Montevideo Convention

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The Montevideo Convention on the Rights and Duties of States was a treaty signed at Montevideo, Uruguay, on December 26, 1933, during the Seventh International Conference of American States. The Convention codified the declarative theory of statehood as accepted as part of customary international law. At the conference, United States President Franklin D. Roosevelt and Secretary of State Cordell Hull declared the Good Neighbor Policy, which opposed U.S. armed intervention in inter-American affairs. The convention was signed by 19 states. The acceptance of three of the signatories was subject to minor reservations. Those states were Brazil, Peru and the United States.[1]

The convention became operative on December 26, 1934. It was registered in League of Nations Treaty Series on January 8, 1936.[2]

Background[edit]

The convention sets out the definition, rights and duties of statehood. Most well-known is article 1, which sets out the four criteria for statehood that have sometimes[who?] been recognized as an accurate statement of customary international law:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

Furthermore, the first sentence of article 3 explicitly states that "The political existence of the state is independent of recognition by the other states." This is known as the declarative theory of statehood.

A basic point should be emphasized: Article 1 is qualified by Article 11 because it prohibits using military force to gain recognition of sovereignty. Furthermore, Article 11 reflects the contemporary Stimson Doctrine, and is now a fundamental part of international law through article 2 paragraph 4 of the Charter of the United Nations. Lastly, Article 11 distinguishes between sovereign and puppet states to make sure that marionette governments do not get international recognition.

Some have questioned whether these criteria are sufficient, as they allow less-recognized entities like the Republic of China (Taiwan) to claim full status as states. According to the alternative constitutive theory of statehood, a state exists only insofar as it is recognized by other states. It should not be confused with the Estrada doctrine.

The conference is also notable in American history because one of the U.S. representatives was social worker and educator Dr. Sophonisba Preston Breckinridge (1866-1948). She was the first U.S. female representative at an international conference.[3]

Criticisms[edit]

In most cases, the only avenue open to self-determination for colonial or national ethnic minority populations was to achieve international legal personality as a nation-state.[4] The majority of delegations at the International Conference of American States represented independent States that had emerged from former colonies. In most cases, their own existence and independence had been disputed, or opposed, by one or more of the European colonial empires. They agreed among themselves to criteria that made it easier for other dependent states with limited sovereignty to gain international recognition. "Independence" and "sovereignty" are not mentioned in article 1 of the convention.[5]

Signatories[edit]

The 16 states that have ratified this convention are limited to the Americas:[6][7]

A further four states signed the Convention, but have not ratified it:[6][8]

The only state to attend the Seventh International Conference of American States, where the convention was agreed upon, which did not sign it was Bolivia.[8] Costa Rica, which did not attend the conference, later signed the convention.[9]

Customary international law[edit]

However, as a restatement of customary international law, the Montevideo Convention merely codified existing legal norms and its principles and therefore does not apply merely to the signatories, but to all subjects of international law as a whole.[10]

The European Union, in the principal statement of its Badinter Committee,[11] follows the Montevideo Convention in its definition of a state: by having a territory, a population, and a political authority. The committee also found that the existence of states was a question of fact, while the recognition by other states was purely declaratory and not a determinative factor of statehood.[12]

Switzerland, although not a member of the European Union, adheres to the same principle, stating that "neither a political unit needs to be recognized to become a state, nor does a state have the obligation to recognize another one. At the same time, neither recognition is enough to create a state, nor does its absence abolish it."[13]

See also[edit]

External links[edit]

References[edit]

  1. ^ List of signatories of the Montevideo Convention[dead link]
  2. ^ League of Nations Treaty Series, vol. 165, pp. 20-43.
  3. ^ From colony to superpower: U.S. foreign relations since 1776, by George C. Herring, Oxford University Press, 2008, p. 499. Online at Google Books. Retrieved 2011-09-20.
  4. ^ The Postcoloniality of International Law, Harvard International Law Journal, Volume 46, Number 2, Summer 2005, Sundhya Pahuja, page 5
  5. ^ see for example State Failure, Sovereignty and Effectiveness, Legal Lessons from the Decolonization of Sub-Saharan Africa, Gerard Kreijen, Published by Martinus Nijhoff, 2004, ISBN 90-04-13965-6, page 110
  6. ^ a b "A-40: Convention on Rights and Duties of States". Organization of American States. Retrieved 2013-07-23. 
  7. ^ "Convention on Rights and Duties of States adopted by the Seventh International Conference of American States". United Nations Treaty Series. Retrieved 2013-07-23. 
  8. ^ a b "Convention on the Rights and Duties of States". Yale. Retrieved 2013-07-23. 
  9. ^ Encyclopedia of the Inter-American System. Greenwood Publishing Group. 1997-01-01. p. 287. Retrieved 2013-07-23. Delegations from twenty states participated - from the United States and all those in Latin America except Costa Rica (provision was made for Costa Rica to later sign the conventions and treaties preseented in the conference). 
  10. ^ Harris, D.J. (ed) 2004 "Cases and Materials on International Law" 6th Ed. at p. 99. Sweet and Maxwell, London
  11. ^ The Badinter Arbitration Committee (full title), named for its chair, ruled on the question of whether the Republics of Croatia, Macedonia, and Slovenia, who had formally requested recognition by the members of the European Union and by the EU itself, had met conditions specified by the Council of Ministers of the European Community on December 16, 1991. [1]
  12. ^ Opinion No 1., Badinter Arbitration Committee, states that "the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty" and that "the effects of recognition by other states are purely declaratory."
  13. ^ Switzerland's Ministry of Foreign Affairs, DFA, Directorate of International Law: "Recognition of States and Governments," 2005.