LESSON 6 - EX AEQUO ET BONO

For the sixth lecture in this lecture series, we'll be exploring the concept of ex aquio e buono. This phrase, also found in the Statue of the ICJ, is a Latin phrase and a legal term of art, which means according to the right and good, or from equity and conscience. In one of our previous lectures, Article 38 sub 1 of the Statue of the ICJ lists four sources of international law that the ICJ can apply in performing its functions. Despite the provisions of Article 38 sub 1, 38 sub 2 is to the effect that the court is not prejudiced from deciding a case ex aquio e buono on the condition that the parties to the case in question agree to it. Until specific to this provision of the Statue of the ICJ, we will be addressing the following questions in this lecture. One, what is the meaning and relevance of ex aquio e buono under international law? And two, what are other examples of international conventions that mention ex aquio e buono? For one, what is the meaning and relevance of this concept? So generally speaking, the concept of ex aquio e buono is based on the idea of fundamental fairness. It empowers judges and arbitrators to decide a case according to what is fair or equitable and good. This is also to say in good conscience and notwithstanding the reading law. So this concept allows for the proper feeling of any lacuna in international law. As such, decisions ex aquio e buono go beyond the domain of legal rules and are external to the law. They can be deemed avowed creations of new legal relations between the parties. And we will see that though ex aquio e buono translates to according to fair and good, it should be differentiated from equitable principles in general. Equitable principles under international law are founded in international customary law, and they can simply be used as a means of legal interpretation for formulating ethical, social, or cultural context in which an established legal rule has to be understood. The application of equitable principle does not, strictly speaking, require the consent of parties to the issue in question, as they form part of the applicable laws within a legal system and possess a gap-filling or supplemental function. On the other hand, decisions ex aquio e buono, as we already mentioned, are external to the law and set aside femme legal rules. In contrast, equitable principles, as we just mentioned, are within applicable laws. So to decide a case ex aquio e buono, as the statute mentions, the parties' unequivocal consent is required. Ex aquio e buono in many respects aims for compromise and consolation and have been alluded to as having its roots in moral, social, and political spheres and relying on a flexible rule of reason rather than a strict rule of law. So it is important to note that notwithstanding their differences, both concepts have in common their reference to considerations of fairness and reasonableness. So to the second point, what are other examples of international treaties that reference ex aquio e buono? So beyond the statute of the ICJ, other international instruments also empower international tribunals to determine cases ex aquio e buono where parties agree. It's important to also highlight that fact that at every point in time that a court or international tribunal is to decide a case based on this concept, the parties to the case before the court or tribunal have to consent. For example, while article 2931 of the UN Convention on the Law of the Sea demands that a court or tribunal having jurisdiction under this section shall apply this convention and other rules of international law not incompatible with this convention, article 2932 of the same UN Convention on the Law of the Sea modifies 293 sub 1 by stating that, and I quote, paragraph one does not prejudice the power of the court or tribunal having jurisdiction under the section to decide a case ex aquio e buono if the parties so agree. So we see that pertaining to several aspects of international law where parties agree that an issue should be resolved ex aquio e buono, and the provisions of the international forum or international agreement between the parties have clearly encapsulated the availability of having decisions reach ex aquio e buono, such an agreement will be honored by the international court or tribunal. Summarily, we have discussed the concept of ex aquio e buono under international law and briefly distinguished it from equitable principles of international law. So I want to say thank you so very much for joining in. Remember to like, share, subscribe and hit the notification button so that you are notified when there's a new video. Thank you.