IL3

Fundamental Rights of States

1. Rights of Existence and Self-Defense

• Fundamental rights granted to a state upon its formation:

  • Right of existence and self-defense.

  • Right of sovereignty and independence.

  • Right of equality.

  • Right of property and jurisdiction.

  • Right of legation (diplomatic relations).

2. Right of Existence and Self-Defense

• Most comprehensive state attribute from which all other rights flow.

• Allows states to take necessary measures to resist threats to existence, including the use of force.

• Validity does not depend on prior recognition or consent from other states.

• Defined in Article 51 of the UN Charter:

  • States have the inherent right to individual or collective self-defense against armed attacks until the Security Council intervenes.

  • Self-defense requires a clear showing of grave and actual danger, limiting measures to necessity.

3. Historical Context

• Acknowledgment of self-defense enshrined in significant agreements:

  • Charter of the United Nations.

  • Draft Declaration of the Rights and Duties of States.

• Evolution of the definition through practical considerations:

  • U.S. Secretary of War Elihu Root's stance contrasts with Daniel Webster's earlier views that opposed preemptive self-defense.

Expansive Nature of Self-Defense

1. Extension of Jurisdiction

• Self-defense may extend territorial jurisdiction.

  • Example: Mobilization of armies near frontiers.

  • Justification of actions based on anticipated threats.

2. Cold War Context

• The Cuban Missile Crisis (1962) as a case of self-defense:

  • U.S. response to Soviet missile installations in Cuba raised issues of preemptive action and self-defense.

  • Armed preparedness of nuclear powers creates latent threats, potentially invoking self-defense measures.

Collective Defense Agreements

1. NATO Principle

• Article 5 of North Atlantic Treaty:

  • Armed attack against one member is considered an attack against all.

  • Signatories agree to assist attacked states as per self-defense rights in Article 51 of the UN Charter.

2. Regional Arrangements

• Emphasize the balance of power to maintain international peace:

  • Examples of regional arrangements include the Organization of American States and NATO.

Definition of Aggression

1. UN General Assembly Definition (1974)

• Aggression as an armed force use violating other states' sovereignty.

• Actions constituting aggression include invasion, bombardment, blockade, or military attacks.

2. No Justification for Aggression

• No political, economic, military or other reasons can justify aggression.

• Aggression is a crime against international peace leading to international responsibility.

Right of Independence

1. Understanding Sovereignty

• Sovereignty defined as a state's supreme and uncontrollable power.

• Two aspects of sovereignty:

  • Internal: Directing domestic affairs, enacting laws.

  • External: Controlling foreign affairs, negotiating treaties.

2. Movement Toward Independence

• Awareness of rights to independence has increased post-World War II,

  • Nationalism and self-determination have led to more nations gaining independence.

• State intervention must respect other states' independence.

3. Non-Intervention Principle

• States should not interfere in others' affairs except in self-defense or Security Council mandates.

  • Intervention defined as interference with another state's domestic or foreign affairs, often seen as violation of international norms.

Right to Equality

1. Equality among States

• As stated in Article 2 of the UN Charter, all states possess sovereign equality and enjoy equal rights.

• Relevant democratic principle: Every state gets one vote in General Assembly, regardless of strength or population.

2. Legal versus Factual Inequality

• Theoretical notion of equality often contrasts with practical power dynamics affecting decision-making in international forums, such as the influence of the Security Council's permanent members.

fundamental rights of a state:

SPEED - Sovereignty, Property and Jurisdiction, Equality, Existence and self defense (most important), Legation (Diplomatic mission) or diplomatic relations.

*The right of existence and self-defense is the most important because all other rights are supposed to derived from it. Maiingatan yung natirang rights pag kaya nating protektahan existence ng bansa natin. Pwede gumamit ng 'use of force' ang bansa to anything na ma deem nito na threat (inherent right).

*Widely expressed ang right of existence and self-defense sa UN Charter.

*The Draft Declaration of the Rights and Duties of States (by International Law Commission) affirmed that "Every State has the right of individual or collective self-defense."

*Article 51 UN Charter - (explanation) A state may only exercise its right to defend itself only if its actual and direct attack, if fear lang siya na baka potential threat, hindi pwede.

*Grotious, disapprove siya sa idea na ang ground for self-defense ay perceived potential threat pero overtime yung view niya ay naging "the best defense is offense."

*Secretary of War Elihu Root ng U.S. sinasabi niya naman na na ang traditional view ng right of existence and self-defense is kapag when a country felt threatened, pwede nila i close border nila as protective measure. pero now, nag evolve na raw ito kasi nga nag m-modernized na tayo, the idea itself for example na may nuclear ang isang state ceven if d nagpapakita ng hostility, ay threat na because of their state of readiness.

Brinought up lang yung mobilization of Russia (1914) tas nag declare war Germany (yung sa Austria-Hungary case diba may alliances, ayon nasa timeline na yon to, lam niu 2 for sure). Tapos yung Kinuha ng Great Britain yung Danish fleet (1807) (Dito naman during Napoleonic war, may continental policy si boniparte which is gusto niya pahinain ang economy ng Britain. that time malakas military power ng Denmark at natakot GB don kasi nga baka makuha sila ng France (part ng continental system and at the same time, at war sa British peeps) even though nag neutral status sila. So binomba nila tas siniezed nila yung fleet para hindi magawa ni Napoleon). Last, Ininvade ng Japan ang Korea (1904). Ininviade nila Korea kasi iniisip nila na baka kunin ng Russia yon tas gawing base of operations against them. That time kasi nag c-compete sila for influence sa Korea and Manchuria, and Nakita ng Japan ang Russia as a threat kasi nga continuous expansion nangyayari sa Russia. After non, nag launch attack Japan sa Russia (Russo-Japanese War) eventually natalo ng Japan ang Russia (nabalance power sa east asia). Sinabi tong mga to kasi raw ang right to self-defense ay always application and realistic concept ng pag protect sa right of existence.

*Cuban Missile Crisis

Nangyari nung 1962. Yung U.S. during that time nag conduct sila ng reconnaissance flights (aerial flights for inspection over specific regions for military purposes) tas Nakita nila na nagtatayo ng missile sites sa Cuba ang Soviet, which is 90 miles away lang from Florida. So ang ginawa nila ni lockdown nila ang Cuba (naval blockade) tas nag demand sila na alisin ang mga missiles kasi for them, direct threat to U.S. yon.