<Sovereignty and Equality of States>

1.The doctrine of equality of states

The doctrine of equality of states 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. This principle of
sovereign equality of states has found expression in the Charter of the
United Nations, art 2(1) of which states: “The Organization is based on the
principle of the sovereign equality of all its Members”.
The doctrine of equality may become seriously misleading. It cannot, for
instance, mean that all states have equal rights, and that the legal notion of
equality must therefore be limited in practical terms. The need for
international co-operation in such areas as international peace and security
and in economic and social matters has led states to accept limitations upon
their national equality in relation to other states. For instance, politically the
Great Powers have always exercised a primacy among states. Today this is
illustrated by the Security Council of the United Nations in which certain
states are given both permanent membership and privileged voting
position.
The better view today, therefore, is that the doctrine of sovereign equality
of states is more accurately described as the ‘independence of states’.

2. Legal consequences of sovereign equality or independence

Certain practical consequences flow from the legal equality or

independence of states.

(1).Each state has a prima facie exclusive jurisdiction over a territory and
the permanent population living there.
(2).States have a duty of non-intervention in the area of exclusive
jurisdiction of other states:
(i).no state can claim jurisdiction over another; (ii). the courts of one state
do not as a rule question the validity of the official acts of another state in
so far as these acts purport to take effect within the latter’s jurisdiction;

1
(iii). municipal courts will not exercise jurisdiction over a foreign
sovereignty in his public capacity.
(3).Membership of international organization is not obligatory, but as
regards states who are members of such organizations:
(i).when a question arises which has to be settled by consent, every state
has a right to a vote and to one vote only;
(ii).the vote of the weakest state has as much weight as the vote of the most
powerful.
(4).Jurisdiction of international tribunals depends upon the consent of the
parties.

3. Domestic jurisdiction

One important consequence of the doctrine of sovereign equality of states

is the principle that certain matters are within the exclusive competence of
states and are not subject to international obligations. Thus, for example, it
is generally accepted that such matters as the granting of nationality and a
state’s treatment of its own nationals within its territory are not subject to
interference by other states or international organizations.
The principle is expressly stated in the Charter of the United Nations, art
2(7) of which provides:
“Nothing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the domestic
jurisdiction of any state or shall require the Members to submit such
matters to settlement under the present Charter; but this principle shall not
prejudice the application of enforcement measures under Chapter VII.”

In practice art 2(7) has been given a narrow interpretation by the organs of
the United Nations. They have claimed the inherent power to determine
their own competence and therefore to undertake preliminary investigations
to ascertain whether a particular matter is “essentially within the domestic
jurisdiction of any state”.
In practice the organs have taken action on a wide range of topics, despite
protests from the states concerned that such matters were wholly within
their domestic jurisdiction. These include such matters as human rights
violations, the principle of self-determination and colonialism. The organs

2
have expressed the view that if a matter is contrary to the purposes and
principles of the Charter of the United Nations, or if it endangers
international peace and security, then their competence to deal with the
matter overrides any plea of domestic jurisdiction under art 2(7).

<The United Nations>

1. Introduction

The United Nations remains the most significant universal international

organization from the international legal perspective, despite its
constitutional handicaps. The UN Charter, perhaps the most ambitious and
ambiguous international agreement ever drafted, not only created an
organization to regulate international affairs, but also redefined the
foundations of international law in the post-1945 era. Students should be
acquainted not only with the various organs of the organization, but also
the history of its attempts to maintain international peace and harmony
through law and order.

2. The purposes and principles of the United Nations

Article 1 of the UN Charter identifies the following as the purposes of the

Organization:

1. To maintain international peace and security, and to that end: to take effective collective measures for
the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other
breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of
justice and international law, adjustment or settlement of international disputes or situations which might
lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-
determination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international co-operation in solving international problems of an economic, social,

cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or religion; and

3
4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

The degree of generality with which these purposes have been drafted has
allowed two different perceptions of the role of the Organization to
develop:
a).Western states perceive the primary purposes of the United Nations as
preserving international peace and security.
b).Developing countries emphasize the social and economic purposes of
the Organization, ie self-determination.

The Charter specifies seven important principles on which the Organization

is founded:

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall
fulfill in good faith the obligations assumed by them in accordance with the present Charter.

3. All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance with
the present Charter, and shall refrain from giving assistance to any state against which the United Nations
is taking preventive or enforcement action.

6. The Organization shall ensure that states which are not Members of the United Nations act in
accordance with these Principles so far as may be necessary for the maintenance of international peace
and security.

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state or shall require the Members to submit
such matters to settlement under the present Charter; but this principle shall not prejudice the application
of enforcement measures under Chapter Vll.

4
3. Membership of the Organization

Membership of the United Nations is confined to states and is classified

into two categories:
a).Original membership: Those states which signed and ratified the Charter
at the negotiating conference in San Francisco or signed the ‘United
Nations’ declaration by the anti-Axis wartime forces in 1942 are conferred
with original membership.
b).Subsequent membership: The conditions for subsequent membership are
stated in art 4(2). In order to be eligible for subsequent membership, a
candidate must be a ‘peace-loving’ state which accepts the obligations of
the Charter and, in the judgment of the Organization, is able and willing to
carry out these obligations.

The admission of a state to membership is made through a decision of the

General Assembly, based on recommendation of the Security Council. In
the Conditions for Admission of a State to Membership of the United
Nations Case (1948), the International Court of Justice (ICJ) declared that
existing Members, voting in the Security Council or the General Assembly,
were not permitted to invent additional criteria for admission other than
those of art 4(1). In particular, consent to admit new members could not be
withheld in order to secure a political balance in the membership of the
Organization.
Under art 5, a Member against which preventive or enforcement action has
been taken by the Security Council, may be suspended if the General
Assembly, on the recommendation of the Council, decides accordingly.
The exercise of that state’s rights in the Organization may be reinstated by
the Security Council.
A Member which has persistently violated the principles of the Charter
may be expelled from the Organization under the procedure established by
art 6. The General Assembly carries out the expulsion on the
recommendation of the Security Council.

4. The organs of the United Nations

The United Nations has six principal organs:

5
a).the General Assembly;
b).the Security Council;
c).the Economic and Social Council (ESOSOC);
d).the Trusteeship Council;
e).the Secretariat; and
f).the International Court of Justice (ICJ).

In addition, a number of specialized agencies are considered part of the

United Nations system, although no provision for such a relationship is
contained in the Charter. These include: the International Labour
Organization (ILO); the International Civil Aviation Organization (ICAO);
the International Bank for Reconstruction and Development (IBRD); the
International Development Association (IDA); the International Monetary
Fund (IMF); the Food and Agricultural Organization (FAO); the UN
Educational, Scientific, and Cultural Organization (UNESCO); the World
Health Organization (WHO); the Universal Postal Union (UPU); the
International Telecommunications Union (ITU); the World Meteorological
Organization (WMO); the Intergovernmental Maritime Consultative
Organization (IMCO); the World Intellectual Property Organization
(WIPO); the International Fund for Agricultural Development (FAD); the
UN Industrial Development Organization (UNIDO); and the General
Agreement on Tariffs and Trade (GATT).

5. The General Assembly

The General Assembly consists of all the Members of the Organization. It

is essentially a deliberative organ which proceeds on the basis of
recommendations rather than binding decisions. Recommendations have no
legally binding effect on the Members unless made under a specific
provision vesting such authority, as for example, in the approval of the
budget which establishes the obligation of a Member to pay its
contributions.
The General Assembly is conferred with the following powers:
a).To discuss any questions or any matters within the scope of the Charter
or relating to the powers and functions of any organs provided for in the
Charter, and, except as provided in art 12 (limitations in respect of Security

6
Council consideration) to make recommendations to the Members or the
Security Council in relation to such questions or matters: art 10.
b).To consider general principles of co-operation in the maintenance of
international peace and security, including disarmament and may make
recommendations on this subject: art 11 (1).
c).To discuss and make recommendations on any particular issue relating to
peace and security brought before it by a Member state, the Security
Council, or a non-Member accepting in advance the obligations of pacific
settlement: art 11(2).
d).To initiate studies and make recommendations for the purpose of :
i).promoting international co-operation in the political field and
encouraging the codification and progressive development of international
law; and
ii).promoting international co-operation in the economic, social, cultural,
educational and health field, and assisting in the realization of human rights
and fundamental freedoms: art 13.

The General Assembly has a considerable discretion in relation to

formulating resolutions which embody such recommendations. The
relationship between the purposes and functions of the General Assembly
and recommendations made in the pursuit thereof was considered in the
Certain Expenses of the United Nations Case (1962) ICJ Rep 151.
The General Assembly is given power to discuss matters pertaining to
international peace and security. In the exercise of this function, in 1950,
the General Assembly passed the Uniting for Peace Resolution, GA
Resolution 377 (V). This instrument declares that, henceforth, the General
Assembly:
“1. Resolves that if the Security Council, because of the lack of unanimity of the
permanent Members, fails to exercise its primary responsibility for the maintenance of
international peace in any case where there appears to be a threat to the peace, a breach
of the peace, or act of aggression, the General Assembly shall consider the matter
immediately with a view to making appropriate recommendations to members for
collective measures, including in the case of a breach of the peace or act of aggression
the use of armed force when necessary, to maintain or restore international peace and
security…
7. Invites each Member of the United Nations to survey its resources in order to

7
determine the nature and scope of the assistance it may be in a position to render in
support of any recommendations of the Security Council or of the General Assembly for
the restoration of international peace and security.
8.Recommends to the state Members of the United Nations that each Member maintain
within its national armed forces elements so trained, organized and equipped that they
could promptly be made available…for service as a United Nations unit or units, upon
recommendations by the Security Council or the General Assembly…”

This Resolution was adopted by 52 votes to five, with two abstentions.

However, the recommendation is consensual, and not mandatory. Measures
are recommended in order to harmonize international policy towards a
threat to the peace. Even under this Resolution, the General Assembly
could not compel a Member to adopt a certain course of actions against its
wishes. However, the Resolution has formed the basis for General
Assembly peace keeping actions in a number of cases.

In the Certain Expenses Case (above) the ICJ made the following
comments on the legality of peacekeeping actions by the General
Assembly:
“The responsibility conferred (by Article 24) is “primary”, not exclusive. This primary
responsibility is conferred upon the Security Council, as stated in Article 24, “in order
to ensure prompt and effective action”. It is only the Security Council which can require
enforcement by coercive action against an aggressor…
…
The Charter makes it abundantly clear, however, that the General Assembly is able to be
concerned with international peace and security…While it is the Security Council
which, exclusively, may order coercive action, the functions and powers conferred by
the Charter on the General Assembly are not confined to discussion, consideration, the
initiation of studies and the making of recommendations; they are not merely hortatory.
Article 18 deals with “decisions” of the General Assembly “on important questions”…
Moreover, these powers of decisions of the General Assembly under Articles 5 and 6
are specifically related to preventative or enforcement measures…The Court considers
that the kind of actions referred in Article 11, paragraph 2, is coercive or enforcement
action.”

The Court therefore held that, in exercise of its secondary responsibility for

8
the maintenance of international peace and security, the General Assembly
was acting constitutionally in organizing peace-keeping measures.
6. The Security Council

According to Article 23, which was amended in 1965, the Security Council
is to be composed of fifteen members, which are classified into:
a).Permanent Members: There are five such members, including the United
States, the Soviet Union, the United Kingdom, France and China.
b).Non-permanent Members: These are selected by the General Assembly
for a period of two years, with due regard being given in the election
processes to the contribution of the candidate to the maintenance of
international peace and also geographical distribution. A formula for
geographical allocation was adopted in General Assembly Resolution 1991
(XVIII)A.

Voting in the Council is regulated by Article 27 which states:

“(1). Each Member of the Security Council shall have one vote.
(2). Decisions of the Security Council on procedural matters shall be made by an
affirmative vote of nine Members.
(3). Decisions of the Security Council on all other matters shall be made by an
affirmative vote of nine Members including the concurring votes of the permanent
Members; provided that, in decisions under Chapter VI, and under paragraph 3 of
Article 52, a party to a dispute shall abstain from voting.”

The requirement of the concurring votes of the permanent Members creates

a veto power in favor of these parties. This power has effectively destroyed
the potency of the Security Council. Only one concession has been made in
this respect. Where a permanent Member abstains, as opposed to casting a
negative vote, this has been interpreted as concurrence. In the Namibia
Case (1971) the ICJ refused to declare unconstitutional an abstention by a
permanent Member as a bar to the adoption of a resolution.
The functions and powers of the Security Council are enumerated in arts
24-26 of the Charter. The Council has as a ‘primary function’ responsibility
for the maintenance of international peace and security. Where the Council
acts intra vires, the Members of the United Nations are bound by its actions
and, under art 25, they agree to accept and carry out the decisions of the

9
Security Council in accordance with the Charter. The Council’s primary
function, to maintain international peace, is exercised in two dimensions.
(1).Pacific settlement of disputes: Chapter VI lists the ways in which the
Security Council may facilitate the settlement of international disputes.
(2).Enforcement action: The enforcement capacity of the Security Council
operates through two provisions: art 41, regulating measures not involving
force; and art 42, regulating measures involving force. However, before
deciding on enforcement action, the Council is obliged to determine the
existence of ‘any threat to the peace, breach of the peace, or act of
aggression’, in accordance with art 39.
Action under art 41 has been taken five times- with regard to Rhodesia,
following the Unilateral Declaration of Independence of 1965, South
Africa in 1977, Iraq in 1990, Libya in 1992 and Serbia in the same year.
On the other hand, art 42 has been infrequently employed by the Security
Council. In the recent cases of intervention under United Nations auspices-
against Iraq and in Somalia- this provision was not involved in either case.
Thus, against Iraq, the resolution authorizing the use of ‘all appropriate
measures’ in Security Council Resolution 678 (1990), was not passed on
the basis of art 42 and hence the force deployed was considered an allied
force as opposed to a UN force.
Events in recent years relating to terrorism have increased the efficiency
and speed of the Security Council. For example, the terrorist bombings of 7
August 1998 in Kenya and Tanzania were condemned via a Resolution on
the 13 August 1998. The Afghanistan situation was considered in
December 1998. In October 1999 the Security Council passed a resolution
imposing sanction on the Taliban and required states to cooperate against
terrorism, and this resolution was subsequently reviewed in December
2000. The events leading up to the attack on the World Trade Center in
New York on 11 September 2001 were condemned almost immediately by
the UN Security Council (12 September 2001) via Resolution 1368.
Subsequently, a more comprehensive resolution on the subject of terrorism
was passed on 28 September 2001.

7. Economic and Social Council

The Economic and Social Council (ECOSOC) consists of 54 Members

10
elected under art 61 for a period of three years. Matters of international
economic and social concern mainly belong to the concern of ECOSOC.
Article 55 details the matters with which ECOSOC has become concerned,
including the promotion of:

“a. higher standards of living, full employment, and conditions of economic and social
progress and development; b. solutions of international economic, social, health, and
related problems; and international cultural and educational cooperation; and c.
universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.”

ECOSOC has drafted conventions, carried out studies, recommended

courses of action, called conferences, and assisted other organizations in
their functions. In addition, this organ co-ordinates the work of the
specialized agencies. It has a complex organizational structure and
maintains relations with regional and universal governmental and non-
governmental organizations.

8. The Trusteeship Council

Under the League of Nations, a number of German and Turkish colonies

were detached from their colonial masters and placed into the Mandate
system. These colonies were classified into categories A, B and C,
according to the stage of development attained. Each colony was placed in
the trust of an overseeing state which guaranteed to supervise the
development of the mandate territory. Reports had to be sent to the League
of Nations Council.

The Trusteeship Council of the United Nations has assumed the

continuation of this function. The Trusteeship Council is composed of
those Members administrating trust territories, the Members of the Security
Council and any other Members of the United Nations elected to serve on
the Trusteeship Council: art 86.

For practical purposes, this organ of the United Nations is defunct. All trust
territories administered under the system have either been granted

11
independence or absorbed into an existing state. The last trust territory was
the Pacific Islands, administered as a strategic area by the United States.
However, in 1987, the Reagan administration announced these territories
were to be withdrawn by the United States on a unilateral basis. This
effectively terminated the functions of the Council.

9. The Secretariat

In accordance with art 97 of the Charter, the Secretariat is to comprise a

Secretary-General and other such staff as the Organization may require. At
present, the Secretariat numbers around 20,000 personnel, recruited on the
basis of geographical distribution, and in practice forms an international
civil service. The Secretary-General and his staff are obliged to act
impartially, and without national allegiance. They may not seek or receive
instructions from any government or authority external to the Organization
and cannot engage in any action which might undermine their position as
officials responsible only to the Organization. The Secretary-General is
assisted by Under Secretaries-General and Directors of departments and
offices.

Article 97 also regulates the appointment of the Secretary-General, who is

to be appointed by the General Assembly on the recommendation of the
Security Council. The term of office is five years, although re-appointment
is possible. The Secretary-General is the head of the United Nations
administration, but also is entitled to exercise “such other functions as are
entrusted to him by these organs”. In addition, art 99 empowers the
Secretary-General to bring to the attention of the Security Council any
matter which in his opinion may threaten the maintenance of international
peace and security.

Recent times have witnessed the sensitive role of the Secretary-General. An

example of this is when the Secretary-General flew to Baghdad in February
1998 to conduct negotiations with the Iraqi government in relation to the
implementation of the resolutions concerning inspection of weapons
facilities.

12
10. The International Court of Justice (ICJ)

The UN Charter forged a direct link between the ICJ and the UN. The
Court, under the Charter, is one of the six principal organs of the UN.
Under art 93(1) of the UN Charter, all members of the UN are
automatically contracting parties to the Statute of the ICJ. Non-members of
the UN may also become parties to the Statute of the ICJ but a special
procedure is applied to them. Under art 94 (a) of the Charter each member
of the UN is obliged to comply with the decision of the ICJ.

13