Bryan Albert N.

Suerte Public International Law

The Fundamental Rights of a State

A State may be defined as a group of people living together in a definite territory under
an independent government organized for political ends and capable of entering into
international relations.

The State has five basic rights which includes; 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 legation or diplomatic intercourse.

The most important rights of the state is the right of existence and self-defense because
all other rights are supposed to flow or to be derived from it. Tracing the social, historical and
political origin of a state. In this regards a state may originate from the mere existence of its
people who are politically organized under an independent government occupying a definite
territory. The political existence of state is independent of recognition by other states, whether
other states decide to recognize it political existence is their own political moral judgment. By
virtue of this right, the state may take measures, including the use of force, as may be
necessary to counteract any danger to its existence. Even before recognition the state has the
right to defend its integrity and independence, to provide for its conservation and prosperity,
and consequent to organize itself as it sees fit, to legislate upon its interests, administer its
services, and to define the jurisdiction and competence of its courts.

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.

One of the fundamental rights of a state is equality with all other states. This right is inh
erent in the concept of a state as a subject of International Law and is given general recognition
by long standing state practice. Precise definition of theprinciple of equality of states is difficult,
however, since many factors affect its application in any particular situation. Thus, it
is best to differentiate between legal equality, that is, the concept of state equality as it applies 
to the legal relations thatstates maintain with each other, and political equality, which reflects
the relative distribution of economic and military power between states.
The doctrine of equality of states means one thing in legal effect, but it also must be
reflected against the realities imposed bydifferences in political power. Political equality is in
some sense a fiction, because in political terms few states are equals.
More powerful states can establish arrangements that less powerful states assent to informally,
even though under a strictlegal regime, they would not be bound by the agreement.

The fourth fundamental right of a State is the right of property and jurisdiction where
the power a sovereign to affect the rights of persons, whether by legislation, by executive
decree, or by judgement of a court, is called jurisdiction. As this has been described as a power
it might be thought that it rest in the last analysis of physical force, and that’s a sovereign’s will,
and by mere act of willing a sovereign could affect private rights. The state being a legal
personality has the right to property which includes the right to acquire and own property. The
capacity of the State to own or acquire property is the state’s power of dominium24. Thus the
state exercise this power or dominion over its territory by acquiring and owning property
including land, minerals, gas, oil and all other realties.

The last right of a state is the right of legation or diplomatic intercourse. Legation means
the act of sending a legate. In the discipline of Government, Politics and Diplomacy, it refers to
a diplomatic mission headed by a minister or the act of sending forth a diplomatic envoy.
The Vienna Convention on Diplomatic Relations 1961 is the Convention that guides the
states on their diplomatic relations. Article 48 makes it open for signature, all the Members of
the United Nations or any of the specialized agencies Parties to the Statute of the International
Court of Justice, and by any other State invited by the General Assembly of the United Nations
to become a Party to the Convention. States can also accede to the Convention in accordance
with articles 49and 50. Article 49 requires states to ratify the Convention and deposit
instruments of ratification with the Secretary General of the United Nations while article 50
requires states to deposit instruments of accession.
The right to diplomatic intercourse entails the right to have its flag and emblem flown by
its head of the mission and in the premises of its diplomatic mission in the receiving state’s
territory. Under article 22, the right to the inviolability of its mission in which case the agents of
the receiving state may not enter them, except with the consent of the head of the mission and
the receiving state is also under a special duty take all appropriate steps to protect the
premises of the mission against any intrusion or damage and to prevent any disturbance of the
peace of the mission or impairment of its dignity. Thus this article gives the sending state the
‘special’ right to have its mission protected against any intrusion or damage and prevention of
disturbance of the peace or impairment of its dignity.

In the case of Republic of Indonesia vs. Vinzon where in the petitioner the act of
petitioners Ambassador Soeratmin and Minister Counsellor Kasim in terminating the
Maintenance Agreement is not covered by the exceptions provided in the abovementioned
provision. The Solicitor General believes that said act may fall under subparagraph (c)
thereof,20 but said provision clearly applies only to a situation where the diplomatic agent
engages in any professional or commercial activity outside official functions, which is not the
case herein.

On the other hand in the case of Liang vs. People the immunity mentioned therein is not
absolute, but subject to the exception that the acts was done in "official capacity." It is
therefore necessary to determine if petitioner's case falls within the ambit of Section 45(a).
Thus, the prosecution should have been given the chance to rebut the DFA protocol and it must
be accorded the opportunity to present its controverting evidence, should it so desire. As the
act of defamation does not fall within the purview of official capacity as we say so.
 Treaty

Treaty is a formal agreement, usually but no necessarily in writing, which is entered into
by states of entities possessing the treaty-making capacity, for the purpose of regarding their
mutual relations under the law of nations. The functions of treaties is to enable the parties to
settle finally actual and potential conflicts; to make it possible for the parties to modify rules of
international customary law by means of optional principles or standards; to pave the way for
the transformation of unorganized international society into one which may be organized in any
chosen level of social integration and to provide the humus for the growth of international
customary law.

The following are essential requisites of a valid treaty: It must entered into by parties
having the treaty-making capacity; through their authorized organs or representatives; without
the attendance of duress, fraud, mistake or other vice of consent; on a lawful subject; and in
accordance with their respective constitutional processes.

In the case of Bayan vs. Executive Secretary where the issue of the visiting forces
agreement the Supreme Court held that the fundamental law is strong that the concurrence of
the Senate is mandatory to comply with the strict constitutional requirements. The ratification
of the President, of the VFA and the concurrence of t Senate should be clear and unequivocal
expression to be bound by said treaty.

In the case of Saguisag vs. Executive Secretary on the issue of the Enhanced Defence
Cooperation Agreement between the Republic of the Philippines and the United States.
First, executive agreements must remain traceable to an express or implied authorization
under the Constitution, statutes, or treaties. The absence of these precedents puts the validity
and effectivity of executive agreements under serious question for the main function of the
Executive is to enforce the Constitution and the laws enacted by the Legislature, not to defeat
or interfere in the performance of these rules. In turn, executive agreements cannot create new
international obligations that are not expressly allowed or reasonably implied in the law they
purport to implement.

Second, treaties are, by their very nature, considered superior to executive agreements.

Treaties are products of the acts of the Executive and the Senate unlike executive agreements,
which are solely executive actions. Because of legislative participation through the Senate, a
treaty is regarded as being on the same level as a statute. If there is an irreconcilable conflict, a
later law or treaty takes precedence over one that is prior. An executive agreement is treated
differently. Executive agreements that are inconsistent with either a law or a treaty are
considered ineffective. Both types of international agreement are nevertheless subject to the
supremacy of the Constitution. 

Subsequently, the Decision goes to great lengths to illustrate the source of EDCA’s
validity, in that as an executive agreement it fell within the parameters of the VFA and MDT,
and seamlessly merged with the whole web of Philippine law. We need not restate the
arguments here. It suffices to state that this Court remains unconvinced that EDCA deserves
treaty status under the law.

We find no reason for EDCA to be declared unconstitutional. It fully conforms to the

Philippines’ legal regime through the MDT and VFA. It also fully conforms to the government’s
continued policy to enhance our military capability in the face of various military and
humanitarian issues that may arise.