Abstract
In this brief paper, provoked in part by Pieter Kooijmans’ The Doctrine of the Legal Equality of States, the author returns to his 2004 book, Great Powers and Outlaw States and reads it in light of criticisms by two sympathetic interlocutors, and in the shadow of the 2003 Iraq War and more recent efforts to conceptualise the possibilities of constraining hegemony (when it threatens the ‘rule of law’) and promoting it (when it might secure some superseding political ends).
The author is Kenneth Bailey Professor of International Law, Melbourne Law School, University of Melbourne; Open Society Fellow, Tbilisi.
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Notes
- 1.
See Simpson 2004. I thank the editors of the Netherlands Yearbook of International Law for their patience, and for asking me to write again on the subject of sovereign equality. The Editorial Board and an assiduous referee prompted me to go further with the argument; I thank them for this. For example, one obvious direction to go in would involve considering, say, the, not at all widely accepted, doctrine of pre-emptive self-defence (in its strongly preventative or precautionary form) as an attempt to extend legalised hegemony.
- 2.
- 3.
Kooijmans 1964, at 3-5.
- 4.
Wight 1966.
- 5.
Throughout The Doctrine of Equality, there is an - often explicit - acceptance that some inequalities must be given a juridical imprimatur because they are necessary to the success of the legal order. This is the point at which the political inequality that Kooijmans discusses throughout the book (e.g. at 100-101) adopt legal forms (e.g. the Security Council). See, too, Lorimer 1883.
- 6.
- 7.
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment of 26 June 1992, para. 270-271.
- 8.
Court Statement of March 1st, 1946 (quoted in Wellens 1990, at 622).
- 9.
- 10.
See Kooijmans 1964, at 100.
- 11.
Jessup 1948, at 28.
- 12.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), ICJ, Jurisdiction and Admissibility, Judgment of 26 November 1984, para. 263. See, too, Letter of 20 November 1991 (issued as United Nations document A/46/844 and S/23416) where Libya emphasized that the Charter ‘guarantees the equality of peoples and their right to make their own political and social choices, a right that is enshrined in religious laws and is guaranteed by international law’ (quoted in Case concerning questions of interpretation and application of the Montreal Convention arising from the aerial incident at Lockerbie United Arab Jamahiriya v. The United Kingdom, ICJ, Preliminary Phase, Judgment of 27 February 1988, Dissenting Opinion, Judge Oda at para. 30).
- 13.
I defined legalised hegemony as ‘the existence within an international society of a powerful elite of states whose superior status is recognised by minor powers as a political fact giving rise to the existence of certain constitutional privileges, rights and duties and whose relations with each other are defined by adherence to a rough principle of sovereign equality.’ Simpson 2004, at 68.
- 14.
- 15.
- 16.
Carty 2006, at 660.
- 17.
Bukovansky et al. 2012.
- 18.
E.g. Kooijmans 1964 at 243-246.
- 19.
His essay foreshadowed a lengthy exchange among scholars about the relationship of scholarship (sometimes self-consciously political, sometimes detached) to activism (sometimes politically passive, sometimes energetically engaged). On each side, there was preciousness and angst amidst a sense of choosing among unattractive alternatives. For a partial reflection see Craven et al. 2004.
- 20.
Oppenheim 1920, at 162-164.
- 21.
Kooijmans 1964, at 107-116.
- 22.
Kooijmans 1964, at 112.
- 23.
Simpson 2004, at 200.
- 24.
Simpson 2004, 203.
- 25.
I discovered after doing some research recently on the Atlantic Charter meeting that Churchill set sail from the UK mainland from a small town called Thurso at the northernmost tip of Scotland. This happens to be where I was born and grew up. In fact, as a child, I could see from my bedroom window the harbour from which Churchill had set out to create the United Nations. See e.g. Morton 1943.
- 26.
Indeed, when it was announced to the British people that Churchill had sailed to Newfoundland to draft a Charter for postwar order, they were hugely disappointed. There was a general belief that instead the meeting had produced an agreement that would mean the Americans had entered the war. In fact, the Charter did promise the defeat of Nazi tyranny at a point when the United States was still ‘technically neutral’. And the United States did enter the war shortly after the meeting.
- 27.
The Atlantic Charter was never signed. Approval was sought through an exchange of telegrams. The Congress of Vienna did not meet, and the Charter was not signed.
- 28.
Morton 1943.
- 29.
Churchill 1950, at 386.
- 30.
Though this underplays the extent to which the United Kingdom tried to keep the United States within the parameters of institutional decision-making.
- 31.
Blair 2011, at 94.
- 32.
Kooijmans 1964, at 214-215.
- 33.
Carr 2001, at 179.
- 34.
Alvarez 1996.
- 35.
See e.g. Al Jedda v Secretary of State for Defence [2007] UKHL 58; Case C-402/05 P Kadi v Council of the European Union and Commission of the European Communities [2008] ECR I-6351.
- 36.
Franck 1995.
- 37.
- 38.
This comes from Carl Schmitt quoting Nietzsche. Schmitt 1996, at 54. One final point: the question of what the Council can do seems to have gone through several phases: there was a constitutional phase in which the question seems to have been: can the Council do x? There has always been a pragmatic question: should the Council do x? There used to be an administrative question: does the Council have the power to delegate authority to individual groups of states? There is regularly a descriptive issue: what does the council tend to do? Now, we seem to be in a slightly unpredictable phase where the question that arises is: ‘What has the Council actually authorized?’. This was the issue in Resolutions 1441 and in 1160 and in 1973. How are these resolutions to be interpreted (not just in the sense of what do they mean but also in the sense of what tools one might use to work out what they mean)?
- 39.
- 40.
Charlesworth 2002.
- 41.
This passage is drawn from my essay, Simpson 2005.
- 42.
Starke 1984, at 104.
- 43.
Kooijmans 1964, at 241.
- 44.
See, in Simpson 2004, discussion of hierarchy in Chapter Two and anti-pluralism Chapter Eight.
- 45.
See discussion in Clark 2011, at 220-224.
- 46.
Bodansky 2007.
- 47.
Clark 2011, at 222.
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Simpson, G. (2013). Great Powers and Outlaw States Redux . In: Nijman, J., Werner, W. (eds) Netherlands Yearbook of International Law 2012. Netherlands Yearbook of International Law, vol 43. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-915-3_4
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