INTERNATIONAL LAW
W.B. Fisch, Fall 2008
Assignment #6

D. Equity

THE CAYUGA INDIANS CASE, p. 154 (US-UK Claims Arb. 1926). Treaties between New York State and the Cayuga Nation, promising an annuity to the Cayugas. Canadian members of the tribe claimed that they had not received their share of the annuity after 1811 (War of 1812!)

1. How did this claim get into an arbitration of claims between the US and the UK? Was GB a party to the treaties between NY and the Cayugas? Did Int’l Law govern those treaties?

2. Who are “the Cayuga Nation”? Whose law determines that (US, UK, or Int’l Law)?

3. Did the arbitral tribunal determine that a strict rule of international law (a treaty) was overridden by a principle of equity (fairness) – i.e. did it apply equity contra legem?

4. what exactly was the principle of equity applied by the tribunal?

5. how did that principle become applicable to the decision?

THE MEUSE CASE, p. 158 (ICJ 1937, opinion of Judge Hudson)(former member of this faculty!). Complaint by Netherlands against Belgium for diversion of water from the Meuse in violation of a treaty governing allocation.

1. what exactly is the principle of equity that is invoked by Belgium and applied by Judge Hudson? Do you recognize an American counterpart?

2. did equity serve here to override a rule of law (contra legem)?

3. is it clear that Judge Hudson is relying exclusively on equity here? or does he find that there is a general principle of law applicable in the case? Is there a difference?

4. how would this differ from a decision ex aequo et bono requested by the parties (art. 38(2) of the ICJ Statute)?

THE NORTH SEA CONTINENTAL SHELF CASES, p. 162 (ICJ 1969).

1. What is the issue facing the Court? Can it be resolved on the basis of existing agreements?

A. bilateral agreements between Germany and Denmark and the Netherlands respectively? (do they go far enough?)

B. the Geneva Convention on the Continental Shelf, art. 6?

1. is Germany bound?

2. has this rule become customary IL?

2. If the Court were to find no rule of international law governing the issue presented, would a simple application of the Lotus rule be sufficient to decide the case?

3. what methods are proposed to resolve the dispute, and who would benefit most by them?

A. equidistance (Denmark and Holland)(Geneva Convention art. 6!)

B. proportionality (Germany)

4. what role does equity play in the Court’s decision?

A. is it contra legem?

B. praeter legem?

C. inter legem?

what role does the history of territorial claims to the continental shelf play in the case?