Montevideo Convention: Difference between revisions - Wikipedia

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{{Short description|1933 pan-American treaty on statehood}}

{{Infobox Treaty

| name = Montevideo Convention

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| date_expiration =

| signatories = 20<ref name=rat/>

| parties = 1617<ref name=rat/> (as of DecemberNovember 20182021)

| depositor = [[Pan American Union]]

| language =

| languages = [[English language|English]], [[French language|French]], [[Spanish language|Spanish]] and [[Portuguese language|Portuguese]]

| website =

| wikisource = 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]].<ref>{{cite book|author=Hersch Lauterpacht|title=Recognition in International Law|url=https://books.google.com/books?id=EWgEv1Qq2TwC&pg=PA419|year=2012|publisher=Cambridge University Press|page=419|isbn=9781107609433}}</ref> At the conference, [[United States]] President [[Franklin D. Roosevelt]] and [[United States Secretary of State|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]].<ref name="Hersch Lauterpacht 2012 419">{{cite book|author=[[Hersch Lauterpacht]]|title=Recognition in International Law|url=https://books.google.com/books?id=EWgEv1Qq2TwC&pg=PA419|year=2012|publisher=Cambridge University Press|page=419|isbn=9781107609433}}</ref><ref name=rat/>

The convention became operative on December 26, 1934. It was registered in the ''[[League of Nations]] Treaty Series'' on January 8, 1936.<ref>''League{{Cite web|url=http://www.worldlii.org/int/other/treaties/LNTSer/1936/9.html|title=United States of NationsAmerica Treaty- Series''Convention on Rights and Duties of States adopted by the Seventh International Conference of American States, vol.Signed 165at Montevideo, pp.December 20-4326th, 1933 [1936] LNTSer 9; 165 LNTS 19|website=www.worldlii.org|pages=20–43}}</ref>

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.<ref name="Herring">[https://archive.org/details/fromcolonytosupe00herr/page/499 ''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.</ref>

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==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.<ref>[http://www.harvardilj.org/attach.php?id=42 The Postcoloniality of International Law, Harvard International Law Journal, Volume 46, Number 2, Summer 2005, Sundhya Pahuja, page 5] {{webarchive|url=https://web.archive.org/web/20090205215653/http://www.harvardilj.org/attach.php?id=42 |date=2009-02-05 }}</ref> 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.{{Citation needed|date=October 2024}}

== Contents of the convention ==

Article 1 sets out the criteria for statehood:

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]]:

{{Quotation2|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, theThe first sentence of Article 3 explicitly states that "Thethe 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 conflictcontrast with the alternative [[constitutive theory of statehood]]:, by which a state exists only insofar as it is recognized by other states. It should not be confused with the [[recognition of states approach|Estrada doctrine]]. "Independence" and "sovereignty" are not mentioned in article 1.<ref>see for example [https://books.google.com/books?id=LQCgNzL3RJQC&pg=PA110&dq=&ei=5uyESebICJr2McXMpIoI&client=#PPA110,M1 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</ref>

An important part of the convention was a prohibition of using military force to gain sovereignty. According to Article 11 of the Conventionconvention,<ref>{{cite book|authorname="Hersch Lauterpacht|title=Recognition in International Law|url=https://books.google.com/books?id=EWgEv1Qq2TwC&pg=PA419|year=2012|publisher=Cambridge University Press|page=419|isbn=9781107609433}}<"/ref>,

{{Quotation2|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==

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]]

The 1617 states that have ratified this convention are limited to the [[Americas]].

{|class="wikitable sortable"

! State<ref name=rat>{{cite web|url=http://www.oas.org/juridico/english/sigs/a-40.html|title=A-40: Convention on Rights and Duties of States|accessdateaccess-date=2013-07-23|publisher=[[Organization of American States]]}}</ref><ref name=UN>{{cite web|url=http://treaties.un.org/pages/showDetails.aspx?objid=0800000280166aef|title=Convention on Rights and Duties of States adopted by the Seventh International Conference of American States|accessdateaccess-date=2015-11-16|publisher=[[United Nations Treaty Series]], Registration Number:3802}}</ref>

! Signed

! Deposited

! Method

|-

| {{flag|Brazil|1889}}

| {{dts|1933|Dec|26}}

| {{dts|1937|Feb|23}}

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| Ratification

|-

| {{flag|Costa Rica|state 1906}}{{efn|The Organization of American States' database lists Costa Rica as signing the treaty, but the treaty does not include a signature by Costa Rica.<ref name=CR/>}}

|

| {{dts|1937|Sep|28}}

| Accession

|-

| {{flag|Cuba|1902}}

| {{dts|1933|Dec|26}}

| {{dts|1936|Apr|28}}

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| Ratification

|-

| {{flag|Ecuador|1900}}

| {{dts|1933|Dec|26}}

| {{dts|1936|Oct|3}}

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| Ratification

|-

| {{flag|Guatemala|1871}}

| {{dts|1933|Dec|26}}

| {{dts|1935|Jun|12}}

| Ratification

|-

| {{flag|Haiti|1859}}

| {{dts|1933|Dec|26}}

| {{dts|1941|Aug|13}}

| Ratification

|-

| {{flag|Honduras|1866}}

| {{dts|1933|Dec|26}}

| {{dts|1937|Dec|1}}

| Ratification

|-

| {{flag|Mexico|1934}}

| {{dts|1933|Dec|26}}

| {{dts|1936|Jan|27}}

| Ratification

|-

| {{flag|Nicaragua|1908}}

| {{dts|1933|Dec|26}}

| {{dts|1937|Jan|8}}

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| Ratification

|-

| {{flag|United StatesParaguay|1842}}

| {{dts|1933|Dec|26}}

| {{dts|2018|Sep|7}}

| Ratification

|-

| {{flag|United States|1912}}

| {{dts|1933|Dec|26}}

| {{dts|1934|Jul|13}}

| Ratification

|-

| {{flag|Venezuela|1930}}

| {{dts|1933|Dec|26}}

| {{dts|1940|Feb|13}}

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{{notelist|close}}

A further fourthree states signed the Conventionconvention on 26 December 1933, but have not ratified it.<ref name=rat/><ref name=yale>{{cite web|url=http://avalon.law.yale.edu/20th_century/intam03.asp|title=Convention on the Rights and Duties of States|accessdateaccess-date=2013-07-23|publisher=[[Yale]]}}</ref>

{{div col|colwidth=10em|content=

* {{flag|Argentina}}

* {{flag|ParaguayPeru|1825}}

* {{flag|Peru}}

* {{flag|Uruguay}}

}}

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]].<ref name=yale/> Costa Rica, which did not attend the conference, later signed the convention.<ref name=CR>{{cite book|url=https://books.google.com/books?id=tccRqha7894C|title=Encyclopedia of the Inter-American System|date=1997-01-01|accessdateaccess-date=2013-07-23|publisher=Greenwood Publishing Group|page=287|quote=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).|isbn=9780313286001}}</ref>

==Analysis==

AsThe aMontevideo restatementConvention ofcodified several [[customary international law]], the Montevideo Convention merely codified |existing legal norms and its principles]], and therefore does notwhich apply merely to the signatories, but to all subjects of international law as a whole.<ref>Harris, D.J. (ed) 2004 "Cases and Materials on International Law" 6th Ed. at p. 99. Sweet and Maxwell, London</ref><ref>{{cite book|url=https://books.google.com/books?id=uGMxfj4oedEC&pg=PA77|title=International Law and Self-Determination: The Interplay of the Politics of Territorial Possession With Formulations of Post-Colonial National Identity|pages=77|year=2000|last=Castellino|first=Joshua|publisher=[[Martinus Nijhoff Publishers]]|isbn=9041114092}}</ref>{{better source needed|date=July 2024}}▼

The [[European Union]], in the principal statement of its [[Badinter Committee]],<ref>''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. {{cite web |url=http://www.ejil.org/journal/Vol3/No1/art12.html |title=ArchivedThe copyOpinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples |accessdateaccess-date=2012-05-10 |url-status=dead |archiveurlarchive-url=https://web.archive.org/web/2008051700000020080517085252/http://www.ejil.org/journal/Vol3/No1/art12.html |archivedatearchive-date=2008-05-17 }}</ref> followswhich theconsisted Montevideoof Conventionarbitrators infrom itsseveral definitionEuropean ofcountries, considered a state: byas having a territory, a population, and aorganised political authority. The committee also foundand 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.<ref>{{cite journal |title=Opinion No .1., Badinter|journal=International ArbitrationLaw Committee,Reports states|date=January that1993 "the|volume=92 state|pages=162–166 is|doi=10.1017/CBO9781316152195.002 commonly|url=https://www.cambridge.org/core/journals/international-law-reports/article/abs/opinion-no1/08D0CCF726116E399A0BD66DA2D38F3F defined|language=en 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."|issn=0309-0671}}</ref>▼

==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.<ref>Harris, D.J. (ed) 2004 "Cases and Materials on International Law" 6th Ed. at p. 99. Sweet and Maxwell, London</ref><ref>{{cite book|url=https://books.google.com/books?id=uGMxfj4oedEC&pg=PA77|title=International Law and Self-Determination: The Interplay of the Politics of Territorial Possession With Formulations of Post-Colonial National Identity|pages=77|year=2000|last=Castellino|first=Joshua|publisher=[[Martinus Nijhoff Publishers]]|isbn=9041114092}}</ref>

[[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."<ref>Switzerland's Ministry of Foreign Affairs, DFA, Directorate of International Law: "Recognition of States and Governments," 2005.</ref>{{Verify quote|date=October 2024|type=|text=This URL may be helpful: https://www.eda.admin.ch/eda/en/fdfa/fdfa/organisation-fdfa/directorates-divisions/directorate-international-law.html}}▼

▲The [[European Union]], in the principal statement of its [[Badinter Committee]],<ref>''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. {{cite web |url=http://www.ejil.org/journal/Vol3/No1/art12.html |title=Archived copy |accessdate=2012-05-10 |url-status=dead |archiveurl=https://web.archive.org/web/20080517000000/http://www.ejil.org/journal/Vol3/No1/art12.html |archivedate=2008-05-17 }}</ref> 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.<ref>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."</ref>

Actual state practices do not follow the Montevideo Convention exactly. While they play an important role, fulfilling its criteria do not automatically create a state because additional requirements must be met. The status of countries such as [[Kosovo]] and [[Somaliland]] largely depends on the recognition or non-recognition by other states.<ref name=EJIL>{{cite web |last1=Akande |first1=Dapo |title=The Importance of Legal Criteria for Statehood: A Response to Jure Vidmar |url=https://www.ejiltalk.org/the-importance-of-legal-criteria-for-statehood-a-response-to-jure-vidmar/ |website=EJIL: Talk! |language=English |date=7 August 2013}}</ref>

▲[[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."<ref>Switzerland's Ministry of Foreign Affairs, DFA, Directorate of International Law: "Recognition of States and Governments," 2005.</ref>

==See also==

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== Further reading==

* Stuart, Graham. "The Results of the Good Neighbor Policy In Latin America' ''World Affairs'' 102#3 (September, 1939), pp. 166-170&nbsp;166–170 [https://www.jstor.org/stable/20663306 online]

== External links ==

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[[Category:History of Montevideo]]

[[Category:History1933 ofin the United States (1918–1945)]]

[[Category:Interwar -period treaties]]

[[Category:Treaties concluded in 1933]]

[[Category:Treaties entered into force in 1934]]