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The Doctrine of the Equality of States and its Recent Modifications

Published online by Cambridge University Press:  20 April 2017

Herbert Weinschel
Herbert Weinschel*
Affiliation:
St. Louis University
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Abstract

The doctrine of the equality of states has undergone gradual modifications, especially in more recent times—since the establishment of the League of Nations. The great Powers have probably at all times dominated the political scene, particularly during the nineteenth century. But since there existed no international organization, this predominance did not express itself in legal, but only in political terms, although it may at times have assumed a quasilegal status, such as in regard to the lawmaking provisions of various treaties of the nineteenth century, sponsored mainly by the great Powers, which acquired the character of general international law. It was only when international organizations were established, based on legal principles, that the dominant position of the great Powers received legal sanction.

Type
Research Article
Information
American Journal of International Law , Volume 45 , Issue 3 , July 1951 , pp. 417 - 442
Copyright
Copyright © American Society of International Law 1951

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References

1 “That there be an exact and reciprocal equality amongst all the Electors, Princes and States of both Religions … ” (Art. V). Cf. Eagleton, International Government (rev. ed., 1948), pp. 5-6, and Oppenheim, International Law, Vol. I (7th ed. by Lauterpacht, 1948), p. 793, note 3. See also J. Goebel, Jr., The Equality of States: A Study in the History of Law (1923), p. 71.

2 Cf. Eagleton, op. cit., p. 5.

3 See Goebel, op. cit., pp. 30-58, but especially pp. 43, 57-58. Differences in rank existed among the states and gave rise to many disputes over questions of precedence, but did not affect the equality of states. Cf. Oppenheim, op. cit., pp. 248-249.

4 Vattel, The Law of Nations (translation by Fenwick, 1916), p. 7. Cf. Butler and Maccoby, The Development of International Law (1928), pp. 248-253. Chief Justice Marshall in The Antelope (10 Wheaton 66, 122 (1825)) and Sir William Scott in Le Louis (2 Dodson 210 (1817)) gave expression to the same idea.

5 See, however, Brierly, The Law of Nations (4th ed., 1949), p. 47; Kelsen, General Theory of Law and State (1945), p. 387.

6 This view is most widely held, although not by Dickinson (The Equality of States in International Law (1920), p. 334). Cf. on the legacies of the Settlement of Westphalia, Leo Gross, “The Peace of Westphalia, 1648-1948,” this JOURNAL, Vol. 42 (1948), pp. 20-41. See also Goebel, op. cit., p. 86.

7 Cf. Fourteenth Amendment to the Constitution of the United States (Section 1).

8 Cf. Oppenheim, op. cit., pp. 238-242.

9 Op. cit., pp. 334-335.

10 Op. cit., p. 117.

11 Kelsen, op. cit., p. 253.

12 Ibid., p. 254. Kelsen on equality of states, loc. cit., pp. 251-254, 387. In the same sense, Kelsen, “The Principle of Sovereign Equality of States as a Basis for International Organization,” Yale Law Journal, Vol. 53 (1944), pp. 208-212, and “The Draft Declaration on Eights and Duties of States: Critical Remarks,” this JOURNAL, Vol. 44 (1950), pp. 259-276, but especially pp. 268-269.

13 Lande, “Revindication of the Principle of Legal Equality of States, 1871-1914,” Political Science Quarterly, Vol. 62 (1947), pp. 258-286, 398-417.

14 On this era, see Nussbaum, A Concise History of the Law of Nations (1947), pp. 191-199.

15 Cf. Jessup, A Modern Law of Nations (1948), p. 39.

16 The rules concerning diplomatic envoys were supplemented at the Congress of Aix-la-Chapelle (1818).

17 On this question, see Hicks, “The Equality of States and the Hague Conferences,” this JOURNAL, Vol. 2 (1908), pp. 547-549, where also the rejection of this view by Oppenheim (International Law (1905), Vol. I, pp. 162-164) is quoted.

18 Lande, op. cit.

19 Ibid., pp. 259, 286.

20 Cf. Hicks, op. cit., p. 530. On the rule of “ quasi-unanimity,” applied there, see Eagleton, op. cit., pp. 195-196; Fenwick, International Law (3rd ed., 1948), p. 224.

21 J . B. Scott, The Hague Peace Conferences of 1899 and 1907 (1909), Vol. I, p. 165.

22 The idea was, of course, revived thirteen years later by the establishment of the Permanent Court of International Justice, but not until after the holocaust of the first World War. On the projected court, see Hudson, International Tribunals: Past and Future (1944), pp. 8, 25; Jessup, op. cit., p. 29; Lande, op. cit., p. 405.

23 For details, see Sohn, “Multiple Representation in International Assemblies,” this JOURNAL, Vol. 40 (1946), pp. 71-99.

24 General Theory of Law and State, p. 254; cf. also p. 253.

25 Kelsen, loc. cit., Yale Law Journal, Vol. 53 (1944), pp. 209-212.

26 See ibid., p. 210.

27 Oppenheim, International Law, Vol. I (7th ed.), pp. 238-239.

28 Loc. cit., Yale Law Journal, Vol. 53 (1944), p. 219.

29 Lande, op. cit., p. 417. See also ibid., pp. 412-413.

30 Brazil left the League because she was refused a permanent seat on the Council when Germany as a great Power was granted such a seat on the occasion of her admission as a Member of the League (1926). This shows that the actual status of a state was taken as the basis of eligibility for permanent membership on the Council.

31 International Law, Vol. I, pp. 238-242.

32 In every international conference or organization there is normally one body in which all states participating are represented.

33 Cf. Kelsen, loc. cit., Yale Law Journal, Vol. 53 (1944), p. 212. See also McNair, “Equality in International Law,” Michigan Law Review, Vol. 26 (1927), pp. 147-148.

34 Statute of the Permanent Court of International Justice, Arts. 4 (1), 8, 10 (1).

35 There were at various times four, six, nine, or eleven non-permanent members. Cf. Eagleton, International Government, p. 276.

36 Cf. Eagleton, ibid., pp. 277, 412.

37 Cf. Brierly, Law of Nations, p. 274; Eagleton, op. cit., p. 414.

A report made by the Assembly which was adopted by a majority of the other Members of the League and concurred in by the members of the Council, not counting the parties to the dispute, had the same effect as a unanimous report by the Council (Covenant, Art. 15 (10)).

38 The phraseology of Art. 16 (1): “…which thereby undertake immediately…,” expresses a mandatory provision, enjoining automatic action.

39 Cf. Eagleton, op. cit., pp. 416-417; Brierly, op. cit., pp. 275-276.

40 For example, formulation of plans for the reduction of armaments “for the consideration and action of the several Governments” (Covenant, Art. 8).

41 But this power was used only once when the Soviet Union on Dec. 14, 1939, was expelled from the League for her unprovoked attack upon Finland. Cf. Eagleton, op. cit., p. 263.

42 Except perhaps for the power of the Council to expel a Member of the League.

43 Cf. Potter, An Introduction to the Study of International Organization (5th ed., 1948), p. 260.

44 This term was first used in the Moscow Four-Power Declaration on General Security of Oct. 30, 1943, and adopted from there. For text of this Declaration, see Department of State Bulletin, Vol. IX (1943), pp. 308-309; this JOURNAL, Supp., Vol. 38 (1944), p. 5. Cf. also Kelsen, loc. cit., Yale Law Journal, Vol. 53 (1944), pp. 207-220.

45 Cf. Kelsen, ibid., p. 207.

46 This is in line with the Declaration of Moscow. On that Declaration, see Kelsen, ibid., p. 212.

For an analysis as to what extent the United Nations is a continuation of the League system, see Goodrich, “From League of Nations to United Nationa,” International Organization, Vol. 1 (1947), pp. 3-21.

47 Cf. Charter, Art. 1 (1).

48 Unanimity was never required in the World Court; all its decisions were reached by simple majority vote (Statute, Art. 55). Yet this Court was not an organ of the League, but an autonomous body.

49 However, in regard to the decisions of the World Court with its present limited jurisdiction, such a conclusion cannot be drawn; but this requires separate examination, which will be made later.

50 What could be considered the forerunner of the Trusteeship Council, namely, the Permanent Mandates Commission set up by the League of Nations under Art. 22 (9) of the Covenant, cannot be regarded as having violated the principle of equality of representation, as is the case with the Trusteeship Council, first because the Mandates Commission was not a body representing governments, as the Trusteeship Council is, but consisted of eleven experts, appointed by the Council of the League, who as individuals were members of that Commission, with the further limitation that the majority of those members should be nationals of states which were not Mandatories. Moreover, the Commission functioned only as adviser to the Council of the League which was entrusted with the supervision of the Mandates System. See Covenant, Art. 22. Cf. Oppenheim, International Law, Vol. I, pp. 194-195, 213-214.

51 Charter, Art. 61.

52 Statute of the International Court of Justice, Arts. 3 (1), 13 (1).

53 “... no two of whom may be nationals of the same state” (ibid., Art. 3 (1)).

54 During the functioning of the Permanent Court there was always a citizen of the United States (which did not join the League or the World Court) as judge on the Bench of that Court: John Bassett Moore (1922-1928), Charles Evans Hughes (1928-1930), Frank B. Kellogg (1930-1935), Manley O. Hudson (1936-1945).

On this question, see also M. O. Hudson, International Tribunals, p. 25. Cf. Statute, Art. 2.

55 This is especially true of the present International Court of Justice. For a recent list of the judges of this Court, see International Organization, Vol. 4 (1950), p. 58.

56 See Statute, Art. 38.

57 Ibid., Art. 31. For a critical view of this institution, see Lauterpacht, The Function of Law in the International Community (1933), pp. 228-235. See also Brierly, Law of Nations, p. 257.

58 Charter, Art. 25.

59 Statute, Art. 59.

60 Those of the General Assembly.

61 Those of the Economic and Social Council and of the Trusteeship Council. The Secretariat, also a principal organ, has only administrative functions.

62 Except participation in the election of the judges of the International Court, which requires only an absolute majority (Statute, Art. 10(1)).

63 The Security Council can restore them (Art. 5).

64 See Goodrich and Hambro, Charter of the United Nations: Commentary and Documents (2nd ed., 1949), p. 83.

65 Cf. Charter, Art. 10.

66 Cf. Goodrich and Hambro, op. cit., p. 169.

67 The procedure for amending the Charter, in which the General Assembly participates and which might be interesting in regard to the problem of state equality, will be taken up later.

68 See Arts. 60, 85, 87.

69 See, for instance, Arts. 63, 87.

70 Goodrich and Hambro, op. cit., p. 366.

71 See Art. 85 (2).

72 See Arts. 18 (2), 108.

73 The “powers” of the specialized agencies are about on the same plane as those of the Economic and Social Council, only in a more limited field. On this point, see Eagleton, International Government, p. 383.

74 Strategic trust areas come under the supervision of the Security Council (Art. 83 (1)). However, the latter may also “avail itself of the assistance of the Trusteeship Council” (Art. 83 (3)).

75 Art. 41.

76 Art. 42.

77 Cf. Goodrich and Hambro, op. cit., pp. 255, 260.

78 See Arts. 39, 41, 42.

79 Cf. Eagleton, “Covenant of the League of Nations and Charter of the United Nations: Points of Difference,” Department of State Bulletin, Vol. XIII (Aug. 19, 1945), pp. 263-269, especially p. 265.

Up to now the special agreements, called for in Article 43, which were to implement the military enforcement measures of the Security Council, have not been concluded.

80 See also Goodrich and Hambro, op. cit., pp. 208-209.

81 Art. 25 creates a special obligation based upon the general obligation of Art. 2 (2).

82 This is the general principle. See, however, Yuen-li Liang, “Abstention and Absence of a Permanent Member in Relation to the Voting Procedure in the Security Council,” this JOURNAL, Vol. 44 (1950), pp. 694-708; see also Goodrich and Hambro, op. cit., p. 223; Padelford, “The Use of the Veto,” International Organization, Vol. 2 (1948), p. 245; J. L. Kunz, editorial comment in this JOURNAL, Vol. 45 (1951), pp. 137-142. For two opposing views, see Leo Gross, “Voting in the Security Council: Abstention from Voting and Absence from Meetings,” Yale Law Journal, Vol. 60 (1951), pp. 209-257; M. S. McDougal and E. N. Gardner, “The Veto and the Charter: An Interpretation for Survival,” ibid., pp. 258-292.

83 The Security Council has also been empowered to “make recommendations or decide upon measures to be taken to give effect to the judgment” of the International Court of Justice, if any party fails to comply with the decision (Art. 94). This power of the Security Council goes farther than the corresponding power conferred by the Covenant (Art. 13 (4)) upon the League Council. Yet this power will not be of great practical importance as long as the jurisdiction of the International Court remains voluntary.

84 The most important practical consequence of a great-Power veto is that no enforcement measures can be taken against a permanent member of the Security Council. On the great-Power veto, see especially Lee, “The Genesis of the Veto,” International Organization, Vol. 1 (1947), pp. 33-42; Padelford, loc. cit., pp. 227-246; Goodrich and Hambro, op. cit., pp. 213-227.

85 This is the generally accepted view. See Goodrich and Hambro, op. cit., pp. 133-138, 142, 491-492; Oppenheim, International Law, Vol. I, pp. 371-372; Brierly, op. cit., p. 107; Eagleton, International Government, p. 331; Padelford, loc. cit., p. 242; see also Advisory Opinion of March 3, 1950, of the International Court of Justice, I.C.J. Reports, 1950, p. 4. For a different view, see Klooz, “The Rôle of the General Assembly of the United Nations in the Admission of Members,” this JOURNAL, Vol. 43 (1949), pp. 246-261.

86 The procedure for reviewing and amending the Charter, as provided for in Art. 109, would lead to the same results (see Art. 109, par. 2).

The amendment of the Statute of the International Court of Justice follows essentially the procedure provided for the amendment of the Charter (Statute, Art. 69).

87 See “declaration of interpretation,” quoted in Goodrich and Hambro, op. cit., pp. 143-144, and documents dealing with this question, cited ibid., p. 144, note 65. Cf. also Art. 26 (2) of the League Covenant, cited supra.

88 Charter, Art. 92.

89 Charter, Art. 25.

90 Statute of the International Court of Justice, Art. 59.

91 Ibid., Art. 55 (1).

92 Ibid., Art. 25 (3).

93 Ibid., Art. 55 (2).

94 Ibid., Art. 31. See supra, note 57.

95 Cf. Statute, Art. 31 (6).

96 On the nature of these obligations, see below.

97 Statute, Art. 34 (1).

98 Cf. ibid., Art. 35, especially par. 2, which safeguards the equality before the Court of states which are not parties to its Statute.

99 The Draft Statute of the Permanent Court of International Justice had already provided for compulsory jurisdiction, but the final Statute of that Court reverted to voluntary jurisdiction, with the optional feature of Art. 36.

100 On the question of obligatory jurisdiction, see Goodrich and Hambro, op. cit., pp. 478-481, and UNCIO, Report of the Rapporteur of Committee IV/1, Doc. 913, IV/1/74(1), pp. 10-12 (Documents, XIII, pp. 390-392), quoted there, pp. 479-480.

101 Loc. cit., Yale Law Journal, Vol. 53 (1944), pp. 215 ff.

102 Although not entirely with the argumentation used by Kelsen to back up this conclusion.

103 This would also include a violation of the principle of equality.

104 Statute, Art. 38.

105 “The judgment is final and without appeal.” Statute, Art. 60.

106 Opposing the traditional idea of a judicial function, Kelsen, however, maintains that the judicial decision is not a merely declaratory, i.e., law-applying, but a highly constitutive, i.e., law-creating, act. See Kelsen, loc. cit., pp. 217-218, and General Theory of Law and State, pp. 132-136, 273. For the traditional view, cf. Morgenthau, Politics among Nations (1948), pp. 341-349, especially pp. 341-343.

107 In this article we have examined the present legal position of the traditional doctrine of the equality of states with due regard given to its recent modifications. However, we would not advocate the preservation of the doctrine de lege ferenda. A strengthened international organization, invested with powers of decision, should not be hampered by the principle of equality. Some system of proportionate representation would have to be devised which would take into account not only size of population but also economic and political importance of the member states and which would offer sufficient protection to the more important states, thus making it possible to eliminate the absolute veto of any single Power, but which would also assure some representation to each small state. For proposals along such lines, see L. B. Sohn, “Weighting of Votes in an International Assembly,” American Political Science Review, Vol. 38 (1944), pp. 1192-1203; idem, “Multiple Representation in International Assemblies,” this JOURNAL, Vol. 40 (1946), pp. 71-99; Q. Wright, L. Sohn, “Weighted Representation in a World Legislature,” Common Cause, Vol. 3 (1949), pp. 72-81, Wright offering “A Survey” (pp. 72-77) and Sohn submitting “A New Proposal” (pp. 77-81), containing a simplified formula as compared with that of 1944. See also Potter, International Organization, p. 124.