Montevideo Convention

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For criticism see Criticism of Montevideo Convention

The Montevideo Convention on the Rights and Duties of States was a treaty (which was later accepted as part of customary international law[cn]) signed at Montevideo, Uruguay, on December 26, 1933, during the Seventh International Conference of American States. 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. This was a diplomatic attempt by Roosevelt to reverse the perception of "Yankee imperialism," brought about by the policies instituted (largely) by his predecessor, President Herbert Hoover. 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]

Background

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 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.

Some have questioned whether these criteria are sufficient, as they allow less-recognized entities like the Republic of China (Taiwan) or even entirely non-recognized entities like the Nagorno Karabakh Republic 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.

There have also been attempts to further broaden the convention's definition, although they have gained less support. Founders of non-territorial micronations commonly assert that the requirement in the Montevideo Convention of a defined territory is in some way wrong-headed, for largely unspecified reasons. Some non-territorial entities, notably the Sovereign Military Order of Malta, are indeed considered subjects of international law, but these do not aspire to statehood.

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

Criticisms

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.[2] 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.[3]

Numerous criticisms have been made about the Montevideo Convention's criteria for statehood because it contains no criteria to prevent boundary disputes in cases involving secessionist movements [cn]. Others criticize the aspect of "government," as it makes no distinction as to whether governments and client states established by military occupation, or governments in exile, should be considered legal. Furthermore, this clause effectively rules out anarchic states from existing legally [cn].

Signatories

The states that signed this convention are: Honduras, United States of America, El Salvador, Dominican Republic, Haiti, Argentina, Venezuela, Uruguay, Paraguay, Mexico, Panama, Guatemala, Brazil, Ecuador, Nicaragua, Colombia, Chile, Peru, Cuba[4]. 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.[5]

The European Union, in the principal statement of its Badinter Committee,[6] 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.[7]

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."[8]

See also

External links

References

  1. List of signatories of the Montevideo Convention
  2. The Postcoloniality of International Law, Harvard International Law Journal, Volume 46, Number 2, Summer 2005, Sundhya Pahuja, page 5
  3. 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 9004139656, page 110
  4. Montevideo Convention on the Rights and Duties of States
  5. Harris, D.J. (ed) 2004 "Cases and Materials on International Law" 6th Ed. at p. 99. Sweet and Maxwell, London
  6. 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]
  7. [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."]
  8. [Switzerland's Ministry of Foreign Affairs, DFA, Directorate of International Law: "Recognition of States and Governments," 2005.]
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