Rights of Existence, Self-

Defense, Independence,
and Equality
Week 10
 Fundamental Rights of
States
• Once a state comes into being, it is invested with certain
fundamental rights:

• Existence

• Self-defence

• Sovereignty and Independence

• Equality

• Property and Jurisdiction

• Legation and Diplomatic Intercourse

• The International Law Commission was
established by the United Nations General
Assembly in 1948 for the "promotion of the
progressive development of international law and
its codification."

• It holds an annual session at the United Nations

Office at Geneva.
 The Draft Declaration of the
Rights and Duties of States
• Prepared by the International Law Commission:

• ARTICLE 1 - Every State has the right to independence and hence to exercise
freely, without dictation by any other State, all its legal powers, including the choice
of its own form of government.

• ARTICLE 2 - Every State has the right to exercise jurisdiction over its territory
and over all persons and things therein, subject to the immunities recognized by
international law.

• ARTICLE 3 - Every State has the duty to refrain from intervention in the internal
or external affairs of any other State.

• ARTICLE 4 - Every State has the duty to refrain from fomenting civil strife in the
territory of another State, and to prevent the organization within its territory of
activities calculated to foment such civil strife.

• ARTICLE 5 - Every State has the right to equality in law with every other State.
The Draft Declaration of the
Rights and Duties of States
• ARTICLE 6 - Every State has the duty to treat all persons under its jurisdiction with
respect for human rights and fundamental freedoms, without distinction as to race,
sex, language, or religion.

• ARTICLE 7 - Every State has the duty to ensure that conditions prevailing in its
territory do not menace international peace and order.

• ARTICLE 8 - Every State has the duty to settle its disputes with other States by
peaceful means in such a manner that international peace and security, and justice,
are not endangered.

• ARTICLE 9 - Every State has the duty to refrain from resorting to war as an
instrument of national policy, and to refrain from the threat or use of force
against the territorial integrity or political independence of another State, or in any
other manner inconsistent with international law and order.

• ARTICLE 10 - Every State has the duty to refrain from giving assistance to any
State which is acting in violation of article 9, or against which the United Nations is
taking preventive or enforcement action.
Reflected in the Draft Declaration
of the Rights and Duties of States
• ARTICLE 11 - Every State has the duty to refrain from recognizing any
territorial acquisition by another State acting in violation of article 9.

• ARTICLE 12 - Every State has the right of individual or collective self-

defence against armed attack.

• ARTICLE 13 - Every State has the duty to carry out in good faith its
obligations arising from treaties and other sources of international law,
and it may not invoke provisions in its constitution or its laws as an
excuse for failure to perform this duty.

• ARTICLE 14 - Every State has the duty to conduct its relations with other
States in accordance with international law and with the principle that the
sovereignty of each State is subject to the supremacy of international
law.
 Fundamental Rights of
States

• Most important of these are the rights of

existence and self-defence.

• Why?

• Because all other rights emanate or are

derived from these two rights.
 Existence

• Arguably the most contentious, yet crucial right of

a state.

• 2 main aspects:

Right not to be extinguished,

Right to become a state
or territory diminished
 Existence

• Most debated issue: Israel.

• To date, 161 out of 192 UN Members recognise

Israel.

• 19 out of the 21 UN Members of the Arab

League & 10 Members of the OIC do not
recognise
Israel
 Israel
• After the defeat of the Ottomans in WWI, the British controlled
Palestine.

• Balfour Declaration (2 November 1917) was a letter from the

UK’s FS Arthur James Balfour to Baron Walter Rothschild:

• “His Majesty's government view with favour the

establishment in Palestine of a national home for the
Jewish people, and will use their best endeavours to
facilitate the achievement of this object, it being clearly
understood that nothing shall be done which may prejudice
the civil and religious rights of existing non-Jewish
communities in Palestine, or the rights and political status
enjoyed by Jews in any other country.”
 Israel

• Following Britain, other countries and even the

League of Nations supported the creation of
Israel as a state.

• 14 May 1948, one day before Britain’s mandate

expires, Israel’s leaders declared independence.
 Self-Defence

• The right of a state to protect it’s territory. Others

include national interest and security.
• Article 51:

• “Nothing in the present

Charter shall impair the
inherent right of
individual or collective
self-defence if any
armed attack occurs
against a member of the
United Nations, unless
the Security Council has
taken the measures
necessary for the
maintenance of
international peace and
security…”
 Self-Defence
• Another antiquated concept?

• “if any armed attack occurs”

• Use of that phrase is to necessitate the

obligation that forcible measures may be
taken by a state only in the situation where
the use of self-defense is “instant,
overwhelming, and leaving no choice of
means and no moment for deliberation.”
 Self-Defence

• Another antiquated concept?

• “if any armed attack occurs”

• Therefore, mere apprehended danger or

direct threat to a state does not, on its
own, warrant the use of force.
 Self-Defence

• Another antiquated concept?

• “if any armed attack occurs”

• Only upon a clear showing of a grave and

actual danger to the security of the state,
and the self-defencive measures must be
limited by the necessity…
 Self-Defence
• Another antiquated concept?

• “It is well understood that the exercise of the right

of self-protection may and frequently does extend
the limits of the territorial jurisdiction of the
state exercising it. The strongest example would
be the mobilization of an army by another power
immediately across the frontier. Every act done by
the other power may be within its territory.”

• Secretary Elihu Root, US Secretary of War (1905-

1909)
 Self-Defence

• Another antiquated concept?

• Modern technology no longer requires “boots on

the ground”.

• ICBMs, drones, bombs.

 Self-Defence
• 1807 - Britain seized the Danish fleet to prevent it
being captured or used by France.

• 1904 - Japan invaded Korea, citing that Russia might

use it was a base of operations against Japan.

• 1914 - Russian mobilisation towards Europe,

threatened Germany.

• 1939 - Russia invaded Finland as a strategic measure

against Germany.
Cuban Missile Crisis
Cuban Missile Crisis
Cuban Missile Crisis
 Cuban Missile Crisis

• US Navy created a blockade to prevent Soviet ships

from arriving in Cuba.
 Cuban Missile Crisis
• “We no longer live in a world where only the actual
firing of weapons represents a sufficient challenge
to a nation's security to constitute maximum peril.
Nuclear weapons are so destructive and ballistic
missiles are so swift, that any substantially increased
possibility of their use or any sudden change in their
deployment may well be regarded as a definite threat
to peace.”

• US President John F. Kennedy, Address to the

Nation 22 October 1962.
 Regional Arrangements

• Regional blocs have considered the concept of

mutual security and collective self-defence.
 Regional Arrangements

• Collective self-defence is recognised impliedly in the

UN Charter:

• “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…” (Article 52(1),
Charter of the United Nations
 Regional Arrangements
• Article 5, NATO Charter :

• “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-defence recognised 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.”
 Regional Arrangements
• Article 42(7), Lisbon Treaty:

• If a Member State is the victim of armed

aggression on its territory, the other
Member States shall have towards it
an obligation of aid and assistance by
all the means in their power, in
accordance with Article 51 of the United
Nations Charter. This shall not prejudice
the specific character of the security and
defence policy of certain Member States.
 Aggression

• Difficult to justify what actions allow a state to execute

the right of self-defence. Hence, in 1974, the UN
General Assembly adopted a very extensive, though
not exhaustive, definition.
 Aggression

• UN GA Resolution No. 3314, 14 December 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, as set out in this Definition.
 Aggression
• UN GA Resolution No. 3314, 14 December 1974:

• Article 2: The First use of armed force 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 of sufficient gravity.
 Aggression
• UN GA Resolution No. 3314, 14 December 1974:

• Article 3: Any of the following acts, regardless of a declaration of war, shall, subject
to and in accordance with the provisions of article 2, qualify as an act of aggression:

• (a) The invasion or attack by the armed forces of a State of the territory of another
State, or any military occupation, however temporary, resulting from such
invasion or attack, or any annexation by the use of force of the territory of another
State or part thereof,

• (b) Bombardment by the armed forces of a State against the territory of another
State or the use of any weapons by a State against the territory of another State;

• (c) The blockade of the ports or coasts of a State by the armed forces of another
State;
 Aggression
• UN GA Resolution No. 3314, 14 December 1974:

• (d) An attack by the armed forces of a State on the land, sea or air forces, or marine
and air fleets of another State;

• (e) The use of armed forces of one State which are within 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 a State in allowing its territory, which it has placed at the disposal of
another State, to be used by that other State for perpetrating an act of aggression
against a third State;

• (g) 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 the acts listed above, or its substantial involvement therein.
 Aggression
• UN GA Resolution No. 3314, 14 December 1974:

• Article 4: The acts enumerated above are not exhaustive and the Security
Council may determine that other acts constitute aggression under the
provisions of the Charter.

• Article 5:

• 1. No consideration of whatever nature, whether political, economic, military

or otherwise, may serve as a justification for aggression.

• 2. A war of aggression is a crime against international peace. Aggression

gives rise to international responsibility.

• 3. No territorial acquisition or special advantage resulting from aggression is

or shall be recognized as lawful.
 Independence

• Independence v Sovereignty
 Independence
• part and parcel of sovereignty. If sovereignty is the element of
statehood, independence is the effect of external sovereignty.

• Sovereignty

• the supreme, uncontrollable power inherent in a state.

• “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.” - Garner
 Independence
• part and parcel of sovereignty. If sovereignty is the element of
statehood, independence is the effect.

• Sovereignty

• the supreme, uncontrollable power inherent in a state.

• “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.” - Garner
 Sovereignty

• 2 main aspects:

Internal External

domestic affairs foreign relations

 Independence

• Independence - freedom from control by any other

state or group of states and not freedom from the
restrictions that are binding on all states forming the
family of nations.

• Ergo, a state cannot contravene the obligations as

a UN Member, abuse rebus sic stantibus, etc.
 Independence
• goes hand-in-hand with non-intervention.

• Intervention

• act by which a state interferes with the domestic or foreign affairs of

another state through the employment of force or threat of force.

• can be through physical, political, or economic.

• not sanctioned, except only as a legitimate use of self-defence or

when decreed by Security Council.
 Independence

• Intervention

• Difficulty is when the lines are no longer clear.

• For instance, Somalia, Syria, Kuwait

 Equality
• Article 2, Charter of the UN - “sovereign equality of all
its Members.”

• Montevideo Convention - “states are juridically equal,

enjoy the same rights, and have equal capacity in their
exercise. The rights of each one do not depend upon
the power which it possesses to assure its exercise,
but upon the simple fact of its existence as a person
under international law.”
 Equality

• What exactly does this mean?

 Equality
• Not equality of physical power, economic status.

• Not even equality in terms of IL in specific instances.

• Philippines and China have a border next to the

sea.

• Austria, Belarus, Mongolia, Bolivia, are land-

locked.
 Equality

• Not even legal equality.

• Non-procedural questions are decided by the

Security Council only with the concurrence of the
Big Five. Even if all of them but one concur, a
single Big Five veto defeats the motion.
 Equality

• It means, all right of a state, regardless of size or

number, must be observed and respected by the
international community in the same manner that the
rights of other states are observed and respected.

• All states, large or small, powerful or weak, have an

equal right to the enjoyment of all their attributes as
members of the family of nations.
 Equality

• All UN Members in the GA have an equal, single vote.

• par in parem non habet imperium - one sovereign

power cannot exercise jurisdiction over another
sovereign power.