The Fundamental Principle of the Juridical Equality of States

132. The present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament stresses the utmost importance of the principle of the juridical equality of States. The importance attributed to fundamental principles, the idea of an objective justice, and its incidence upon the laws, go back in time, being deeply-rooted in jusnaturalist thinking. If laws are deprived of justice, they no longer oblige in conscience. Ethics cannot be dissociated from law; in the international scenario, each one is responsible for all the others. To the “founding fathers” of the law of nations (droit des gens), like F. de Vitoria and F. Suárez, the principle of equality was fundamental, in the relations among individuals, as well as among nations. Their teachings have survived the erosion of time:

today, four and a half centuries later, the basic principle of equality and non-discrimination is in the foundations of the Law of the United Nations itself.

133. The present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament is surely not the first one before the ICJ that brings to the fore the relevance of the principle of the juridical equality of States. In the ICJ’s Order (of Provisional Measures of Protection) of 03.03.2014, I have deemed it fit to point out, in my Separate

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Opinion appended thereto, that the case concerning Questions Relating to the Seizure and Detention of Certain Documents and Data

bears witness of the relevance of the principle of the juridical equality of States. The prevalence of this fundamental principle has marked a longstanding presence in the realm of international law, ever since the times of the II Hague Peace Conference of 1907, and then of the drafting of the Statute of the Permanent Court of International Justice by the Advisory Committee of Jurists, in June-July 1920. Recourse was then made, by that Committee, inter alia, to general principles of law, as these latter embodied the objective idea of justice. A general principle such as that of the juridical equality of States, enshrined a quarter of a century later in the United  Nations Charter (Article  2(1)), is ineluctably intermingled with the quest for justice.

Subsequently, throughout the drafting of the 1970  U.N.  Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (1964-1970), the need was felt to make it clear that stronger States cannot impose their will upon the weak, and that de facto inequalities among States cannot affect the weaker in the vindication of their rights. The principle of the juridical equality of States gave expression to this concern, embodying the idée de justice, emanated from the universal juridical conscience (paras. 44-45).

134. And one decade earlier, in my General Course on Public International Law delivered at the Hague Academy of International Law (2005), I pondered that

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Anexo documental

On successive occasions the principles of international law have proved to be of fundamental importance to humankind’s quest for justice. This is clearly illustrated by the role played, inter alia, by the principle of juridical equality of States. This fundamental principle,  – the historical roots of which go back to the II Hague Peace Conference of  1907, – proclaimed in the U.N.  Charter and enunciated also in the  1970  Declaration of Principles, means ultimately that all States, – factually strong and weak, great and small,  – are equal before international law, are entitled to the same protection under the law and before the organs of international justice, and to equality in the exercise of international rights and duties.

Despite successive attempts to undermine it, the principle of juridical equality of States has remained, from the II  Hague Peace Conference of  1907 to date, one of the basic pillars of International Law. It has withstood the onslaught of time, and shown itself salutary for the peaceful conduction of international relations, being ineluctably associated – as it stands – with the foundations of International Law. It has been very important for the international legal system itself, and has proven to be a cornerstone of international law in the United Nations era. In fact, the U.N. Charter gave it a new dimension, and the principle developments such as that of the system of collective security, within the ambit of the law of the United Nations”¹⁴⁴.

144 A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra n. (120), pp. 84-85, and cf. pp. 62-63, 65 and 73.

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135.  By the turn of the century, the General Assembly’s resolution  55/2, of  08.09.2000, adopted the United  Nations Millennium Declaration, which inter alia upheld the “sovereign equality of all States”, in conformity with “the principles of justice and international law” (para. I(4)). Half a decade later, the General Assembly’s resolution  60/1, of  16.09.2005, adopted the World Summit Outcome, which inter alia expressed the determination “to establish a just and lasting peace all over the world in accordance with the purposes and principles of the [U.N.]  Charter”, as well as “to uphold the sovereign equality of all States” (para. I(5)). In stressing therein the “vital importance of an effective multilateral system” to face current challenges to international peace and security (paras.  6-7), the international community reiterated its profession of faith in the general principles of international law.