Montevideo Convention

The Montevideo Convention on the Rights and Duties of States is a treaty signed at Montevideo, Uruguay, on December 26, 1933, during the Seventh International Conference of American States. The Convention codifies the declarative theory of statehood as accepted as part of customary international law.[2] 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]

Montevideo Convention
Ratifications and signatories of the treaty
  Parties
  Signatories
  Other Organization of American States members
SignedDecember 26, 1933
LocationMontevideo, Uruguay
EffectiveDecember 26, 1934
Signatories20[1]
Parties16[1] (as of December 2018)
DepositaryPan American Union
LanguagesEnglish, French, Spanish and Portuguese
Montevideo Convention at Wikisource

The convention became operative on December 26, 1934. It was registered in League of Nations Treaty Series on January 8, 1936.[3]

The conference is notable in U.S. history, since one of the U.S. representatives was Dr. Sophonisba Preston Breckinridge, the first U.S. female representative at an international conference.[4]

Background
See also: Declarative theory of statehood

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.[5] 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.

Contents of the convention

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 been recognized by international organizations 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. It stands in conflict with 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. "Independence" and "sovereignty" are not mentioned in article 1.[6]

An important part of the convention was a prohibition of using military force to gain sovereignty. According to Article 11 of the Convention,[7]

The contracting states definitely establish the rule of their conduct the precise obligation not to recognize territorial acquisitions or advantages that have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure

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.

Parties
Parties to the Montevideo Convention
  Parties
  Signatories
  Other Organization of American States members

The 16 states that have ratified this convention are limited to the Americas.

State[1][8] Signed Deposited Method
 Brazil Dec 26, 1933 Feb 23, 1937 Ratification
 Chile Dec 26, 1933 Mar 28, 1935 Ratification
 Colombia Dec 26, 1933 Jul 22, 1936 Ratification
 Costa Rica[lower-alpha 1] Sep 28, 1937 Accession
 Cuba Dec 26, 1933 Apr 28, 1936 Ratification
 Dominican Republic Dec 26, 1933 Dec 26, 1934 Ratification
 Ecuador Dec 26, 1933 Oct 3, 1936 Ratification
 El Salvador Dec 26, 1933 Jan 9, 1937 Ratification
 Guatemala Dec 26, 1933 Jun 12, 1935 Ratification
 Haiti Dec 26, 1933 Aug 13, 1941 Ratification
 Honduras Dec 26, 1933 Dec 1, 1937 Ratification
 Mexico Dec 26, 1933 Jan 27, 1936 Ratification
 Nicaragua Dec 26, 1933 Jan 8, 1937 Ratification
 Panama Dec 26, 1933 Nov 13, 1938 Ratification
 United States Dec 26, 1933 Jul 13, 1934 Ratification
 Venezuela Dec 26, 1933 Feb 13, 1940 Ratification
Notes
  1. The Organization of American States' database lists Costa Rica as signing the treaty, but the treaty does not include a signature by Costa Rica.[9]

A further four states signed the Convention on 26 December 1933, but have not ratified it.[1][10]

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.[10] Costa Rica, which did not attend the conference, later signed the convention.[9]

Customary international law
See also: Customary international law

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.[11][12]

The European Union, in the principal statement of its Badinter Committee,[13] 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.[14]

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."[15]

See also

References
  1. "A-40: Convention on Rights and Duties of States". Organization of American States. Retrieved 2013-07-23.
  2. Hersch Lauterpacht (2012). Recognition in International Law. Cambridge University Press. p. 419. ISBN 9781107609433.
  3. League of Nations Treaty Series, vol. 165, pp. 20-43.
  4. 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.
  5. The Postcoloniality of International Law, Harvard International Law Journal, Volume 46, Number 2, Summer 2005, Sundhya Pahuja, page 5 Archived 2009-02-05 at the Wayback Machine
  6. 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
  7. Hersch Lauterpacht (2012). Recognition in International Law. Cambridge University Press. p. 419. ISBN 9781107609433.
  8. "Convention on Rights and Duties of States adopted by the Seventh International Conference of American States". United Nations Treaty Series, Registration Number:3802. Retrieved 2015-11-16.
  9. Encyclopedia of the Inter-American System. Greenwood Publishing Group. 1997-01-01. p. 287. ISBN 9780313286001. 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 presented in the conference).
  10. "Convention on the Rights and Duties of States". Yale. Retrieved 2013-07-23.
  11. Harris, D.J. (ed) 2004 "Cases and Materials on International Law" 6th Ed. at p. 99. Sweet and Maxwell, London
  12. Castellino, Joshua (2000). International Law and Self-Determination: The Interplay of the Politics of Territorial Possession With Formulations of Post-Colonial National Identity. Martinus Nijhoff Publishers. p. 77. ISBN 9041114092.
  13. 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. "Archived copy". Archived from the original on 2008-05-17. Retrieved 2012-05-10.CS1 maint: archived copy as title (link)
  14. 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."
  15. Switzerland's Ministry of Foreign Affairs, DFA, Directorate of International Law: "Recognition of States and Governments," 2005.

Further reading
  • Stuart, Graham. "The Results of the Good Neighbor Policy In Latin America' World Affairs 102#3 (September, 1939), pp. 166-170 online
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