7 Equity, Justice and Good Conscience (Ex Aequo et Bono)

The distinction (the examiner's trap): equity infra legem (within the law — equity as interpretation and tempering: the ICJ's continental-shelf equitable delimitation — "equity as part of the law," not against it) vs. ex aequo et bono (deciding on the merits of fairness against orbeyond law) — permitted only by the parties' consent (Article 38(2): "if the parties agree thereto" — never yet used by the ICJ; the PCIJ's declined invitation standing as the practice). Equity's functions: delimitation (maritime boundaries' equitable principles), mitigation of rigour, gap-filling — the permanent tension between certainty and fairness that this source institutionalizes.