National sovereignty is an outdated concept

United Nations

Bardo Fassbender

To person

LL.M., Dr. jur., born 1963; Private lecturer at the Law Faculty of the Humboldt University in Berlin.
Address: Humboldt University Berlin, Unter den Linden 6, 10099 Berlin.
Email: [email protected]

Publications include: UN Security Council Reform and the Right of Veto: A Constitutional Perspective, The Hague-London-Boston 1998; The United Nations Charter as Constitution of the International Community, in: Columbia Journal of Transnational Law, (1998); The present crisis of the international law prohibition of violence, in: Europäische Grundrechte-Zeitschrift, (2004).

The Charter of the United Nations is based on the principle of the sovereign equality of all its members. The Iraq war challenged this principle.

introduction

Article 2 No. 1 of the Charter of the United Nations states: "The organization is based on the principle of the sovereign equality of all its members." However, it is not only the United Nations (UN) organization that is based on this principle, but the entire international legal order since the end of the Second World War. What is meant by the "sovereign equality of states"? In an important, generally recognized declaration in 1970, the UN General Assembly agreed on the following definition: "All states enjoy sovereign equality. They have the same rights and obligations and are members of the international community with equal rights, regardless of any economic, social, political or other differences of a different nature. " It goes on to say: "Every state has the duty to respect the legal personality of the other states. The territorial integrity and political independence of every state are inviolable. Every state has the right to freely choose and to adopt its political, social, economic and cultural order develop. "[1]






The sovereign equality of states is therefore primarily their legal equality: every state is equal before international law, be it large or small, powerful or weak, Western-democratic or Arab-Islamic, for example. Accordingly, every state has the same voting rights in the General Assembly of the United Nations (Article 18, Paragraph 1 of the UN Charter). According to the principle, the People's Republic of China, with a good 1.3 billion people, the most populous state in the world, and the Pacific island state of Tuvalu, with 11,000 inhabitants, the smallest in terms of population, [2]. The sovereign equality enables the self-determination of the individual peoples, who should be able to freely choose and develop their internal order. [3]

The principle of sovereign equality is one of the basic legal conditions of the existing multilateral international order. Multilateralism presupposes the existence of a large number of independent actors in international relations. A multilateral system is incompatible with a - legally recognized - predominance of individual states over others.

The sovereign equality of states is protected above all by the general prohibition of force under international law: "In their international relations, all members refrain from any threat or use of force directed against the territorial integrity or political independence of a state or otherwise incompatible with the goals of the United Nations "(Art. 2 No. 4 of the UN Charter). Even the largest state must not impose its will on the smallest by covering or threatening it with military force.

At precisely this point, however, the principle of sovereign equality is currently in a contested position. Because the ban on violence is in a crisis. [4] In particular, the American policy of a very broad interpretation of the right to self-defense in the "fight against terrorism" is softening the prohibition of violence. The associated facilitation of the use of military force against other states, however, makes it possible that weaker states will be subjected to pressure that contradicts their status of sovereign equality - pressure that forces them to make decisions that do not correspond to their free choice .

In view of this current situation, to which I will come back later, the concept of the sovereign equality of states under international law is to be explained in more detail in this article. Since this is a term that has changed in the course of modern international law, the historical dimension must also be taken into account. In order to understand what "sovereign equality" means today and to be able to assess whether the principle will continue to guide international relations between states in the future, it is necessary to describe how this principle came about.