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Montevideo Convention

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. 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]

[edit] 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.

A fundamental remark must be underlined: the condititions of article 1 are limited by article 11, which forbids the use of military force to obtain sovereignty. Article 11 reflected the contemporary Stimson Doctrine, and it is now a fundamental part of international law through article 2 paragraph 4 of the Charter of the United Nations. Article 11 allows a clear distinction between sovereign and puppet states, the latter ones being excluded from international recognition of statehood.

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.

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.

[edit] 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]

[edit] 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]

[edit] See also