In a historic speech delivered at the UN Security Council, His Excellency President Dr Julius Maada Bio, serving as President of the United Nations Security Council for August 2024, addressed the Council’s debate on maintaining international peace and security. In his address on the theme, “The Historical Injustice and Enhancing Africa’s Effective Representation in the UN Security Council”, President Bio drew special attention to the historical injustices faced by Africa within the UN structure.  The President further reiterated that “Africa demands two permanent seats in the UN Security Council and two additional non-permanent seats, bringing the total number of non-permanent seats to five.”

Since its creation in 1945, the United Nations’ fate has been determined by five permanent members in the Security Council. Why has it taken so long to start a reform? Are all states not really equal under international law?

In 1825, Chief Justice Marshall of the Supreme Court of America, in the Antelope Case, ruled that no principle of general law is more universally acknowledged than the perfect equality of nations. Article 2(1) of the United Nations Charter states that the organization is based on the principle of sovereign equality. In the preamble of the Charter the equality of nations, large and small, is guaranteed. Moreover, many writers claim that the principle falls within the category of jus cogens (a peremptory norm from which no derogation is permissive).

The idea of sovereign equality of states puts forward that “the conduct of states towards each other, their regulatory competence within their boundaries, and their capacities to participate in and make rules for international system are entitled to the same level of legal respect regardless of their territorial size, population, material wealth, technology or cultural savoir faire.”

However, in recent years this principle has come under challenge from several sources despite Article 2(4) of the UN Charter stipulating that all members shall refrain in their international relations from the threat or use of force against territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

In his book, Great powers and Outlaw States: Unequal Sovereigns in the International Legal Order, Gerry Simpson asserts that for international law, Westphalia marks the transition from strict hierarchy to equality. It was during this period that states acquired full sovereignty within the international system. According to him, states that enjoyed sovereign equality are often considered to possess internal sovereignty with a certain territory and jurisdictional primacy in that area. He further states that these states enjoy external sovereignty, which includes the right to territorial integrity, immunity from suits in the courts of another state.

Sovereign equality encompasses at least three forms of equality: formal equality, legislative equality and existential equality. Formal equality is equality before the law, the right of states being treated in the same way by a judicial tribunal. The second form of sovereign equality is the legislative equality. This form of sovereign equality embodies the notion that international law confers equal recognition and dignity upon the acts of states on the international plane. Simpson postulates that legislative equality, in its weak form recognizes that states are bound by only those legal norms to which they assent. In its stronger form, it would mandate an equally weighted vote and equal representation in the decision-making processes within international bodies and an equal role in the formation and application of customary law and treaty law. More particularly, a strong commitment to legislative equality would deprive the Great Powers of any special role within the international legal order.

The third sovereign equality is existential equality. This form of equality arises out of recognition by the international community that an entity is entitled to statehood and the equality is an immediate product of fully recognized sovereignty. This norm therefore includes the principle of non-intervention by other states in the internal affairs of the state, including its choice of government.

Nonetheless, legalized hierarchies challenge the principle of sovereign equality. Hierarchy is the presence of formal status differentiation among actors within a decentralized system of authority and law, situated with an anarchical order. There are two forms of hierarchy: anti-pluralism and legalized hegemony. In the case of anti-pluralism, either membership or the quality of that membership in the international community is subject to gradations in status based on culture and ideology. According to Grotius, these are exceedingly cruel enemies.

In the other case, legalized hegemony, certain states are accorded a position of pre-eminence or dominance by virtue of their power.  Grotius termed these states as acting with public authorization. The interaction of certain elements of the strong version of sovereign equality is what Simpson termed as juridical sovereignty.

All states do not enjoy the same rights (absolute equality or equality of rights) though all states have the legal capacity to enjoy the rights they already possess in judicial setting (formal equality). In short, legalized hierarchies do not pose much challenge to formal equality. However, although states are formally equal within the system of international law, their existential and legislative equality have been in no small way compromised by the presence of legalized hegemony and anti-pluralism.

From 1885 the Great Powers accorded themselves a formally distinct position in international regimes. This de jure separation of elite and the ordinary has been the order of the day in various regime constructions, from Versailles to San Fransisco, to Bretton Woods, to the Kosovo intervention. In Kosovo, for example, the Great Powers intervened, using as argument of human rights violations. This is humanitarian intervention. This intervention was an arrant violation of Article 2(4) of the UN Charter. Did they do the same for Sierra Leone during the civil war that destroyed many lives and properties?

One of the elements of legalized hegemony is that there is a kind of sovereign equality existing among the powers themselves, although there exist actual material differences amongst them. That reminds one of George Orwell’s Animal Farm: all states are equal, but some are more equal than others. The more material strength a country possesses; the more power it commands. The UN Charter gives more power to five states: United Kingdom, France, China, Russia, and the United States of America. The Charter accords these five states the veto rights. A right which they can use to make and break basics rules of international law. The power and privileges given to the Great Powers in the Security Council, in voting procedures in important financial organizations and in the making of new legal rules are examples of these special law-making powers. This tends to suggest that strong legislative equality is non-existent in international law despite the commitment to sovereign equality.

The United States, for example, was reluctant to accept the original draft of the Rome Statute because the Permanent Security Council members did not have much veto power in the Statute. In its final form the Statute reflects both requirements of equality (the consent and complementarity mechanisms) and the needs of legalized hegemony (the referral and veto power of the SC). The Great Powers got what they desired: to determine which peace-loving state or outlaw states should be brought before the ICC. This is legislative inequality.

Legislative inequality operates as a method of imposing norms on non-consenting states. It also distinguishes between great powers and middle powers in international constitutional law, treaty-making and in the creation of customs and its application. In the Continental Shelf case, the Court distinguishes between the practice of land-locked states and that of specially affected ones. According to the Court, the practice of these states contributes to a great extent to the creation of customs. Therefore, the law-making privileges of the Great Powers are reflected most explicitly in the doctrine of specially affected states.

The most basic principle of international law is the equal claim to integrity of all states regardless of their political or social ideology. This has also been affirmed in the UN Charter. However, anti-pluralistic states distinguish between states on the basis of their internal characteristics. The new anti-pluralism lays emphasis on the rights of individuals themselves and the norm of democracy as defining qualities of an operable international order. Therefore, states which have different form of internal political norms are not accepted in the world of peace-loving or civilized nations. Rogue or outlaw states should not be part of the international community. A fascist or dictatorial regime should not be entitled to as much respect as a government of a social democracy. This is against the principle of sovereign equality.

In international law all states enjoy in principle sovereign equality. On every plane, they are equal and no state should interfere into the affairs of another state. However, through legalized hierarchies, states that have garnered a lot of power have dealt a blow to the principle of sovereign equality.

Will all five permanent members pay heed to Africa’s Clamour for veto power in the SC?

 

Mohamed Kunowah Kiellow

The author holds a combined LLM in international law and criminal law, a certificate in French Language and Culture, a certificate in criminology from Utrecht University, The Netherlands. He also holds a Postgraduate Associate certificate in Law from the University of East London.