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Much has been written on the similarities and differences between arbitration tribunals and international courts; much more could and will certainly be written in the future. The purpose of my comments is to define similarities and differences in regard to the role of equity in both. However, I hope to enter the caveat at the very outset that in this paper I will focus solely on the role of equity in cases where the decision is to be based on international law. Accordingly, I will not here discuss cases of the type I had in mind when I pointed out in a speech delivered 34 years ago to the Legal Committee of the UN General Assembly that “[t]he arbitral solution has been applied in the past to a variety of problems, some of which were not judicial in character and did not raise issues of law”. Nor will I now discuss arbitrations in which the parties have agreed that the arbitrators need not be guided by law, or where the arbitral tribunal is expressly authorized by the parties to decide ex aequo et bono and thereby to settle the matter in a liberal spirit without regard to legal requirements and technicalities. Thus, cases in which the arbitrators have been empowered to seek mutual accommodations that would give offense to neither party are outside the scope of this discussion, as are cases where arbitrators recommended action by one of the parties as an act of grace.
It so happens that this is the 25th anniversary of the adoption of the Treaty on Legal Principles Governing die Activities of States in die Exploration and Use of Outer Space including die Moon and other Celestial Bodies. On 19 December 1966 die General Assembly of die United Nations unanimously adopted a resolution commending the Treaty; on 27 January 1967 the Treaty was signed simultaneously in Moscow, London and Washington. As one who presided over die work of die Legal Sub-Committee leading to die conclusion of that Treaty it may be timely for me to recall some of the events and developments preceding its adoption.
During the last two decades, we have frequently heard about a “crisis” in the kingdom of international law. Without engaging in semantics, one can understand the word “crisis” in its normal dictionary meaning as “a turning point in the progress of anything”; more, “a state of affairs in which a decisive change for better or worse is imminent.” However, these connotations are not necessarily present in the minds of those who apply the term to international law. They intend rather to refer to the weakness to which it is condemned, to its subordinate role and fragile existence; even international lawyers may speak of its “ambiguity.” In some instances, they point to the prevalence of a sense that “resort to legal arguments by policy-makers may be detrimental to world order and thereby counterproductive for the state that uses such arguments.” Thus, a picture of gloom is painted and the world almost consigned to lawlessness in international relations.
To write of Philip Jessup means to survey the history of the teaching of international law in the United States throughout the last half century; to cover all important events concerning the birth of international organizations on the morrow of the Second World War; to visit the halls of the General Assembly and the Security Council; to attend meetings of the American Society of International Law and the Institute of International Law, where he so frequently took the floor to shed light on their debates; to attend sittings of the International Court of Justice in the years 1960-1969. I could hardly undertake this task; there are others much more qualified to do so. What I wish to do is to recall him as a great jurist I knew and a delightful human being; in short, a judge and a great friend whom I learned to admire.