국제법상 ‘형평’(equity)의 제한적 역할‒국제법상 형평의 기능 및 적용에 관한 재고(再考)‒

Originated from Aristotle’s legal theory, the role of equity has been accepted as a corrective. However, as confirmed in the 1982 Continental Shelf(Tunisia/Libya) case of the International Court of Justice, the role of equity in ‘international law’ is not to correct existing law in a given case. It is often argued that equity has to be regarded as one of the general principles of law. This would be to ignore the heated debates within the 1920 Advisory Committee of Jurists for codifying Article 38 of the Statute of the Permanent Court of International Justice. The contention that there are the three functions of equity in international law (equity infra legem, equity praeter legem and equity contra legem) can hardly be justified. The reason for this is that such a contention is not supported by case-law. Equity in international law can be employed only where a couple of rules in treaties or customary international law include the concept of equity: the concept of an equitable utilization in the law of international watercourses or the concept of an equitable solution in the law of maritime boundary delimitation. The rules including the concept of equity aim to achieve an equitable ‘result’ in a concrete case. In order to obtain an equitable result, relevant factors or circumstances have to be taken into account because such factors or circumstances reflect the uniqueness of each case. The consideration of relevant factors or circumstances is an appropriate application of equity where the concept of equity itself exists ‘within’ some rules included in treaties or customary international law.