Principle of Equality in International Law: The Right to Equality

AuthorElena Andreevska, Etem Aziri
PositionProfessor, Ph.D., Law Faculty, SEE University, Tetovo, Macedonia/Professor, Ph.D., Dean of Public Administration and Political Sciences Faculty, SEE University, Tetovo, Macedonia
Pages228-238

Page 228

1. Introduction

The traditional perception of the concept of equality in international law is rooted in Aristotelian thought, in which equality is defined as the corrective of the law.1 Aristotle felt that the lawgiver could draft laws in general terms only, and that consequently laws could not attain their intended purpose in every case. Accordingly, in special cases the law needs to be tempered by equality in order to achieve a just result – a result the lawgiver would presumable have sought if he had foreseen the exceptional case. The Aristotelian concept of equality as the corrective of law made an early appearance in public international law.2

The right to equality and non-discrimination was not easily accepted by the international community. During the 1919 Paris Conference, held in the aftermath of the First World War, Japan worked intensively to have the principle of racial equality inserted in the Covenant of the League of Nations. Although a majority of eleven out of seventeen members of the Conference Commission voted in favour of the Japanese proposal, President Wilson of the United States “suddenly declared from the chair that the amendment had failed”. In spite of vigorous protests by several delegates against this rejection of the amendment, President Wilson insisted – to the great disappointment of the Japanese delegation – that the amendment had not been adopted.3 Logically, the League Covenant did not even contain any express reference to the principle of equality between States.4

In the 19th and early 20th centuries references to equality and the equitable powers of international arbitral tribunals appeared not infrequently. Following the conclusion of the peace treaties after World War I, there was considerable debate regarding the possible modification ofPage 229 terms of the treaties unfair to Germany by courts giving equitable competence to correct the legal rules.5 These developments led to doctrinal debate between adherents of the schools of positivism and natural law regarding the role of equity in international law. Because the concept envisages the judge correction positive rules of law, positivists attacked its use as an unwarranted encroachment on State sovereignty and as an unwise grant of judicial discretion. On the other hand, the advocates of natural law applauded equity and judicial discretion as a means to attain more fairness and justice in international law.6

Progress was made, however, during the elaboration of the Charter of the United Nations after yet another global war of unspeakable horror which had its origin in deliberate and carefully systematized discriminatory practices embracing entire state structures. The world could no longer close its eyes to such vile practices and the threat to peace that they represented.

In the second preambular paragraph to the Charter of the United Nations, the peoples of the Organization express their determination “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”.

According to Articles 1(2) and (3) of the Charter, the purposes of the United Nations are, inter alia, “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” and “to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”

While Article 2(1) expressly confirms that the “Organization is based on the principle of the sovereign equality of all its Members”, the principle of non-discrimination in the observance of human rights is reaffirmed in Articles 13(1)(b), 55(c) and 76(c). The Charter of the United Nations testifies to the fact that international peace and security depend to a large extent on “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” (Art. 55(c)).

What can with some justification be called international constitutional law is thus today solidly based both on the principles of equality between States and the equal worth of all human beings, although only the latter principle will be dealt with in this chapter.

Finally, equality has been considered, by the International Court of Justice (ICJ) in the North Sea Constitutional Shelf Cases, not simply as a matter of abstract justice but as ‘a rule of law that calls for the application of equitable principles’.7 This jurisprudence was more specifically developed in the Tunisia – Libya Continental Shelf Case where the legal concept of equality is held to be ‘a general principle directly applicable as law’. The Court distinguishes this concept from other meanings of the term equality which have been used in the history of legal systems to define various legal concepts. To apply this principle means that the Court ‘is bound to apply equitable principles as part of international law, and to balance up the various considerations which it regards as relevant in order to produce an equitable result’. This task is distinguished from rendering a decision ex aequo at bono:8 ‘While it is clear that no rigid rules exist as to the exactPage 230 weight to be attached to each element in the case, this is very far from being an exercise of discretion or conciliation; nor is it an operation of distributive justice’.9

Equality as the basis of decision can be applied as a rule of law only in connection with an evaluation of the circumstances relevant in the concrete case. These circumstances can be either facts or legal situations, or combination of both. To avoid the subjective elements of this evaluation running over into a decision ex aequo et bono, the relevance of the factual and legal circumstances and their relative weight must be elaborated using rational argument.10

2. Equality: Defining the Concept

The terms ‘equality’, ‘equal’, and ‘equally’ signify a qualitative relationship. ‘Equality’ (or ‘equal’) signifies correspondence between a group of different objects, persons, processes or circumstances that have the same qualities in at least one respect, but not all respects, i.e., regarding one specific feature, with differences in other features.11

‘Equality’ and ‘equal’ are incomplete predicates that necessarily generate one question: equal in what respect?12 Equality essentially consists of a tripartite relation between two (or several) objects or persons and one (or several) qualities.13 ‘Equality’ denotes the relation between the objects that are compared. Every comparison presumes a tertium comparationis, a concrete attribute defining the respect in which the equality applies – equality thus referring to common sharing of this comparison-determining attribute.14 However, above all equality serves to remind us of our common humanity, despite various differences and in its perspective usage has, of course, a close connection with morality and justice in general and distributive justice in particular.15

It should be noted that equality was used frequently in international law during 19th century. Many international arbitrations provided for decision according to international law and equity. Then somehow at the beginning of 20th century things quited down and equity was used much less.16 In 1960’s when the ICJ began to consider disputes related to maritime boundaries in thePage 231 North Sea Continental Shelf Cases, it rediscovered equitable principles. The Court relied on the Truman Proclamation that said if the United States had any disputes about the continental shelf, they would be solved by agreement with the other country concerned, in accordance with equitable principles.17 Because the Proclamation was followed by number of other states, the Court cited it as the beginning of a trend that established the principle the Court would follow.18

Certainly, in the North Sea Continental Shelf Cases and a number of following cases, various problems arose about what is equity, what are ‘equitable principles’ and what is an equitable result.

The first problem is the old distinction between equity meaning principles of general international law and equity meaning that the court should decide according to what is just and proper, which some call ex aequo et bono, an old well-known phrase. The phrase ‘ex aequo et bono’ was used in a large number of treaties, starting with the General Act of Geneva in 1928, and the arbitration treaties that followed it.19 Those treaties provided that, in principle, cases sent to the ICJJ should be decided according to Article 38(1), of the Statute of the Court.20 There was also Article 38(2), however, which allows the Court to decide ex aequo et bono when the parties agree and, of course, some of those treaties amounted to such agreement. The majority of those treaties did not provide, however, for the court to decide ex aequo et bono; they provided instead for an arbitral tribunal to deal ex aequo et bono with disputes that were not legal. There was a second group of treaties, including the European Treaty on Peaceful Settlement in the 1950s,21 that provided that if a tribunal could not find a rule of international law on the subject, it might deal with the subject ex aequo et bono.

Substantive principles present more of a problem, however. Equity under Anglo-American law means one thing, equity under continental law derived from Roman principles means something different. The same is true for equitable principles under...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT