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Max Planck Encyclopedia of Public International Law [MPEPIL]

States, Sovereign Equality

Juliane Kokott

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 18 September 2019

Customary international law — Sovereignty — States, equality — States, independence — Peremptory norms / ius cogens

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Concept

Sovereign equality is a fundamental axiomatic premise of the international legal order. It is the source of other very important principles such as the ban on the use of force and the prohibition of intervention (see also Use of Force, Prohibition of; Intervention, Prohibition of). As Tomuschat states:

These latter principles, although politically of the highest importance, may be logically classified as pertaining to a secondary normative category since they are designed to ensure and guarantee the effectiveness of sovereign equality, still the Grundnorm (basic principle) of the present-day international legal order. (At 161)

Sovereign equality as a formal legal concept does not guarantee political and economic equality. Admittedly, the often emphasized distinction between the juridical equality of States and their political and factual inequality is questionable (States, Equal Treatment and Non-Discrimination). This is particularly so because international law is based on practice where facts and power matter. Nevertheless, sovereign equality is understood formally as equality of the chances of all States.

Historically, the international system has evolved as an inter-State system, sovereign equality being a fundamental right of the constituents of that system. Such fundamental rights of States (States, Fundamental Rights and Duties) may include the rights to independence, equality, respect, and self-preservation. Advocates of the doctrine relied on analogies between individuals born free and equal with States. Doctrine derived those fundamental rights of States either from natural law (Natural Law and Justice), from the nature of the State itself or of the international community international community. However, the doctrine of fundamental rights—the nurturing ground for sovereign equality—even though common in the international law treatises of the last century, has lost much ground. No wonder, its analogies between natural persons and legal persons, namely States, are contestable.

Moreover, another rivalling Grundnorm of the international legal order is gaining ground: that States are no more than instruments whose inherent function is to serve the rights of individuals (Individuals in International Law). The transformation from inter-State law to an individual-centred system has not yet found a definitive new equilibrium. For lack of a fully-fledged international system of governance, States bear responsibility for public order within their territories. Therefore, sovereign equality still belongs to the constitutional premises of the international legal order (Tomuschat 162; Peters).

The old doctrinal foundations of sovereign equality are shaking. But one should not give up this principle before making sure that there are no other good reasons for upholding it.

B.  Historical Evolution

1.  Treaties

The rise of the nation State made possible the creation of a new type of society among equal and independent communities on European soil. The Peace of Westphalia (Westphalia, Peace of [1648]) is generally regarded as a historical milestone; bringing to light a new era of international relations in which the principles of sovereign independence and equality predominate. But one century earlier, the Peace of Augsburg (1555) had been based on the principle of equal respect for principalities and kingdoms of different religious confessions. The Treaties of Münster and of Osnabrück recognized the juridical parity of the States, regardless of the respective regimes and religious beliefs, and constituted the great, solemn legal declaration, in the European arena, of the sovereign equality of States.

All States, large or small, participated to some extent in the process of law-making at the Vienna Congress (1815), but large States had a superior role. The Vienna Congress did not meet in the plenary. The work was done in committees, the most important being that composed of the four to six major powers (Austria, France, Russia, and the United Kingdom, and to a lesser degree Prussia and the Papal States). Moreover, the major powers enjoyed a privileged right of intervention under the Protocol of Aix-la-Chapelle (1818). It is likely that, at all times, major States have insisted on a privileged position with regard to issues of vital interest (eg regulation of the use of force, or with direct consequences within their territories) whereas all may participate equally in matters of lesser interest or where the effects of international action on States are not immediate. The principle of sovereign equality was followed to a greater extent in the Hague Peace Conferences (1899 and 1907), where the principle of equality prevailed in both the committees and the plenary.

Presumably, sovereign equality has always been more of an ideal than practised custom and reality. But reality and ideal are moving even further apart from each other for two reasons. First, sovereign equality functions better in an international community without too many and too different participants. That means amongst States which are not only theoretically, but also factually more or less equal. Second, during the doctrinal high times of sovereign equality, the international community was just less integrated, so that most of the important decisions were taken on the national plane anyway. Therefore, there were fewer reasons for frequent deviations from sovereign equality, and those deviations were less visible.

2.  Doctrinal History

(a)  Natural Law Origins

Francisco de Vitoria (1480–1546), who held a chair of theology at Salamanca, transferred the idea of the natural equality of man to the international level of kingdoms and States. Rules for individuals were deduced from philosophical premises and by analogy extended to rules for the coexistence of States. Samuel von Pufendorf (1632–94) then emphasized absolute sovereignty and considered States as fundamentally equal by nature, as it occurs with men by virtue of natural law and despite de facto inequalities (JM Castro-Rial Canosa, ‘States, Sovereign Equality’, in R Bernhardt [ed], Encyclopedia of Public International Law [Elsevier North Holland 2000] vol 4, 682–7). For him, the law of nations was the law of persons in a state of nature. At that time, sovereign equality was more of a theoretical construct than a description of reality. A few years before Pufendorf emphasized the doctrine of equality of States, several hundred part-sovereign States were recognized by the Peace of Westphalia.

10  Emmerich de Vattel (1714–67), a Swiss philosopher with enormous influence on intellectuals and policy makers of the enlightenment period, famously declared ‘[a] dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom. By a necessary consequence of that equality, whatever is lawful for one nation, is equally lawful for any other; and whatever is unjustifiable in the one, is equally so in the other’ (at prel. paras 18–19).

11  Sovereign equality is a device for weak States. At that time, it protected smaller republics against powerful, established monarchies, notably France. It was a useful counter-norm to potential instincts of the most powerful kingdoms to stamp out republics for fear that their example might lead to republican movements within their own borders. At the same time, a prima facie neutral norm of non-intervention would protect republics by reassuring monarchies fearing republican influence in their domestic realms. State autonomy, or the prohibition of intervention, was therefore an important corollary of de Vattel’s conception of sovereign equality in the service of republican preservation (Lee 152).

12  Non-intervention, as a corollary, shows the affinity of sovereign equality to an international law of coexistence rather than to an international law of co-operation (see also Co-operation, International Law of; Peaceful Coexistence). It is only consistent that de Vattel and international theorists who followed him also sublimated individuals’ rights at the international level. Only the sovereign States ought to have rights under international law.

(b)  Sovereign Equality and Domestic Structures

13  The tension between sovereign equality and concern for the internal organization of States became apparent in Oppenheim’s influential and most enduring English-language treatise of the 20th century. Oppenheim wrote:

In entering the Family of Nations a State comes as an equal to equals; it demands a certain consideration to be paid to its dignity, the retention of its independence, of its territorial and its personal supremacy … The equality of States before international law is a quality derived from their International Personality (at 263).

At the same time, Oppenheim and other legal positivists recognized the importance, in international relations, of the links between sovereignty and domestic structures. States were expected to be able to keep order, particularly to meet international obligations to foreigners. This also finds expression through terms such as family of nations or civilized nations, as for example in Art. 38 (1) (c) Statute of the International Court of Justice which suggests homogeneity of values. In his treatise, Oppenheim explained:

that the progress of international law is intimately connected with the victory everywhere of constitutional government over autocratic government, or, what is the same thing, of democracy over autocracy. Autocratic government, not being responsible to the nation it dominates, has a tendency to base the external policy of the State, just as much as its internal policy, on brute force and intrigue; whereas constitutional government cannot help basing both its external and its internal policy ultimately on the consent of the governed. And although it is not to be taken for granted that democracy will always and everywhere stand for international right and justice, so much is certain, that it excludes a policy of personal aggrandisement and insatiable territorial expansion, which in the past has been the cause of many wars (at 86–7).

This already reveals the complex relationship between sovereign equality and democracy.

14  Today, it is generally recognized that individuals are partial subjects of international law with their own rights and duties (see also Human Rights). Mediatization of the individual as a corollary of sovereign equality (de Vattel), at least, is clearly outdated. Moreover, sovereign equality no longer protects small republics against powerful monarchies, but may risk shielding human rights violations or undemocratic regimes. Therefore, the question arises whether sovereign equality still characterizes public international law, if it ever did, and what its contents and remaining functions are.

C.  Legal Basis in the Charter

15  The organization of the United Nations (UN) is based on ‘the principle of the sovereign equality of all its Members’ (Art. 2 (1)United Nations Charter [‘UN Charter’]). Further the Friendly Relations Declaration (1970) explains that States ‘have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature’. Moreover, sovereign equality belongs to the general principles of law.

16  Sovereign equality has a central position in the constitution of the international community. However, the content and practical consequences of this formal and State-centred principle have undergone modifications. Sovereign equality has to be seen in the context of the current stage of development of public international law (Codification and Progressive Development of International Law). Thus, the principle already suffers important exceptions under the UN Charter. Equality of representation is upheld fully at the United Nations General Assembly (‘UNGA’ ; United Nations, General Assembly). The UNGA is, however, bereft of legislative power; it can only make recommendations and thereby influence the development of customary international law.

17  The composition of the United Nations Security Council (‘UNSC’ ; United Nations, Security Council), to the contrary, deviates from the principle of equality by virtue of the permanent presence of the great powers (Art. 23 (1) UN Charter ; see also Super Powers). Not surprisingly, the UNSC is the only one of the six principal organs of the UN that has the faculty to adopt decisions binding on all its members. The UNSC decides by qualified majority. In substantive or important matters the nine affirmative votes must include the concurring votes of all the permanent members (Art. 27 (3) UN Charter); this is the famous veto power. Therefore, in the UNSC, neither the equality of representation nor the equality of the power to vote has been put into practice. The five permanent members enjoy full equality among themselves. All the other members are likewise equal among each other. But there is no sovereign equality between these five and the other members of the organization (Castro-Rial 685). Thus, the idea of equality is transformed into juridical inequality as far as the maintenance of peace and international security is concerned, since effectively and legally only the five permanent members conserve full sovereign equality (see also Peace, Threat to).

18  Sovereign equality is a solemn principle of the UN Charter, but not one which characterizes the operation of the UN, neither factually nor legally. States, one might say, have agreed otherwise in the UN Charter. This should not impair their same legal capacity for having rights. However, the UN Charter can only be amended with the consent of the permanent members (see also United Nations Charter, Amendment). Therefore, the view that States are fundamentally equal appears to be mostly theoretical: they are not truly equal under the UN Charter system. Already, under the Covenant of the League of Nations, Baker upheld that the principle of legal inequality in what we have called the new quasi-constitutional branch of international law has been definitively established as of right and without a protest being made by a single State (at 17–18).

19  The Friendly Relations Declaration, commonly understood as an authentic interpretation of the Charter, lists further aspects of the principle of sovereign equality. It solemnly proclaims that ‘each State enjoys the rights inherent in full sovereignty’, that States are juridically equal, that they have ‘the duty to respect the personality of other States’, and that ‘each State has the right freely to choose and develop its political, social, economic and cultural system’ (at 125).

D.  Contents of Sovereign Equality

1.  Independence or Equality

20  Westlake wrote, ‘the equality of sovereign States is merely their independence under a different name’ (at 321).

21  Similarly, Oppenheim attributed three rules to the principle of legal equality which are still a valid description of the elements of sovereign equality and the independence of States. According to him, legal equality has three consequences. The first that whenever a question arises which has to be settled by the consent of the members of the family of nations every State has a right to vote, and to one vote only. The second consequence is that legally—although not politically—the vote of the weakest and smallest State has as much weight as the vote of the largest and most powerful. Therefore, any alteration of an existing rule or creation of a new rule of international law by a law-making treaty has legal validity for the signatory Powers and those only who later on accede expressly or submit to it tacitly through custom. The third consequence is that—according to the rule par in parem non habet imperium—no State can claim jurisdiction over another fully sovereign State (Jurisdiction of States). Therefore, although foreign States can sue in foreign courts, they cannot as a rule be sued unless they voluntarily accept the jurisdiction of the court concerned or have submitted themselves to such jurisdiction by suing in such a foreign court (Lauterpacht 263–6). The prohibition of intervention in the domaine réservé is also a corollary to sovereign equality.

22  Indeed, all those elements mentioned which are usually attributed to sovereign equality, or even to the equality of States, can also, possibly better, be derived from the principle of independence of States.

23  Insofar as equality is concerned, sovereign equality aims at equality before the law, rather than at equality of rights. States have potentially the same rights, but in reality, rights may differ, for example, according to the more or less extensive activity of each State or to the differences of situation in which the different people may find themselves. Thus States are recognized as having the same legal capacity for having rights as well as the equal capacity for realizing them. Whatever is lawful, just, or equitable for one State in a particular situation, should be equally lawful, just, and equitable for all other States in that situation.

2.  Internal and External Sovereignty/Independence

24  Each State independently shapes its internal order and external relations. Theoretically, it should make no difference how a particular State came into being and how it is constituted internally. Full sovereignty implies internal and external sovereignty. Internal sovereignty is the older concept. According to Bodin and Hobbes, the principle of internal sovereignty essentially had the function of overcoming the civil wars which had broken out in France and England as a result of religious schisms, by concentrating power in the hands of the monarch. Internal sovereignty stands for the State’s monopoly on the use of force and for the comprehensive responsibility of the State for the peace and security of its citizens within its borders.

25  External sovereignty is normally a corollary of internal sovereignty. Without external sovereignty States usually cannot assume full responsibility for peace and security within their borders as other sovereigns or supranational organizations might also intervene and impose their rules. Internal and external sovereignty are therefore intimately connected. An exception to this rule is protectorates and protected States which generally enjoy internal, but not external sovereignty.

26  A further aspect of external sovereignty affects interpretation. Binding obligations in principle presuppose consent of the State concerned; limitations on its independence must not be presumed (see also Interpretation in International Law; Lotus, The). Therefore, contractual clauses limiting the independence of States are to be interpreted restrictively—in dubio pro libertate/in dubio mitius, in case of doubt the interpretation prevails which leaves most independence and sovereignty to States. But at least under contemporary international law, the interpretation rule in dubio pro libertate does not apply. ‘It has become clear that conditions of peace and security in international society require a collective effort on the part of all States so that restrictions on national sovereignty pertain to the normal picture of international relations and cannot be termed an unusual exception’ (Tomuschat 171). The rule in dubio mitius is particularly inadequate when it comes to the interpretation of founding documents of international organizations, which are often interpreted in a dynamic way.

27  The independence aspect of sovereign equality fits well into a setting of States coexisting side by side. With the transformation of international law to a law of co-operation, States become more interdependent (Interdependence). Consequently, the concept of sovereign equality becomes even more theoretical.

3.  Sovereignty within the Law

28  Sovereign equality means non-subordination to other States, it by no means excludes subordination to international law. To the contrary, sovereignty can also be defined as direct subordination, ie subjectivity of international law. Thus, law, compliance, and sovereignty go perfectly well together. Historically, sovereignty has developed with legal personality or subjectivity of international law and with the implication that sovereign States were responsible for public order within their territories.

29  The Friendly Relations Declaration confirms that approach, stating, under the heading of sovereign equality, that ‘every State has the duty to fulfil in good faith the obligations assumed by it in accordance with the Charter of the United Nations … under the generally recognized principles and rules of international law’ and ‘under international agreements’. Thus, grave violations of international law entail limitations to sovereign equality, particularly with regard to the prohibition of intervention and to jurisdictional immunity. In the most serious cases, forceful measures by the UNSC under Chapter VII UN Charter might lead to loss of sovereignty.

4.  A Diluted Principle of Consent

30  Sovereign equality solemnly emphasizes the same basic initial position of all States: their same legal capacity. Theoretically, no State, large or small, would consider itself bound by rules to which it has not consented. For international conferences and organizations this means unanimous decision-making (International Organizations or Institutions, Decision-Making Process). Sovereign equality moreover implies that States are not subject to foreign jurisdictions without their consent.

31  Consent is still a major factor, mainly with regard to the sources of international law. However, long and universal acceptance appears to no longer be a prerequisite for the development of customary international law. Moreover, States are bound by ius cogens; resolutions of the UNSC; and norms and regulations by supranational entities, in particular the European Union (‘EU’), to which they do not consent, at least not specifically (see also Supranational Law). Also in the field of international environmental and human rights law, treaty-based bodies further develop treaty regimes without the specific consent of the States concerned (Environmental Treaty Bodies; Human Rights, Treaty Bodies). Furthermore, examples such as the compatibility of the supposedly consensual character of international law with the UNSC’s decision to impose upon the States concerned two ad hoc war crimes tribunals—the International Criminal Tribunal for Rwanda (‘ICTR’) and the International Criminal Tribunal for the Former Yugoslavia (ICTY)—or with the forceful intervention in Kosovo stress the limitations of the principle of consent. These phenomena altogether dilute the concept of consent as an exclusive basis for the creation of public international law.

32  Generally, the internal order of States is increasingly influenced by norms originating not within the States, with national parliaments or the custom of the peoples within one State, but transnationally, on the international or supranational plane. National courts are also community courts when implementing the law of the EU, and the courts of the communities for their part implement binding resolutions of the UNSC. In some cases, national courts directly apply international law under monistic systems. Not only might States be bound by norms to which they did not consent specifically, but those norms might even directly apply within the States. The domestic and the international legal orders are no longer strictly separated in most countries. Triepel’s idea that national law and international law are two separated circles which touch each other, but do not overlap, does not adequately reflect the present stage of development of public international law. As international norms also guide internal processes within the States, there is no longer full internal sovereignty.

33  The process has been described as internationalization of the internal law. One might also talk of convergence of both national and international law. With regard to both their external relations and their internal orders, States are increasingly subject to transnational and international norms to which they may have not or at least not specifically consented. Sometimes States are only influenced by those norms and could deviate at some lesser or higher costs; sometimes States are directly subject to such international precepts which might even directly modify their internal legal regimes.

34  Obviously, the principle of consent as the foundation of international law is diluted in many respects.

5.  Jurisdictional Immunity

35  Respect for sovereign equality is also the basis for the doctrine of State immunity from the jurisdiction of the courts of other countries. Generally, sovereign immunity is derived from the maxim par in parem non habet imperium or par in parem non habet iudicium (Tomuschat 176). However, immunity curtails the protection of individuals who have entered into some form of legal relationship with a foreign State (see also Contracts between States and Foreign Private Law Persons). Therefore, sovereign immunity conflicts with another basic paradigm of modern international law: that States are there to serve the interests of individuals. Consequently, the doctrine of jurisdictional immunity is in a stage of transformation rendering it difficult to define its actual scope with precision.

36  The increased recognition of the individual and his or her interests and rights under international law has led to a more restrictive application of the doctrine of immunity. The so-called Tate letter of 1952, written by the then Legal Advisor to the Department of State, Jack B Tate, set the beginning for reserving immunity to acta iure imperii—sovereign acts of States—as opposed to acta iure gestionis—commercial activities of States. Difficulties of characterizing State acts in individual cases remain, and non-Western States continue to challenge the restrictive approach. However, in an age of privatization, there is little chance that States might achieve a full and unabridged immunity again (Tomuschat 179). The principle of denying immunity to commercial activity, at least, seems to have gained quasi overall acceptance, notwithstanding controversies regarding its scope (on the immunity on enforcement see Argentinienanleihen Bundesgerichtshof [German Supreme Court] [4 July 2007] [2007] 22 NJW-RR 1498; and Vollstreckungsimmunität für Mietforderungen—Russisches Haus der Wissenschaft und Kultur Bundesgerichtshof [German Supreme Court] [1 October 2009] [2010] 63 NJW 769).

37  Not only the State, but also heads of State and possibly members of government are covered by immunity (Heads of Governments and Other Senior Officials). An issue even more controversial than restricting immunity to acta iure imperii is whether State representatives accused of crimes under international law might invoke immunity before foreign courts. Here, even the principle, not only its application to individual cases (eg The Prosecutor v Al Bashir, where the ICC issued and upheld an arrest warrant against a sitting head of State, Sudanese president Omar Al Bashir, on the accounts of genocide and crimes against humanity), seems to be subject to controversy. Do States violating international ius cogens norms thereby forfeit their status of immunity? And what institutions should be entitled to adjudicate that issue? Only courts of foreign States, not international criminal tribunals as institutions of the international community, have to observe the principle of immunity. With regard to foreign national courts, there are many indications that the development of public international law moves towards denying immunity to State representatives in cases of egregious violations of international ius cogens, as for example in the case of torture and crimes against humanity at issue in the Pinochet Cases (see also Torture, Prohibition of). But the doctrine is still far from settled. When dealing with horrific human rights violations during periods of dictatorship or war, many international lawyers still prefer collective settlements by the executive rather than individual legal action (see also Mass Claims; Lump Sum Agreements). The ICJ affirmed the traditional sovereignty-oriented approach in the Arrest Warrant Case (Democratic Republic of the Congo v Belgium). It upheld the full immunity, before Belgian courts, of the incumbent Congolese Minister of Foreign Affairs during the term of his office even though he was accused of war crimes and crimes against humanity. The ICJ thus took a restrictive approach in the Arrest Warrant Case, but the debate goes on, including in the powerful dissenting and joint and separate opinions. Moreover, universal civil jurisdiction in cases of crimes against humanity starts developing in doctrine and court practice.

38  All in all, State immunity is on the decline. It has been restricted to acts of State iure imperii. And whether immunity may shield State representatives from prosecution in foreign courts in cases of the most serious human rights violations or crimes against humanity is highly controversial. Before the ICTY and the ICTR, perpetrators cannot invoke immunity even if their home States did not consent to the establishment and jurisdiction of those tribunals. This does not fit with the idea of an international law which exclusively applies between equal sovereigns bound only to rules to which they consented.

39  Thus, immunity as an element of sovereign equality must be carefully balanced against the newer principle of public international law, that perpetrators of serious international crimes must not go unpunished. Immunity as an element of sovereign equality is therefore considerably restricted.

6.  Duty to Respect the Personality of Other States

40  The fundamental rights character of sovereign equality also appears in the ‘duty to respect the personality of other States’ as formulated in the preamble of the Friendly Relations Declaration. The underlying idea seems to be that States have equal dignity, independent of their size and internal organization. International rules on protocol reflect this approach. Respect for their legal personality reinforces the protection and the shielding of the domaine réservé. Other States or organizations should not interfere in what happens inside States: that would imply piercing the legal personality instead of respecting the other State on an equal footing tel quel and qua its existence.

41  Obviously, the legal personality of States is pierced on many occasions. Sovereign equality should not shield, cover, or immunize international ius cogens violations, even though the question of quis iudicabit remains. Such protection would even be against de Vattel’s and Oppenheim’s view of the functions of sovereign equality. Those authors would probably have considered it an abuse of rights to invoke sovereign equality in order to cover violations of public international law within a State. After all, their concept was to protect States as the guarantors of order, freedom, and observance of international law. The only difference is that public international law, in their time, was less concerned with how States organized themselves internally.

7.  Juridical Equality

42  Sovereignty of all States also implies equality. Otherwise some States might be legally subordinated to other States without their consent.

(a)  Formal or Substantive Equality

43  Obviously, States are not equal in wealth, power, size, or population. The most powerful States have often striven for leadership or even institutionalized supremacy over other States (see also Hegemony). But leaving the token collective hegemony of the five permanent members of the UNSC to one side, hegemonial policies as such have no basis in general international law. Sovereign equality as a formal concept is not concerned with that problem. A substantial understanding of the sovereign equality of States, however, could give poor States a right to development (Development, Right to, International Protection); allow weak States to ignore unequal treaties (Treaties, Unequal); entitle poor States to equal participation in prosperity and welfare in the framework of a New International Economic Order (NIEO); or give all States equal access to nuclear material. The Charter of Economic Rights and Duties of States describes this de lege ferenda concept of positive equality in its Art. 10 as follows:

All States are juridically equal and, as equal members of the international community, have the right to participate fully and effectively in the solution of world economic, financial and monetary problems, inter alia, through the appropriate international organizations in accordance with their existing and evolving rules, and to share in the benefits resulting there-from.

But the concept of unequal treaties did not gain legal significance, nor did international law evolve into a new international economic order. Sovereign equality remains rather a formal concept without distributive elements (see also paras 64–9 below). Thus substantive inequalities between States remain. They result from the liberty of sovereign States to organize their (economic) relations with other States. In this way, sovereign equality and economic or political inequality are not simply coexistent, but are to a certain extent codependent (Simpson 57).

(b)  Juridical Equality and Democracy

44  The concept of sovereign equality has come under the influence of the democratic idea of the equality of individuals and citizens before the law. However, this approach is not convincing. Juridical persons, including States, cannot reasonably be equated with citizens. The concept of democracy developed within the States as the postulate that the people should be sovereign, rule themselves, and that citizens are equal, is misleading when transposing this idea to inter-State relations. Rather, the relationship between democracy and equality of States is complex, considerably more complex than the relationship between the democratic postulate of the equality of individuals and democracy.

45  On the one hand, the principle of democracy can be used to affirm sovereignty as an independent aspect of sovereign equality (see Maastricht Bundesverfassungsgericht [German Federal Constitutional Court] [12 October 1993] 89 BVerfGE 155 and Lissabon Bundesverfassungsgericht [German Federal Constitutional Court] [30 June 2009] 123 BVerfGE 267). Democracy legitimizes State institutions, and it is these institutions, rather than international or transnational bodies, that are the principal organized expression of the popular will or interest whose vindication is sought by democratic theory (see also Legitimacy).

46  On the other hand, democracy in its original sense as government by the people and for the people can come into conflict with the equality aspect of sovereign equality. This is so because sovereign equality stands for an international law of co-operation between States as equals, independently of their internal constitutions, be they democratic or dictatorial. Democracy, on the contrary, concerns the way States are constructed; it is not a formal concept, but aims at the way States organize themselves internally.

47  Moreover, States with a large population naturally represent more people than States with only a small population. If and insofar as States, acting together on the international or supranational plane, directly influence the rights and duties of individuals, sovereign equality in the form of one State, one vote becomes critical. Thus, democracy does not support equal rights of States and thereby runs counter to the equality aspect of sovereign equality.

(c)  Juridical Equality and the Transformation of International Law

48  One of the corollaries of juridical equality was that international legal obligations were traditionally framed as strictly reciprocal commitments binding all signatories in exactly the same way (Reciprocity). But sovereign equality in the form of the juridical equality of States does not hinder different contractual arrangements, so it is argued. Due to the multitude of contractual and factual deviations it can be contested until when, if ever, sovereign equality was a reality and whether it makes sense to uphold it today. Modern international law witnesses a proliferation of treaties covering almost every area of law and which provide for differential treatment both with regard to rights and with regard to differentiated responsibilities (Common but Differentiated Responsibilities). Erosion of the rule of sovereign equality by all those qualitatively and quantitatively important exceptions becomes all too visible.

49  Ever more numerous are the international organizations according differentiated voting rights to States pursuant to their size; population (see Art. 26 Statute of the Council of Europe [1949]); financial power (see Art. XII Sec. 5 Articles of Agreement of the International Monetary Fund [1945] or Art. V Sec. 3 Articles of Agreement of the International Bank for Reconstruction and Development [1945]); ability to contribute; or interest in the aims and purposes of the international organization. This is particularly true with regard to supranational—that means more integrated and more powerful—organizations and, within the international organizations, with regard to their more powerful organs. The UNSC is the most prominent example for such deviation from the equality of States. The so-called ‘Constitution of the World’ almost irrevocably sanctions inequality with regard to the most vital questions for the international community. But what remains of sovereign equality, if it only exists safe as agreed otherwise and if States regularly agree otherwise? The principle of sovereign equality was not developed to apply to the decision structures of international organizations where functionality plays an important role. As international organizations gain influence the principle of sovereign equality becomes less important (Efraim).

8.  Right Freely to Choose Its System

50  The right of States to freely choose their political, economic, social, or cultural system can be understood in a more State-centred, non-interventionist manner or in a more democratic, people-oriented matter. The first understanding would help to shield States from questioning their internal policies from the outside. Under the non-interventionist understanding, sovereign equality lends itself as an argument against external pressure of any kind, from forceful intervention to conditioning development aid with the aim of influencing the internal order, eg fulfilment of human, environmental, or good governance standards (see also Conditionality). Indeed, the traditional international law concept of sovereignty constitutes an important normative inhibition to military intervention and can thereby promote peace.

51  The other, more people-oriented understanding puts the right of States to freely choose their systems in line with the right to self-determination of peoples as enshrined, eg in common Art. 1International Covenant on Civil and Political Rights (1966) and International Covenant on Economic, Social and Cultural Rights (1966). This approach harmonizes with the natural and fundamental rights background of sovereign equality. At the same time, such an understanding fits better with modern international law, where the domaine réservé and correspondingly the field of application of the prohibition of intervention shrinks, whereas international and supranational prescriptions regarding the internal order of States increase in number and importance. ‘Self-Determination provides the best justification for recognizing sovereignty, and it reflects at the same time the democratic principle, which today is alone considered capable of legitimating the exercise of public power’ (Tomuschat 165). This way the two, prima facie, rivalling Grundnorms of the international system (see paras 1–5 above), sovereign equality and States as mere instruments to serve the people, could be reconciled (Peters).

52  It is true that historically few States came into existence through the exercise of the right to self-determination. However, the people in democratic States exercise their right to internal self-determination by their suffrage; by using their rights as citizens; by participating in the political process; and by staying rather than leaving their countries. Citizens live freely under norms made by their elected representatives. From this perspective, even undemocratic State formation may, through democratization, later lead to a situation of self-determination. Under an emerging right to democracy, international law even requires this (Democracy, Right to, International Protection). De Vattel argued that a republican State in which a foreign sovereign decides the domestic scope of peacetime rights and when to go to war would not protect the rights of its citizen (Chapter IV). Similarly, in its Lissabon judgment the German Federal Constitutional Court ruled that the democratic right to suffrage presupposes that elected German parliamentarians and not a supranational power must control the European integration process. Evidently, the free choice as self-determination element of sovereign equality overlaps with the democracy reinforcing aspect of sovereignty as independence (see paras 24–7 above).

53  Nevertheless, the two-fold anchorage—first, the democratic element, and second, the free choice as self-determination aspect of sovereign equality—is important. This is so because doctrine has been reluctant to recognize an effective principle of self-determination of people. It is true that attempts to limit the application of self-determination to colonial peoples, exercising their right to self-determination once and for all by throwing off foreign domination, were not successful (Colonialism; Decolonization). Some authors still maintain, however, that the concept of self-determination of people is too unclear to be a legal norm, due to a lack of an operable definition of the term ‘people’. Anyhow, it is with good reason that self-determination is generally not seen as supporting sovereign equality, but rather as a concept quite dangerous to it. Unrestrained commitment to the self-determination principle risks constant war in a world of many ethnic groups whose homes do not line up neatly with the borders of existing sovereign States. Therefore, international law remains ambivalent about the principle of self-determination. The latest example marks the Advisory Opinion of the ICJ on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo of 22 July 2010, in which the Court states that it need not discuss this problem insofar as it would exceed the scope of the question stated (ICJ Doc 2010 General List No 141 paras 82–4).

54  Equally ambivalent is the relationship between sovereign equality and self-determination/democracy. On the one hand, self-determination supports the non-interventionist, self-governing aspect of sovereign equality of States and thereby protects them against intervention from outside. On the other hand self-determination of people threatens sovereign States from inside.

E.  About the Functions of Sovereign Equality

1.  Sovereign Equality and Subjectivity of International Law

55  Recognizing the sovereign equality of a political entity traditionally stands for admitting it to the community of those original subjects of international law, which are only subordinate to international law, that is to rules to which they consented. This fits well with the international law of coexistence, where States were practically the only influential subjects of international law, and where more integrated forms of international or supranational co-operation had not yet developed to a significant degree. But with the progress and development of international law, all kinds of differentiated ways of participating in its creation and implementation have developed. The principle of full participation in the international process through admission to the family of nations or none at all, is being superseded by the more important and more specific issue of which entity may participate and to what degree in the international law and policy-making process. Thus far, the concept of full or limited subjectivity of international law fulfils the function of recognizing sovereign equality of an entity.

2.  Sovereign Equality and Inequality

56  Sovereign equality continues to play an important role by protecting smaller and less powerful States. The principle grants those weaker States prima facie juridical equality. This recalls the pro-republican effect of sovereign equality as declared by de Vattel, a citizen of the small republic of Neufchatel, part of the thriving Swiss confederation of republics, but formally a principality under the King of Prussia.

57  The burden of proof for deviations from sovereign equality is with those States requiring privileged treatment. Larger or more powerful States have to demonstrate in each individual case that differentiated treatment is justified. Usually, consent of the minor States is necessary to implement an unequal regime. Without the principle of sovereign equality, the initial position of minor States in any international context—eg with regard to speaking time or voting power in international organizations or conferences—would be much worse. Major States could at any time start discussions of whether to admit minor States and to what degree. Against that scenario, the theoretical approach that all States enjoy full sovereign equality still seems more reasonable and more just.

58  Finally, the concept of sovereign equality is apt to tame the superiority and arrogance of the most powerful States. Against the ideological background of sovereign equality, the most powerful State should act as if it were more primus inter pares than king (Lee 166). Sovereign equality enhances a climate of multilateralism and of taking into account the views of other sovereigns, before a major power might take and implement decisions which are of interest to all States, large or small.

59  However, some urgent problems—eg our common concern for the environment and the climate (see also Community Interest)—cannot be resolved through reliance on the principle of sovereign equality. They can only be resolved co-operatively.

60  Nevertheless, sovereign equality still remains a principle of considerable importance and utility.

3.  Sovereign Equality and Minority Lifestyles

61  Moreover, sovereign equality allows for small communities to organize themselves in their specific ways on their limited territories. It thereby protects smaller societies whose lifestyle would not convince democratic majorities on a larger scale. In a non-homogeneous world, sovereign equality fulfils the republican function of minority protection against what would be democratic overruling within a larger community (see also Minorities, European Protection; Minorities, International Protection). Fear of globalization of the people, supposedly due to too much internationalization or supranationalization, reflects this phenomenon. The State is shifting its role towards a framework for the protection and promotion of traditions, culture, language, and specific values and interests. This explains the seemingly contradictory process of the decreasing role of the State, and at the same time the increase in the number of States and the pressure to create new national States (Simonovic 170). If single States can hardly guarantee the protection of their citizens’ internal and external security, the cultural function of States remains vital.

62  By transferring powers to international or supranational organizations, eg the UNSC; the International Monetary Fund (IMF); the World Trade Organization (WTO); and the EU, States agree to modifications of their sovereign equality, at least if the international organization is to operate efficiently. Even if there is some kind of democratic parliamentary influence on the international organization, or even if there was some functioning world parliament, regional particularities could not survive unmodified, but would melt into some international majority approach. Such a globalization process, as it is known, can lead to acceptance problems.

63  Sovereign equality is therefore particularly useful among inhomogeneous States helping to protect the traditions, culture, language, and specific values and interests of smaller societies. Among more homogeneous States, to the contrary, sovereign equality becomes less important and may even turn into an unnecessary obstacle towards efficiency.

F.  Sovereign Equality and Developing Countries

64  A right to development; economic self-determination, including permanent and inalienable sovereignty over natural resources (Natural Resources, Permanent Sovereignty over); and/or participatory rights in the context of international relations all refer to a more substantive understanding of equality. Taking into account the special position and needs of developing countries, equality can also mean compensatory inequality (see also Developing Country Approach to International Law).

65  Such discourse is directed towards overcoming the different economic conditions of rich industrialized and poor developing countries. It reminds us of concepts known from national constitutional law such as the principle of the social or welfare State and even of affirmative action (see also Human Rights, Domestic Implementation). Taking all those approaches to the extreme, international law could no longer be looked upon as a regime dedicated to ensuring formal equality among States, but instead could be regarded as a socio-economic instrument to achieve, by means of inter-State co-operation, equality in substance among States.

66  Practical consequences of the approach would follow, for example, in the law of foreign investments. Thus, concessions given to foreign private investors could be more easily contestable due to a principle of the permanent and inalienable sovereignty of States over their natural resources (Investments, International Protection). The principle would also undoubtedly influence the controversial issue of compensation in the case of nationalization of foreign property (see also Property, Right to, International Protection).

67  Arts 55 (a) and (b) and 56 UN Charter could be seen as an expression of an international law which promotes the economic and social development of all States, thereby furthering material justice. Moreover, the modern international law of co-operation implies working together with and helping other States (Financial Assistance; Technical Assistance). International economic law and the law of climate protection recognize the special responsibilities of industrialized States subjecting industrialized States and developing countries in part to different legal regimes (Climate, International Protection). Thus, there are signs of a development from an international law of co-ordination to an international law of co-operation, and towards an international community.

68  However, all those concerns about material justice within a further developed international law and about substantive equality, have not superseded sovereign equality as an essentially formal principle. First, waiver[s] and exceptions for developing countries, as well as duties to assist them, still rely on the principle of consent. This means that legal obligations only arise with the consent of the industrialized States so that their sovereignty in a formal sense remains untouched. Second, even duties to assist and to treat developing States differently could not easily supersede the well-established formal principle of sovereign equality. Rather, diverging principles of law, if they have the same rank, are normally to be balanced against each other and then brought into concordance. Finally, depending on the situation, developing countries themselves often emphasize and require formal sovereign equality for themselves. When it comes to voting rights, for example, small States, developing or not, usually support the principle of formal equality of all States. Generally, ideas about the socio-economic functions of international law including sovereign equality have lost some appeal since the break down of the USSR.

69  Taking all these circumstances into account, one cannot maintain that a right to development, together with a concept of substantive equality, have changed the traditional concept of formal, sovereign equality.

G.  Sovereign Equality and International Organizations

70  States are juridically equal, if and insofar as they do not agree otherwise. Often they do agree otherwise, granting some States more power in the founding documents of international organizations.

1.  Sovereign Equality, Coexistence, and Co-operation

71  The concept of sovereign equality is a feature of a relatively loose international order where States coexist rather than co-operate in international or supranational organizations. While equality of States has been used as a theoretical maxim of the law of nations for centuries, so have inequalities in representation and voting been the norm within most international organizations from the 20th century onwards.

72  Today, the depth and density of rules promulgated by international organizations is increasing (see also International Organizations or Institutions, Secondary Law), and these organizations are becoming more assertive vis-à-vis individual sovereign States in rule-making and implementation. As soon as the exercise of power is concerned, explicit exceptions from sovereign equality occur. Inequality between Member States has become relatively common in international organizations. Requirements of unanimity in voting, conferring a veto on all, are now rare, despite or because of the frequent use of consensus. Systems designed to reflect major interests through weighted voting or specially defined functional majorities are more common. Due to the move from consent to consensus, rules can be made without the support of smaller States.

73  State dominance in rule-making organizations is slowly accommodating increased roles of non-State actors, eg private standard-setting bodies in the International Organization for Standardization (ISO), indigenous peoples’ organizations in the Arctic Council, and the influence of industry in the operation of the Montreal Protocol on Substances that Deplete the Ozone Layer (1987) regime (Ozone Layer, International Protection). In some sectors national laws are converging around standards established in the dominant States. Forms of world law may be emerging, whether through mimesis, or world culture, or regulatory competition, from which most States are not free to depart except at intolerable cost (Kingsbury 611). Smaller States seem to be at a disadvantage in this process.

74  In sum, the more integrated an international organization is and the more power the organization or one of its organs have, the more deviations from sovereign equality appear. This is so for two reasons. First, a powerful international organization must function efficiently, which means that decisions cannot be discussed widely by all its members. Its decisions and rules must be implemented, which usually does not function without the support of powerful States as those powerful States must be willing to take action, hence a predominance of the powerful States. Second, the more powerful an international organization is, the greater its effect on the life of individuals. This supports fair representation of peoples in the international organization, thus more voting power for States with larger populations.

2.  Sovereign Equality and Supranational Powers of International Organizations

75  The characterization of the sovereign State as an entity not subordinate to any other superior entity cannot be upheld in purity in a contemporary world where all nations have joined the system of collective security established by the UN. Chapter VII UN Charter has the potential of developing into an effective system of world governance, if only the permanent members acted as one. The legal dominance of the UNSC affects the sovereignty of all nations world-wide, with the exception of its five permanent members (Tomuschat 173).

76  An increasing number of States have also joined regional organizations such as the EU or MERCOSUR, some of which enjoy supranational powers.

77  The Member States of the EU, in particular, have transferred far-reaching sovereignty rights to the institutions of the EU. The institutional system of the EU is characterized by a decision-making process based on the principle of majority voting and includes a Court of Justice whose jurisdiction is compulsory for all Member States (European Union, Court of Justice and General Court) and specialized courts attached to the General Court, Art. 257 (1) Treaty on the Functioning of the European Union (2009). Thus they have suffered a substantial loss of competences, which also affects their external relations with third countries. In the field of common commercial policy, for instance, where the EU has exclusive jurisdiction, no room is left for individual Member States’ action, and for this reason the EU was granted separate membership in Art. XI (1) Marrakesh Agreement Establishing the World Trade Organization (1994) (see also European Community and Union, Party to International Agreements). The legal situation with regard to the common fisheries policy is similar. In accordance with Art. 305 (1) (f) UN Convention on the Law of the Sea (1982) the EU is also a signatory of this, as well as of a large number of other international agreements. In many other fields as well, the former competences of the Member States are being supplanted by EU competence. In addition to the specific external competence mentioned, very important sovereignty rights were transferred to the European level with the introduction of a common currency, the Euro, by a majority of Member States. What remains with nation States until now is, in particular, their competence for national defence, even though it is reasonable to assume that many Member States would not be in a position to truly defend themselves on their own. This is one of the reasons why Member States have introduced a European Common Foreign and Security Policy. However, this policy is based on traditional patterns, normally requiring unanimous decisions. If one day, the foreign policy of the EU should be determined by majority decisions, the issue of the sovereignty of the EU’s Member States would have to be raised again (Tomuschat 174). However, the new Art. 50 Treaty on European Union (2009), introduced by the Lisbon Treaty provides a Member State for the first time with a legal possibility to withdraw from the Union, if it so wishes. This emphasizes the sovereignty of a Member State and the role it plays in giving democratic legitimacy to the EU.

H.  Evaluation

78  Whether the foundation of the principle of sovereign equality is natural law or whether sovereign equality is inherent in the nature of States or the international community is secondary, as long as States and doctrine agree on the importance and content of that principle enshrined in the UN Charter.

79  At first sight, the principle of sovereign equality with its natural law background might seem outdated: its doctrine underlying fundamental rights of States has become less common. The relationship between democracy understood as governance of the people and sovereign equality is complex and not without tension. Generally, States are less sovereign as they have become, factually and legally, more dependent on co-operation with others. International and supranational regimes exert their influence even within States, more so than in earlier epochs. Differentiated rights and duties replace formal sovereign equality the more States co-operate and the more an international organization is integrated. The concepts of full and partial subjectivity of international law are more differentiated tools for determining whether and how far social entities may take part in the international policy and law making process.

80  It is true that sovereign equality constitutes the logical premise for the principles of non-use of force and non-intervention (Tomuschat 202). However, the right to freely choose its system undergoes an increasing number of limitations by international human rights, environmental, and good governance standards. Therefore, the importance of sovereign equality’s non-interventionist element also decreases with the shrinking of the domaine réservé. Finally, too much emphasis on sovereign equality might block the necessary strengthening of international organizations in a world more interdependent than ever, as powerful States will not agree to transfer important competence to structures where micro States have the same impact as powerful States bearing the major financial burdens. As Dickinson saw in 1920:

Conceding that equality of capacity for rights is sound as a legal principle, its proper application is limited…. It is inapplicable from its very nature to rules of organization. Insistence upon complete political equality in the constitution and functioning of an international union, tribunal or concert is simply another way of denying the possibility of effective international organization. (At 336)

81  Nevertheless, the rhetoric of sovereign equality still serves the major function of managing inequality. It protects the smaller, poorer, less powerful States, permitting them, in certain areas, to deal on a level of parity with large and powerful States. Due to the concept of sovereign equality, small States enjoy, prima facie, the same rights as major powers. Thus, sovereign equality furthers the rule of law by restricting the rule of mere power.

82  Finally, sovereign equality shields public international law against unrealistic demands: States remain primarily responsible for possibly poor conditions within their territories. For all these reasons, sovereign equality remains an important concept and cannot be given up without functional equivalents.

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