Sovereignty and Inequality

1 Management of Inequality in Traditional Sovereignty-based Accounts of International Law

A Equality as an Incident of Sovereignty in Traditional International Legal Doctrine

The system of sovereign equal states represents one of the defining ideas of 20th century international relations. On it have been built the modern mainstream projects for a working system of international law. These projects have been based on status: entities of the same status enjoy comparable and reciprocal entitlements. As Oppenheim put it:

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 before International Law of all member-States of the family of nations is an invariable quality derived from their International Personality.⁹

By the time of the drafting of the UN Charter, the first principle to be embedded in its architecture was an axiom: `The Organization is based on the principle of the sovereign equality of all its Members.'

While there was widespread support for sovereign equality as a foundational principle of the international legal system, there was no agreement on its theoretical basis,¹⁰ and unease about it persisted in practice. Neither the Concert of Europe nor the Allied and Associated Powers at Versailles operated on the basis of equality among sovereign states, yet these groupings were decisive in the formulation of major legal elements of the public order of Europe. Several prominent international lawyers recognized and endorsed special rights and responsibilities of great powers,¹¹ and some saw such inequalities as grounds for rejecting the theory that sovereignty entailed equality.¹² In good positivist fashion, Oppenheim treated major inequalities, such as that between the Great Powers and other powers, as political but not legal.¹³ But Oppenheim, unlike the vast majority of his successors among international lawyers, regarded the balance of power as a fundamental principle of international order, and took a distinctly realist view in accepting that the use of force could be justified to maintain the balance of power. He showed no sign of believing that the inegalitarian implications of a balance of power system ought to result in its subordination to the principle of sovereign equality.

The uncertainties as to the justifications for sovereign equality and the extent to which it negated differences in power are evident also in debates of the period concerning specific international legal doctrines. Recognized sovereign states were equal for such purposes as claiming diplomatic immunity and sovereign immunity and having their laws accepted in other states' courts, but non-recognition could be used to deny the premiss for such equality, as in the case of delayed recognition of the Bolshevik government after the formation of the USSR.¹⁴ Equality was one of the principles weighed in arms control and disarmament projects in the period between the two World Wars, but it was departed from in specific treaties that were actually adopted, such as the Washington Naval Treaty. Special problems arose in the design of international institutions. After the deadlock in negotiations at the 1907 Hague Peace Conference for a new standing international court, which found no compromise between the insistence of less powerful states that equality meant every state must be permitted to appoint a judge and the insistence of the more powerful states that such a system was unwieldy and that only great powers could expect always to have judges of their nationalities appointed, international lawyers in the US and other powerful states sought to staunch the further extension of equal rights arguments, which they saw as an obstruction to the progressive growth of effective international legal institutions.¹⁵ In the design of new international organizations, sovereign equality was thought to mandate membership open to all states, equality in voting power, and unanimity rules in certain binding decisions and with respect to reservations to multilateral treaties, but each phase of institutional design in fact involved compromises between sovereign equality, great power primacy and institutional efficacy.¹⁶

B Racial, Religious and Cultural Diversity: To Whom Does Sovereign Equality Apply?

Confrontation with religious, cultural and racial difference was a perennial issue in the historical development of what became the Eurocentric international legal order. An earlier tendency in the European natural law tradition to discuss international law in universal terms and by reference to a civitas gentium maxima,¹⁷ albeit with important distinctions tending to favour Europeans and Christians over others, was gradually from the 18th century displaced by a view of international law as the public law of the European heartland.¹⁸ Europe was established as the original sphere of operation of international law. There was a geographic element to this, in that many of the problems regulated by international law, and much of the relevant practice and law-making activity, arose within or between European states. But the relevant practice and interactions came more and more to involve, especially during the 19th century, extra-European states and entities; many of these states and entities accepted and applied much the same set of legal standards, although others did not. This interaction contributed to a second development, the informal doctrinal promulgation of a membership test for international society, sometimes described as the `standard of civilization'. Extra-European entities with the attributes of statehood were admitted to the Family of Nations as their degree of civilization and intercourse with the Family of Nations warranted. The test for membership was a creation of doctrine much more than of practice, and varied among publicists. Writing in 1905, Oppenheim had no hesitation in declaring that Christianity was not a requisite of a civilized state: civilization meant simply whatever was necessary `to enable the respective State and its subjects to understand and to act in conformity with the principles of the Law of Nations'.¹⁹ Acceptance of the system of sovereign states, and the convenience of the strongest powers, were two elements of the test for membership. This view conditioned a reductionist schematic of the history of international law, of which Oppenheim's account is exemplary: the international law of the Family of Nations originated amongst the Christian states of Europe, was extended with the independence of the former European colonies of the Americas and the establishment of other Christian states such as Liberia and Haiti, was extended again with the admission in 1856 of the Ottoman Empire to the advantages of the public law and Concert of Europe, and again with the acceptance of Japan as a great power after 1895.²⁰ In Oppenheim's view in 1905, the full members of the Family of Nations were the independent European states (including Turkey and Russia), the independent states of North, Central and South America, plus Liberia, the Congo Free State, and Japan. Egypt was half-sovereign owing to Turkish suzerainty. Tunis was half-sovereign owing to the French protectorate. Morocco and Abyssinia were regarded by Oppenheim as `full-Sovereign States', but as members of the Family of Nations only for some purposes (for example, diplomacy and treaty-making), but not for other purposes (such as restrictions on the conduct of war). Similarly Oppenheim viewed Persia, China, Korea, Siam and Tibet as members of the Family of Nations for some purposes, but not as international legal persons with the same position as `Christian States'.²¹

The insistence on a European model of statehood and the organization of the state, and the articulation in parochial terms of a `standard of civilization' which was itself applied in self-serving ways, were all conducive to the structuring and promotion of a great deal of inequality. There was, in Oppenheim's view, no equality for half-civilized and similar states, states under suzerainty and under protectorate, or member states of a federal state (depending on the case). In his opinion - although this view was contested at the time - the law of nations placed no restrictions on the treatment of states or entities that are wholly outside the Family of Nations; such treatment was a matter of discretion, and frequently was `not only contrary to Christian morality, but arbitrary and barbarous'.²² The Eurocentric system excluded from its purview entities that powerful recognized states were not willing to treat as `states', whether because they wished to dominate or colonize these entities, or because these did not closely resemble `states' as the category had come to be understood, or because they showed little acceptance of the organizing ideas of the system, or because they did not seem likely to uphold international legal obligations. While a weaker entity such as Abyssinia might be excluded on grounds of difference, arguments that Meiji Japan was still too different were eclipsed by Japan's military victories, especially the 1904-1905 Russo-Japanese war. While power and interests were central to this system, they do not represent the whole explanation for the perpetuation of inequalities. The rejection of Japan's proposal for a racial equality clause in the League of Nations Covenant was evidence not just of the limited strength of Asian and African states in the Versailles diplomacy, but also of a deeper cognitive or identity-based resistance to racial equality as a global principle.²³ This was connected not only with systematic racial discrimination in independent states, but also with colonial policy in territories where the maintenance of colonial rule had come increasingly to depend on the structuring of distinctions among ethnic groups.²⁴

This membership standard and the Western dominance that made it possible had the further important effect of establishing a degree of structural homology among sovereign states. The Western model of the state became established globally as a structural equilibrium or a reference point. Once established, it came to dominate the normative and ontological landscape, and helped to delegitimize the possible alternatives. Non-European forms of political organization that might have attained widespread legitimacy as alternatives to the European-style sovereign state were subordinated and delegitimized as global models, a situation which for the time being remains unlikely to be reversed, however important such non-European forms are in contemporary politics. With its global ascendancy and homologizing tendency, the Western system of international law provided some basis for the development of minimum standards on such matters as treatment of foreigners and their property, the law of the sea, recognition of governments, and perhaps even religious tolerance. Whatever its limitations and inequalities, this modest structure of international order was the foundation upon which attempts to regulate state conduct and establish legal responsibility have thereafter built.

The gatekeeping doctrines of recognition of states and membership in the Family of Nations allowed some consideration of regime type, but as between recognized member states the modest scheme described by Oppenheim in 1905 did not draw legal distinctions on the basis of regime type. The division of the world into functionally and juridically similar territorial units implied that, provided the entity was treated internationally as a state, its domestic structure and regime type did not matter.²⁵ This remained an orthodox view for most of the century, as the International Court of Justice made clear in 1986 in Nicaragua v. USA.²⁶

Nevertheless, the characterization of the system of sovereign equality embodied in the writings of legal positivists such as Oppenheim as a `billiard ball' approach is excessively stark. States were expected to be able to keep order, particularly to meet international obligations to foreigners. As international economic law and labour law began to develop, internal decisions of states began to be subject to external standards, as with the attempt in the early 1900s to achieve a level playing field through uniform restrictions on use of phosphorus in workplaces. There were proposals to apply viability criteria to states, although the practical application of these was limited. Oppenheim acknowledged the strength of the principle of nationality and the desirability of treating minorities within states on a basis of equality. Although the two pre-World War I editions did not contain it, the shattering effects of that conflict prompted the addition to Oppenheim's list of morals derivable from the history of international law of the proposition:

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 at all 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 aggrandizement and insatiable territorial expansion, which in the past has been the cause of many wars.²⁷

Judicial decisions and arbitral awards of the period also suggested awareness of the importance in international relations of the links between sovereignty and domestic structures. The arbitral tribunal in the North Atlantic Coast Fisheries Arbitration (1910) rejected the implication of a servitude for the USA in the territorial waters of Canada, finding that the creation of such sovereign rights for the United States would involve dividing the sovereignty over the waters. The Tribunal acknowledged that this did occur among entities with `quasi-sovereignty', as in the Holy Roman Empire, but opined that modern states, particularly Britain, had never accepted such partitions of sovereignty, `owing to the Constitution of a modern State requiring essential sovereignty and independence.'²⁸ The doctrine of international servitudes was `little suited to the principle of sovereignty which prevails in States under a system of constitutional government such as Great Britain and the United States and to the present international relations of sovereign States.'²⁹ The equivocation in this statement was matched in wider political discourse. Where Woodrow Wilson sought to promote constitutional democracy as a general principle, E. H. Carr attacked the Wilsonian predilection for making American principles the principles of mankind, and Americans into the bearers of a higher ethic.³⁰

Practice was often more nuanced than broad doctrinal assertions suggest, but it is nonetheless evident that treatment of issues of equality and inequality in the traditional conceptual structure of international law based on sovereign equality was grossly inadequate as a basis for accommodating the developments of this century; major difficulties have resulted from the simultaneous commitments to Oppenheim's basic structure and to making adequate provision for new realities.³¹ Numerous devices have been honed to reconcile the system of sovereign equality and unit homogeneity with challenges posed by the facts of inequality and difference.

C Strategies for Reconciling the Sovereign Equality System with Existing Inequalities

Oppenheim, like many of his leading successors, was an accomplished exponent of devices to reconcile the idea of obligatory international law with the positivist conception of a legal system founded on state sovereignty, including the binding/non-binding dichotomy; the analytical separation of law and politics; and some focus on the then limited sphere of international legal process. These strategies were employed, for example, to enable adherence to the fundamental legal value of formal isonomy while limiting the range of inequalities with which the international legal system concerns itself. Thus Oppenheim, like other legal positivists, separates law from non-law so that the inequalities become social rather than legal facts. Many positivist writers emphasize consent (an analogue to the move from status to contract) as explanation for such phenomena as protectorates, oppressive rules and voting inequalities. Categories used for distinction or discrimination are defined by neutral-sounding criteria which are less likely to attract strict scrutiny; for instance, `specially affected states' are deemed to be a relevant category in weighing competing practice to determine the existence or otherwise of a rule of customary international law,³² but this category operates mainly (but, prudently, not exclusively) for the benefit of powerful states. The theoretical problem arising from the fact that many smaller states may not show any support (in the sense of practice) for a rule is addressed by the move from consent to consensus; this enables fixing responsibilities on states that have not in fact accepted them, and is supported by the persistent dissenter rule which in practice is mainly a negotiating card (or possible outlet) for the powerful.³³

Apparent inequalities among peoples in achieving independence and statehood were addressed by separating equality of states from equality of peoples, and managing some of the more pressing demands through the principle of nationalities, the principle of self-determination, and minority rights, all formulated as universal principles but applied only selectively in practice.

Progress toward equality has been continuously anticipated in international law: in Wilsonian or Leninist versions of self-determination, in the terms of the Class A Mandates of the League of Nations, in the provisions for trusteeship and decolonization under the UN Charter, in the hopes for general and complete disarmament in UN documents. Shortcomings in the attainment of equality are explained by the relative infancy and temporary weakness of international law.³⁴ Enduring inequalities among equal sovereigns, such as the structural inequalities in the United Nations Charter, the Nuclear Non-Proliferation Treaty, or the voting arrangements of the International Monetary Fund, are characterized either as special functional exceptions or as temporary accommodations to the realities of power. There are debates as to how equality is most fairly expressed in representative arrangements, such as proposals for the most populous states from particular regions to become permanent members of the Security Council, but accounts of international law that would base it upon the management of inequality, for example through the principle of balance of power recognized by Oppenheim, have virtually disappeared from the literature of international law, although they are more evident in its practice.³⁵

9 Oppenheim, supra note 1, at 160-161. Of course, `Legal equality must not be confounded with political equality.' (Ibid, 162.)

10 Vattel's anthropomorphization of inter-state law has been much criticized, e.g. by Carlos Escudé, Foreign Policy Theory in Menem's Argentina (1997), at 30-31, but Vattel's naturalistic approach, with its remarkable analogy between equality of individuals and equality of states, has remained influential; see e.g., P. H. Kooijmans, The Doctrine of the Legal Equality of States (1964). It persists in assertions that the exclusion of individuals from democratic participation in local and national government is the same injustice as exclusion of large third world states from permanent membership in the Security Council. For discussion see Pinto, `Democratization of International Relations and its Implications for Development and Application of International Law', 5 Asian Yearbook of International Law (1995), 111. The positivist alternative, well represented by Oppenheim, sees equality as a logical corollary of sovereignty. A third explanation, reciprocity, is preferred by structural realists in international relations (for whom particular configurations of power among states will largely determine the patterns of inter-state interactions), as reciprocity potentially accounts for the otherwise puzzling acceptance by states of formal equality despite disparities of power.

11 For example, T. J. Lawrence, Essays on Some Disputed Questions in Modern International Law (2nd ed., 1885): `It is not merely that the stronger states have influence proportionate to their strength; but that custom has given them what can hardly be distinguished from a legal right to settle certain questions as they please, the smaller states being obliged to acquiesce in their decisions.' The same view was maintained long after the 1907 Hague Conference: see e.g. Idem, The Society of Nations: Its Past, Present and Possible Future (1919). Identifying what he believed was a fissure that must be crossed to build an international law for the future, James Brown Scott observed: `The "Primacy of the Great Powers" was a fixed idea with Dr. Lawrence, just as the juridical equality of nations is an obsession of the present writer.' `In Memoriam - Thomas Joseph Lawrence 1849-1920', 13 AJIL (1920) 223, at 225.

12 Baker, `The Doctrine of Legal Equality of States', 4 BYbIL (1923-1924) 1.

13 Oppenheim, supra note 1, at 161-164.

14 Luther v. Sagor [1921] 3 KB 532 (English Court of Appeal); Petrogradsky Mejdunarodny Kommerchesky Bank v. National City Bank, 253 NY 23 (New York Court of Appeals, 1930).

15 This is a major preoccupation of E. D. Dickinson, The Equality of States in International Law (1920).

16 L. Duguit, Traité de droit constitutionnel (2nd ed., 1921); J. H. Ralston, Democracy's International Law (1922); F. P. Walters, History of the League of Nations (1961); D. H. Miller, The Drafting of the Covenant (1928).

17 E.g. F. Suarez, Tractatus de Legibus ac Deo Legislatore (1612); C. Wolff, Jus Gentium Methodo Scientifica Pertractatum (1764/1934).

18 J. J. Moser, Grund-Säze des Europäischen Völcker-Rechts in Kriegs-Zeiten (1752); G.F. von Martens, Précis du Droit des Gens Moderne de l'Europe (3rd ed., 1821); K. G. Günther, Europäisches Völkerrecht in Friedenszeiten (part 1, 1787).

19 Oppenheim, supra note 1, at 31.

20 For a comparable, if slightly more nuanced, scheme, see J. Westlake, International Law: Part 1, Peace (1904), at 44-48. The practice of interactions was so much more textured as to make every element of Oppenheim's schematic summary contestable. Useful studies include G. Gong, The Standard of `Civilization' in International Society (1984); H. Bull and A. Watson (eds), The Expansion of International Society (1984); McKinnon Wood, `The Treaty of Paris and Turkey's Status in International Law', 37 AJIL (1943) 262; Yongjin Zhang, China in the International System, 1918-1920 (1991).

21 Oppenheim, supra note 1, at 154-157. In the case of non-Christian states such as China, Korea, Siam and Persia, and the Christian state of Abyssinia: `Their civilisation is essentially so different from that of the Christian States that international intercourse with them of the same kind as between Christian States has been hitherto impossible.... This condition of things will, however, not last very long. It may be expected that with the progress of civilisation these States will become sooner or later International Persons in the full sense of the term.' (at 148 and 149). Lorimer in 1883 offered a similar list to that of Oppenheim, although he regarded Turkey and Japan as deserving of only partial political recognition. In the case of Turkey he accepted the good qualities of the peasantry, but was unconvinced about any possibilities for progress amongst the upper classes. In the case of the Japanese, if they `continue their present rate of progress for another twenty years' they may well become entitled to plenary political recognition. J. Lorimer, Institutes of the Law of Nations, vol. 1 (1883), at 101-103.

22 Oppenheim, supra note 1, at 34, see also 346-347.

23 Vincent, `Racial Equality', in H. Bull and A. Watson (eds), The Expansion of International Society (1984), at 239.

24 See e.g. B. Anderson, Imagined Communities (2nd ed., 1991).

25 For criticism, see Burley, `Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine', 92 Columbia Law Review (1992) 1907, at 1923-1926.

26 `Military and Paramilitary Activities' (Nicaragua v. USA) ICJ Reports (1986) 14.

27 Oppenheim's International Law, 4th ed., vol. 1 (A. McNair (ed.), 1928), at 100-101 .

28 Proceedings, vol. 1, at 76.

29 Ibid.

30 The Twenty Years' Crisis (2nd ed., 1946), at 167.

31 Thoughtful reviews of the evolution of international law and the tensions within it, stimulated by the publication in 1992 of the 9th. edition of Oppenheim's volume on the law of peace, include Reisman, `Lassa Oppenheim's Nine Lives', 19 Yale Journal of International Law (1993) 255; Grieg, `Oppenheim Revisited: An Australian Perspective', 14 Australian Year Book of International Law (1993) 227; and Janis, `The New Oppenheim and its Theory of International Law', 16 Oxford Journal of Legal Studies (1996) 329.

32 This approach is defended in Westlake, supra note 19, at 16-17. It is adopted by the ICJ in the North Sea Continental Shelf cases (Denmark v. Germany, Germany v. Netherlands), ICJ Reports (1969) 3.

33 Charney, `The Persistent Objector Rule and the Development of Customary International Law', 56 BYbIL (1985) 1; Stein, `The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law', 26 Harvard International Law Journal (1985) 457.

34 Cf. E. H. Carr's argument at the beginning of The Twenty Years' Crisis that international politics is still in its infancy - a position which indicates Carr's distance from political realists for whom basic political insights are almost timeless.

35 Cf, however, G. Ladreit de Lacharrière, La Politique Juridique Extérieure (1983). For a thoughtful response see Pellet, `Le sage, le prince et le savant', 112 Journal de droit international (1985) 407.

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