Abstract
The principle of sovereign equality is a “structural” or “systemic” principle that is devoid in itself of any specific legal content. It simply refers to the absence within the international legal system of any legal authority above the states, apart from the normative authority of international law. Thus understood, the principle is compatible with any kind of inequality sanctioned by particular international rules. However, at the same time, it has an extremely important role in the dynamics of international law, insofar as it allows claims for equality in areas where existing international law sanctions inequality, towards a more just international law in the future.
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Notes
- 1.
de Vattel 2008, Introduction, para 18.
- 2.
23 US 66, p. 122. The Court continued as follows: “It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone… As no nation can prescribe a rule for others, none can make a law of nations”.
- 3.
Article 78 of the Charter specifies that “[t]he trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality”.
- 4.
The Declaration goes on as follows: “In particular, sovereign equality includes the following elements: (a) States are judicially equal; (b) Each State enjoys the rights inherent in full sovereignty; (c) Each State has the duty to respect the personality of other States; (d) The territorial integrity and political independence of the State are inviolable; (e) Each State has the right freely to choose and develop its political, social, economic and cultural systems; (f) Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States”.
- 5.
DeWitt Dickinson 1920, pp. 153–188.
- 6.
Ibid., pp. 100–152.
- 7.
Anand 2008, p. 181.
- 8.
For the analogy between natural persons and the state at that time, see DeWitt Dickinson 1920, pp. 29–31 and 34–89.
- 9.
Ibid., pp. 69–82.
- 10.
Ibid., p. 96.
- 11.
de Vattel 2008 goes on as follows: “A nation then is mistress of her own actions so long as they do not affect the proper and perfect rights of any other nation,—so long as she is only internally bound, and does not lie under any external and perfect obligation. If she makes an ill use of her liberty, she is guilty of a breach of duty; but other nations are bound to acquiesce in her conduct, since they have no right to dictate to her” (para 20); “Since nations are free, independent, and equal,—and since each possesses the right of judging, according to the dictates of her conscience, what conduct she is to pursue in order to fulfil her duties,—the effect of the whole is, to produce, at least externally and in the eyes of mankind, a perfect equality of rights between nations, in the administration of their affairs and the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definitive judgment; so that whatever may be done by any one nation, may be done by any other; and they ought, in human society, to be considered as possessing equal rights. Each nation in fact maintains that she has justice on her side in every dispute that happens to arise: and it does not belong to either of the parties interested, or to other nations, to pronounce a judgment on the contested question. The party who is in the wrong is guilty of a crime against her own conscience: but as there exists a possibility that she may perhaps have justice on her side, we cannot accuse her of violating the laws of society. It is therefore necessary, on many occasions, that nations should suffer certain things to be done, though in their own nature unjust and condemnable; because they cannot oppose them by open force, without violating the liberty of some particular state, and destroying the foundations of their natural society. And since they are bound to cultivate that society, it is of course presumed that all nations have consented to the principle we have just established. The rules that are deduced from it, constitute what Monsieur Wolf calls ‘the voluntary law of nations’; and there is no reason why we should not use the same term, although we thought it necessary to deviate from that great man in our manner of establishing the foundation of that law” (para 21).
- 12.
DeWitt Dickinson 1920, p. 93.
- 13.
Ibid., pp. 109–115; Baker 1923.
- 14.
PCIJ, Customs Regime between Germany and Austria, Advisory Opinion of 5 September 1931, Individual Opinion of Judge Anzilotti, PCIJ Series A/B No. 41, pp 57–58 (stating that independence means that “the state has over it no other authority than that of international law”).
- 15.
It is worth noting that when one speaks of the “legal” sphere, all depends on what s/he means by “legal”, that is, by the “law” according to which the “legal” is defined: if by law is meant natural law, then the “legal” sphere may include considerations of justice that positivists would consider “political”.
- 16.
Nys 1896, vol. II, p. 3, condemning the nineteenth-century European Concert “as an instrument of oppression”.
- 17.
Piédelièvre 1894, § 267, vol. I, p. 244, holding that “inequality… is the natural consequence of the personality and liberty of states and to do away with it would be to do away with their independence”.
- 18.
DeWitt Dickinson 1920, pp. 120–122 and 131–145.
- 19.
Krasner 1999.
- 20.
Kelsen 1944, p. 208.
- 21.
Focarelli 2019, p. 9.
- 22.
Simpson 2004, p. 37.
- 23.
Lee 2004, p. 151.
- 24.
Simpson 2004.
- 25.
- 26.
See, as concerns states, Oppenheim 1912, vol. I, p. 168 (“The Equality before International Law of all member-States of the Family of Nations is an invariable quality derived from their International Personality. Whatever inequality may exist between States as regards their size, population, power, degree of civilisation wealth, and other qualities, they are nevertheless equals as International Persons”).
- 27.
During the Geneva Conferences of 1899 and 1907 the principle of sovereign equality was invoked by several states in respect of representation in the proposed Permanent International Court of Justice, which failed. The Brazilian delegate Rui Barbosa insisted for full equality, that is as many judges as the states participating in the conference, while the US delegate James Brown Scott defended the idea that full equality was impracticable (“while all States are legally equal, still in this practical world of ours we must not, or at least we can not, ignore the historic fact that nations exercise an influence upon the world’s affairs commensurate with their traditions, their industry, their commerce, and their present ability to safeguard their rights. It follows from this that though equal in theory, their influence is often unequal in practice”). See Simpson 2004, pp. 136–147.
- 28.
- 29.
- 30.
Pradier-Fodéré 1885, § 449, vol. II, 11 (italics added).
- 31.
DeWitt Dickinson 1920, p. 106.
- 32.
Twiss 1884, p. 12.
- 33.
Lorimer 1883, vol. I, p. 21.
- 34.
DeWitt Dickinson 1920, pp. 3–5 and 103–109. See in particular Kent 1877, vol. I, p. 21 (“Nations are equal in respect to each other, and entitled to claim equal consideration for their rights, whatever may be their relative dimensions or strength, or however greatly they may differ in government, religion, or manners. This perfect equality, and entire independence of all distinct states, is a fundamental principle of public law”).
- 35.
Simpson 2004, pp. 47–48.
- 36.
Simpson 2004, pp. 48–53, speaking of “legislative equality”.
- 37.
Ferrari Bravo 1985.
- 38.
Prosecutor v. Furundžija Trial Chamber Judgment of 10 December 1998, Case No. IT-95-17/I-T (1999), para 153 (defining a jus cogens norm as “a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules”), available at https://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf.
- 39.
Draft Conclusion 3 (“Peremptory norms of general international law (jus cogens) reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable”), available at https://legal.un.org/docs/?symbol=A/CN.4/L.936.
- 40.
Article 53 VCLT defines a “jus cogens” norm for the purposes of the Convention as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”, adding that “[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law”. In the event of the emergence of a new peremptory norm of general international law, Article 64 VCLT provides that “any existing treaty which is in conflict with that norm becomes void and terminates”.
- 41.
See, most recently, Focarelli 2021b.
- 42.
Focarelli 2019, pp. 231–236.
- 43.
- 44.
Kelsen 1944.
- 45.
Kokott 2011, para 15.
- 46.
Tomuschat 2001, p. 161.
- 47.
Focarelli 2021a, para 38.
- 48.
Focarelli 2019, pp. 215–217.
References
Alvarez JE (2003) Hegemonic International Law Revisited. American Journal of International Law 97(4):873–888
Anand RP (2008) Sovereign Equality of States in International Law. Hope India, Gurgaon
Baker PJ (1923) The Doctrine of Legal Equality of States. British Yearbook of International Law 4(1):1–20
Calvo C (1896) Le droit international théorique et pratique, 4th edn. Guillaumin, Paris
de Vattel E (2008) The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns. Liberty Fund, Indianapolis
DeWitt Dickinson E (1920) The Equality of States in International Law. Harvard University Press, Cambridge
Ferrari Bravo L (1985) Méthodes de recherche de la coutume internationale dans la pratique des états. Recueil des Courts 192:233–330
Focarelli C (2019) International Law. Elgar, Cheltenham
Focarelli C (2021a) Diritto internazionale, 6th edn. Wolters Kluwer/Cedam, Milan
Focarelli C (2021b) State Immunity and Serious Violations of Human Rights: Judgment No. 238 of 2014 of the Italian Constitutional Court Seven Years on. The Italian Review of International and Comparative Law 1(1):29–58
Kelsen H (1944) The Principle of Sovereign Equality of States as a Basis for International Organization. The Yale Law Journal 53(2):207–220
Kent J (1877) Commentary on International Law, 2nd edn. Deighton, Bell and Co., Cambridge
Kokott J (2011) States, Sovereign Equality. Max Planck Encyclopedia of Public International Law, Online Edition. Available at http://opil.ouplaw.com
Krasner SD (1999) Sovereignty: Organized Hypocrisy. Princeton University Press, Princeton
Krisch N (2005) International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order. European Journal of International Law 16(3):369–408
Lee TH (2004) International Law, International Relations Theory, and Preemptive War: The Vitality of Sovereign Equality Today. Law and Contemporary Problems 67(4):147–167
Lorimer J (1883) The Institutes of the Law of Nations. W. Blackwood and Sons, Edinburgh
Nys E (1896) Etudes de droit international et de droit politique. Alfred Castaigne/A. Fontemoing, Brussels/Paris
Oppenheim L (1912) International Law, 2nd edn. Longmans, Green and Company, New York
Piédelièvre R (1894) Précis de droit international public ou droit des gens. Pichon, Paris
Pradier–Fodéré P (1885) Traité de droit international public européen et américain. Pedone–Lauriel, Paris
Simpson G (2004) Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order. Cambridge University Press, Cambridge
Taylor H (1901) A Treatise on International Public Law. Callaghan & Company, Chicago
Tomuschat C (2001) International Law: Ensuring the Survival of Mankind on the Eve of a New Century. Recueil des Cours 281:13–438
Twiss T (1884) The Law of Nations Considered as Independent Political Communities, 2nd edn. Clarendon Press, Oxford
Vagts DF (2001) Hegemonic International Law. American Journal of International Law 95(4): 843–848
Westlake J (1913) International Law, 2nd edn. The University Press, Cambridge
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Focarelli, C. (2023). Sovereign Inequality and Struggles for Equality. In: Amoroso, D., Marotti, L., Rossi, P., Spagnolo, A., Zarra, G. (eds) More Equal than Others?. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-539-3_2
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