Chapter 7 – The Right of Existence and

Self-defense
Chapter 8 – The Right of Independence

By: Maria Salvacion P. Ceneta, JD 2, PIL

FUNDAMENTAL RIGHTS OF STATES
Once a state comes into being, it is invested with certain rights
described as fundamental.

Fundamental Rights of a State:

 The right of existence and self-defense
 The right of sovereignty and independence
 The right of equality
 The right of property and jurisdiction
 The right of diplomatic intercourse
 THE RIGHT OF EXISTENCE AND SELF DEFENSE

 One of the fundamental rights of a state once it comes into being

 This right is deemed the most important and most comprehensive,

as all of the other rights are supposed to flow or be derived from it

 By virtue of this right, the state may use such necessary measure,
sometimes including the use of force, as may be necessary to resist
any danger to its existence

 This right does not depend for its validity on other state’s previous
recognition or consent
 Chapter 7 - THE RIGHT OF EXISTENCE
AND SELF DEFENSE

 This right has been expressly acknowledged in certain

important agreements:

1. United Nations Charter

2. Draft Declaration of the Rights and Duties of the
States prepared by International Law Commission at
the request of the General Assembly
Requisites of Right
In Art. 51 of the Charter of the United Nations, it is provided that –

“Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if any armed attack occurs against a member of the United
Nations, until the Security Council has taken the measures necessary for the
maintenance of international peace and security. xxx”

The presence of an “armed attack” to justify the exercise of the right of the self
defense under this article suggests that forcible measures may be taken by a state
only in the face of “necessity of self-defense, instant, overwhelming and
leaving no choice of means and no moment for deliberation.”
 Requisites of Right
• The right may be resorted to only upon a clear showing of a grave
and actual danger to the security of the state and, furthermore, the
self-defensive measures must be limited by the necessity and kept
clearly within it.

• Mere apprehended danger or any direct threat to the state may not,
in itself alone, warrant the employment of force against a suspected
or potential enemy
 Requisites of Right
Examples in history of a more pragmatic concept of the right of self-defense:

1. Mobilization of Russia in 1914 which is the result of Germany’s

declaration of war against it, asserting that it’s security has been
imperiled.
2. Great Britain seized the Danish fleet on 1807 to prevent it from
falling into the hands of the French with whom they were then at
war.
3. Japan’s invasion of Korea in 1904 on the ground that Russia, its enemy then,
also had eyes on the country and might use it as a base of operations against
Japan.

4. Russia’s invasion of Finland on 1939 as, according to them, a strategic measure

to defend itself from an anticipated German invasion.

5. United States’ attack on Iraq on the ground that it is storing biological and
chemical weapons of mass destruction intended to be used against Americans.
 The Cuban Missile Crisis
In 1962, the United States established a quarantine in Cuba. Then President
Kennedy declared that the peace of the world and the security of the United
States is in peril or has been endangered by reason of the establishment by the
Sino-Soviet powers of an offensive military in Cuba.

He interdicted the delivery of offensive weapons and associated materials to

Cuba, by enforcing the US Secretary of Defense to employ land, sea, and air
forces; no force is to be used except in case of failure or refusal to comply with
the directions of the US Defense Secretary.

Fortunately, the USSR backed down, and thus preempted the outbreak of what
would have been World War III.
Regional Arrangements
-are also known as collective self-
defense.

It is a security arrangement, political,

regional, or global, in which each state in
the system accepts that the security of
one is the concern of all, and therefore
commits to a collective response to
threats to, and breaches to peace.
Regional Arrangements

Examples:
1. Organization of American States
2. North Atlantic Treaty Organization (NATO)
3. Common Security and Defence Policy (CSDP) of the European Union
4. Shanghai Cooperation Organisation (SCO) composed of China,
Kazakhstan, Kyrgyzstan, Russia, Tajikistan, and Uzbekistan.
5. Collective Security Treaty Organization (CSTO), composed of Russia,
Armenia, Kazakhstan, Kyrgyzstan, Tajikistan, Uzbekistan, Azerbaijan,
Belarus, and Georgia
6. Union of South American Nations (USAN)
7. Peace and Security Council (PSC) of the African Union
Balance of Power
• One reason for the organization of regional arrangements is to
provide for the balance of power, which Vattel described as
“an arrangement of affairs so that no state shall be in
position to have absolute mastery and dominion over
others.”

• The maintenance of this balance of power has in a very real

way contributed to international peace although, being an
“armed peace,” it is far from the ideal sought in the articles of
faith of the United Nations.
 Aggression
Before a State may invoke its right from self-defense, it was provided that there must be
an actual aggression over it to warrant the use of necessary measures to protect itself.

Aggression Defined
Definition of aggression as adopted by the U.N. General Assembly on
December 14, 1974:

Article 1
Aggression – is 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 the Charter of the
United Nations.
 Aggression
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 would not be justified in the light of other relevant
circumstances, including the fact that the acts concerned or their
consequences are not sufficient gravity.
Aggression
Article 3

Any of the following acts qualify as an act of aggression:

a. The invasion or attack by the armed forces of a state of the territory

of another state;
b. bombardment by the armed forces of a state against the territory of
another state;
c. The blackade of the ports or coasts of a state by the armed forces
of another state;
d. An attack by the armed forces on land, sea or air forces, or marine
or air fleets of another state;
Aggression

e. The use of armed forces of one state in the territory of another state
with the agreement of the receiving state, in contravention of the
conditions provided for in the agreement or any extension of their
presence in such territory beyond the termination of the agreement;
f. The action of the state in allowing its territory, which it has placed at the
disposal of another state, to be used by that other state perpetrating
an act of aggression against a third state; and,
g. The sending by or on behalf of a state of armed force against another
state of such gravity as to amount to the acts listed above, or its
substantial involvement therein.
Requisite for proper exercise of self-defense:
a. An armed attack occurred against a member of the UN;
b. It must be confined to cases in which the necessity of the self-
defense is instant, overwhelming and leaving no choice of means and
no moment for deliberation;
c. Measures taken must be limited by that necessity and kept clearly
within it; and
d. Must give way to measures that may be taken by the Security Council
to maintain international peace and security.
Chapter 8 – Right to
Independence
 Sovereignty
“it is the supreme power of the State to command and enforce obedience, the power to
which, legally speaking, all interests are practically subject and all wills subordinate.”

Internal Sovereignty
External Sovereignty
-power of the state to direct its
-freedom of the state to control its
domestic affair
foreign affairs. (Independence)
 as when it establishes its
 as when it conclude treaties,
government
 makes war or peace, and
 enacts laws for observation
 maintains diplomatic and
within its territory, or
commercial relations
 adopts economic policies
 Ideal of Independence
• The right to independence is a natural
aspiration of peoples that has
received international recognition.
• Period following the World War II, a
resurgent spirit of nationalism and the
principle of self-determination gave
unprecedented impetus to the
attainment of freedom by a number of
colonies and their subsequent
admission to the international
community.
The movement was expressly
supported by the Charter of United
Nations (Chapter XI, Article 73)
and the members of the
Organization administering
territories pledge:
“To develop self-government,
to take due account of the
political aspiration of these
people, and to assist them in the
progressive development of their
free political institutions
according to the particular
circumstances of each territory
and its peoples and their varying
stages of advancement”
Ideal of Independence
The movement was expressly supported by the Declaration Regarding Non-
Self-Government Territories in Chapter XI of the Charter of United Nations
(Article 73), the members of the Organization administering territories
pledge:
“To develop self-government, to take due account of the political
aspiration of these people, and to assist them in the progressive
development of their free political institutions according to the particular
circumstances of each territory and its peoples and their varying stages
of advancement”
Rights and benefits arising from the State's sovereignty and
independence:

 It determines its own form of Government;

 It manages its own government;
 It can enter into treaties and conduct foreign relations;
 It can determine its national policies regarding national
defense, natural resources, immigration, currency, etc.
 It manages its own affairs free from control, dictation or
intervention of other States
 NATURE OF INDEPENDENCE
Independence cannot be regarded as importing absolute freedom.

1. Charter of United Nations (Article 2)

2. Pacta sunt servanda
3. Principle of “mare liberum”
4. Laws of neutrality
NATURE OF INDEPENDENCE
1. A state may not employ force or even the threat of force in its relations
with other states because this is prohibited by Article 2 of the Charter of
the United Nations.

2. It may not refuse to observe treaties in good faith, in accordance with

the maxim pacta sunt servanda.

3. The principle of mare liberum will prevent it from arrogating to itself

exclusive use of the open seas to the detriment of other states.

4. Under the laws of neutrality, it must acquiesce in the exercise of certain

belligerent rights even if this might impair its own interests or those of its
nationals.
 NATURE OF INDEPENDENCE

The state must submit to certain limitations of on its independence:

1. the rules requiring the maintenance of an international

standard of justice;
2. the observance of fundamental human rights; and
3. the restriction of its territorial jurisdiction
 INTERVENTION
Act by which a state interferes with the domestic or foreign affairs of another
state or states through the employment of force or threat of force.

States must abstain from intervention.

“every State has the duty to refrain from intervention in the internal and
external affairs of any other State.”
-U.N. Declaration of the Rights and Duties of States
 INTERVENTION
Provisions on Intervention:

• UN Declaration of the Rights and Duties of States – every state has

the duty to refrain from intervention in the internal and external
affairs of any other state.

• The Charter of the Organization of American States – no State or

group of States has the right to intervene, directly or indirectly, for
any reason whatever, in the internal or external affairs of an other
State.
 INTERVENTION
• The foregoing principles prohibits not only armed force but also any
other form of interference or attempted threat against the
personality of the State or against its political, economic or cultural
elements.

• Furthermore, no state may use or encourage the use of coercive

measures of an economic or political character in order to force the
sovereign will of the another state and obtain from it advantages of
any kind.
Exceptions on Intervention

Interventions are not allowed except:

1. Exercised as an act of self-defense

2. Decreed by Security Council Agreed upon by a treaty
3. Requested from sister states or from the United
Nations by parties to a dispute or by a state beset by
rebellion
4. Based on humanitarian grounds
 The Drago Doctrine
“the Contracting Powers agree not to have recourse to armed force for the recovery of
contract debts claimed from the government of one country by the government of
another country as being due to its nationals.”

The Drago Doctrine was embodied in the Hague Convention of 1907.

The force of this rule was dissipated by the Porter Resolution, under which
intervention was permitted if:
 the debtor state refused an offer to arbitrate the creditor’s claim, or
 having agreed to arbitrate, prevented agreement on the compromise, or
 having agreed thereto, refused to abide by the award of the arbitrator.
Thank you for listening! 