A.

  Concept
1  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)

2  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.

3  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.

4  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).

5  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
6  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.
7  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.

8  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
9  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 iudicabitremains. 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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