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impression, only the opinions of writers can be referred to possible to establish the existence of a unanimous or practically
in support of one or the other of the opposing contentions unanimous interpretation, on the part of writers, of governmental or
of the parties. The extent to which writers are referred to judicial practice, reliance on such evidence may add to the weight of the
Judgments and Opinions of the Court. 67
as "subsidiary" authorities often varies according to the
tradition of the court and the individual judge. It should be noted that municipal courts, arbitration tri-
b. There has traditionally been judicial reluctance, bunals, and civilian and military attorneys confronted with
more marked in the British jurisdictions than in the international legal problems still make frequent reference
United States, to refer to writers. In the civilian system, to the works of publicists.
reference to textbook writers and commentators is a nor- 1-10. Cases Decided ExAequo et Bono. a. There had
mal practice, as a perusal of any collection of decisions of been considerable discussion in international law as to
the German, Swiss, or other European Supreme Courts whether "equity" is distinct from the law in the sense in
will show. A prominent example of reliance on writers in a which ex aequo et bono is used in Article 38, paragraph 2,
common law court is the decision of the U.S. Supreme of the Statute of the International Court of Justice. 68 This
Court in the Paquete Habana case. Here, Justice Gray, in paragraph gives the court the power to decide a case ex ae-
looking toward writers in an attempt to find a customary quo et bono (according to justice and fairne8) if the parties
rule of international law, observed that since there was no agree thereto. In addition, the paragraph sets up a statuto!
treaty on the question before him, ry and equitable standard which, although never used by
. . . [Rlesort must be had to the customs and usages of civilized nations; the International Court of Justice in deciding a case, has
and as evidence of these, to the works ofjurists and commentators, who been occasionally utilized by other international tri-
by years of labor, research and experience, have made themselves bunals. 69
peculiarly well acquainted with the subjects of which they treat. Such b. The difference between equity and decisions made'
works are resorted to by judicial tribunals, not for the speculation of
their authors concerning what the law ought to be, but for trustworthy ex aequo et bono is not clear in the present state of interna-
tional law. A license to render a decision ex aequo et bono
evidence of what the law really is. 65
permits a judge to decide a case in accordance with his
c. The courts have, however, been most careful not to
confuse the writings of publicists with the law itself. In conscience, uncontrolled by law or by equity. The term
"equity" refers to general abstract principles ofjustice and
West Rand Central Gold Mining Company v. The King,
the court commented on the role of text writers in fairness of universal validity (i.e., one should not be
developing international law. In speaking ror tne tribunal, allowed to profit by one's own wrongful act). On the other
hand, the term ex aequo et bono does not refer to any
C.J. Lord Alverstone stated:
body of general rules and has meaning only with regard to
The views expressed by learned writers on international law have a particular factual situation-that which would be a fair
done in the past, and will do in the future, valuable service in helping to
create the opinion by which the range of the consensus of civilized na- disposition of a particular case according to the judge. Ac-
tions is enlarged. But in many instances their pronouncements must be cordingly, an international court, using either the sources
regarded rather as the embodiments of their views as to what ought to of international law set forth in article 38 of the Statute of
be, from an ethical standpoint, the conduct of nations inter se, than the the International Court of Justice or general principles of
enunciation of a rule or practice so universally approved or assented to international jurisprudence, cannot easily determine the
as to be fairly termed, even in the qualified sense in which that word can
be understood in reference to the relations between independent politi- exact role equity should play in its decisions. Neverthe-
cal communities, law. 66 less, even with these limitations, equity is still a possible
source of international law and, as several cases demon-
d. In the final analysis, the opinions of writers are only
as authoritative as the evidence upon which they are strates, 70 it is misleading to make a very sharp distinction
based. However, such a conclusion does not adequately between the concept of ex aequo et bono and equity, each
of which is designed to achieve justice. Moreover, a deci-
measure the influence exerted by publicists throughout sion rendered ex aequo et bono cannot be cited as evi-
the years. They have played a most significant role in the dence of international law, in that it was never intended
development of international law. Recently, it has been that this law be the basis of such a decision. The fact that
noted that the I.C.J. has had little occasion to rely upon the I.C.J. has never turned to this concept is an indication
the opinions of text writers, referring to them only in the of the minimal role it has played in the development of in-
most general of terms. One noted publicist has suggested a ternational legal norms.
reason for this development:
There is no doubt that the availability of official records of the practice
of Strites and of collections of treaties has substantially reduced the 67. H. Lauterpacht, supra note 64, at 24.
, 68. W. Friedmann, The Changing Structure of Infernational Law
necessity for recourse to writings of publicists as evidence of custom. 197 (1964).
Moreover, the divergence of view among writers on many subjects as 69. The Chaw Conflict (Bolivia v. Paraguay), 3 R. Int'l Arb.
well as apparent national bias may often render citations from them Awards. 1817 (1938), 33 AM.J. INT'LL. 180 (1939); Case of James
unhelpful. On the other hand, in cases--admittedly rare-in which it is
Pugh, 3 R. Int'l Arb. Awards 1307; ANNUALDIGEST, case 46
65. The Paquete Habana, 175 U.S. 677 (1900). (1933-34).
66. West Rand Central Gold Miniig Company v. The King, [I9051 70. Diversion of Water from the River Meuse, [I9371 P.C.I.J. 70;
2 K. B. 391. Cayuga Indians Claim, 6 R. Int'l Arb. Awards 173 (1926).