One of the stated purposes of the United Nations, according to the UN Charter, is to settle international disputes or adjust situations that threaten international peace “in conformity with the principles of justice and international law.” The Preamble to the Charter refers to the need “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” Yet, are justice and international law two different animals and can international law aspire to exist without justice?
A choice between law and justice?
In The Law of the United Nations, Hans Kelsen observed that the announcement of the dual respect for justice and international law is problematic: either “justice” and “international law” are the same, making one of them redundant, or they are distinct concepts. If they are indeed distinct, which seems more plausible, there can be situations in which the two contradict each other. The organs of the United Nations called upon to apply these provisions, and in particular the International Court of Justice (ICJ), as the United Nations’ “principal judicial organ,” may face a dilemma between prioritizing international law or justice, which, for Kelsen, undermines adherence to international law. The Court is required by its Statute to decide disputes “in accordance with international law” but the Statute is agnostic about “justice.” Does this then mean that the Court has to consistently prioritize the application of international law over justice?
“To assume that international law can be applied at the expense of justice is a contradiction in terms.”
Passing over the vexed semantics of “justice” in a heterogeneous multicultural legal system, to assume that international law can be applied at the expense of justice is a contradiction in terms. “Justice” is one of the objectives of the international legal order. The UN Charter raises justice to the same level as peace and security, when it makes provision for dispute settlement that does not endanger “international peace and security, and justice.” If the ability of international law to do justice is often questioned, its duty to do so rarely is. International law cannot be separated from the obligation to do justice. If it does not do justice, how, in the long run, do we hope to keep a functioning international legal order? The dilemma between prioritizing international law or justice is therefore moot—the ICJ applies international law to do justice.
The role of equity
At this juncture, a practical question arises: how can the adjudicator apply international law to do justice, if in a concrete case law and justice appear to oppose each other? International law offers the necessary tools to reach a just resolution of a dispute. Equity—that is, the legal concept of equity, as opposed to its extra-legal siblings (philosophical, theological, etc.)—is a crucial part of this equation. Its very purpose is to do justice. In the words of Umpire Plumley in the 1903 Aroa Mines case, “[t]he way is equity, the end is justice.” Justice is the rationale and the ethical foundation of equity. Equity is the link that tethers international law to justice.
A legal concept of long pedigree, equity is constantly incorporated into the international legal system and is applied qua international law. Protean and chameleon-like, equity is, among others, the Aristotelian corrective that requires the adjudicator to be mindful of the circumstances of the particular case or to soften the harshness of strict law to do justice. Equity is present in the reasoning of international courts and tribunals not only when called by its proper name but also when cloaked under its aliases and variations: good faith, reasonableness, unjust enrichment, estoppel, acquiescence, and the clean hands doctrine—to name but a few. Human rights too originate in equity.
“Justice is the rationale and the ethical foundation of equity. Equity is the link that tethers international law to justice.”
The international legal system is infused with equity for an additional reason: the equitable innovations of the past have tended to become today’s hard law. For example, several equitable Roman remedies are part of contemporary international law. The ability of present-day international courts and tribunals to issue provisional measures reflects the equitable Roman remedy of the interdict (akin to the English Chancery’s injunction). Another Roman equitable remedy, restitutio in integrum, is part of today’s law of state responsibility. Roman equity was at the root of English equity, while the later Roman codifications subsumed praetorian equity and inspired the civil law systems.
When an international court or tribunal applies contemporary international law that incorporates equity, say it orders provisional measures, it no longer needs to rely on equity but rather on the specific provision of its statute or procedural rules authorising it to do so. Equity is present in the legal rule, but the adjudicator does not rely directly upon it. Equity’s transformation into hard law makes it lose flexibility, and this loss is compensated by new equity that will probably become tomorrow’s hard law.
We can agree that international law is an imperfect system—in many ways it is flawed. Yet, imperfect and flawed as it may be, it still needs to aspire to justice. In dispute settlement, international law has the potential to fulfil an important task and do justice. Equity is key to unlocking this potential for justice and should not be met with fear, but rather embraced.
Featured image: Luca Dugaro via Unsplash (public domain)