Law and Contemporary Problems
Although sovereign equality - the norm that all sovereign states are entitled to the same bundle of rights on the international plane - has long been a central norm of international law, its retention in the realm of preemptive war is fairly to be questioned when one sovereign state possesses overwhelming military power. In this Article, Professor Lee examines the historical and normative foundations of sovereign equality, finds them wanting under the condition of a militarily supreme republican state, but defends the norm on the pragmatic ground of what is best for the supreme state to defend itself against covert, non-state actors with potential access to weapons of mass destruction. Sovereign equality is very useful because the domestic institutions in a democratic state constrain effective monitoring and response to this category of threat. Treating other states, from which the supreme state might obtain intelligence or cooperation (by coercion if necessary) in combating the principal threat axis, as equals, is an efficacious substitute for the failure of domestic institutions to contain the covert, non-state threat.
International Law, International Relations Theory, and Preemptive War: The Vitality of Sovereign Equallity Today Case Studies in Conservative and Progressive Legal Orders, 67 Law & Contemp. Probs. 147
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/406