IS THE PRINCIPLE OF EQUITY ALWAYS EQUITABLE?

ANALYSIS OF EQUITY IN SOME INTERNATIONAL/MARITIME ISSUES

Final Paper for the course International Law of The Ocean

6/18/2010

COASTAL AND OCEAN MANAGEMENT INSTITUTE (COMI), XIAMEN UNIVERSITY

Anthony Banyouko ID: 22320091154184

Contents
Abstract ..................................................................................................................... 3 Introduction ............................................................................................................... 3 1. Some Principles /Maxims Equity ........................................................................ 4 1.1. Equitable conversion .................................................................................... 4 1.2. Legal remedy principle ................................................................................ 4 1.3. Equality Principles ....................................................................................... 5 1.4. One who seeks equity must do equity (the Clean Hands Maxim).................. 5 1.5. Equity aids the vigilant, not those who slumber on their rights ..................... 5 1.6. Equity will not allow a trust to fail for want of a trustee ............................... 5 1.7. Other maxims of Equity principle ................................................................ 5 2. Review of the Application of the principle of Equity in UNCLOS ......................... 5 3. Practical application of Equity in International Issues ............................................ 9 3.1. The case of the diversion of Water from the River Meuse .......................... 10 3.2. Application of Equity in Some maritime Issues .......................................... 10 3.2.1. The Case of Barbados / Trinidad and Tobago maritime delimitation . 10 3.2.2. The Fisheries case between Britain and Norway ................................ 11 4. When Equity fails to be equitable ..................................................................... 12 4.1 The Nuclear Tests case ................................................................................ 12 4.2. The Barcelona Traction case ...................................................................... 13 Controversial application of Equity in International Maritime Disputes/Issues .. 13 5.1 The North Sea Continental Shelf cases ........................................................ 13

5.

5.2. The Maritime Boundary case between Nigeria and Cameroon .................... 16 6. Analysis and Conclusion .................................................................................. 17 References ............................................................................................................... 18

Abstract

The Oceans of the World have always been hotspots for disputes and confrontations among countries. Before the first UNCLOS in 1967, the oceans were governed by the freedom of the seas concept which dates back from the 17th Century. At this time, waters beyond national boundaries were considered international waters - free to all nations, but belonging to none of them. It is common knowledge that the common property resource concept leads to degradation and depletion of the environment and resources respectively. Thus was the situation of world oceans and seas. The race to fish led to depletion of important fisheries, ocean and marine pollution, violent conflicts, etc. The coming of UNCLOS brought a lot of order to the confusion that characterized the oceans, through the principles and laws that are to be respected by all ocean users, including guidelines for conflict prevention and resolution, maritime boundary delimitation, marine resources sharing, ocean uses such as transportation, mariculture, and ocean resources exploitation, especially deep seabed mining. One of the most important principles of UNCLOS is the Principle of Equity, applied in almost all aspects of ocean and resource use. However, in some cases, for example the maritime disputes, equity fails to be applied in the logical sense. This paper therefore tries to examine the application of the principle of Equity in maritime issues and disputes, to determine if the Equity Principle always results in an equitable outcome.

Introduction
Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition, which supplement strict rules of law where their application would operate harshly. In civil legal systems, broad "general clause" allow judges to have similar leeway in applying the code1. Equity is commonly said to "mitigate the rigor of common law", allowing courts to use their discretion and apply justice in accordance with natural law. In practice, modern equity is limited by substantive and procedural rules2. The term equity can be traced as far back as 15th Century England, and developed mainly when the writ system of passing judgment became unpopular. People started

1
2

http://en.wikipedia.org/wiki/Maxims_of_equity http://en.wikipedia.org/wiki/Maxims_of_equity

petitioning the King for relief against unfair judgments and as the number of petitioners rapidly grew, the King delegated the task of hearing petitions to the Lord Chancellor. They were required to pass judgment guided by conscience and based on morals and equality. The most common civil remedy a court of law can award is monetary damages. Equity, however, enters injunctions or decrees directing someone either to act or to forbear from acting3. Equity can be identified in many societies and religions even if in different forms. The Greeks called it clemency. The Romans termed it aequitas or equality. Ancient Chinese law described it as compassion and in Hindu philosophy is found the doctrine of righteousness. In some Islamic schools istihsan is employed to avoid undue hardship from the application of the law4. International maritime law makes extensive use of the terms Equity and Equitable Principles indicating the importance of this principle in international law. However, the application of Equity in some international issues, such as Maritime border disputes or delimitation reveals the weaknesses of the principle making it a target of bitter criticism by some authors in the field.

1. Some Principles /Maxims Equity5

1.1. Equitable conversion (what ought to be done) : This maxim means that when individuals are required, by their agreements or by law to have done some act of legal significance, Equity will regard it as having been done as it ought to have, even before it has actually happened. Ex. if a policy holder is no more at fault than the insurer. The fair solution in the circumstances may be arrived at by applying the principle that equity regards that as done that ought to be done. In other words, what would the position have been if what should have been done had been done? 1.2. Legal remedy principle: When seeking an equitable relief, the one that has been wronged has the stronger hand. The stronger hand is the one that has the capacity to ask for a legal remedy (judicial relief). In equity, this form of remedy is usually one of specific performance or an injunction (injunctive relief). These are superior remedies to those administered at common law such as damages. The Latin legal maxim is ubi jus ibi remedium ("where there is a right, there must be a remedy").

3 4

http://en.wikipedia.org/wiki/Maxims_of_equity Justice Margaret White. 2004 http://www.un.org/Depts/los/convention/agreements/texts/unclos.htm

1.3. Equality Principles: Where two persons have an equal right, the property will be divided equally. Thus Equity will presume joint owners to be tenants in common unless the parties have expressly agreed otherwise. Equity also favours partition, if requested, of jointly-held property. 1.4. One who seeks equity must do equity (the Clean Hands Maxim): To receive equitable relief, the party must be willing to complete all of their own obligations as well. The applicant to a court of equity is as subject to the power of that court as the defendant. This may also overlap with the clean hands maxim 1.5. Equity aids the vigilant, not those who slumber on their rights: Once the party knows they have been wronged, they must act relatively swiftly to preserve their rights. Otherwise, they are guilty of laches. Laches is a defense to an action in equity. This maxim is often displaced by statutory limitations, but even where a limitation period has not yet run, equity may apply the doctrine of "laches," an equitable term used to describe delay sufficient to defeat an equitable claim. 1.6. Equity will not allow a trust to fail for want of a trustee: If there is no trustee, whoever has title to the trust property will be considered the trustee. Otherwise, a court may appoint a trustee, or in Ireland the trustee may be any administrator of a charity to which the trust is related. 1.7. Other maxims of Equity principle include the following: Equity follows the law; Equity delights to do justice and not by halves; Equity will take jurisdiction to avoid a multiplicity of suits.

2. Review of the Application of the principle of Equity in UNCLOS6

The Principle of Equity has been widely applied in UNCLOS in resolving maritime issues. The terms equity and equitable appear about 32 times in UNCLOS especially in areas of Maritime boundary delimitation; the sharing of benefits and resources; conflict resolution etc. Article59 on the Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the exclusive economic zone; states that in cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.
6

http://www.un.org/Depts/los/convention/agreements/texts/unclos.htm

Article 69(1) on the Right of land-locked States, it stipulates that land-locked States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same sub-region or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62. Article 69(3): When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, sub-regional or regional basis to allow for participation of developing land-locked States of the same sub-region or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the sub-region or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. Article70(1)(4), on the Rights of geographically disadvantaged States, states that Geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same sub-region or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61and 62. Article74 on the Delimitation of the exclusive economic zone between States with opposite or adjacent coasts, (1) states that the delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. Article76 (8) on the Definition of the continental shelf states that: Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. Article82 (4) on Payments and contributions with respect to the exploitation of the continental shelf beyond 200 nautical miles states that: the payments or contributions shall be made through the Authority, which shall distribute them to States Parties to this Convention, on the basis of equitable

sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and the land-locked among them. Article83 on the Delimitation of the continental shelf between States with opposite or adjacent coast (1) states that the delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. PART XI; Section 2 on the principles governing the area; Article 140(2) on the Benefit of mankind; states that: The Authority shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis, in accordance with article 160, paragraph 2(f)(i) SECTION 3 of Part XI; on the Development Of Resources Of The Area; Article 155(1f) on the Review Conference of the Authority of the Area, states that the conference seeks to find out whether the system has resulted in the equitable sharing of benefits derived from activities in the Area, taking into particular consideration the interests and needs of the developing States. Article 155(2) states that the Review Conference shall ensure the maintenance of the principle of the common heritage of mankind, the international regime designed to ensure equitable exploitation of the resources of the Area for the benefit of all countries, especially the developing States, and an Authority to organize, conduct and control activities in the Area. Article160(2d and 2f(i) and 2g) of Section 4b on the Powers and functions of the Assembly of the Authority; states that it is to establish such subsidiary organs as it finds necessary for the exercise of its functions in accordance with this Part. In the composition of these subsidiary organs due account shall be taken of the principle of equitable geographical distribution and of special interests and the need for members qualified and competent in the relevant technical questions dealt with by such organs; Article 2 (g) states that it is to decide upon the equitable sharing of financial and other economic benefits derived from activities in the Area, consistent with this Convention and the rules, regulations and procedures of the Authority. Article 161, Section C, on Composition, procedure and voting in the Council; 161(e) states that eighteen members elected according to the principle of ensuring an equitable geographical distribution of seats in the Council as a whole, provided that each geographical region shall have at least one

member elected under this subparagraph. For this purpose, the geographical regions shall be Africa, Asia, Eastern European (Socialist), Latin America and Western European and Others. Article 161 (o) (i) states that the council recommends to the Assembly rules, regulations and procedures on the equitable sharing of financial and other economic benefits derived from activities in the Area and the payments and contributions made pursuant to article 82, taking into particular Article 162(d) states that in the composition of subsidiary organs, emphasis shall be placed on the need for members qualified and competent in relevant technical matters dealt with by those organs provided that due account shall be taken of the principle of equitable geographical distribution and of special interests; Article163 on the Organs of the Council; (4) states that in the election of members of the Commissions, due account shall be taken of the need for equitable geographical distribution and the representation of special interests. Article 266 (3) of Part XIV, Section 1 on the Promotion of the development and transfer of marine technology;States shall endeavour to foster favourable economic and legal conditions for the transfer of marine technology for the benefit of all parties concerned on an equitable basis. Artcle 268(b) on the Basic objectives of Article 266; to promote favourable conditions for the conclusion of agreements, contracts and other similar arrangements, under equitable and reasonable conditions; Art. 274(a) on the objectives of the Authority; focuses on the basis of the principle of equitable geographical distribution, and states that nationals of developing States, whether coastal, land-locked or geographically disadvantaged, shall be taken on for the purposes of training as members of the managerial, research and technical staff constituted for its undertakings; Annex II on the Commission On The Limits Of The Continental Shelf in its Article 2(1) states that the Commission shall consist of 21 members who shall be experts in the field of geology, geophysics or hydrography, elected by States Parties to this Convention from among their nationals, having due regard to the need to ensure equitable geographical representation, who shall serve in their personal capacities. Article 6 (5) of Annex II on the Approval of plans of work in the Area; states that Notwithstanding paragraph 3(a), after the end of the interim period specified in article151, paragraph 3, the Authority may adopt by means of rules, regulations and procedures other procedures and criteria consistent with
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this Convention for deciding which applicants shall have plans of work approved in cases of selection among applicants for a proposed area. These procedures and criteria shall ensure approval of plans of work on an equitable and non-discriminatory basis. ANNEX IV. In its Article 5 on the Governing Board of the Enterprise (1) states that: The Governing Board shall be composed of 15 members elected by the Assembly in accordance with article 160, paragraph 2(c). In the election of the members of the Board, due regard shall be paid to the principle of equitable geographical distribution. Article 7 (3), on the Director-General and Staff of the Enterprise; states that the paramount consideration in the recruitment and employment of the staff and in the determination of their conditions of service shall be the necessity of securing the highest standards of efficiency and of technical competence. Subject to this consideration, due regard shall be paid to the importance of recruiting the staff on an equitable geographical basis. ANNEX V. in its Article 2 (2) on the Composition of the International Tribunal For The Law Of The Sea; states that in the Tribunal as a whole the representation of the principal legal systems of the world and equitable geographical distribution shall be assured. SECTION 4 in its Article 35 (2) on the Composition of the Seabed Disputes Chamber; states that in the selection of the members of the Chamber, the representation of the principal legal systems of the world and equitable geographical distribution shall be assured. The Assembly of the Authority may adopt recommendations of a general nature relating to such representation and distribution. This review therefore proves that the principle of Equity occupies an important position in UNCLOS, reasons why important decisions of the major commissions and tribunals are based on this principle. However, the most widely used principle of equity used in UNCLOS is the Equitable Geographical Distribution.

3. Practical application of Equity in International Issues

Judging from the maxims of equity analyzed above, it can be said that equity is an important aspect of international law, given the complexity of trans-boundary issues that cannot always be solved or addressed by common jurisprudence based on right or wrong. Judge Anzilotti, the Italian jurist and rapporteur of the 1920 Advisory Committee to draft the Statute of the Permanent Court of International Justice, agreed, describing the maxim one who seeks equity must do equity as: So just, so equitable,
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so universally recognized, that it must be applied in international Relations. It is one of the general principles of law recognized by civilized nations7. The Clean Hands maxim in particular has been widely applied in international law. 3.1. The case of the diversion of Water from the River Meuse An important case applying the doctrine of clean hands is the judgment of the Permanent Court of International Justice on the Diversion of Water from the River Meuse. This is a rare example of judges applying equitable principles expressly as general principles of international law. The Netherlands complained that Belgium by constructing a lock in Belgian territory had violated an agreement between the two States that they would both take water from the River Meuse only at a certain point. However, the Netherlands had also constructed and operated for a period of time a similar unlawful lock in its own territory. Judge Hudson said that one unlawful lock could not be treated more favourably than the other. He said: It would seem to be an important principle of equity that where two parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing nonperformance of that obligation should not be permitted to take advantage of a similar nonperformance of that obligation by the other party 8. The principle finds expression in the so-called maxim of equity -Equality is equity; He who seeks equity must do equity. Judge Hudson denied the relief sought by the Netherlands on the basis that it was itself guilty of the same breaches which were alleged against Belgium.

3.2. Application of Equity in Some maritime Issues

3.2.1 The Case of Barbados / Trinidad and Tobago maritime delimitation9 This case which took place between July 2000 and November 2003 and included maritime boundary and fishery, clearly shows the application of the principle of Equity and Equitable Geographical representation as noted in Article 74(1) and Article 76(8) of UNCLOS, on the Delimitation of the EEZ and Continental Shelf respectively. The determination of the line of delimitation of the maritime boundary of the two states thus normally follows a two-step approach10.

7 8 9
10

Justice Margaret White. 2004. Justice Margaret White. 2004. Yoshifumi T. (2007) Yoshifumi T. (2007)

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First, a provisional line of equidistance is posited as a hypothesis and a practical starting point. While a convenient starting point, equidistance alone will in many circumstances not ensure an equitable result in the light of the peculiarities of each specific case. The second step accordingly requires the examination of this provisional line in the light of relevant circumstances, which are case specific, so as to determine whether it is necessary to adjust the provisional equidistance line in order to achieve an equitable result. Furthermore, in paragraph 306, the Arbitral Tribunal stated that: While no method of delimitation can be considered of and by itself compulsory, and no court or tribunal has so held, the need to avoid subjective determinations requires that the method used start with a measure of certainty that equidistance positively ensures, subject to its subsequent correction if justified.11 Thus the Arbitral Tribunal adopted the two-step approach or the corrective-equity approach, although it did not accept the compulsory character of the equidistance method. Moreover, concerning relevant circumstances, the Arbitral Tribunal pronounced, in paragraph 228, that the quest for neutral criteria of a geographical character prevailed in the end over area-specific criteria such as geomorphological aspects or resource-specific criteria such as the distribution of fish stocks, with a few exceptions. In fact, the Arbitral Tribunal did not admit traditional fishing activities by Barbados as relevant circumstances in the delimitation of the Western Area12. The corrective-equity approach has been adopted in recent decisions relating to maritime delimitations, including: the Greenland / Jan Mayen (1993), Eritrea/Yemen (1999), Qatar/Bahrain (2001) and Cameroon/Nigeria cases (2002)13 This case shows that in Maritime boundary delimitation, preference is given to geographical considerations; and that non-geographical factors, such as economic factors, practice of the Parties, historic rights, national security etc, have played merely a modest role. Therefore, in my opinion, if a country is stripped of her traditional fishing or historic rights in an area or rendered insecure as a by the outcome of a judgment, even if the maxims of equity, are applied, the outcome cannot be said to be equitable.

3.2.2. The Fisheries case between Britain and Norway

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12
13

Yoshifumi T. (2007) Yoshifumi T. (2007) Yoshifumi T. (2007)

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This case provides a classic example of estoppel or acquiescence a maxim of equity similar to the maxim of Laches. The British had refrained for almost 300 years from fishing in Norwegian coastal waters until 1906 when a few British vessels started doing so14. Trouble began in 1911 when a British trawler was seized for violating Norwegian regulations as to permissible fishing zones. The United Kingdom complained that the Norwegian government had made use of unjustifiable straight base-lines across the fjords in delineating its sea-boundaries. The Court found that the boundaries imposed by Norway were not contrary to international law15. As part of its finding, the Court considered it significant that Norway had applied its method of delimitation consistently over a very long period, that this was well-known to the United Kingdom, and, with this knowledge, it had abstained from making any complaint16.

4. When Equity fails to be equitable

Despite evidence that equity is applied broadly, nonetheless its characterization as a general principle of law places certain constraints on its operation. It has been pointed out that equity does not automatically work to correct a decision where the strict application of law results in an unsatisfactory conclusion17. A principle of equity can only come into play when it is recognized generally by the laws of civilized nations.

4.1 The Nuclear Tests case18

Estoppel (similar to the maxim of Laches) may have played a role in the decision of the International Court in the Nuclear Tests case19. Australia and New Zealand both brought proceedings against France seeking a declaration that Frances activities testing nuclear devices in the Pacific was unlawful. The Court found it unnecessary to decide the case on the merits because prior to the hearing the French President, Foreign Minister and other officials had made unilateral statements and agreements with both countries. The Court considered the status of these unilateral declarations made not only to

14 15 16 17 18

Justice Margaret White. 2004. Justice Margaret White. 2004. Justice Margaret White. 2004. White, M. 2004. Justice Margaret White. 2004.

19

(Australia v France) [1974] ICJ Rep 253. Nuclear Tests (Australia v France) [1974] ICJ Rep 253, [46].
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Australia and New Zealand, but also to the world at large in deciding not to proceed to judgment. The Court said: One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected. However, considering the potential dangers of nuclear weapon testing in the marine environment allowing such an activity or failure to punish the authors on the basis of some equity principle of good faith does not portray an equitable outcome.

4.2. The Barcelona Traction case2021

In this case the International Court suggested that considering the reasoning on the point, it is evidence that equitable considerations cannot be brought in opposition to the law here, because application of equitable principles would have opened the door to legal anarchy. This clearly brings out the short comings of Equity, as applied in International law.

5. Controversial application of Equity in International Maritime Disputes/Issues

A rather different approach to equity has been taken in the sphere of maritime boundary disputes where a more liberal application has occurred. However, there still exists a lot of controversy as to its application that puts to question the equitability of the principle of equity. I have made reference to two maritime issues having almost similar circumstances but of which the outcomes were different and somehow not satisfactory.

5.1 The North Sea Continental Shelf cases22

20

Barcelona Traction (Belgium v Spain) [1970] ICJ Rep 3, [92]. Justice Margaret White. 2004.

21
22

http://www.un.org/Depts/los/convention/agreements/texts/unclos.htm 13

In the first of the important continental shelf cases decided by the International Court of Justice North Sea Continental Shelf cases23 in 1969 the Court noted that there were two basic legal notions which reflected opinio juris24 in the area:

one being that delimitation must be the subject of agreement between the States concerned and The second suggests that agreement must be arrived at in accordance with equitable principles.

This suggests that, in relation to the delimitation of maritime boundaries, the notion of equity as a guiding principle had been accepted by States as a rule of customary international law. In the same case, the Court also noted that the acceptance of equity rested on a broader basis, namely, that the decisions of a court of justice must be just, and in that sense equitable. However the equitable idea of equality which found its expression and application in the equidistance principle in that case soon ceased to be anything more than one method amongst others for ascertaining a disputed maritime boundary. The North Sea Continental Shelf dispute, was submitted to the Court on 20 February 1967, relating to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand, and between the Federal Republic of Germany and the Netherlands on the other, the Parties asked the Court to state the principles and rules of international law applicable, and undertook thereafter to carry out the delimitations on that basis. It had been contended on behalf of Denmark and the Netherlands that the whole matter was governed by a mandatory rule of law which, reflecting the language of Article 6 of the Geneva Convention on the Continental Shelf of 29 April 1958, was designated by them as the "equidistance-special circumstances" rule. That rule was to the effect that in the absence of agreement by the parties to employ another method, all continental shelf boundaries had to be drawn by means of an equidistance line unless "special circumstances" were recognized to exist. According to Denmark and the Netherlands, the configuration of the German North Sea coast did not of itself constitute, for either of the two boundary lines concerned, a special circumstance. The Federal Republic of Germany, for its part, had contended that the correct rule, at any rate in such circumstances as those of the North Sea, was one according to which each of the States concerned should have a "just and equitable share" of the available continental shelf, in proportion to the length of

23 24

North Sea Continental Shelf (Denmark v Germany), (Netherlands v Germany) [1969] ICJ Rep 3, [85]. A sense of legal obligation on the part of States: this is one of the requirements for the existence of a rule of customary

international law, the other being general and consistent practice by States.

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its sea-frontage. It had also contended that in a sea shaped as is the North Sea, each of the States concerned was entitled to a continental shelf area extending up to the central point of that sea, or at least extending to its median line. Alternatively, the Federal Republic had claimed that if the equidistance method were held to be applicable, the configuration of the German North Sea coast constituted a special circumstance such as to justify a departure from that method of delimitation in this particular case. The fact here is: In the case of a concave or recessing coast such as that of the Federal Republic on the North Sea, the effect of the equidistance method was to pull the line of the boundary inwards, in the direction of the concavity. Consequently, where two equidistance lines were drawn, they would, if the curvature were pronounced, inevitably meet at a relatively short distance from the coast, thus "cutting off" the coastal State from the area of the continental shelf outside. In contrast, the effect of convex or outwardly curving coasts, such as were, to a moderate extent, those of Denmark and the Netherlands, was to cause the equidistance lines to leave the coasts on divergent courses, thus having a widening tendency on the area of continental shelf off that coast. The Court rejected the contention of Denmark and the Netherlands to the effect that the delimitations in question had to be carried out in accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf, holding that the Federal Republic, which had not ratified the Convention, was not legally bound by the provisions of Article 6; that the equidistance principle was not a necessary consequence of the general concept of continental shelf rights, and was not a rule of customary international law. The Court also rejected the contentions of the Federal Republic in so far as these sought acceptance of the principle of an apportionment of the continental shelf into just and equitable shares. It held that each Party had an original right to those areas of the continental shelf which constituted the natural prolongation of its land territory into and under the sea. It was not a question of apportioning or sharing out those areas, but of delimiting them. The Court found that the boundary lines in question were to be drawn by agreement between the Parties and in accordance with equitable principles and it indicated certain factors to be taken into consideration for that purpose. It was now for the Parties to negotiate on the basis of such principles, as they have agreed to do. Thus, in the historical judgment given by ICJ (International Court of Justice) in North Sea Continental Shelf Case (1969), Germany got access to North Sea despite the equidistant line did not
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allow her to do so. The ICJ North Sea case judgment sets a lot of factors to be considered as benchmarks. Also, it noted that equidistant method can be bypassed only in case of special circumstances. In those cases, if no consensus arises between the parties then they were to be divided between the Parties in agreed proportions, or, failing agreement, equally, unless they decided on a r gime of joint jurisdiction, user, or exploitation. Thus, the use of the equidistance line to apportion parts of the continental shelf among the three countries would have been right and just, but the court decides otherwise and decides to apply the principle of Equity on account of Germanys disadvantages. This is a classical example of an equitable outcome.

5.2. The Maritime Boundary case between Nigeria and Cameroon25

The Maritime Boundary case (ICJ, 2002) judgement between Nigeria and Cameroon is a good example to test the equitability of the principle of Equity.
26

Cameroon took Nigeria before the World Court in

March 1994 and challenged Nigerias maritime boundaries limiting themselves at first to the Bakassi Peninsula in the South and the Maritime Boundary. Subsequently Cameroon enlarged the scope of their application to include the entire land boundary and Lake Chad. Following that hearing the Court was to pronounce on the Nigeria/Cameroon Maritime Boundary. The difficulty that exists over the maritime boundary there is that there exist in effect, three competing lines as follows:

There is a line which strikes out into the middle of Nigerias existing oil fields: this was the line Cameroon first put forward in the proceedings.

There is a line which goes down the eastern side of Bakassi - that is Nigerias claim line. The third line is the line which has been observed by the licensing authorities in all three countries and by the oil companies which may conveniently be termed the Oil Practice Line. This line represents the de facto division between Nigeria and Cameroons offshore oil interests albeit there are areas of overlap even on that line. The difficulty for Cameroon is that she is in a classic shelf-lock position which would be bad

enough if it was just between Nigeria and Cameroon, but with the addition of Equatorial Guinea, Cameroon really is hemmed in. Thus, considering the fact that Cameroon is a geographically disadvantaged state, with a short maritime border and almost completely concave coastline, the court

25

Dzurek, D.J. 1999. Gulf Of Guinea Boundary Dispute

Maritime boundaries in the Gulf of Guinea By Tim Daniel, partner in D J Freeman, London; 1998

26

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was bound by Article 70 of UNCLOS to take this fact into consideration as a special circumstance. Therefore, Cameroon claimed to get more EEZ from Nigeria under equitable adjustment.
27

In the ICJ, 2002 judgement, Cameroons claim to get more EEZ from Nigeria under equitable

adjustment was dismissed. The Arguments were as follows: The Court notes in this respect that Cameroon contends that the concavity of the Gulf of Guinea in general and of Cameroons coastline in particular, creates a virtual enclavement of Cameroon, which constitutes a special circumstance to be taken into account in the delimitation process. Nigeria, for its part, argues that it is not for the Court to compensate Cameroon for any disadvantages suffered by it as a direct consequence of the geography of the area. It stresses that it is not the purpose of international law to refashion geography. The judgment notes: This method (equitable), which is very similar to the equidistance/special circumstances method applicable in delimitation of the territorial sea, involves first drawing an equidistance line, then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an equitable result. The Courts jurisprudence shows that, in disputes relating to maritime delimitation, equity is not a method of delimitation, but solely an aim that should be borne in mind in effecting the delimitation. The Court finds that although it does not deny that the concavity of the coastline may be a circumstance relevant to delimitation, it nevertheless stresses that this can only be the case when such concavity lies within the area to be delimited. It notes that the sectors of coastline relevant to the present delimitation as determined above exhibit no particular concavity. Having further concluded that there were no other reasons that might have made an adjustment of the equidistance line necessary in order to achieve an equitable result, the Court decides that the equidistance line represents an equitable result for the delimitation of the area in respect of which it has jurisdiction to give a ruling.

Analysis and Conclusion

Therefore, from the analysis of the North Sea Continental Shelf Case (1969) and In the ICJ, 2002 judgement on Cameroon/Nigeria maritime border dispute, it is observable that the principle of Equity in International Law in some cases leads to equitable outcomes and not in others. The short comings of application of Equity can be clearly seen from the controversy that surrounds the equidistance line
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principle in both cases. In the North Sea Continental Shelf Case, the court concludes that the equidistance principle was not a necessary consequence of the general concept of continental shelf rights, and was not a rule of customary international law. Controversially, the Cameroon/Nigeria border dispute the Court decides that the equidistance line represents an equitable result for the delimitation of the area in respect of which it has jurisdiction to give a ruling. Cameroon is clearly a geographically disadvantaged state, even more than Germany judging from her concavity and short coastline which represent special circumstances. Therefore, the ICJ ruling against Cameroon goes against this special circumstances provision, and thus against an equitable outcome. Compared with the North Sea case, it can even be said that in the application of Equity principles, judges bias or leanings can influence the outcome of the case. However, International court rulings especially in the application of the clean hands maxim, as in the cases mentioned above, equity really leads an equitable outcome. Thus, Equity, like other general principles of law can lead to the delivery of judgment and justice but not necessarily an equitable outcome. Equity is not always equitable.

References
Yoshifumi, T. 2007. Barbados / Trinidad and Tobago maritime delimitation; Hague Justice Journal; Volume 2; QUTLJJ Dzurek, D.J. 1999. Gulf Of Guinea Boundary Dispute. IBRU Boundary and Security Bulletin Daniel, T. 1998. Maritime boundaries in the Gulf of Guinea, PCL2/935260/2, London. http://www.un.org/Depts/los/convention/agreements/texts/unclos.htm Number 1, 2007 White, M. 2004. Equity A General Principle of Law Recognized by Civilized Nations? Vol. 4 No 1

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