondly, it explores the difference between equitable decisions and decisions ex aequo et bono, that is, rendered outside the framework of the law. Finally, it considers equity as a tool for the allocation of scarce resources among states.
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