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The prospect of international intervention legitimacy: case study of 2011 libyan armed conflict

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par Jean de Dieu ILIMUBUHANGA
Kigali Independent University - Master degree in public international law 2014
  

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4.1.2.1. Equality, a Constant in International Law

The principle of equality constitutes since 1648 with the Treaty of Westphalia up to date the fundamental principle of international relations. Practically, all the other principles are only consequences of the principle of equality. It is a constitutional principle in internal law. Article 16 of the constitution of Rwandan of June 4th 2003 for example provides: "All human beings are equal before the law. They shall enjoy, without any discrimination, equal protection of the law249(*)

The principle of equality deducted also from the Charter of the U.N includes two components:

a. The first part concerns the States as a member of the international society and subject of international law: it is the principle of sovereign equality;

b. The second component concerns the human component of States i.e the peoples: it is the principle of the equal rights of peoples and their right to self-determination.

4.1.2.2 The Principle of Sovereign Equality

The principle of sovereign equality is just a combination of two principles: the principle of equality of States and the principle of the sovereignty of States. The first principle appears as the corollary of the second so that tightly that they are often confused. It is the framers of the Charter of the United Nations who contracted the two principles into one. Pursuant to article 2 paragraph 1 of the Charter: "the organization is based on the principle of the sovereign equality of all its members". Sovereignty is defined as "a supreme character which is not subject to any other".250(*) Any State subject of international law is necessarily a sovereign State. It appears as the sole criteria on which is founded the sense of the State. In the internal order a State is considered as sovereign by referring to all the lower degrees of the scale of public persons and its subjects themselves.

The State monopolizes the power of coercion, detaining an exclusive right to the exercise of force corollary to the rule of law. In this regard, among the items that the Constitutional Court takes into account when it exercises the control on the constitutionality of the laws, sovereignty occupies a quite singular place especially as far as international treaties are concerned.

In France, the Constitutional Council provides in a decision that..."Respect for national sovereignty does not constitute an obstacle to the fact that.... France can conclude international commitments..." but it ritually specifies that all times... when international commitments to this end contain a clause contrary to the constitution or undermine the essential conditions for the exercise of national sovereignty the authorization to ratify requires a constitutional amendment.251(*)

In international law, sovereignty takes other meanings. Also attributes granted by the sovereignty to any State at the internal level that allow it to exercise the powers that are inherent in it, internationally sovereignty focuses on independence. The arbitrator Max Huber, in his opinion in the case of the islands of Palmas, specifies that "sovereignty in the relations between States means independence" this independence is reflected by two indicators:252(*)

· Internal independence is materialized by the freedom of choice of the political regime, economic or social regime immune from interference outside, a freedom to dispose of its own resources and wealth as confirmed by resolution No. 1803 (XVII) of the General Assembly of the United Nations in December 14, 1962.

· External independence, which manifests itself through the exercise of an autonomous foreign and sovereign policy. The refusal of any proposal of organic subordination to other subjects of international law States leads to the rejection of any idea of an international legislator vested with supreme authority.

The principle of sovereign equality is presented as the Foundation of international cooperation as it has been institutionalized by the Charter of the United Nations. It is included in all institutive charters of regional organizations. It is more implicit in the treaties creating so-called «integration» organizations. The initial meaning of the principle was greatly expanded under the influence of the socialist countries and countries of the third world. While in the interpretation advanced in 1945 the sovereignty aspect prevailed, today emphasis is placed on the equality aspect.

According to resolution 2625, it means that «all States.. . have rights and equal duties and are equal members of the international community, notwithstanding the differences of political social economic order or differences of another nature".253(*) Given these considerations, a researcher can deduce that the principle of sovereign equality has at least two meanings:

10. A Political Meaning

In contrast to the subjects of domestic law who are constitutionally equal; besides, subjects of international law, i.e States, are sovereign and equal. No State can impose domination on another and no State can be engaged if he has not expressly consented to do so. In its advisory opinion, the ICJ says: "no rule of international law requires that the State have a defined structure and this is evidenced by the diversity of State structures that currently exist in the world". 254(*)

With the end of the cold war and the disappearance of the satellite countries, sovereign equality is affirmed by a legitimacy conferred by the polls. The General Assembly of the United Nations adopted on 18 December 1990 resolution 45-150, entitled strengthening the effectiveness of the principle of periodic and honest election in which it declared: "Recalling that all States enjoy sovereign equality and that each State has the right to choose and freely develop its political, social, economic and cultural systems».

This trend has become clearer in the attitude adopted by the Security Council against Haiti following the putsch of September 1991, a trade embargo and the prohibition of any international assistance have decreed against it to compel the junta to power to abandon its attributes to the profits of a civilian Government.255(*)

* 249 Constitution of the Republic of Rwanda of June 04th 2003 in O.G No special of June 4th 2003.

* 250 BETTATI M., op. cit., p. 56.

* 251 NATO, The Alliance's Strategic Concept, NAC-S (99) 65. Washington DC, 23-24 avril 1999, points 29, 31, 41, 43, 47, 49, 53, 54 et 61.

* 252 BETTATI M., op. cit., p. 57.

* 253 2626 UNSC resolution.

* 254 ICJ case NICARAGUA Vs USA, paragraph 46.

* 255 Ibid.

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