Toward a Functional Approach to Sovereign Equality

Under the principle of sovereign equality of nations, nation states are entitled to equal dignity (evidenced by conventions like their voting rights in the United Nations), have the identical capacity to contract (evidenced by their ability to enter into treaties), and are not subject to a superior sovereign (evidenced by the lack of a global leviathan). This principle also has had an important effect in the field of international civil litigation, in areas such as judicial jurisdiction or sovereign immunity. As that principle has weakened over the twentieth century, risks of aggravation to comity have risen, resulting in the development of other doctrines to re-enforce comity values. Yet ironically, to the extent these comity reenforcing doctrines invite (or require) courts of one state to sit in judgment of another state’s court or legal system they have the potential to undermine the very values they seek to promote. This Article offers a fresh approach to harnessing the advantages of those doctrines while avoiding the pitfalls they can entail for comity and the sovereign equality principle