Legal equality of states is a fundamental principle of international law. The contributions in this special volume examine this principle in today's international law context while engaging also with Pieter Kooijmans' book The Doctrine of the Legal Equality of States. This chapter introduces this 1964 book and briefly discusses the various contributions in the present volume against the background of this book.

A quarter-century ago in the Nicaragua judgment, the International Court of Justice insisted that to disallow a state's adherence to any particular governmental doctrine ‘would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State’ (para 263). The Court invoked the 1970 Friendly Relations Declaration and related documents that ‘envisage the relations among States having different political, economic and social systems on the basis of coexistence among their various ideologies’ (para 264). Although the continued relevance of this model of sovereign equality has since been called into question – above all, in the name of human rights, international criminal justice, and the ‘responsibility to protect’ – no systematic replacement has emerged. Notwithstanding some modification and erosion, the sovereign equality principle continues to have significant (and worthy) implications for legal relations between liberal and non-liberal states.

The chapter takes as its starting point Pieter Kooijman's critique of Vattel's thinning out of the concept of authority in international law, one which attaches to the idea of state equality the possibility for each state to insist upon its own standards to the exclusion of any objective standards in the conduct of international relations. The chapter traces Vattel's contextual background in major Enlightenment shifts which set up a pernicious triad of thinkers such as Mandeville, Smith and de Sade. These thinkers make of post-Enlightenment economic and social relations a struggle of Master and Slave, most easily and clearly depicted in feminist studies, but also finding expression in imperialist relations and in particular, the unequal relations between the West and China, with the continuing inconclusive debate about unequal treaties. The chapter uses close study of a possible ‘anti-feminist’ novel, and feminist critique thereof, as well as a fairly extensive critique of the place of China in the recent history of international law, to argue that the present return of China to the position of a world power able to challenge the global system, could auger ill for post-Vattelian international law. Feminist critique is used to show that the post-Enlightenment ethical-cultural resources of international law are not equal to offering a country such as China more than a ‘masculine’ resort to its own self-strengthening. A search for alternatives ways to constructive dialogue are imperative, but, as Kooijmans shows, after Vattel the task of the international lawyer to contribute effectively is immeasurably disadvantaged.

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).

This paper explores some of the major changes in the practices of international organizations that have occurred in the decades since The Doctrine of the Legal Equality of States was published. First, much international law-making in contemporary international organizations consists of regulation and administration whose creation, content and application differs significantly from that of traditional forms of international legislation associated with international organizations. Second, in a highly fragmented international legal order, twenty-first century international organizations increasingly interact with each other in a wide variety of law-making and operational capacities. Given these changing roles and activities, it is no longer sufficient to view international organizations primarily as fora through which other actors – typically states – pursue their interests. Rather, twenty-first century international organizations often pursue their own goals and agendas as autonomous actors in international affairs. These developments have rendered traditional debates over sovereign equality within international organizations substantially less salient than they were when Legal Equality was written. In the future, the cutting-edge doctrinal and jurisprudential issues raised by twenty-first century international organizations largely will arise out of interactions among international organizations. As a result, legal scholars should shift their attention from inter-state interactions and processes within any particular IO to interactions and processes among twenty-first century IOs. Of course, decentering sovereign equality does not mean that the international system should celebrate or enshrine legal inequality. Rather, the international community should develop other concepts that incorporate the notions of inclusiveness and egalitarianism associated with sovereign equality, but that are more applicable to the actions of twenty-first century IOs.

This article takes Pieter Kooijmans’ 1964 book as the launching point for a discussion of contemporary issues relating to the legal equality of States in the context of immunity from suit. It assesses the strengths of the ‘Grundnorm’ of sovereign equality and examines whether it has any real role to play in providing answers to current problems, including whether immunity should be set aside in the face of claims that a foreign State or its agent has committed human rights violations. Close attention is paid to the 2012 Judgment of the International Court of Justice in the Jurisdictional Immunities of the State case. That Judgment demonstrates that sovereign equality has not yet been replaced as the generating principle of law in the realm of immunity. At the same time, there is an emerging alternative approach centered on the individual rather than the State.

Writing in 1964, Pieter Kooijmans challenged the principle of legal equality of states: it would have to prove its value or be discarded. He also predicted the relevance of the principle for a new subject of international law: the individual. Almost fifty years later, this article reviews how the principle has fared in international criminal law, a field of international law relevant both to states and to the individual. The review shows how the emergence of a more vertical international legal order has weakened the position of the principle of equality between states. The weakening of the principle in the relation between states has in turn affected the equality between individuals, which has contributed to further actual inequality between states. Contrary to one of Kooijmans's scenarios, the emerging international legal order has not diminished the role of the ‘factual conditions of power politics’. Legal questions on permitted differentiations always involve inherently political assessments. For instance, Kooijmans's concept of ‘juridically relevant’ differences requires a determination of which differences are ‘of intrinsic value for the existence of legal order’, and thus a decision on what that order should look like and how it is to be pursued. Moreover, factual conditions of power politics continue to encroach upon the principle of legal equality. Perhaps the principle of legal equality, like the fight against impunity, is more of an ideal than a reality. But the pursuit of the fight against impunity has thus far undermined the fight for more equality.

Peter Kooijmans' inquiry into the doctrine of the legal equality of states and, with it, the foundations of international law, reflects a peculiar brand of cosmopolitan thought, namely innate cosmopolitanism. Though under-recognized, innate cosmopolitanism is an argument for re-conceiving the modern international legal order according to a deep unity underlying the whole of human relations. As such, innate cosmopolitanism is distinct from better-recognized examples of cosmopolitan thinking, including liberal cosmopolitanism and cosmopolitan constitutional theory. Rejecting the normative individualism of liberal cosmopolitanism, and eschewing the formal orientation of constitutional theory, innate cosmopolitanism envisions the world as a viable collectivity that is perceived to exist, irrespective of formal recognition, as a matter of historical fact. But while innate cosmopolitanism operates according to a top-down model of collectivity, it nonetheless recognizes and incorporates smaller units of collectivity. As such, it holds especial relevance at a time when international legal doctrine looks beyond the preeminence of states, but continues to be bound to them in practice. Following innate cosmopolitanism, the international system incorporates all members equally when it takes into account the different material position of each member vis-à-vis the collective whole. The rights and responsibilities enjoyed by each, and their political situation within the community, will vary accordingly. This article will explore the innate cosmopolitan contribution to international law by reference to two current discourses, concerning ethical legitimacy and constitutional theory, as they grapple with justifications for and the doctrinal viability of an expanding public order globally. Additionally, examples drawn from the activation of the crime of aggression in the Rome Statute, and the Kadi case, will be considered for the critical light they throw on innate cosmopolitan theory.

This text is an inquiry into how the international community is understood in and through international law. My prism for this inquiry shall be the principle of proportionality in international humanitarian law, relating expected civilian losses to anticipated military advantage. To properly understand proportionality, I have to revert to the structure of analogical thinking in the thomistic tradition. Proportionality presupposes a third element to which civilian losses and military advantage can be related. In a first reading, I develop how this tradition of thought might explain the difficulties contemporary IHL doctrine has in understanding proportionality. If military commanders misconceive the third element as the sovereignty of their own state, they will invariably apply the proportionality principle in a paternalistic manner. This would obviate the most rudimentary idea of equality among states and do away with the common of an international community. In a second reading, I shall explore whether this third element could instead be thought of as a demos, while retaining the existing framework of analogical thinking. My argument is that this secularizing replacement is possible. Practically, its consequence would be a radical change in the task of the responsible military commander determining proportionality. That commander would now need to rethink civilians endangered by an attack as a demos whose potentiality must be preserved.

This contribution addresses the legal developments leading up to two judgments rendered by the Dutch Supreme Court and the Court of Appeal in The Hague in two parallel litigations related to the tragic events in Srebrenica. Throughout these two proceedings, the Dutch judiciary has gradually been framing, in terms of law, the relationship between the Dutch UN battalion and the events in Srebrenica. In so doing, the proceedings before the Dutch courts add to the broader debate concerning the responsibilities – and the appropriate allocation thereof – of UN peacekeeping forces and contributing states. Owing to the underlying claims and the nature of the respondents, the courts in both cases have addressed two distinct legal issues. In Mustafić/Nuhanović, acts of Dutch soldiers operating under UN flag were attributed to the Netherlands, albeit on very narrow grounds, thereby limiting the possible spin-off of the judgment with respect to other proceedings. In the last stage of the Mothers of Srebrenica litigation where the UN was alleged to be responsible for failing to prevent genocide, immunity was upheld in its most absolute form by the Dutch Supreme Court. This contribution provides an overview of the procedural history of both cases and reflects on the main reasoning of the courts and the possible ramifications thereof.