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World Court Digest

III. The International Court of Justice
1.6. Applicable Law

¤ Maritime Delimitation in the Area
between Greenland and Jan Mayen,
Judgment, I.C.J. Reports 1993, p. 38

[pp. 193-194 S.O. Shahabuddeen] Although an ex aequo et bono power does not require a departure from principles of law, its hallmark is that it permits of such a departure. Where no such departure is in question, it is not correct to speak of a tribunal as acting ex aequo et bono, even where the tribunal may itself have used the term in describing its decision (see Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, I.C.J. Reports 1956, p. 100). No power to depart from principles of law is exercisable in an equitable delimitation by the Court. Wide as are the Court's powers of appreciation, they are powers conferred by the law itself; their exercise results in a judicial definition of the existing legal relations between the parties, and not in a legislative creation of new legal relations displacing existing ones between them (see, generally, Sir Hersch Lauterpacht, The Development of International Law by the International Court, 1958, p. 213, para. 68; and, also by him, Private Law Sources and Analogies of International Law (with Special Reference to International Arbitration), 1927, pp. 65-66, para. 28). This being the case, it would not be right to regard an application by the Court of equitable principles as amounting to the assumption of a power to act ex aequo et bono.