Sovereign equality provides the basis for the contemporary international legal regime.
It would be difficult to address this question adequately without reference to the Charter of the UN and to the ICJ contentious litigation when Nicaragua brought an action against the USA leading to decisions of 1984 and 1986. Common errors structure recognise that an obvious introduction to an answer to this question is to be found in Article 2(1) of the UN Charter which states that ‘The Organisation is based on the principle of the sovereign equality of all its members’. Chapter 11 of the module guide, however, specifically considers the paradoxical nature of sovereign equality. Notwithstanding the assertion of Article 2(1), this seems difficult to reconcile with the privileged status of the ‘Permanent Five’ veto states in the Security Council. As is argued in the module guide, while the ‘equality’ in ‘sovereign equality’ is purely formal, it is not without meaning. Indeed, it can be suggested that its content is crucial to the rule of law in the international legal regime. It was to be expected that good answers would suggest that, just as in domestic law all subjects/citizens are formally equal, so too in international law, all states have this formal equality. Thus just as in democratic domestic jurisdictions, while each adult is entitled to one vote, regardless of health, wealth, ability or power, so too in the United Nations General Assembly, each state, regardless of population size, territorial size, or wealth, is entitled to one vote. Nevertheless, because of the comparative powerlessness of the General Assembly as opposed to the Security Council, this voting right might seem unimportant. Much more significant are two other aspects of sovereign equality. The first derives from the Westphalian concept of equality, which implied that each state had an equal right to exist without external intervention. In turn, this might be interpreted as a right to independence. In so far as this is recognised, it is surely the basis for the international legal regime, notwithstanding many infringements.
The second important aspect of formal sovereign equality, is ‘equality before the law’ – meaning that, just as in domestic law all individuals are equal before the law and entitled to equal justice regardless of means, so too in international law, when before the ICJ or legal tribunals, each state is equal. Whether or not these aspects do provide the basis for the contemporary international legal regime, given the extraordinary disparity in wealth and power of states, should then have been discussed, almost certainly including some analysis of Nicaragua v USA.