|Convention on the Rights and Duties of States|
Ratifications and signatories of the treaty
Organization of American States membersOther
|Signed||December 26, 1933|
|Effective||December 26, 1934|
|Parties||16 (as of December 2018)|
|Depositary||Pan American Union|
|Languages||English, French, Spanish and Portuguese|
|Montevideo Convention at Wikisource|
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. 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.
The convention became operative on December 26, 1934. It was registered in League of Nations Treaty Series on January 8, 1936.
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. 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.
An important part of the convention was a prohibition of using military force to gain sovereignty. According to Article 11 of the Convention,
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
The 16 states that have ratified this convention are limited to the Americas.
|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[a]||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|
- The Organization of American States' database lists Costa Rica as signing the treaty, but the treaty does not include a signature by Costa Rica.
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. Costa Rica, which did not attend the conference, later signed the convention.
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.
The European Union, in the principal statement of its Badinter Committee, 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.
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."
- "A-40: Convention on Rights and Duties of States". Organization of American States. Retrieved 2013-07-23.
- Hersch Lauterpacht (2012). Recognition in International Law. Cambridge University Press. p. 419.
- League of Nations Treaty Series, vol. 165, pp. 20-43.
- 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.
- 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
- 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
- Hersch Lauterpacht (2012). Recognition in International Law. Cambridge University Press. p. 419. ISBN 9781107609433.
- "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.
- 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 presented in the conference).
- "Convention on the Rights and Duties of States". Yale. Retrieved 2013-07-23.
- Harris, D.J. (ed) 2004 "Cases and Materials on International Law" 6th Ed. at p. 99. Sweet and Maxwell, London
- 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.
- 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)
- 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."
- Switzerland's Ministry of Foreign Affairs, DFA, Directorate of International Law: "Recognition of States and Governments," 2005.
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