Fundamental

Rights of
States
Presented By: Ainna Rose Nalda
 Once a State has fulfilled the
necessary requisites for recognition
as such, it is invested with certain
rights described as fundamental.

The Right of Existence, Integrity and Self-

Preservation (the right to acquire territories and
the right of individual or collective self-defense)
The Right of Sovereignty and Independence
The Right of Equality Optional:
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The Right of Property and Jurisdiction
The Right of Legation or Diplomatic Intercourse
 The Right of Existence and Self-defense
the most important among the fundamental rights of the state
considered most comprehensive of the attributes of the state as
other rights are supposed to flow or be derived from it
by virtue of this right, the state may take measures, including the
use of force, as may be necessary to resist any danger to its
existence
such being an inherent right, it does not depend on its validity on
the previous recognition of the state asserting it or on the consent
of other states
the right of self-defense has been expressedly acknowldged in a
number of important agreements, among which is the Charter of
United Nations
Requisites of the Right
Article 51 of the UN Charter provided that -

Nothing in the present Charter shall impair the inherent right of

individual or collective self-defense if an armed attack occurs
against a Member of the United Nations, until the Security Council
has taken measures necessary to maintain international peace and
security.
KEY CONCEPTS:

the presence of an "armed attack" to justify the exercise the

right of self-defense suggests that forcible measures may be
taken only in the face of a necessity of self-defense
instant, overwhelming and leaving no choice of means
and no moment for deliberation
mere apprehended danger or any direct threat to the state
does not, by itself alone, warrant the employment of any force
against a suspected or potential enemy
this right may be resorted only upon a clear showing of a
grave and actual danger to the security of the state
the self-defense measures must be limited to the necessity
and kept clearly within it
To invoke the right to self-defense under Article 51 of
the UN Charter, the following requisites must be
present:
armed attack;
the attack must be against the Member of the UN;
the Security Council must not have acted yet.
 Use of Force
Article 2(4) of the UN Charter provides:

All Members shall refrain in their international relations from the

threat or use of force against the territorial integrity (TI) or political
independence (PI) of any state, or in any other manner inconsistent
with the purposes of the United Nations.

The following acts can be considered as a “threat” to use

force:

(1) military exercises on the border;

(2) hostile statements of future invasions
Use of force can be seen in:

(1) direct force: cross border shooting or military incursions;

(2) indirect force: organizing, assisting, instigating or participating in
civil strife or terrorist acts against another State or acquiescing in
organized activities when these activities threaten or use force against
another State

Arming and training of rebels amount to use of force, while funding

the rebels will not. (Nicaragua v. US).
The prohibition on the use of force is found both in Article 2(4)
of the Charter of the United Nations (UN Charter) and in
customary international law.

In a controversial finding the Court sub-classified the use of force

as:

(1) “most grave forms of the use of force” (i.e. those that
constitute an armed attack); and
(2) “other less grave forms” of the use of force (i.e. organizing,
instigating, assisting, or participating in acts of civil strife and terrorist
acts in another State – when the acts referred to involve a threat or
use of force, but not amounting to an armed attack) (Nicaragua v, US)
 Armed Attacks
The term ‘armed attack’ is not, however, defined in the UN Charter. Nor
does it appear in the principal provisions with which Art. 51 is
associated: Art. 2 (4) refers to the ‘threat or use of force’, while Art. 39
speaks of threats to the peace, breaches of the peace, and acts of
aggression.

Mere frontier incidents will not considered as armed attacks, unless,

because of its scale and effects, it would have been classified as an
armed attack had it been carried out by regular forces.
Assistance to rebels by providing weapons or logistical support did not
constitute an armed attack. Instead, it can be regarded as a threat or
use of force or an intervention in the internal or external affairs of
other States
An armed attack must be understood as including not merely
action by regular armed forces across an international border, but
also ‘the sending by or on behalf of a State of armed bands,
groups, irregulars or mercenaries, which carry out acts of armed
force against another State of such gravity as to amount to’ (inter
alia) an actual armed attack conducted by regular forces, ‘or its
substantial involvement therein’.
Grotius, father of Modern International Law, vigorously inveighed against
mere anticipation of aggression as a ground for self defense. This view is
eroded by more practical consideration that at times, the best defense is
offense.

The intercontinental ballistic missiles have now made it possible for other
States to inflict instant devastation without previous indication of their
intentions or physical invasion. A State's armed preparedness of a nuclear
power is a threat to the security of any country it may have some
differences, hence calls for self-defense.

An example of this more pragmatic concept of the right to self-defense is when

US attacked Iraq on the ground that it was storing biological and chemical
weapons of mass destruction and that it was intending to use against the
Americans.
 The Cuban Missile Crisis
During the quarantine established by
the US in 1962 during the Cuban
missile crisis, the then President
Kennedy declared that the peace of
the world and the security of the US
had been endangered by reason of
the establishment by Sino-Soviet
powers of an offensive military
capability in Cuba, including bases
for ballistic missiles with a potential
range covering most of North and
South America.
He interdicted the delivery of
offensive weapons and associated
materials to Cuba, subject to the
instructions that The Secretary of
Defense shall take appropriate
measures to prevent delivery of
prohibited material to Cuba, any
vessel or craft which may be
proceeding toward Cuba may be
intercepted and may be directed to
identify itself, its cargo, equipment
and stores and its ports of call, to
stop, to lie to, submit to visit and
search, or to proceed as directed.
In carrying out this order, force shall
not be used except in case of failure
USSR backed down and averted the
or refusal to comply with directions,
outbreak of what would have been
or with regulations , after reasonable
the World War III.
efforts have been made to
communicate them to the vessel or
craft, or in case of self-defense. In
any case, force shall be used only to
the extent necessary.
 Regional Arrangements

International law recognizes an individual right of self defense

(“victim” State against the “aggressor” State) and collective
right of self defense (“victim” State + friendly State/s against
the “aggressor” State).

Collective self-defense is recognized not only in the Article 51 of the

UN Charter but also in Article VIII of Regional Arrangements.
 Regional Arrangements
Article 52, Sec 1 of the UN Charter provides that

"Nothing in the present Charter precludes the existence of regional arrangements

or agencies for dealing with such matters relating to the maintenance of
international peace and security as are appropriate for regional action, provided that
such arrangements or agencies and their activities are consistent with the Purposes
and Principles of the United Nations."

The Members of the United Nations entering into such arrangements or constituting such
agencies shall make every effort to achieve pacific settlement of local disputes through such
regional arrangements or by such regional agencies before referring them to the Security
Council.
The Security Council shall encourage the development of pacific settlement of local disputes
through such regional arrangements or by such regional agencies either on the initiative of
the states concerned or by reference from the Security Council.
 Regional Arrangements
An example of such regional agency is the Organization of American States who
authorized or ratified the action taken by the United States in the Cuban Crisis.

The NATO may also be an example although the participation therein by the
US, which does not belong to the same geographical area as the other
members, may be considered not strictly regional.

Article 5 of the North Atlantic Treaty provides that:

"The Parties agree that an armed attack against one or more of them in Europe
or North America shall be considered an attack against them all and
consequently they agree that, if such an armed attack occurs, each of them, in
exercise of the right of individual or collective self-defense recognized by
Article 51 of the Charter of the United Nations, will assist the Party or Parties
so attacked by taking forthwith, individually and in concert with the other
Parties, such action as it deems necessary, including the use of armed force, to
restore and maintain the security of the North Atlantic area."
 Balance of Power

Balance of power is one of the reasons for the organization of regional

arrangements. The Congress of Vienna of 1815, the Congress of Berlin of
1878 and the Crimean War of 1854, among others were all motivated by
balance of power considerations and based on the fundamental right of
self-defense.

The maintenance of this balance of power contributed in a very real way

to international peace.
 When a State claims that it used force in collective self-
defense, the Court would examine the following

(1) Whether the circumstances required for the exercise of self-defense

existed; and

(2) Whether the steps taken by the State, which was acting in self-defense,
corresponds to the requirements of international law.
Under international law, several requirements must be met for
a State to exercise the right of individual or collective self-
defense:
(1) A State must have been the victim of an armed attack;

(2) That State must declare itself as a victim of an armed attack. The assessment on
whether an armed attack had taken place or not, is done by the State who was
subjected to the attack. A third State cannot exercise a right of collective self-
defense based that third State’s own assessment;

(3) In the case of collective self-defense, the victim State must request for
assistance. The Court held that “there is no rule permitting the exercise of
collective self-defense in the absence of a request by the State which regards itself
as the victim of an armed attack”;

(4) A State that is attacked, does not, under customary international law, have the
same obligation as under Article 51 of the UN Charter to report to the Security
Council that an armed attack happened – but the Court held that “the absence of a
report may be one of the factors indicating whether the State in question was itself
convinced that it was acting in self-defense”
 Agression Defined
as adopted by the U.N. General assembly on Dec 14, 1974
Article 1
The use of armed force by a
state against the sovereignty,
territorial integrity or political
independence of another State,
or in any other manner
inconsistent with he UN
Charter, as set out in this
definition.
Article 2
The first use of armed forces
by a State in contravention
of the Charter shall
constitute prima facie
evidence of an act of
aggression although the
Security Council may, in
conformity with the Charter,
conclude that a
determination that an act of
aggression has been
committed wpuld not be
justified in the light of other
relevant circumstances.
Thank you
 The Right to Property and Jurisdiction

Jurisdiction is the authority exercised by a state over persons and

things within or sometimes outside its territory, subject to certain
exceptions.
Generally, it may be classified as either personal or territorial.
Specifically, jurisdiction may be exercised by a state over its
nationals, the terrestrial domain, the maritime and fluvial
domain, the continental shelf, the open seas, the aerial
domain, outer space and other territories.
 Personal Jurisdiction
the power exercised by a state over its nationals
based on the theory that a national is entitled to the
protection of his state wherever he may be therefore
bound to it by a duty of obedience and allegiance

Example:

- Article 15 of the Civil Code which provides that laws relating

to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Optional:
Philippines, even though living abroad. Add a text quote, photo, or
video to support your idea

- Jurisdiction to tax our citizens even if not residing in the

Philippines
 Territorial Jurisdiction
as a general rule, the state has jurisdiction over all persons and property
within its territory
it is more effective because it is asserted by the state over persons and
property within its immediate control and subject to its coercive processes
Exceptions:
1. foreign states, heads of states, diplomatic representatives and consuls to a
certain degree
2. foreign states property including embassies, consulates, and public vessels
engaged in non-commercial activities
3. acts of state
4. foreign merchant vessels exercising the rights of innocent passage or arrival
under stress
5. foreign armies passing through or stationed in its territories with its permission
6. such other persons or property including organizations like the UN
 Land Jurisdiction

everything found within the terrestrial domain of the state is under

its jurisdiction
nationals and aliens. including non-residents are bound by its laws,
and no process from a foreign government can take effect for or
against them within the territory of the local state without its
permission
as against all other states, the local state has exclusive title to all
property within its territory, which it may own in its corporate
capacity or regulate when under private ownership through its
police power or acquire through the power of eminent domain
 Maritime and Fluvial Jurisdiction
as a general principle, the internal waters of a state are assimilated to the
land mass and subjected to the same degree of jurisdiction exercised over the
terrestrial domain
covered by this rule are the so-called enclosed waters, such as land-locked
lakes, national rivers and man-made canals
civil, criminal and administrative jurisdiction is exercised by the flag state over
its public vessel wherever they may be, provided they are not engaged in
commerce
jurisdiction over foreign merchant vessels docked in a local port is exercised by
the coastal state in civil matters but criminal jurisdiction is determined either by
the English or French Rule
as held in some jurisprudence, English rule is applicable in the Philippines
where it shall have jurisdiction over all offenses committed on board a vessel
docked in its local port, except only where they do not compromise peace of
such port
 The Contiguous Zone

some states have claimed a protective jurisdiction over what is

called the contiguous zone
twelve nautical miles from the edge of the territorial sea
the Convention on the Territorial Sea and Contiguous Zone
provided that "in a zone of the high seas contiguous to its
territorial sea, the coastal state may exercise the control necessary
to prevent infringement of its customs, fiscal, immigration or
sanitary regulations within its territory or territorial sea and punish
such infringement within its territory or territorial sea
 The Continental Shelf

refers to the seabed and subsoil of the submarine areas adjacent to the
coast but outside the area of the territorial sea, to a depth of two
hundred meters or, beyond that limit, to where the depth of the
superjacent waters admits of the exploitation of the natural resources
of the said area and to the seabed and subsoil of similar areas adjacent
to the coasts of islands

the coastal state has the sovereign right to explore the continental shelf and to
exploit its natural resources but shall not affect the legal nature of the
superjacent waters as open seas or of the airspace above such waters and
their use as such other states may not be impaired or disturbed
 The Patrimonial Sea
the exclusive economic zone of the patrimonial sea extends two
hundred nautical miles from the coast or the baselines
all living and non-living resources found therein belong exclusively
to the coastal state
The Open Seas
the high seas are res communes and is available to the use of all
states for purposes of navigation, flying over them, laying
submarine cables or fishing
the state may exercise jurisdiction on the open seas in the
following: over its vessels, over pirates, in the exercise of the
right of visit and search and under the doctrine of hot
pursuit
 Aerial Jurisdiction

the local state has jurisdiction over the airspace above it to an unlimited
height or at the most up to where outer space begins
corollary to this rule, no foreign aircraft, civil or military, may pass
through the aerial domain of a state without its consent

five freedoms have been recognized regarding the use of the aerial domains:
1. the freedom to fly across foreign territory without landing
2. the freedom to land for non-traffic purposes
3. the freedom to put down traffic originating in the state of the aircraft
4. the freedom to embark traffic destined for the state of the aircraft
5. the freedom to embark traffic destined for or to put down traffic
originating in a third state
 Outer Space
the region beyond the earth's atmosphere is not subject to the
jurisdiction of any state and shall be free for exploration and use
by all states without discrimination of any kind
astronauts shall be regarded as envoys of mankind but the state
launnching an object into outer space shall retain jurisdiction and
control over that object
Other Territories
by virtue of customary law or conventional international law,
extend its jurisdiction beyond its territory and over territory not
falling under its sovereignty through assertion of its personal
jurisdiction over its nationals abroad, on the strength of its
relations iwth other states, as a consequence of the waiver of
jurisdiction, through acquisition of extraterritorial rights and
through enjoyment of easements
Thank you
 The Right to Legation
one of the most effective ways of facilitating and promoting
intercourse among states
through the active right of sending diplomatic representatives and
the passive right receiving them, states are able to deal more
directly and closely with each other in the improvement of their
mutual interests
since its purely consensual, the maintenance of diplomatic
relations is not a demandable right on the part of either the
sending of the receiving state
diplomatic relations are normally conducted by the head of state,
the foreign secretary minister and the members of the diplomatic
service
the head of state may also appoint special diplomatic agents
charged with specific ceremonial or political duties
envoys ceremonial are usually sent to attend state functions like a
coronation or a jubilee while envoys political may be
commissioned to negotiate with a particular state or to participate
in an international conference or congress
 The Head of State

monarch or president, regarded as the embodiment of or at least represents

the sovereignty of his state
he is entitled to certain immunities and honors befitting his status
he has the right to special protection not only for his physical safety but for the
preservation of his honor and reputation as well
his quarters, archives, property and means of transportation ate inviolate
under the principle of exterritoriality or diplomatic immunity (in international
law, the immunities enjoyed by foreign states or international organizations
and their official representatives from the jurisdiction of the country in which
they are present)
he is exempt from criminal jurisdiction and likewise from civil jurisdiction,
except where he himself is the plaintiff and is not subject to tax or to exchange
or currency restrictions
ceremonial amenities are also due him unless he is travelling incoginito
 The Foreign Secretary

the immediate representative of the head of state and directly under his
control
he can make binding declarations on behalf of his state on any matter falling
within his authority, such as questions relating to recognition of states or
governments and the settlement of international claims against the state

Diplomatic Envoys
the day-to-day conduct of international affairs in entrusted to the members of
the foreign service who are accredited by the sending state as its permanent
envoys to represent it in the states with which it is maintaining diplomatic
relations
the heads of these diplomatic missions are classified by the Convention on
Diplomatic Relations signed at Vienna in 1961: 1. ambassadors or nuncios, 2.
envoys, ministers or internuncios, 3. Charges d'affaires
 The Diplomatic Corps

a body consisting of the different diplomatic representatives who have been

accredited to the same local or receiving state
being a loose organization without any corporate character, the diplomatic
corps does not possess any legal power or attributes

Appointment
Under our Constitution, it is the President who is empowered to appoint
ambassadors, other public ministers and consuls, subject to the consent of the
Commission on Appointments.
His discretion is exclusive when it comes to receiving ambassadors and other
public ministers duly accredited to the government of the Philippines
 Diplomatic Functions

1. Representing the sending state in the receiving state.

2. Protecting in the receiving state the interests of the sending state
and its nationals.
3. Negotiating with the government of the receiving state
4. Ascertaining by all lawful means conditions and developments in
the receiving state and reporting thereon to the government of the
sending state.
5. Promoting friending relations between the sending and receiving
states and developing their economic, cultural and scientific
relations.
 Diplomatic Immunities and Privileges

1. Personal Inviolability - The person of a diplomatic agent shall

be inviolable. he shall not be liable to any form of arrest or
detention.
2. Immunity from Jurisdiction - It is a generally accepted principle
of International Law that the diplomatic agent shall be immune
from the civil, criminal and administrative jurisdiction of the
receiving state except in few specified cases (he cannot violate the
local laws of impunity).
3. Inviolability of Diplomatic Premises - The premises of the
mission shall be inviolable and the receiving state has a special
duty to protect the premises of the mission against any intrusion,
damage, disturbance of peace and impairment of its dignity.
1. Inviolability of Archives - The receiving state has no right to pry
into the official papers and records of a foreign diplomatic mission.
2. Inviolability of Communication - The right to free
communication is recognized and protected by international law.
The receiving state shall permit and protect free communication
on the part of the mission for all official purposes.
3. Exemption from Testimonial Duties - The diplomatic agent is
not obliged to give evidence as a witness.
4. Exemption from Taxation - The diplomatic envoy is also exempt
from taxes, customs, duties, and other dues, subject to some
exceptions.
5. Other Privileges
Thank you