Chapter 9

THE RIGHT OF EQUALITY

IN ARTICLE 2 of the Charter of the United Nations, it is announced that “The organization is based on the
principle of the sovereign equality of all its Members.” This is the recognition of what ahs been
described as “an early premise of International Law.” The principle is more fully fleshed out in the
provision of the Montevideo Convention of 1933 that “states are juridically equal, enjoy the same rights,
and have equal capacity in their exercise. The rights of each one do not depend upon the power which it
possesses to assure its exercise, but upon the simple fact of its existence as a person under international
law.”

Essence of Equality

As understood in International law, equality among state does not signify parity in physical
power, political influence or economic status or prestige. This is impossible in the nature of things inas
much as states, like individuals, are necessarily subject to different conditions or circumstances that may
preclude their uniform treatment in their interrelations. Indeed, equality does not even require equality
in the number of rights since it is possible for one state to be vested with more rights than another, e.g.,
a coastal state like china would have a right to a territorial sea as distinguished from a state completely
surrounded by land, like Bolivia or Afghanistan.

What is meant by the principle of equality, strictly speaking, is that all the rights of the state,
regardless of their number, must be observed and respected by the international community in the
same manner that the rights of other states are observed and respected. In short, all states, big or small,
the powerful as well as the weak, have an equal right to enjoyment of all their respective attributes as
members of the family of nations.

Accordingly, all members of the United Nations have each one vote in the General Assembly, all
votes having equal weight, and are generally eligible for positions in the various organs of the United
Nations. Every state has the right to the protection of its nationals, to male use of the open seas, or to
acquire or dispose of territory. When involved in war, a small state like the Malagasy Republic would
have the same right as China or the United States to punish the carriage of contraband or to have its
captured combatants treated as prisoners of war. Under the rule of par in parem non habet imperium,
even the strongest state cannot assume jurisdiction over another state, no matter how weak, or
question the validity of its acts in so far as they are made to take effect within its own territory. All states
, including the smallest and the least influential, are also entitled to their dignity and the protection of
their honor and reputation.

Legal Equality v. Factual Inequality

But even from the viewpoint of strictly legal rules, it is apparent that absolute equality among
states is still a distant and well nigh impossible aspiration. Under the Charter of the United Nations, for
example, non-procedural questions are decided by the Security Council only with the concurrence of
the Big Five, any of which may defeat a proposal through the exercise of the veto. This is true also with
respect of the ratification of any proposal to amend the Charter. Moreover, as previously emphasized,
this same group of states is entitled to permanent membership I the organ, in contrast with all the other
members, which are elected for a term of only two years and are not even eligible for immediate re-
election.

With regard to the elective membership of the Security Council, not all states have equal
eligibility therefor, as it is provided in the 1965 amendments to the Charter that such members are to be
distributed and not equally at that, among several specified regions. Thus, five of them must be elected
from the Africa and Asian states.

There is much to be said for the proposition that all states, regardless of their relative prestige and
power in the international community, must be equal in the enjoyment of whatever rights they may be
entitled to. But this rule of equality itself sometimes poses serious questions of inequality. This is so
because it does not take into account the realities of international life, including the greater stakes of
the more populous states in the decision of questions involving the entire community of nations. Such
decisions may affect the interests, not of individual states as such, but of the whole of humanity itself
without distinctions as to color, nationality or creed.

In the General Assembly, for example, all members have one vote regardless of the number of
people they separately represent, with the result that the decision of India, which has a population of
almost one billion, would have the same force, legally speaking, as the vote cast by Gabon, the
population of which is only about 1.1 million. The reason is that the right to vote, and to only one vote
each, is granted to the member-states as such instead of being apportioned among what the Preamble
to the Charter itself calls “the peoples of the United Natons.”

Reference: INTERNATIONAL LAW, Isagani A. Cruz, 2000 Edition, pp 106-108

Equality

Equality obviously does not mean equality in political or economic power. Rather, it means
equality of legal rights irrespective of the size or power of the state. Within the General Assembly, the
doctrine means one state, one vote. The UN Charter, Article 2, provides that “ the Organization is based
on the principle of sovereign equality of all its Members.” Hence, each has one vote in the General
Assembly and every state may aspire for the offices in the various organs of the UN.

Reference: INTRODUCTION TO PUBLIC INTERNATIONAL LAW, Joaquin G Bernas S.J., 2009 edition, pp 84-
85
Right of Equality

Every state is entitled to the same protection and respect as are available to other states under
the rules of international law (NACHURA, Political Law Reviewer, supra at 659)

Act of State Doctrine

A state should not inquire into the legal validity of the public acts of another state done within
the territory of the latter. For this purpose, considerations such as motive are immaterial (Underhill v.
Hernandez, 168 U.S. 250).

Doctrine of State Immunity

As a consequence of the independence, territorial supremacy and equality, a state enjoys

immunity from the exercise of jurisdiction ( legislative, executive or judicial) by another state except:

1. It has given consent

2. Waived its immunity: or
3. Voluntarily submitted to the jurisdiction of the court concerned ( NACHURA, Political Law
Reviewer, supra at 660).

Restrictive Application of the Doctrine

This immunity, however, is recognized only with respect to sovereign or public acts of the state
and cannot be invoked with respect to private or proprietary acts (ld.). Neither may this
immunity be invoked when the foreign state sues in the courts of another state, for them it is
deemed to have submitted itself to the ordinary incidents of procedure and thus, a counterclaim
may be validly set up against it (ld.).

The State is deemed to have waived its immunity:

1. When it gives consent at the time the proceeding is instituted;

2. When it takes steps relating to the merits of the case before invoking immunity;
3. When by treaty or contract it had previously given consent; and
4. When by law or regulation in force at the time complaint arose it has indicated that it will
consent to the institution of the proceedings (ld. At 661)

Reference: San Beda College of Law, Memory Aid, POLITICAL LAW MEMORY AID, 2014 Bar Operations