Fair and just
Equity is described as being synonymous to the basic notion of fairness and natural justice, and it is directly related to the idea that human behaviour is directed by common moral, ethical and cultural principles. Equity can also be regarded as a constructive, positive and liberal concept that helps resolve conflicts and tensions through the reconciliation of conflicting interests. Thus, it has become a significant element of the political, economic and legal spheres of modern society, reflected in democratic ideals as well in the common and civil law systems of the world.
In the legal sphere, equity has played a crucial role in resolving conflicts in environmental protection and sustainable development including equitable utilisation of international watercourses. Equity has been considered to be the best tool to reconcile the divergent interests of each contending party to its satisfaction.
The right of unborn generations has to be protected, which is referred to as intergenerational equity. It is linked with the new international economic order (NIEO) in order to bridge the gap between the North and the South in terms of fostering international economic cooperation. Likewise, distributional equity suggests that richer states are normally bound to distribute at least some of their resources (0.7 percent of
their GDP) to poorer states so as to build a more equal and secure world. At the same time, distributional equity refers more to the concept of providing a better life to the people of the developing world. Nevertheless, it is being argued that such assistance should be on moral grounds rather than legal compulsion.
The target of halving world poverty by 2015, known as MDG, is based on the idea of distributional equity in which it is certainly possible to justify the notion of preferential treatment for the developing world as an idea of “fairer trade” or preferential trade with landlocked developing countries (LLDCs) or duty free imports.
In the common law system, the concept of equity is used to bridge lacunae, remove the rigidity of laws for fairness and select one of the best interpretations of the law for ensuring justice. Equity has developed into a major legal system encompassing the civil and common law systems, albeit their approaches differ. The common law system developed in England as a separate system of law with its own normative status. According to Rossi, equity is not only a principle but also a collection of rules. He said, “The common law eventually freed equity from its restrictive function as a means of correcting specific laws, and in so doing, made equity an independent source of fresh rules of law and indeed a new system of law.”
In national legislation, states have made specific enactments in order to protect minorities and disadvantaged, excluded and marginalised groups adopting the principle of equity among unequals. And on numerous occasions, such legislation has been considered to be legitimate when it was contested in a court of law in view of the inconsistency with the right to equality and equal protection under the law. Likewise, the UN has adopted many instruments, conventions and resolution in this context which are based on the notion of equity. The role of equity in international law and diplomacy is paramount. In the same vein, the role of equity in the jurisprudence of the International Court of Justice, and before that, in the Permanent Court of International Justice has developed a very rich stock of jurisprudence. However, the interpretation is not very consistent and even. Unjust enrichment is prohibited by law and it is based on the principles of fairness and equity. Unjust enrichment is when someone obtains property or gets rich without sufficient reason. It refers to unreasonable, illegal and unjust ways of getting rich. It also indicates the proposition that a party should not enrich itself, without legal cause, at the expense of others. Therefore, equity stands for greater justice and fairness. Unjust enrichment underscores exactly the reverse position and, therefore, the concepts are closely linked.
Equity has a vital role in the allocation of natural resources within a country and at the international level. Numerous verdicts by the ICJ and the PCIJ on sharing resources on the continental shelf and the sea bed and sharing benefits from boundary and trans-boundary watercourses suggest that the element of equity has played a pivotal role in enunciating such precedents. The international trading arrangement within the framework of GAAT and the WTO and several trading references have included the rule of equity under their regime.
The Law of the Sea Convention 1982 has explicitly adopted the notion of equity as a skeleton in the convention and the notions can be seen in its article 156 as a mechanism to ensure the management and equitable distribution of the benefits derived from the exploitation of the common heritage element of marine resources through the international seabed authority.
The UN Moon Agreement also includes elements of common heritage equity in its provision as do international and bilateral arrangements on exploitation of Antarctican resources between nations. Equity is considered to be the soul of sustainable development, and vital international conventions on the environment, sustainable development, global warming and climate change contain the major elements of equity. In a case between Hungary and Czecho-Slovakia on Gacikovo-Nagymaros in 1997, the ICJ held the view that equitable utilisation is the fundamental rule of sharing benefits between riparian states from international watercourses.
In the light of the foregoing, equity has become the vital rule to deal with justice, politics and bilateral and international negotiations and agreements on both the domestic and international fronts. The application of equity in political, socio-economic, trade and environmental issues is increasingly agreed upon among the parties. As Roselyn Higgins has rightly observed, the general principle of equity and proportionality are meant to oil the wheels of decision-making. However, we should be sceptical. Equity is a tool that should be properly understood and successfully applied to achieve the broader objectives of becoming prosperous and dignified lives of the people in the local and global contexts.
Upreti is a Secretary at the Prime Minister’s Office
Posted on: 2011-09-04 07:59
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