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Sovereign Equality Principle in International Law

Snigdha Nahar - 3/28/2008

One of the fundamental principles on which International Law and International Relations rests and relies on is that of Sovereignty. This is not as easily understood and defined though. A number of scholars have different definitions and concepts for the same. From the perspective of International Law, all states are sovereign.

However, sometimes this concept of sovereignty is divided into two parts:1

1. Legal Sovereignty2
2. Behavioural Sovereignty3

This Research project mainly focuses on Sovereign Equality which is something akin to Legal Sovereignty and the former is in fact a component of the latter. This concept called Sovereign Equality Principle is composed of a number of ideals on which International Organizations, Nation-States etc base their Relations with each other. Some of these are:

1. In international organizations such as the United Nations Security Council and the IMF, votes are weighted to reflect some measure of underlying power, however in international organizations that respect the sovereign equality principle through unweighted voting procedures such as the United Nations General Assembly
2. Each Nation-State is formally equal to the other and so they should be given equal respect by the other Nation-States and a right to self-determination and non-intervention in its internal affairs by other countries or international organizations.

In fact, the above principle of “Sovereign Equality” was present in customary international law and also in the League of Nations which was the predecessor of the United Nations.

The Congress of Westphalia was undoubtedly the first important event in the development of international organisation, as it was an evolution of the modern State system.4 This led to the Treaty of Westphalia signed in 1648 which for the first time formally incorporated the “Sovereign Equality” principle.

Although the treaty's provisions "did not include the words sovereign state, all of the essential provisions for the practice of sovereignty were present. The treaty respected each state's choice of religious practice by incorporating the principle that the ruling monarch was the exclusive, legitimate authority within his or her territory and could act within that territory without interference from other powers. After Westphalia, nations party to the treaty began "to respect one another's sovereignty.5

And the final culmination was through the incorporation of the principle in Article 2 Para 1 of the United Nations Charter.

This principle in the UN charter includes both Internal and External Sovereignty.

As it is a principle included in the UN Charter, all member states have to follow the principle. However, in practice, it is found that it is not practiced in equal measure by all States and against all States. An example can be given of the Nicaragua Case,6 where one of the three issues raised by Nicaragua against the US was based on Sovereign Equality.

Nicaragua, argued from sovereign equality, suggesting that the rules of international law governing relations between sovereign equals provide no right to modify declarations of acceptance unilaterally unless the right is expressly reserved…7

Also in the Advisory Opinion given by the ICJ on 8th July 1996 in the matter of the Legality of the Threat or Use of Nuclear Weapons Case where Judge Weeramantry who gave a dissenting opinion said that the use of nuclear weapons would be against the “sovereign equality” of the States.

In this way, it can be observed that the impugned principle has been called into question in a number of cases, a look into which will help in a better understanding of the principle and its significance in International Law.


THE UNDERSTANDING OF SOVEREIGNTY AND THE ORIGIN OF THE SOVEREIGN EQUALITY PRINCIPLE

Sovereignty has been defined by Oppenheimer in the following way: “Sovereignty is supreme authority, which on the international plane means not legal authority over all other states but rather legal authority which is not in law dependent on any other earthly authority.”8

The concept of the State being sovereign is intrinsically linked to its status as an “International Personality” which happens simultaneously on its becoming a member of the International Community. At this point it is essential to point out that Sovereignty and International Law are concepts which are slightly antagonistic to each other.

The idea behind state sovereignty is that a state ought to be able to govern itself, free from outside interference, while on the other hand, underpinning international law is the idea that external rules ought to be able to limit state behavior.9

Neither of them can however claim to have absolute reign in the present arena10 rather a balance is required to be struck between them.


THE ORIGIN OF THE PRINCIPLE OF SOVEREIGN EQUALITY

This Doctrine recognizes that all states are equal in law despite their obvious inequalities in other respects: inequality of size, wealth, population strength or degree of civilization.11 In the Norwegian Shipowners Claims case the Permanent Court of Arbitration, emphasized that: “International law and justice are based upon the principle of equality between States.”

Oppenheim also provides a definition:

“States are by their nature certainly not equal as regards power, territory and the like. But as members of the community of nations they are, in principle, equal whatever differences between them may otherwise exist.”12

Any attempt by a State to downplay the validity of this proposition can lead to serious consequences of political embarrassment and political tension or protest, hence the maxim par parem non habet imperium.13 This concept of ‘sovereign immunity’ also finds expression in the principles of independence and dignity of states. This has been accepted by the legislations adopted by a number of countries. It was confirmed also by the draft Articles on Jurisdictional Immunities of States and their Property, provisionally adopted by the International Law Commission in 1986.

The theory of Sovereign Equality has evolved from the concept of Natural Equality. This was first analyzed by Thomas Hobbes in his book, The Leviathan. This was thereafter studied and developed by Pufendorf. Hobbes likened the concept of the state of nature unto the scientific reasoning based on the relationship between states which logically uncovered the doctrinal ideas of sovereign equality. Hugo Grotius’s ideas were not exactly based upon the same premise as has been erroneously pointed out by some scholars.14


THE TREATY OF WESTPHALIA AND THE EMERGENCE OF THE PRINCIPLE

The Treaty of Westphalia15 or the Peace of Westphalia as it is usually known was the beginning of a new era in terms of political and legal relations between the States. . It was the product of the evolution of thought following centuries of conflict between secular and church interests. These tensions eventually culminated in the Thirty Years' War, which was actually a series of conflicts between Europe's Catholic and Protestant monarchs beginning in 1618. The Treaty of Westphalia signaled the end of the conflicts and paved the way for modern statehood.

The Peace of Westphalia legitimized the right of sovereigns to govern their people free of outside interference, whether any such external claim to interfere was based on political, legal or religious principles.16 The ideas of the Treaty were actually borrowed heavily from Hobbes’ writings.

“The concept of sovereignty was then integrated into theories of international relations through a set of ideas that evolved with the end of the moral authority of the church over the secular rulers of Europe”17

Another manifestation of the philosophical writings of Sovereign Equality can be seen through the application in case law of America, UK etc in the 19th and 20th Centuries. An example can be given of the American case of The Schooner Exchange v. McFaddon18 where CJ Marshall followed the Hobbesian writings thus:

“The world being composed of distinct sovereignties possessing equal rights and equal independence…all sovereigns have consented to a relaxation, in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers…”

In fact the above proposition lays the foundation of the surrender by the States of some of their rights to international bodies and organizations which will be discussed in details in the subsequent chapter.


KINDS OF SOVEREIGNTY AND SOVEREIGN EQUALITY

Westphalian sovereignty, or political organization is based on "the exclusion of external actors from domestic authority structures" within a given territory; and International legal sovereignty, or "the practices associated with mutual recognition, is usually between territorial entities that have formal juridical independence.19

Westphalian sovereignty roughly corresponds to the concept of territorial sovereignty while International legal sovereignty corresponds to the international law principle of sovereign equality.

This Principle of ‘International Legal Sovereignty’ or ‘Sovereign Equality’ can be explained by making two kinds of distinctions. At one level, sovereignty can be divided into:

1. Legal Sovereignty.
2. Behavioral Sovereignty.

And at the other level it can be divided into:

1. Internal Sovereignty
2. External Sovereignty

The aspects of legal and behavioral sovereignty have been explained in the introduction. The argument is that all states are legally sovereign but they are not behaviorally sovereign. The concept of behavioral sovereignty contains within itself the “competence to participate in the international system, conclude treaties on the basis of consent among states, engage in international affairs on the basis of sovereign equality of states, and exclude other states from interfering in internal affairs”20


THE CONSEQUENCE OF BEHAVIORAL SOVEREIGNTY:

Behavioral Equality actually relates how the Sovereign Equality Principle (which deals with among other things international law governing state recognition and diplomatic immunity) is available to different states in practice.

Certain elements21 are necessary for a State to possess in order to command behavioural sovereignty among the comity of nations:

1. basic revenue generation;
2. police capacities in order to govern its own territory
3. a well-developed judicial system to help enforce contracts and other laws
4. agencies to provide public goods and regulate negative externalities
5. a social safety net to maintain sociopolitical stability while weathering economic adjustment

In short, strong states are more likely than weak states to exercise behavioral sovereignty domestically. Based on these factors, the United States is the most fully sovereign state in the contemporary system and is able to fully exercise its behavioural sovereignty.

Hence, behaviourally the sovereignty exercised by the States is not uniform. This is because of the fact that the states may not have the capacity to do so. For example, some sub-Saharan African states have been unable to participate fully in the international legal system due to financial and technocratic incapacity. Moreover, even if states have a right to exclude others from interference in their internal affairs, few states are actually able to do so.22 In fact, this problem of economic equality is something that is difficult to address.

Economic inequality among nations and its resultant evils are therefore likely to stay with us for quite a long time…these are problems which have so far defied any solution or even a large measure of agreement about it among the people in various parts of the world.23

In fact, for most states, behavioural sovereignty is a myth especially in terms of their right to consent. States are said to "consent" to all sorts of instruments that they are in fact coerced into signing: treaties of surrender, IMF conditionality agreements, and the terms of World Trade Organization ("WTO") accession - to name just a few.

In domestic law, a contract signed at gunpoint would be void for duress; in international law, a treaty like the Japanese Instrument of Surrender, signed under a threat of continued nuclear bombing at the conclusion of World War II, is said to embody valid consent.24

It can be understood that behavioural sovereignty is thus a changing characteristic which depends on the political situation and the relations of states with another while Legal Sovereignty is an invariable concept. All the states continue to possess the same degree of legal sovereignty.

What needs to be examined next is the second classification: External and Internal Sovereignty. These are two concepts which are intrinsically linked with each other.

The concept of Internal Sovereignty entails the concentration of power in the hands of the monarch which according to Bodin and Hobbes this principle was important for stopping the civil wars that had broken out between France and England.

The development of the modern centralized territorial state with clearly defined borders and powers is essentially due to the fact that, commencing in the 13th century and particularly since the 16th century; the principle of internal sovereignty has been generally accepted in state practice.25

External Sovereignty is just a logical consequence of the principle of internal sovereignty. It is the same as the principle of sovereign immunity of the States. Some necessary corollaries of external sovereignty are as follows:

1. Determines the conflict rules of international law
2. Forms the basis for the impermeability of the state, the intergrity of internal space
3. Prohibition of the interference by third states within the domestic sphere

An example at this point can be given of the former Eastern bloc states who viewed the impermeability of states as sacrosanct such that all kinds of communication of their citizens with those of Western States were prohibited.


CONSEQUENCES OF THE CONCEPT OF SOVEREIGN EQUALITY IN THE DEALING OF STATES WITH ONE ANOTHER

As has been amply illustrated in the above discussion, the principle of sovereign equality is inextricably linked to the principle of sovereignty26 and the different explanations all come together to give a comprehensive idea of sovereign equality:

1. State Immunity is frequently justified on the basis of both the principle of sovereignty as well as that of equality.
2. The application of the Principle of Unanimity rather than that of majority operates in International Organizations which follows the right of States to self-determination.
3. Treaties should be interpreted in such a way that all state parties have the same rights and duties.
4. States should all have equal bargaining powers excluding the use of military and economic coercion.


THE SOVEREIGN EQUALITY PRINCIPLE IN THEORY IN THE UNITED NATIONS AND ITS PRACTICE IN INTERNATIONAL RELATIONS

In Article 2 Para 1 of the United Nations Charter, it is proclaimed “The Organization is based on the Principle of Sovereign Equality of all its members.” This was the fundamental principle of the pre- World War European system as well. The League of Nations as well as its successor, the United Nations was conceived to supersede that very system. So it is kind of an irony to find the self-same principle enshrined as a fundamental part of the United Nations today. A brief look is needed into the nature and purpose of both these organizations to find out the possible reason for the same.

These are both organizations which though aimed at preserving the peace of the nation are essentially associations which states can freely join and leave and which they do not recognize as having any power to act other than with the voluntary compliance of its members.27 A corollary to this is that the ‘member states co-operate as equals and the principle of the old conference system that conferring states could not be overborne or overvoted.

In fact, the member states by undertaking to live their lives in accordance with the Covenant thereby accepted a limitation on their freedom to act as they chose. The undertaking was a voluntary act, none the less for all its voluntariness, it was still a limitation.28 When it comes to the United Nations, the task becomes slightly more complicated as here some of the other provisions of Art 2 have to be examined as well as the working of the Security Council and General Assembly.

Paras 2-7 of Article 2 imposes direct legal obligations on the member states and on the Organization itself though they are subsequently developed in the other provisions of the UN Charter. The equality of the member states emphasized in para 1 points to the equality before law that is every state enjoys the same legal personality. This can also be demonstrated through the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States 1970.29 This Principle has also been affirmed in the Charter of the Organisation of American States and of the Organisation of African Unity.

There is some controversy as to whether the Principle of Sovereign Equality in art.2(1) creates Ius Cogens30 like Article 103. If the answer would be in the affirmative, it would mean that the principles of sovereignty and equality are imbedded inside the Charter and so the legal rules derived from the Principles of Sovereign Equality would be shielded from any kind of damage or changes. However, this is usually not accepted to be the right position of Law –

“Article 2(1) actually does not secure the principle of ‘sovereign equality’ rather it assumes its continued existence, thereby allowing the UN to create new legal consequences.31


THE ORGANS OF THE UN AND SOVEREIGN EQUALITY

The idea of "one man/one vote," which has now been accepted as a norm in almost all political systems, was introduced into institutions of the international system by the twentieth century idea of formal equality among nations.32

A necessary consequence of ‘Sovereign Equality’ as enshrined in the Charter is that of “One nation, one vote.” This is supposedly to be extended to the actual working of the United Nations as well so namely the General Assembly as well as the Security Council should accept it. In the General Assembly it is found to be so where the smallest state and the largest state have one vote.

It is a situation that has elicited much criticism, especially from the West as the preponderance of the Third World Afro-Asian-Arab bloc has become clearer as the universality of membership is extended.33 However their suggestion of the adoption of weighted voting34 in the Assembly would probably be viewed as constituting an unacceptable erosion of a foremost principle of the United Nations, namely, the principle of the sovereign equality of all its Members." This principle is nowhere stronger than in the Assembly, where the views of the weakest states carry the same weight as those of the most powerful.35

However permanent seats and the right to veto have been granted to the Great Powers in the Security Council.36 The justification given for the same is that in case of any breach of peace in the world, there needs to be consensus among the great powers of the world for any action to be successful. The criticism37 to this aberration from the principle of equality and the reasons for doing so can be two fold.

Firstly, theoretically there is a problem. The Security Council has been the right and responsibility of taking decisions on behalf of other members of the UN and through Part VII of the UN Charter, they can even make it binding on the other members. This creates more abuse than benefits and this leads one to the Second Aspect of the problem – the Practical side. This can be seen through the examples of the violation of the Non-Intervention and Use of Force clauses.


THE USE OF FORCE AND INTERVENTION AND SOVEREIGN EQUALITY

Article 2 Para 4 of the UN Charter says that members would refrain from the Use of Force against any other State and Para 7 says that the Organization and its members do not have the right to intervene in the domestic jurisdiction of the member states. These two provisions constitute elements of Sovereign Equality. So breach of any of these provisions would constitute breach of the Principle of Sovereign Equality.

The only exception provided in the Charter to the rule of non-intervention was in cases where a state committed a "breach of the peace" or "act of aggression" that threatened "international peace and security.”38 An example of such intervention by the United Nations spearheaded by the Security Council can be given of the time when Iraq invaded Kuwait on August 2, 1990. The U.N. Security Council met on the day of the invasion, condemned Iraq's violation of Kuwaiti sovereignty, and demanded it "withdraw immediately and unconditionally." Iraq refused to comply. The Security Council then gave Iraq a "final opportunity" to withdraw by January 15, 1991, at which time the U.N. member states were authorized to use "all necessary means" to force Iraq's compliance and "to restore international peace and security to the region."39

The maintenance of peace and international security through fostering the "principle of sovereign equality" of states was the central reason for the United Nations' existence. Such actions validated the same. However, there is need for concern as all such actions are not necessarily “proper use of force.” As concerns “domestic jurisdiction,” the decision of Nationality Decrees Issued in Tunis and Morocco40 where it was said that there is no absolute limit to the scope but rather a relative one which depends on the development of international relations.

A state that incites, permits, or engages in the commission of genocide, crimes against humanity, or other crimes of similar magnitude, commits violations of ius cogens norms. Based on the proposed theory of sovereignty, any state that derogates from these essential norms abdicates a portion of its sovereignty by operation of law.41 The development of crimes against humanity did not gain new impetus until the atrocities of the early 1990's occurred in Yugoslavia and Rwanda. In 1994, for example, the Security Council adopted Resolution 955 establishing the International Criminal Tribunal for Rwanda to try crimes committed during the Rwandan genocide.

However, any State cannot without reason take it upon themselves to prosecute the crimes committed in some other country. The same had been tried by Belgium in case of the Rwandan Genocide when it tried to prosecute two nuns for complicity in the commission of genocide. But this was said to be coloured with their own motives.

In the Case Concerning the Arrest Warrant of August 11 April 200042 Belgium had resolved to arrest Yerodia on the spot if he entered its territory. Yerodia was Congo's Minister of Foreign Affairs when Belgium issued its arrest warrant. In response to Belgium's arrest warrant, Congo filed and proceeded on an application to the International Court of Justice arguing that Belgium's actions violated the principle of sovereign equality, the principle that a state may not exercise jurisdiction over another state, and principles of diplomatic immunity. The ICJ's rejection of Belgium's overzealous attempt to rely on this principle demonstrates the delicate balance at issue between the prosecution of international criminals and mutual respect for sovereignty.

In cases of Yugoslavia v. Belgium43 and Yugoslavia v. United States44 and other 8 cases filed against the NATO members, the issue was that the countries had according to Yugoslavia “violated its international obligation banning the use of force against another State, the obligation not to intervene in the internal affairs of another State, the obligation not to violate the sovereignty of another State.” Justice Weeramantry said in the first case that the concept of sovereignty is no protection against action by the world community to prevent such violations if they be of the scale and nature alleged.

On the other hand, however well intentioned the air strikes that have been launched by the NATO powers as a means of preventing this, there are assertions by the Applicant that this use of force lacks United Nations sanction and authority and overlooks express Charter provisions.

To conclusively discuss the application of the principle of sovereign equality and it practice in reality, the case of Case Concerning Military and Paramilitary Activities In and Against Nicaragua45 where certain principles were stated namely:

1. The restrictive view of the doctrine, accepted by most states today, asserts that forum states may exercise their sovereign authority by extending the jurisdiction of their courts to cases involving a defendant state's "commercial" acts, but that they must respect sovereign equality by granting immunity to a defendant state's "governmental" acts. In this case, the doctrine copes with the tension by upholding sovereign authority in some circumstances and sovereign equality in others.
2. The tension between these views of sovereign equality and authority is perhaps most pronounced when the international community attempts to enforce a purported "rule" of international law on a lone dissenting state

The difference between the principles of “Sovereign Authority” and “Sovereign Equality” is explored through the arguments of Nicaragua before the ICJ.

Nicaragua's Application to the ICJ contained a number of substantive claims, but they essentially fit into three basic groups:

(1) charges that U.S. actions in Central America were an illegal use of force;

(2) charges that the U.S. had intervened in Nicaragua's domestic affairs, violating its sovereignty and territorial integrity; and

(3) charges that the U.S. had mined Nicaraguan harbors in a breach of its duty under international law to preserve freedom of the seas and peaceful maritime commerce.

The first two essentially talk about sovereign authority as a foreign country cannot have the right to use force to intervene between a sovereign and its citizens while the third supposedly paradoxically speaks about “sovereign equality.” However, it is not right to say that these two concepts are opposite to each other. In fact, both these arguments can be reversed to reach the same conclusion. An example is provided below:

Beginning with the premise of sovereign equality, the opposite of Nicaragua's approach, one can also reach the conclusion that the use of force is unjustified and that domestic relations and territorial integrity must be protected from outside intervention. The necessary transformational step is the recognition that true sovereign equality is assured only when states are independent and free from the domination of others. Without independence, sovereign equality is meaningless.46

Therefore, the legal rules prohibiting domestic intervention by a foreign State and restricting the use of force flow just as easily from the ideal of sovereign equality as they do from the more obvious ideal of sovereign authority.


CONCLUSION

Like the right of non-intervention and prevention of use of force against another State flows from sovereign equality principle, the right of self-defence47 of every State also flows from it. The dilemma both ethical and legal arises when these two rights come into conflict which in the modern times happens usually through the technologically advanced means of self-defence that the States have come up with.

Justice Weeramantry while dissenting from the majority in the Advisory Opinion given by the ICJ in the Legality of the Threat or Use of Nuclear Weapons48was totally against the use of nuclear weapons “is illegal in any circumstances whatsoever.” The first point that he indicates is that the use of force in self-defence (which is an undoubted right) is one thing and the use of nuclear weapons in self-defence is another. He recalls the celebrated words of the United States Chief Justice John Marshall in 1825, "No principle of general law is more universally acknowledged than the perfect equality of nations… As with all sections of the international legal system, the concept of equality is built into the texture of the laws of war.” He agrees that there is a certain amount of de facto inequality in the dealings of the international community however, to maintain the status quo, de jure equality needs to be maintained. For this nuclear weapons have to be declared totally illegal.

The above is just an example of the multitude of problems that this age-old principle faces. However, this is exactly the reason that its importance be constantly reiterated as the very foundation of International Law rests on it.

TREATIES/CHARTERS

* Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States 1970
* Treaty of Westphalia 1648
* United Nations Charter 1945

INTERNATIONAL JUDGMENTS/OPINIONS

* Case Concerning the Arrest Warrant of August 11 April 2000 (Congo v. Belg.), 2002 I.C.J. No. 121 (Feb. 14),
* Case Concerning Military and Paramilitary Activities In and Against Nicaragua I.C.J. Reports 1986, p.14.
* Legality of the Threat or Use of Nuclear Weapons General List No. 95 [1996] ICJ 2 (8 July 1996)
* Nationality Decrees Issued in Tunis and Morocco 1923, PCIJ, Series B, No. 24, p.24
* Yugoslavia v. Belgium Case Concerning Legality of Use of Force - Request for the Indication of Provisional Measures - Order - General List No. 105 [1999] ICJ 5 (2 June 1999)
* Yugoslavia v. United States Case Concerning Legality of Use of Force - Request for the Indication of Provisional Measures - Order - General List No. 114 [1999] ICJ 14 (2 June 1999)

BIBLIOGRAPHY