The legal nature of equitable standards

A. The requirement of justiciability

The conceptualization and specification of the fundamental rule of maritime boundary delimitation and of equitable standards (hitherto variously labelled equitable principles, relevant circumstances, criteria, factors or rules) has to result in the formulation of operational standards. These standards need to be of such a nature that they are legally enforceable by judges in a rational and transparent manner.

During the process of negotiation, parties may invoke any argument they choose and put forward reflections and considerations that do not necessarily need to conform to such specifications. We return to this dimension in Chapter 12, where the role of equity in the negotiating process is discussed. The situation is different with respect to judicial settlements. Here, a need arises for a limitation of the scope and number of equitable standards. In order to achieve a legally operable delimitation, the standards must be manageable by courts, using only the limited tools with which judges are equipped. Standards, in other words, need to be justiciable. Justiciability stands for the proposition that conceptualization and specification remain within the province of reasoned and transparent decision-making based on law. Thus, it cannot involve major discretionary decisions for which the courts neither have the necessary legitimacy, nor the authority in the international system, or in any political system. Equity, as a legal concept, is therefore bound to operate on the basis of justiciable standards only.

In the present context, it is worth recalling that decision-making ex aequo et bono transgresses the boundary of a legal operation. It is not a justiciable standard as described. It entails high levels of discretionary and creative powers beyond the limits of the law that the parties concerned agreed to vest in the court because this seems to be the best avenue for promoting their mutual interests of peaceful dispute settlement under the particular circumstances of the case.