ABSTRACT
INTRODUCTION: SOVEREIGNTY AND EQUALITY Neither ‘sovereignty’2 nor ‘equality’3 is an idea which is unambiguous or easy to understand. Each has a ‘natural’ connotation, as in claims that states must be sovereign or that all men are created equal, which make it difficult to prise away the legal meaning of the terms from the powerful political slogans they sometimes represent. Entities must be sovereign to be states. What this means is that one of the criteria of statehood is that the entity must be constitutionally independent.4 That is not to say they need be omnicompetent in the sense that parliamentary sovereignty is understood in the United Kingdom. Most states submit the exercise of public power to constitutional constraint. Some of those limitations affect the international capacities of the state but they do not bring the international status of the state into question.5 Constitutional sovereignty is a matter of internal law. International law is relevant only in so far as it requires that the constitutional law of a state should not be exercised contrary to any international obligations of the state, the same as for any other national law.6 So to act is to exceed the internal sovereignty of the state, the area of activity which is not regulated by international law.7 It is an area which is constantly mutable, as the international obligations of the state change.8 It is generally (but not universally) accepted that no sphere of public action may not be subject to international legal regulation, although it may be that the less the business of the state has a direct effect on other states, the greater will be the burden of demonstrating that there are rules of international law which bear on its conduct.9 The limits of internal sovereignty, then, are set by international law. The external sovereignty of the state is its capacity to engage in international legal relations with other states. In its external aspects ‘sovereignty’ is an even more misleading term than when it is used in a domestic context. If sovereignty were to mean absolute and unrestrained power, then no system of law could be created to regulate relations between sovereign states, nor indeed to protect the continued personality of any one of them. Sovereignty would be no more than the exercise of effective power and would be
contingent wholly on the capacity of a government to continue doing so in the face of whatever internal or external material threats were ranged against its control. An interstate legal system requires that sovereignty be understood in a way that allows states to subject their power to legal obligations, at a minimum obligations which acknowledge the continued right of other states to exist. International law rests on the premise, the hypothesis as Kelsen puts it, that the customary practices of States are capable of generating legal obligations.10 The right to contribute to the formation of such obligations and the duty to comply with them when they have been created are the equal attribute and responsibility of all states.
