Sovereignty as a legal value

‘Sovereignty’ as a distinctive attribute of the state Chapter 4 explored the question how it is that various peoples (the Lithuanians, the Thais . . .) have a state of their own; whereas others (the Kurds, the Tibetans . . .) do not. Despite the manifest historical contingencies involved, once statehood is generally recognised – evidenced most obviously by admission to the United Nations – then a new situation arises, a category divide is established, marked by the legal category of statehood. The new state is ‘sovereign’, has ‘sovereignty’; and this is true, no matter how fragile its condition, how diminutive its resources. Vattel (1714–1767), who systematised the pre-1914 law of nations in his treatise of 1758, put it thus: sovereign states are to be considered as so many free persons living together in the state of nature, that is to say, without a common civil law or common institutions; in such a situation they are ‘naturally equal’, and inequality of power does not affect this equality; ‘[a] dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom’ (Vattel 1758 [2008], Bk. I, Preliminaries, §18). And despite all that has changed since 1758, the basic concept remains: states are ‘political entities equal in law, similar in form . . ., the direct subjects of international law’ ( Reparation for Injuries suffered in the Service of the United Nations , ICJ Reports 1949, p. 174, 177–178). As the Badinter Commission, established to advise on legal issues arising from the breakup of the former Yugoslavia, put it, ‘such a state is characterised by sovereignty’ (Opinion No. 1 (1991), 92 ILR 165).