| III. | The International Court of Justice |
| 1. | FUNDAMENTAL PRINCIPLES |
| 1.6. | Applicable Law |
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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.
