Article by M. W. Janis
Tentative Draft No. 1 of the Restatement of Foreign Relations Law of the United States (Revised) (the "Tentative Draft"), unlike the predecessor Restatement (Second), discusses the general principle of equity, albeit briefly, in the section on Sources of International Law, comment m (the "comment"):
Resort to principles of equity, in the sense of accepted notions of what is fair and just, is a general principle of law common to major legal systems and as such it may be invoked as incorporated into international law. That principle is not to be confused with references to "Equity" and distinctions between Law and Equity as separate bodies of law in traditional Anglo-American jurisprudence. Resort to equity as a general principle incorporated into international law is also to be distinguished from the power, conferred on the International Court of Justice in Article 38(2) of the Statute (and in numerous arbitration agreements), to decide cases ex aequo et bono if the parties agree thereto, which permits the Court to settle a case without resort to principles of law.
Given the brevity of the comment and the importance often attached in practice to the Restatements, I thought it might be helpful to expand on the comment. First I will show how it accurately restates, in a succinct fashion, a considerable body of traditional doctrine about the role of equity in international law. Second I will explain why neither the comment nor the doctrine on which it is based do a satisfactory job with two of the more important equity problems presently confounding international lawyers.
About the Author
M. W. Janis. Professor of Law, University of Connecticut School of Law. A.B. Princeton University; B.A., M.A. Oxford University; J.D. Harvard Law School. Member, New York Bar. Member, American Bar Association Ad Hoc Committee on the ALI Restatement of the Foreign Relations Law of the United States. The views expressed herein are those of the author and do not represent a position of either the Ad Hoc Committee or the ABA.
Citation
57 Tul. L. Rev. 80 (1982)