Abstract
A quarter-century ago in the Nicaragua judgment, the International Court of Justice insisted that to disallow a state’s adherence to any particular governmental doctrine ‘would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State’ (para 263). The Court invoked the 1970 Friendly Relations Declaration and related documents that ‘envisage the relations among States having different political, economic and social systems on the basis of coexistence among their various ideologies’ (para 264). Although the continued relevance of this model of sovereign equality has since been called into question – above all, in the name of human rights, international criminal justice, and the ‘responsibility to protect’ – no systematic replacement has emerged. Notwithstanding some modification and erosion, the sovereign equality principle continues to have significant (and worthy) implications for legal relations between liberal and non-liberal states.
The author is Professor of Law, Wayne Law, Wayne State University.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
For a book-length examination of the international legal order’s responses to perceived inauthentic articulations of sovereign will, see Roth 1999. Although skeptical about the liberal-democratic legitimism touted by such scholars as Franck (Franck 1992), and Fox (Fox 1992), the book details and analyzes a range of instances in which a ruling apparatus, albeit exercising ‘effective control through internal processes’, has, by virtue of its perceived unrepresentativeness, been denied legal standing to assert rights, incur obligations, and confer immunities on behalf of the sovereign state.
- 2.
Kooijmans 1964, at 247.
- 3.
Kooijmans 1964, at 209-210.
- 4.
Mitrany 1966, at 28.
- 5.
Jackson 2000, at 368.
- 6.
1945 Charter of the United Nations, 1 UNTS XVI, arts. 2(1) and 1(2). Owing to its normative foundations, sovereign equality as conceived in the Charter precludes any prerogative (however ‘equal’) to impose the sovereign will of one state upon another; sovereignty as freedom gives way to sovereignty as exclusivity of territorial control. See Charter of the United Nations, arts. 2(4) and 2(7). Moreover, this post-World War II scheme of sovereign rights, based on a logic of states as manifestations of the self-determination of ‘peoples’, has from its inception entailed responsibility for observance of human rights, Charter of the United Nations, arts. 1(3), 55(c) and 56, even though nothing in the Charter’s language conditions sovereign rights on external judgments about whether sovereign responsibilities have been met.
- 7.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), ICJ, Jurisdiction and Admissibility, Judgment of 26 November 1984, para 263.
- 8.
Ibid., para 264.
- 9.
The failure of a dog to bark was a famous clue in the Sherlock Holmes mystery, ‘Silver Blaze’. Doyle 1967, at 277 (indicating that a horse was stolen by someone familiar to the dog).
- 10.
Gerry Simpson has elaborated a similar contrast between the pluralist vision associated with the Charter and the ‘liberal anti-pluralism’ of a set of leading U.S.-based international law scholars (i.e., Thomas M. Franck, Anne-Marie Slaughter, W. Michael Reisman, and Fernando Tesón), Simpson 2001. For related defenses of sovereign prerogative grounded in a qualified pluralism, see Cohen 2004; Kingsbury 1998.
- 11.
- 12.
Kooijmans 1964, at 219.
- 13.
Ibid., at 204.
- 14.
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations (hereafter ‘Friendly Relations Declaration’), UNGA Res. 2625, 24 October 1970 (adopted without a vote).
- 15.
UNGA Res. 1514 (XV), 14 December 1960 (adopted eighty-nine to none, with nine abstentions); International Covenant on Civil and Political Rights (hereafter ICCPR), 999 UNTS 171, art. 1(1).
- 16.
- 17.
I have devoted a book to these presumptions and their moral justifications, Roth 2011. The present section synopsizes some of the basic points of Chapters I and III.
- 18.
Though substantially misleading even when it was first articulated, the so-called ‘Lotus Principle’ remains a viable starting point for international law-finding: ‘[r]estrictions on the independence of States cannot … be presumed.’ S.S. ‘Lotus’ (France v. Turkey), PCIJ Ser. A, No. 10, 7 September 1927, at 18.
- 19.
As Kooijmans noted, ‘the principle of par in parem non habit iudicium, meaning that no state has to subject itself to the jurisdiction of another state, is … an essential outcome of the structure of international society’ (except in respect of the state’s commercial transactions). Kooijmans 1964, at 246. See also Higgins 2013.
- 20.
1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 352, art. 27. The provision applies expressly to treaty obligations, but the same principle applies to customary obligations.
- 21.
See, e.g., Friendly Relations Declaration. ‘No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.’
- 22.
‘A state’s law enforcement officers may exercise their functions in the territory of another state only with the consent of the other state, given by duly authorized officials of that state.’ Restatement (Third) of Foreign Relations Law of the United States, para 432(2) (1987). See also Jennings and Watts 1992, para 119, at 387-388. (‘It is … a breach of international law for a state without permission to send its agents into the territory of another state to apprehend persons accused of having committed a crime.’). The transboundary use of force in self-defense is not properly viewed as an exception, since it is limited to action necessary and proportionate to repulsing an armed attack (or, perhaps, to thwarting an imminently anticipated attack), and so should be regarded as a stop-gap measure rather than as law enforcement.
- 23.
See International Law Commission, Draft Articles on State Responsibility (1996), UN Doc. A/51/10, art. 50 (b). The ILC’s final (2001) version omitted this language, but remained highly restrictive of countermeasures. See International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), art. 49 (‘An injured State may only take countermeasures… in order to induce [the wrongdoing] State to comply with its obligations’), art. 51 (‘Countermeasures must be commensurate with the injury suffered’), and art. 54 (mentioning only ‘lawful measures,’ rather than countermeasures, in regard to responses by ‘[a]ny State other than an injured State’ to breaches of those obligations recognized in Article 48 as being ‘owed to the international community as a whole’).
- 24.
See generally Simpson 2004, elaborating the historical tendency of the international system to cast particular states as non-right-bearing outlaws.
- 25.
Vienna Convention on the Law of Treaties, art. 53.
- 26.
Kooijmans, while acknowledging the underlying logic that ‘there is not much chance of the guarantee of peace and security if those who have been entrusted with peace and security do not agree with each other’, found the veto problematic from the standpoint of sovereign equality, since ‘any Great Power may now make the application of the law upon itself impossible.’ Kooijmans 1964, at 242-243. However, it is problematic to regard the Security Council as a law enforcement organ; it is a political body empowered to respond to threats to the peace by light of its own policy determinations. A violation of international law is neither a necessary nor a sufficient condition of the invocation of Chapter VII powers, and the Security Council’s demands upon states need not match any pre-existing legal obligations. A Chapter VII action less resembles domestic law enforcement than it resembles a domestic ‘state of exception’, and a veto of the latter is not subject to the same objection as a veto of the former.
- 27.
See, e.g., Schwelb 1967, at 949.
- 28.
Kooijmans 1964, at 212. ‘In order to avoid boundless skepticism and a merely formal concept of law, it must be conceded that the word “law” contains certain values … like regularity, balance, equality, authority, respect for the legal subject, etc., … without which a legal order is unthinkable.’ Although these elements in themselves ‘lack a precise content’, they nonetheless have a ‘clear legal meaning’ and are ‘made concrete in a certain legal order’, despite the ‘varying character’ of law in different places and times. Ibid., at 213.
- 29.
van Hoof 1983, at 153.
- 30.
Schwelb 1967, at 961-962, 966.
- 31.
For other examples of treaties called into question, though not officially challenged, see Czaplinski 2006.
- 32.
Schwelb 1967, at 953, citing UNGA Res. 2077 (XX). 8 December 1965, which indirectly condemned the treaty by a less than rousing vote of 47 to 5 with 54 abstentions. See also Doswald-Beck 1986, at 246-247 (detailing the Cypriot government’s early objection to the Treaty of Guarantee); MacDonald 1981, at 17 (posing the question of whether the treaty was void since a state cannot contract out sovereignty and at the same time keep it). The Treaty of Guarantee also potentially ran afoul of Article 103 of the UN Charter, but the jus cogens provision of the Vienna Convention is stronger, voiding an incompatible treaty entirely. Vienna Convention on the Law of Treaties, art. 53.
- 33.
See, e.g., Bianchi 2008, at 491-492 (‘more revealing is that students, whenever they are asked to come up with examples of peremptory norms, invariably answer either “human rights”, without any further qualification, or refer to particular human rights obligations like the prohibition of genocide or torture.’).
- 34.
Schwelb’s study of the deliberations on the Vienna Convention notes the irony of the Ecuadorean representative’s effort to list as jus cogens norms both respect for human rights and ‘the prohibition of intervention in matters which are essentially within the domestic jurisdiction of states.’ Schwelb 1967, at 965.
- 35.
See Nieto-Navia 2003.
- 36.
Vienna Convention on the Law of Treaties, art. 53.
- 37.
The Vienna Convention travaux préparatoires include such descriptions as ‘rules which derive from principles that the legal conscience of mankind deemed absolutely essential to the co-existence of the international community at a given stage of its historical development.’ van Hoof 1983, at 153.
- 38.
In reality, ‘in most … cases where peremptory norms have been recognized, the legal consequences of this classification were essentially imperceptible.’ Shelton 2006, at 306. Notably, ‘jus cogens is a term often used for rhetorical purposes – to confer pathos on legal arguments that otherwise would appear less convincing.’ Linderfalk 2007, at 255.
- 39.
Vienna Convention on the Law of Treaties, art. 53.
- 40.
Articles on State Responsibility, art. 50(1)(d).
- 41.
Articles on State Responsibility, art. 41(2).
- 42.
A US Supreme Court decision three years later ended this practice. Roper v. Simmons, 543 U.S. 551 (2005).
- 43.
Michael Domingues v. United States, Case 12.285, Report No. 62/02, Inter-Am. C.H.R., 22 October 2002, Doc. 5 rev. 1, para 913.
- 44.
Ibid., at 49-50.
- 45.
Ibid., at 51-76.
- 46.
Human Rights Committee, General Comment 24, General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.6, 4 November 1994. That General Comment was a thinly veiled response to the provocatively elaborate package of ‘Reservations, Understandings, and Declarations’ (RUDs) attached to the US instrument of ratification, and it drew a highly vituperative response from the U.S. Department of State.
- 47.
Among other provocation assertions, the Committee concluded that ‘a State may not reserve the right … to permit the advocacy of national, racial or religious hatred’, even though ICCPR Article 20 is directly at odds with a time-honored, if controverted, conception of the freedom of expression. Ibid, para 8.
- 48.
ICCPR, art. 4.
- 49.
Juridical Condition and Rights of the Undocumented Migrants, Inter-Am. Ct. H.R., Advisory Opinion, OC-18/03, 17 September 2003.
- 50.
Ibid., para 119.
- 51.
Ibid., para 173 (10) and (11).
- 52.
Bianchi 2008, at 506.
- 53.
Kooijmans 1964, at 209-210.
- 54.
Friendly Relations Declaration, preamble (‘subjection of peoples to alien subjugation, domination and exploitation … is contrary to the Charter’); International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015 UNTS 243, (108 states parties as of 2012, though notably excepting the core Western liberal democracies); Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, UNGA Res. 36/103, 9 December 1981, (4) (non-intervention norms shall not ‘prejudice in any manner the right to self-determination, freedom and independence of peoples under colonial domination, foreign occupation or racist regimes’).
- 55.
International Military Tribunal (Nuremberg), Judgment and Sentence, 1 October 1946, 41 American Journal of International Law (1947) 172, at 221.
- 56.
Kooijmans 1964, at 233. Kooijmans analogized the relationship of the international and national legal orders to that of the state to ‘other human social relationships, such as family, industry, church, etc.’: ‘[e]ach social relationship has its own sphere and … competences should be executed within this sphere. If the state occupies itself with the regulations in industry or in the church without due regard for the boundaries of its own sphere, it makes an improper inroad on the sphere of competence of business or church.’ Ibid., at 206-207.
- 57.
Henkin 1972, at 168.
- 58.
Bodin 1955, at 30.
- 59.
Schmitt 1985, at 9.
- 60.
Ibid., at 11.
- 61.
See, e.g., Akande 2004, at 412-413; Akehurst 1972-1973, at 240-244. This immunity follows from the traditional view that ‘[e]very sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.’ Underhill v. Hernandez, 168 US 250, 252 (1897).
- 62.
Cassese 2003, at 266; accord Akande 2004, at 412-415. Indeed, as Hazel Fox has pointed out, even the International Criminal Tribunal for the former Yugoslavia has acknowledged that the immunity ratione materiae of state agents trumps the Tribunal’s contempt powers (in response to an official’s failure to comply with a subpoena duces tecum). Fox 2003, at 299-300.
- 63.
Fox 2003, at 301.
- 64.
Insofar as an individual’s criminal or civil liability is dependent on a foreign state’s jurisdiction to legislate, that jurisdiction to legislate is blocked for as long as immunity ratione materiae exists. It therefore logically follows that in such cases (i.e., in cases where the act did not constitute a fully established international crime when committed), a state waiver of immunity ratione materiae cannot have retroactive effect, for in respect of the application of another state’s extraterritorial legislation to those acting within the scope of official capacity, it represents a substantive rather than merely procedural bar to prosecution.
- 65.
Reisman 2000, at 15, n. 29.
- 66.
Prosecutor v. Furundžija, Trial Chamber, Case No. IT-95-17/1-T, 10 December 1998, para 155. The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law.
- 67.
Regina v. Bow Street Metropolitan Stipendiary Magistrate (Pinochet I), 1 A.C. 61 (2000). That judgment was vacated after the disclosure of one Law Lord’s ties to a human rights group participating in the litigation.
- 68.
- 69.
- 70.
Ferdinandusse 2006, at 182; Shany 2007, at 867. Indeed, the International Criminal Court Statute seems to counterindicate jus cogens status for such prosecutorial obligations, since its call for surrender of suspects expressly yields to states parties’ contrary treaty obligations to non-parties. Rome Statute of the International Criminal Court, 2187 UNTS 90, art. 98.
- 71.
See Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening), ICJ, Merits, Judgment of 3 February 2012, para 95. To the extent that it is argued that no rule which is not of the status of jus cogens may be applied if to do so would hinder the enforcement of a jus cogens rule, even in the absence of a direct conflict, the Court sees no basis for such a proposition.’
- 72.
Regina v. Bow Street Metropolitan Stipendiary Magistrate (Pinochet III), 1 AC 147, 204-05 (2000).
- 73.
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ, Merits, Judgment of 14 February 2002, Separate Opinion of Higgins, Kooijmans, and Buergenthal, para 79.
- 74.
Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia, 2006 U.K.H.L. 26.
- 75.
Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening), paras. 93-94. ‘The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State’, and therefore hold even the in the face of – because they are uncontradicted by – both jus cogens violations and the duty to make reparation. See also Al-Adsani v. United Kingdom, ECtHR, No. 35763/97, 21 November 2001. In this case a closely divided Grand Chamber of the European Court of Human Rights held that human rights law does not require a state court to void foreign state immunity in civil suits for torture. The joint dissenting opinion insisted that ‘the jus cogens nature of the prohibition of torture entails that a state allegedly violating it cannot invoke hierarchically lower rules (in this case, those on state immunity) to avoid the consequences of the illegality of its actions.’ Ibid., Joint Dissenting Opinion of Judges Rozakis and Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić, para 3.
- 76.
I have given book-length treatment to this theme, Roth 2011.
- 77.
Friendly Relations Declaration.
- 78.
In its 2005 invocation of R2P theme, the U.N. General Assembly obviated the need for such elaborate rationalizations, acknowledging that the Security Council’s extraordinary authority extends to circumstances where ‘national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.’ UNGA Res. 60/1, 24 October 2005 (adopted without a vote), para 139; UNSC Res. 1674, 28 April 2006 (reaffirming same).
- 79.
- 80.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), at 263-264.
- 81.
UNGA Res. 2793 (XXVI), 7 December 1971 (calling ‘upon the Governments of India and Pakistan to take forthwith all measures for an immediate cease-fire and withdrawal of their armed forces on the territory of the other to their own side of the India-Pakistan borders,’ thereby indirectly repudiating the Indian intervention that resulted in the establishment of Bangladesh).
- 82.
UNGA Res. 34/22, 14 November 1979 (demanding an ‘immediate withdrawal’ of Vietnamese forces).
- 83.
UNGA Res. 38/7, 2 November 1983 (denouncing the invasion as a ‘flagrant violation of international law’).
- 84.
Universal Declaration of Human Rights, UNGA Res. 217A (III), 10 December 1948, art. 21(3).
- 85.
For elaboration of and evidence for this assertion, see Roth 2011, at 81-85, 200-205.
- 86.
There is no doubt that the latter frequently masqueraded as the former, often for the sake of procuring weapons and other assistance from the rival blocs. Somali dictator Mohammed Siad Barre and Angolan rebel leader Jonas Savimbi are two notorious examples of leaders who shifted ideological affectations, as convenient, to enlist foreign support for essentially non-ideological agendas. For an empirically supported argument that the cross-era difference in the character of civil wars was more appearance than reality, see Kalyvas 2001.
- 87.
See generally Roth 1999, at 136-149, 160-171, 253-364 (detailing the history of that era’s practice and pronouncements on civil wars, recognition contests, and political participation).
- 88.
See Friendly Relations Declaration. ‘Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State’; Convention on Duties and Rights of States in the Event of Civil Strife, 134 LNTS 45, (Inter-American treaty forbidding ‘the traffic in arms and war material, except when intended for the Government, while the belligerency of the rebels has not been recognized, in which latter case the rules of neutrality shall be applied’).
- 89.
In some cases, such as Cambodia, Kenya, and Zimbabwe, the international community has promoted or at least abided power-sharing between electoral winners and losers that entailed, from a liberal-democratic perspective, undue concessions to losers. In Bosnia, an Office of High Representative administers what is effectively an international trusteeship, occasionally removing elected leaders (including two members of the collective Presidency) for obstructionism in the implementation of the consociational settlement.
- 90.
See generally Roth 1999.
- 91.
UNGA Res. 45/150, 18 December 1990. Resolutions of this nature, endorsing the international promotion of liberal-democratic mechanisms, not only contained such qualifiers, but were also accompanied by counterpart resolutions, passed by majority over the objection of the most strongly liberal-democratic states, that reaffirmed ‘respect for the principles of national sovereignty and non-interference in the internal affairs of States in their electoral processes’, acknowledging the plurality of approaches, reserving to the domestic jurisdiction control over implementation, and criticizing unwelcome external influences on local processes. UNGA Res. 45/151, 18 December 1990; UNGA Res. 49/180, 23 December 1994; UNGA Res. 54/168, 25 February 2000. Fox and Roth 2001, at 344-345.
- 92.
- 93.
- 94.
For example, in Haiti in 1994 and Sierra Leone in 1997-1998, there had been a landslide victory of the ousted President in a very recent, internationally-monitored election, as well as notorious brutality and demonstrable unpopularity on the part of the forces involved in the coup. As a result, a vast diversity of international actors, cutting across the international system’s plurality of interests and values, were able to perceive in common a population’s manifest will to restore an ousted government. See Roth 1999, at 366-387, 405-409.
- 95.
Roth 2011, at 208-217.
- 96.
Fabry 2009, at 735.
- 97.
UN peacekeepers, deployed under UNSC Res. 1967, 19 January 2011, took partisan military action after the Southern-based government of Laurent Gbagbo, defeated in internationally supervised elections by 54 to 46 %, refused to yield power to the Northern-based opposition movement led by Presidential candidate Alassane Ouattara. One could still characterize this as an exceptional case, since the election had been part of an internationally-brokered agreement to end an internal armed conflict that had drawn a Chapter VII intervention. See UNSC Res. 1880, 30 July 2009; UNSC Res. 1893, 29 October 2009; UNSC Res. 1911, 28 January 2010.
- 98.
North Atlantic Treaty Association (NATO) forces, authorized in UNSC Res. 1973, 17 March 2011 ‘to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya’, successfully pursued regime change. That interpretation of the Security Council mandate was highly controversial. The Western powers’ alleged breach of faith in the Libyan case has been invoked (whether ingenuously or opportunistically) to explain Russian and Chinese vetoes of Chapter VII measures in the ensuing Syrian crisis.
- 99.
See S/PRST/2012/9 of 4 April 2012 (UN Security Council Presidential Statement that affirms the Council’s ‘strong condemnation of the forcible seizure of power from the democratically-elected Government of Mali [and] renews its call for the immediate restoration of constitutional rule and the democratically-elected Government and for the preservation of the electoral process’). To be sure, there is some irony in the fact that the same UN Security Council Presidential Statement that condemned the Mali coup in the name of constitutionalism and democracy also ‘commends the work of President Blaise Compaoré, as ECOWAS facilitator, in promoting the return to full civilian authority and the effective reestablishment of constitutional order in Mali.’ S/PRST/2012/9 of 4 April 2012. Compaoré has held power in Burkino Faso ever since his own coup in 1987.
- 100.
See UNSC Res. 2048, 18 May 2012 (demanding the ‘immediate restoration of the constitutional order’ and imposing Article 41 personal sanctions on Guinea-Bissau’s coup leaders).
- 101.
The question of a decisive collective response to the 2012 Syrian crisis remains unresolved at this writing.
- 102.
See, e.g., BBC News, ‘US recognises Libyan rebel TNC as legitimate authority’, 15 July 2011, available at <http://www.bbc.co.uk/news/world-africa-14164517>. ‘The move means billions of dollars of Libyan assets frozen in US banks could be released to the rebels.’
- 103.
UNGA Res. 60/1, 24 October 2005, 139. It should be noted that the human costs of intervention by technologically sophisticated foreign military forces, while typically more likely to be attributed to ‘collateral damage’ than to war crime, can similarly amount to humanitarian catastrophe. One scholarly source places at 11,516 the number of civilians killed by Coalition forces in Iraq between March 20, 2003 and March 19, 2008. Hicks et al. 2011, at 3.
- 104.
According to one journalistic estimate, ‘the death toll in Libya when NATO intervened was perhaps around 1.000-2.000.’ Seumas Milne, ‘If the Libyan war was about saving lives, it was a catastrophic failure’, The Guardian, 26 October 2011, available at <http://www.guardian.co.uk/commentisfree/2011/oct/26/libya-war-saving-lives-catastrophic-failure>.
- 105.
An exception has been a small group of states (Venezuela, Bolivia, Ecuador, Nicaragua, Cuba, and for a time, Honduras), led by Venezuelan President Hugo Chavez, that has articulated a rival vision reminiscent of the state socialism and Bandung nationalism of a previous era. During his 2008-2009 Presidency of the UN General Assembly, veteran Nicaraguan diplomat Miguel d’Escoto vigorously sought to revitalize this critique of Western capitalist hegemony. The effort generated some debate, but failed to inspire a significant push-back against recent trends.
- 106.
Kooijmans 1964, at 195.
- 107.
In the George W. Bush Administration’s assertion: ‘[s]overeignty entails obligations. One is not to massacre your own people. Another is not to support terrorism in any way. If a government fails to meet these obligations, then it forfeits some of the normal advantages of sovereignty, including the right to be left alone inside your own territory. Other governments, including the United States, gain the right to intervene.’ Richard Haass, Director of Policy Planning for the George W. Bush State Department, quoted in Nicolas Lemann, ‘The Next World Order’, The New Yorker, 1 April 2002, available at <http://www.newyorker.com/archive/2002/04/01/020401fa_FACT1>.
- 108.
Latin America’s many ‘dirty wars’ of the 1960s through the 1980s are quintessential in this respect, as in many cases both sides, notwithstanding their recourse to ruthlessness, maintained substantial and enduring popular constituencies. On the Right, Chile’s General Augusto Pinochet and Peru’s President Alberto Fujimori enjoyed substantial periods of widespread support, and El Salvador’s death-squad-linked ARENA party won a long string of post-war elections. On the Left, current Presidents Dilma Rousseff of Brazil and Jose Mujica of Uruguay were both participants in urban guerrilla movements once condemned as ‘terrorist’, and current Nicaraguan President Daniel Ortega has renewed popularity despite past (and, some say, present) ‘dictatorial’ tendencies. And it is instructive that whereas the first forcible removal of Haitian President Jean-Bertrand Aristide in 1994 met with the uniform repudiation of the international community, his second forcible removal in 2004 drew no such response. The legislatively and judicially backed 2009 Honduran coup d’etat that ousted elected President Manuel Zelaya and led to the election of a pro-coup government is similarly a reminder that internal struggles remain fraught with ambiguity.
- 109.
Kooijmans 1964, at 247. ‘A blue-print for castles in the air can never serve as a design for a habitable house.’
References
Akande D (2004) International law immunities and the International Criminal Court. Am J Int Law 98:407–433
Akehurst M (1972–1973) Jurisdiction in international law. Br Yearb Int Law 46:240–244
Bassiouni MC (1996) International crimes: jus cogens and obligatio erga omnes. Law Contemp Prob 59:63–74
Bianchi A (2008) Human rights and the magic of jus cogens. Eur J Int Law 19:491–508
Bodin J (1955) Six Books of the Commonwealth [1576]. Abridged and translated with an introduction by MJ Tooley. Basil Blackwell, Oxford
Brown BS (2001) The evolving concept of universal jurisdiction. New Engl Law Rev 35:383–397
Byers M (1999) Custom, power, and the power of rules. Cambridge University Press, New York
Cassese A (2003) International Criminal Law. Oxford University Press, New York
Cohen JL (2004) Whose sovereignty? Empire versus international law. Ethics Int Aff 18:1–24
Czaplinski W (2006) Jus cogens and the law of treaties. In: Tomuschat C, Thouvenin J (eds) The The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes. Martinus Nijhoff, Leiden, pp 83–98
d’Aspremont J (2006) Legitimacy of governments in the age of democracy. NYU J Int Law Politics 38:877–917
d’Aspremont J (2010) Responsibility for coups d’etat in international law. Tulane J Int Comp Law 18:451–475
Doswald-Beck L (1986) The legal validity of military intervention by invitation of the government. Br Yearb Int Law 56:189–252
Doyle AC (1967) Silver blaze. In: Baring-Gould WS (ed) The annotated Sherlock Holmes, vol II. Clarkson N. Potter, New York, pp 261–281
Fabry M (2009) The right to democracy in international law: a classical liberal reassessment. Millenni J Int Stud 37:721–741
Ferdinandusse WN (2006) Direct application of international criminal law in national courts. T.M.C. Asser Press, The Hague
Fox GH (1992) The right to political participation in international law. Yale J Int Law 17:539–607
Fox GH, Roth BR (2001) Democracy and international law. Rev Int Stud 27:327–352
Fox H (2003) Some aspects of immunity from criminal jurisdiction of the state and its officials: the Blaskić case. In: Vohrah LC et al (eds) Man’s inhumanity to man: Essays on international law in honour of Antonio Cassese. Kluwer Law International, The Hague, pp 293–308
Franck TM (1992) The emerging right to democratic governance. Am J Int Law 86:46–91
Freiherr von der Heydte FA (1958) Völkerrecht. Politik und Wirtschaft, Köln
Henkin L (1972) Foreign Affairs and the constitution. Foundation Press, Mineola
Hicks MH-R, Dardagan H, Guerrero Serdán G, Bagnall PM, Sloboda JA, Spagat M (2011) Violent deaths of Iraqi civilians, 2003–2008: analysis by perpetrator, weapon, time, and location. PLoS Med 8. http://www.plosmedicine.org/article/info:doi/10.1371/journal.pmed.1000415. Accessed 21 Nov 2012
Higgins R (2013) Equality of states and immunity from suit: a complex relationship. Netherlands Yearbook of International Law 43:129–149
Jackson R (2000) The global covenant: human conduct in a world of states. Oxford University Press, Oxford
Jennings R, Watts A (eds) (1992) Oppenheim’s international law, 9th edn. Longman Higher Education, Essex
Kalyvas S (2001) ‘New’ and ‘old’ civil wars: A valid distinction? World Politics 54:99–118
Kingsbury B (1998) Sovereignty and inequality. Eur J Int Law 9:599–625
Kooijmans PH (1964) The doctrine of the legal equality of states: An inquiry into the foundations of International Law. A.W. Sythoff, Leiden
Linderfalk U (2007) The effect of jus cogens norms: whoever opened Pandora’s box, did you ever think about the consequences? Eur J Int Law 18:853–871
MacDonald RStJ (1981) International law and the conflict in Cyprus. Can Yearb Int Law 19:3–49
Mitrany D (1966) A working peace system. Quadrangle Books, Chicago
Nieto-Navia R (2003) International peremptory norms (jus cogens) and international humanitarian law. In: Vohrah LC et al (eds) Man’s inhumanity to man: essays on international law in honour of Antonio Cassese. Kluwer Law International, The Hague, pp 595–640
Reisman WM (2000) Unilateral actions and the transformations of the world constitutive process: the special problem of humanitarian intervention. Eur J Int Law 11:3–18
Roth BR (1999) Governmental illegitimacy in international law. Clarendon Press, Oxford
Roth BR (2011) Sovereign equality and moral disagreement: premises of a pluralist international legal order. Oxford University Press, New York
Sadat LN (2006) Exile, amnesty, and international law. Notre Dame Law Rev 81:955–1036
Schmitt C (1985) Political Theology: Four chapters on the concept of sovereignty [1922] (trans: Schwab G). MIT Press, Cambridge
Schwelb E (1967) Some aspects of international jus cogens as formulated by the International Law Commission. Am J Int Law 61:946–975
Shany Y (2007) The prohibition against torture and cruel, inhuman and degrading treatment and punishment: Can the absolute be relativized under existing international law? Cathol Univ Law Rev 56:837–870
Shelton D (2006) Normative hierarchy in international law. Am J Int Law 100:291–323
Simpson G (2001) Two liberalisms. Eur J Int Law 12:537–571
Simpson G (2004) Great powers and outlaw states: Unequal Sovereigns in the International Order. Cambridge University Press, Cambridge
van Hoof GJH (1983) Rethinking the Sources of International Law. Kluwer, Deventer
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2013 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author(s)
About this chapter
Cite this chapter
Roth, B.R. (2013). Sovereign Equality and Non-Liberal Regimes. In: Nijman, J., Werner, W. (eds) Netherlands Yearbook of International Law 2012. Netherlands Yearbook of International Law, vol 43. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-915-3_2
Download citation
DOI: https://doi.org/10.1007/978-90-6704-915-3_2
Published:
Publisher Name: T.M.C. Asser Press, The Hague, The Netherlands
Print ISBN: 978-90-6704-914-6
Online ISBN: 978-90-6704-915-3
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)
