This Article is written by Ms. Sreya Saloni 2nd year law student from Lloyd Law College Greater Noida.
Abstract:
The Montevideo Convention is an agreement that was signed on December 26, 1933, in Montevideo, Uruguay, and went into effect the next year, defined the conventional definition of a state for the purposes of international law. The Seventh International Conference of American nations ratified the convention, which declared that every state was an equal sovereign entity with a permanent population, demarcated borders, a government, and the capacity to negotiate with other nations. The agreement said, among other things, that parties would not recognize territory gained by force, would not meddle in the internal or international affairs of another state, and that any conflicts would have to be resolved amicably. United States, Argentina, Brazil, Chile, Colombia, Cuba, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, and Venezuela has signed by these countries. Bolivia was the only country attending the conference that refused to sign the agreement.
Brief background:
For most colonial or national ethnic minority people, obtaining international legal personality as a nation-state was the only path to self-determination. At the International Conference of American governments, sovereign governments that had arisen from former colonies were represented by the majority of delegates. Most of the time, one or more of the European colonial empires had contested or resisted their own existence and independence. They reached a consensus between themselves on standards that facilitated the acquisition of international recognition for other dependent governments with restricted sovereignty.
Provisions of the convention:
ARTICLE 1
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.
ARTICLE 2
The federal state shall constitute a sole person in the eyes of international law.
ARTICLE 3
The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.
ARTICLE 4
States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.
ARTICLE 5
The fundamental rights of states are not susceptible of being affected in any manner whatsoever.
The convention’s ban on the use of force to establish sovereignty was a key component. Furthermore, as per Article 11 of the Convention, Article 2 paragraph 4 of the United Nations Charter makes Article 11 an essential component of international law, reflecting the modern Stimson Doctrine.
A state must have a permanent population, a defined territory, a functioning administration, and the ability to forge formal connections with other nations in order to qualify as a subject of international law, according to Article 1 of the Montevideo Convention. Determining whether Palestine met the requirements for statehood was one of the most recent uses of these standards (Quigley 2010). The majority of Western nations rejected the Palestinian Council’s declaration of an independent state in late 1988, citing the Montevideo criterion. The lack of Palestinian authority over the West Bank and Gaza Strip provided an explanation for the rejection (Quigley 1990; Gelvin 2007).
Another instance of how the Montevideo Convention is applied in international practice with regard to adjudications is the former Yugoslavia (Caplan 2005). The Montevideo Convention’s concept of a state served as a guide for the Arbitration Commission of the European Peace Conference on Yugoslavia (ACEPCY), often known as the Badinter Arbitration Committee, as it worked to resolve the conflict (Anderson 1990). Established on August 27, 1991, by the Council of Ministers of the European Economic Community, the ECEPCY effectively carried out its mandate to give legal advice to the Conference on Yugoslavia from 1991 to 1993 (Zufle 2013; Luchterhandt 1993). In the end, it created a number of requirements for the former Yugoslav nations’ independence to be recognized. “State is an entity, consisting of the territory and population, subordinate to the government, which has sovereignty,” the Badinter Arbitration Committee concluded in regards to the recognition of new nations that had developed in the Balkans (Dwan 1999). The acceptance of a state’s “actual status”—that is, the acceptance of the new status quo in the area—was the primary need for the recognition of independence (Dwan 1999).
The Montevideo Convention, in conjunction with other international agreements and legal principles, serves as the foundation for the international community’s rapid recognition of a state. It is also important to remember that the Montevideo Convention is a regional international convention, and that means that its provisions codify characteristics of statehood that are incomparable to the standards and guidelines of international customary law. Nonetheless, Article 1 of the Convention meets the requirements necessary to be considered an international customary law norm. The rationale is that this rule’s provisions have been consistently implemented by a number of international bodies during their decision-making process. For example, it was used in the International Court of Justice’s advisory opinion on compensation for damages incurred by the UN in 1949, the draft Declaration of the Rights and Duties of States in 1949, the Arbitration Commission’s decision on Yugoslavia in 1992, and the UN International Law Commission’s 6th Report on Unilateral Acts of States. The report lists attributes of statehood, such as respect for international stability, particularly with regard to state boundaries and minority rights, as well as basic human rights and freedoms, in addition to the standards outlined in the Montevideo Convention (Potier 2001).
The Montevideo Convention, if accepted by the international community, could become a magic formula for many unrecognized states, including the Republic of Artsakh, also known as the Nagorno-Karabakh Republic, the Republic of Abkhazia, the Republic of South Ossetia, and Transnistria (Potier 2001). One of the three honorary members of the UN Justice Council, Geoffrey Robertson, stressed in his report during the international conference on the fight for national freedom in Artsakh that Nagorno-Karabakh has all the characteristics of a state (Chorbajian 1994). He believes that Artsakh has the right to become a sovereign nation in accordance with the norms of international law, but that it was moved to Azerbaijan because of a horrific historical injustice (Chorbajian 1994). Compared to many other unrecognized republics, Nagorno-Karabakh does, in fact, satisfy all the requirements for sovereignty and independence (Kruger 2010). As per Kruger’s (2010) assertion, the right to secession is guaranteed by international law in situations where a people’s basic rights are being violated, which applies to the citizens of Artsakh. Furthermore, every country is entitled to leave the oppressive and despotic state. According to Robertson (quoted in Chorbajian 1994), Nagorno-Karabakh has a permanent population, a defined territory, a government, and the capacity to forge diplomatic ties with other nations. Robertson reached this decision by using the terms of the Montevideo Convention. Furthermore, he asserts (quoted in Chorbajian 1994) that the timing is right to acknowledge the Republic of Artsakh as an independent state, implying that the terms of the Montevideo Convention and its requirements for statehood still hold true today.
The theories of international law have a unique role in the international legal system. In jurisprudence, theoretical viewpoints have always been essential (Francis 2011; Laney 2002). The papers of organizations like the International Law Association and the Institute of International Law, which are also quite significant, represent the opinions of attorneys from many nations. Therefore, it would not be absurd to claim that the advice of eminent experts like Geoffrey Robertson may serve as a source for international law. However, the majority of experts concur that the theories of international law—that is, the theoretical stances and judgments of significant legal professionals—are a secondary source of law.
In the 20th century, as the international legal system grew increasingly severe, the issue of recognizing the legal identity of the nations became particularly pressing (Grant 1999). In fact, choosing which nations to invite to such events has proven to be a challenge for planners of international conferences and other interstate gatherings since the turn of the 20th century. In a similar vein, the initial members of the League of Nations were unable to respond to the query of which nations qualified to join the organization (Graham 2004). In Montevideo, the question of the states’ legal personality was settled. The Conference resulted in the passage of the final Convention, which contained four requirements for statehood along with a legal definition of a state (Metz 2014; Frisch 1998). However, it is crucial to note that modern international law lacks a consistent framework to determining which aspects of statehood are more important (Bereketeab 2014). According to the terms of the Montevideo Convention, the great majority of specialists take into account characteristics like sovereignty, territory, population, and administration (Bereketeab 2014). In addition to the aforementioned characteristics, others emphasize a state’s independence as a key component of statehood (Bereketeab 2014). Bereketeab (2014) notes that David Feldman has also popularized political independence and tranquility as requirements for a state. It appears that, in the lack of a universal legally enforceable text outlining the characteristics of statehood or an international authority competent to decide such questions, acknowledgment of a new state’s independence is subject to the jurisdiction of that specific state. Put another way, each state’s circumstances and political goals determine whether or not the new states are recognized.
In light of the aforementioned considerations, the contemporary recognition practice pertaining mainly to the international legal status of Abkhazia, South Ossetia, and Kosovo is likewise a fascinating topic (Popescu 2007). More than a hundred governments, including the US, UK, France, Germany, and others, recognized Kosovo in 2014. Nevertheless, Abkhazia and South Ossetia remain unrecognized as independent nations (Kruger 2001). Russia, on the other hand, views Kosovo’s territory as an essential component of the Republic of Serbia and refuses to acknowledge Kosovo as an independent state. On August 26, 2008, the president of Russia did, however, issue two decrees that recognized the Republic of South Ossetia and the Republic of Abkhazia. Such unequal treatment of various self-declared nations bears witness to the contentious practice of the international community in the area of state recognition, where the most powerful governments in the world’s foreign policy are crucial.
It should be mentioned that the UN General Assembly requested that the International Court of Justice examine whether Kosovo’s unilateral declaration of independence complies with international legal standards. It resolved that Kosovo’s unilateral declaration of independence on February 17, 2008, did not breach international law by adopting an advisory opinion on July 22, 2010 (Popescu 2007). Furthermore, the UN Security Council’s Resolution 1244, which created the UN Interim Administration Mission in Kosovo, is not violated by Kosovo’s declaration of independence, according to the International Court of Justice (Popescu 2007). Overall, the court found that there was no violation of any applicable international law by Kosovo’s proclamation of independence.
The Montevideo Convention, a landmark international law treaty, established the declaratory concept of statehood. It emphasized the right of states to defend their territorial integrity and political sovereignty even before recognition. This concept, as outlined in Article 3, was developed by Castellino, a leading international lawyer, to counter the policies of leading powers who argued that a new subject of international law could not arise without their recognition. Today, the majority of international legal experts support the declaratory concept, bolstered by the Montevideo Convention.
The constitutive theory is another definition of statehood. According to this idea, a key factor in the recognition process as a whole is the acknowledgment of the state by other members of the international community. A new geographical unit is not a state until it has not received recognition from other states, which is a necessary prerequisite for the formation of a new state (Jones & Kautz 2011). It is important to note that the reality today is reflected in the constitutive theory of state recognition. According to the constitutive idea, a territory’s ability to claim statehood is actually dependent on how well-established international law is among its neighbors. As a result, the new state will have to largely rely on its ties with other nations and its involvement in various types of international cooperation, especially in intergovernmental organizations, to carry out its policies. In the age of globalization, governments need to provide answers to the issues the world community faces rather than just accepting them at face value. Furthermore, such behavior is unusual for an undiagnosed state. Only in these circumstances can a state safeguard its interests and carry out its fundamental duty.
In general, the conditions for statehood outlined in the Montevideo Convention on the Rights and Duties of States of 1993 remain relevant today. Nonetheless, every state looks out for its own interests, and global politics continues to apply double standards. Because they do not entirely address the problems of statehood and recognition and do not take into account the reality of the contemporary international relations system, the articles of the Montevideo Convention should be amended and augmented. The lack of an international legal framework that would establish comparable standards for statehood and recognition is the cause. For the same reason, there is no worldwide convention that would establish such criteria and, as a result, force UN members to recognize geographical entities that adhere to the agreed-upon standards. A more thorough examination of the circumstances shows that the lack of universal standards for statehood results from the recognized members of the international community, particularly the more powerful ones, having a stake in keeping the decision about recognition up to them. This is illustrated by the US that its recognition of Kosovo but not of Abkhazia or South Ossetia, and Russia’s recognition of Abkhazia and South Ossetia but not of Kosovo. The UN International Commission’s 6th Report recommended that the UN General Assembly publish a statement outlining some of the qualities of statehood that new breakaway territories should accomplish before being recognized. The Montevideo Convention is insufficient to resolve the issue because it is only a regional international convention with no legally enforceable requirements.
Reference:
Montevideo_Convention.pdf (hlrn.org)
Montevideo Convention | Montevideo Treaty, Latin America, Inter-American System | Britannica
Montevideo Convention – Wikipedia
Montevideo Convention on the Rights and Duties of States – The Faculty of Law (uio.no)
Statehood in International Law: The Montevideo Convention (legalserviceindia.com)