Equity is the set of rules or principles that form an appendix or shine from the general rules of law. It represents the attempt. some. Legal system to solve a problem encountered by all legal systems that reach a certain level of development. To ensure the proper functioning of society, it is necessary to formulate general rules, which in most cases work quite well. Sooner or later, however, there are cases in which the general rules lead to significant injustices in the event of unforeseen facts. When this happens, justice requires either a change of rule or, if, if . The rule is not freely modifiable, another rule or set of rules to mitigate the severity of legal norms.28 43. On the other hand, it has been found that a clear distinction between general principles formulated at the international level and customary international law is practically unnecessary.86 The ICJ often resorts to the rules or principles of “general international law” without specifying the respective source.87 In considering the above principles, e.g. the uti possidetis principle, which is applied in the border dispute, and the principles applied in Corfu Channel, commentators who call them customary international law88 and those who regard them as general principles of law,89 do not seem to dispute their legal character or the process of their identification. 24h In this context, it should be recalled that, as explained in the preceding sections, the inclusion of general principles of law as a source of international law was primarily motivated by the need to make international law an autonomous and coherent legal system and, to that end, constitutes a mechanism by which the “tacit consent” of States through legal reasoning based on national documents can be interpreted. In the sense that the evidentiary requirement for the identification of such “implied consent” is less onerous than the requirement to prove more direct consent expressed in customary international law, it is not entirely unreasonable to characterize this source as a “light custom”. Finally, the real purpose of including general principles of law in the PCIJ Statute and the ICJ Statute was to remove the limits of the directly consensual rules of treaties and customary international law.
If the criteria for identifying customary international law were to be interpreted more broadly and leave more room for deductive reasoning, there would inevitably be a grey area between the general principles of the second category and customary norms. In this context, the labelling of these general principles has only limited practical consequences. The real issue, however, is whether and to what extent international norms can be extrapolated from treaties, customary international law and other non-binding elements, and to what extent these norms can go beyond the explicit consent of Governments to create rights and obligations for them. 8. If the elaboration of a rule in the form of treaty or customary international law requires the direct and final consent of States, then international law can be properly defined as “the body of legal norms governing international relations” deriving from the will of States. [19] However, it is doubtful whether such a “set of legal norms” can form a coherent and self-sufficient legal system. whether it qualifies as a legal system. First, these consensual norms cannot explain the legal authority on their own. In other words, Hart`s rule of recognition is absent, and to argue that consent is the basis of the rule that rules must be based on consent is to argue in a circle.20 Moreover, the set of norms to which States have subscribed would necessarily not only be “silent on many issues, but also scattered across a mass of detailed rules and precedents.
that would not unite a common bond.” 21 For example, the law would be particularly laconic when a legal regime is just beginning to develop, but cases may arise that require a legal response;22 and when separate rules conflict with each other, it is likely that international law does not have ready-made rules based on the direct consent of the State to resolve such conflicts.