Montevideo Convention Of 1933
The Montevideo Convention on the Rights and Duties of States dated 1933 is one of the fundamental international instruments enumerating the attributes of the statehood and legal personality of the states in accordance with the norms of international law. It was signed on 26 December 1933 by 19 American states at the 7th Pan-American Conference in Montevideo in Uruguay and entered into force a year later, on 26 December 1934. The Conference attracted the absolute majority of American countries, including Brazil, Colombia, Chile, Cuba, Costa Rica, the Dominican Republic, Ecuador, Salvador, Haiti, Guatemala, Honduras, Nicaragua, Mexico, Panama, the United States, and Venezuela. Only four of these states signed the Convention, but did not ratify it. They were Argentine, Paraguay, Peru, and Uruguay. Bolivia was the only state to have attended the Conference without signing the Convention. The Unites States of America, Brazil and Peru ratified the document with reservations, which were directly attached to the document. However, the Convention has been repeatedly used to resolve recognition issues in other parts of the world. The system of international relations has changed beyond the recognition since the signing of this treaty (Lauterpacht 2012), but the world counties have not yet agreed to consensus on the mechanisms of the international legal recognition. Therefore, it is imperative that the international community should review the Montevideo Convention and consider again its significance for the modern system of international relations. Nowadays, different scholars have different opinions on the applicability of the Convention in the international context, but most of them agree that criteria of the statehood contained therein are still valid.
The Montevideo Convention defines the following criteria for a state as a subject of international law in Article 1: permanent population, defined territory, government, and capacity to establish formal relations with other states. One of the most recent applications of these criteria was to decide whether Palestine conformed to the criteria of the statehood (Quigley 2010). In late 1988, the Palestinian Council declared a sovereign Palestinian state, but most of Western governments rejected this claim, referring to the Montevideo criteria. The refusal was explained by the fact that Gaza Strip and the West Bank did not have actual Palestinian control (Quigley 1990; Gelvin 2007).
In case of adjudications, the former Yugoslavia constitute another example of the Montevideo Convention’s use in the international practice (Caplan 2005). While resolving the dilemma, the Arbitration Commission of the European Peace Conference on Yugoslavia (ACEPCY), referred to also as the Badinter Arbitration Committee, guided itself by the definition of a state contained in the Montevideo Convention (Anderson 1990). The ECEPCY was established by the Council of Ministers of the European Economic Community on 27 August 1991 in order to provide legal consultations to the Conference on Yugoslavia and successfully performed this function from 1991 to 1993 (Zufle 2013; Luchterhandt 1993). It had eventually developed a series of conditions for the acknowledgement of the independence of the former Yugoslav republics. According to its conclusion regarding the recognition of new states that had emerged in the Balkans, the Badinter Arbitration Committee expressed the following opinion: “State is an entity, consisting of the territory and population, subordinate to the government, which has sovereignty” (Dwan 1999). The main criterion for the recognition of independence was the recognition of a state’s “actual status” (Dwan 1999), or, in other words, the recognition of the new status quo in the region.
The Montevideo Convention together with some other international instruments and norms of law form the basis for the immediate recognition of a state by the international community. I It is also necessary to note, that the Montevideo Convention is an international treaty of the regional nature and its provisions enshrining the attributes of the statehood, which cannot be equalized to the norms and provisions of the international customary law. However, Article 1 of the Convention satisfies the standards of a rule of international customary law. The reason is that various international bodies have repeatedly applied the provisions of this rule in their decision-making process. For example, it was used in an advisory opinion of the International Court of Justice on the compensation for damages incurred by the UN in 1949, the draft Declaration of the Rights and Duties of States in 1949, the decision of the Arbitration Commission on Yugoslavia in 1992, and the 6th Report of the UN International Law Commission on unilateral acts of the states. In addition to the criteria mentioned in the Montevideo Convention, the report offers such characteristics of statehood as respect for the international stability, especially regarding state boundaries and the rights of minorities, respect for the UN Charter as well as fundamental human rights and freedoms (Potier 2001).
It is possible that, once accepted by the international community, the Montevideo Convention may become a magic formula for many unrecognised states such as the Republic of Artsakh, also known as the Nagorno-Karabakh Republic, the Republic of Abkhazia, the Republic of South Ossetia, and Transnistria (Potier 2001). During the international conference on the struggle for national liberation in Artsakh, one of the three honorary members of the UN Justice Council Geoffrey Robertson emphasised in his report that Nagorno-Karabakh had all the attributes of a state (Chorbajian 1994). According to his opinion, Artsakh was transferred to Azerbaijan due to a gruesome historical injustice, but has the right for its own statehood in compliance with the principles of international law (Chorbajian 1994). Indeed, Nagorno-Karabakh meets all the criteria for sovereignty and independence as compared to many other unrecognised states (Kruger 2010). According to Kruger (2010), international law ensures the right to secession if the fundamental rights of the people are being infringed, as is the case of Artsakh’s residents. Moreover, every nation has the right to withdraw from the repressive and tyrannical state. Robertson argues that Nagorno-Karabakh has a permanent population, defined territory, its own government, and the ability to establish diplomatic relations with other countries (cited in Chorbajian 1994). Robertson has definitely referred to the provisions of the Montevideo Convention while making this conclusion. He also states that the time is ripe to recognise the Republic of Artsakh as an independent state (cited in Chorbajian 1994), insinuating that the provisions of the Montevideo Convention and the criteria for statehood provided therein are valid nowadays.
The doctrines of international law occupy a special place in the international legal system. In fact, theoretical perspectives have always played a crucial role in jurisprudence (Francis 2011; Laney 2002). Opinions of lawyers from different countries reflected in the documents of such organisations as the International Law Association and the Institute of International Law, which are also particularly important. Consequently, it would not be folly to argue that the opinion of such prominent specialist as Geoffrey Robertson can act as one of the sources of international law. Nevertheless, most experts agree that the doctrines of international law, i.e. theoretical perspectives and opinions of influential legal specialists, are an auxiliary source of law.
The problem of recognising legal personality of the states was especially acute in the 20th century, when the international legal system became more rigorous (Grant 1999). Indeed, since the beginning of the 20th century, organisers of the world conferences and other interstate meetings experienced difficulties while deciding which countries to invite to those activities. Similarly, the founding members of the League of Nations could not clearly answer the question, which countries were eligible for membership in the League of Nations (Graham 2004). The issue of legal personality of the states was resolved in Montevideo. The result of the Conference was the adoption of the final Convention that included a legal definition of a state alongside four criteria of statehood (Metz 2014; Frisch 1998). However, it is necessary to acknowledge the fact that contemporary international law has no uniform corresponding approach in order to define which features of the statehood should be considered of primary importance (Bereketeab 2014). The vast majority of experts consider such attributes as sovereignty, territory, population, and government, in line with the provisions of the Montevideo Convention (Bereketeab 2014). Others highlight independence of a state as a dominant feature of the statehood in addition to the above-mentioned attributes (Bereketeab 2014). David Feldman has also popularised peacefulness and political independence as criteria for a state (Bereketeab 2014). It appears that in the absence of a universal legally binding document that would outline the attributes of statehood or an international body authorised to resolve such issues, recognition of a new state’s independence is subject to the jurisdiction of that particular state. In other words, the recognition of the new states depends entirely on the situation and political interests of the respective state.
Considering the aspects discussed above, the modern practice of recognition associated primarily with the international legal status of Kosovo, South Ossetia and Abkhazia are also interesting issues (Popescu 2007). In 2014, Kosovo has been recognised by more than 100 states, including the US, Britain, France, Germany and others. At the same time, these countries have not recognised the independence of Abkhazia and South Ossetia (Kruger 2001). Russia, on the other hand, refuses to recognise Kosovo as an independent state and considers its territory to be an integral part of the Republic of Serbia. However, on 26 August 2008, Russia’s president signed two decrees recognising the Republic of Abkhazia and the Republic of South Ossetia. Such discriminatory treatment of different self-proclaimed states testifies to the controversial practice used by the international community in the field of state recognition, where foreign policy considerations of the world’s most powerful states play a decisive role.
It should be noted that the conformity of Kosovo’s unilateral declaration of independence to the norms of international law was considered at the International Court of Justice according to the request of the UN General Assembly. On 22 July 2010, it adopted an advisory opinion on the matter, resolving Kosovo`s unilateral declaration of independence on 17 February 2008 did not violate the rules of international law (Popescu 2007). Moreover, according to the International Court of Justice, Kosovo’s declaration of independence does not violate Resolution 1244 of the UN Security Council, which established the UN Interim Administration Mission in Kosovo (Popescu 2007). Overall, the court arrived at the conclusion that Kosovo’s declaration regarding independence did not breach any applicable rules of the international law. However, only 4 from 14 judges opposed the decision of the court for some inexplicable reason.
Generally, the problem of recognizing self-proclaimed states still baffles the international community and requires additional efforts to resolve it. Any success will depend largely on the willingness of states to assume legal obligations to ensure the rule of law, strengthen mutual trust among states and reinforce transparency mechanisms of interstate cooperation (Igarashi 2002; Denber 1992).
It should be noted that there are two concepts of statehood, namely declaratory and constitutive. Most international lawyers believe that the declaratory theory of state recognition corresponds best to the realities of international life (Castellino 2000). According to the declaratory theory, international recognition does not create a new subject of international law, but merely indicates the fact of its appearance and attests to the willingness of other countries to maintain normal diplomatic relations with this fledgling state. This concept originated as a counterbalance to the policies of the world’s leading powers, which had persistently argued that a new subject of international law could not arise without their recognition. Article 3 of the Montevideo Convention, which suggests that all states have the right to defend their territorial integrity and political sovereignty even before recognition, is a vivid example of the declaratory concept of the statehood and customary international law in action. The declaratory theory was advanced long before the Montevideo Convention during Westphalia peace debates in 1648. Owing to this approach, the fledgling states of Switzerland and Netherlands were recognised as participants of the international family. Nowadays, the majority of international legal experts support the declaratory concept, especially as buttressed by the Montevideo Convention.
The constitutive theory is another concept of statehood. In accordance with this theory, the act of the state’s recognition on the part of other members of the international community plays a crucial role in the overall recognition process. It is a vital precondition for the emergence of a new state, meaning that a new territorial entity is not a state until it has not been granted recognition by other states (Jones & Kautz 2011). It is necessary to mention that the constitutive theory of the state recognition reflects the current situation in the world. The constitutive concept suggests that the statehood of a territorial entity is, in fact, contingent on the recognition by the existing subjects of the international law. Consequently, the new state will need to conduct its policies primarily through relationships with other states and participation in different forms of international cooperation, particularly in intergovernmental organisations. In the era of globalisation, it is crucial that the states develop solutions to the problems facing the global community rather than blindly accept them. Moreover, such actions are not common for an unrecognised state. A state can protect its interests only in such conditions and, therefore, perform the primary function of a state.
In general, the criteria for statehood provided in the Montevideo Convention on the Rights and Duties of States of 1993 are valid today. However, double standards in the world policy still persist, and every state follows its national interests. Hence, the provisions of the Montevideo Convention should be updated and supplemented because they do not fully resolve the issues of recognition and statehood and do not correspond to the realities of the current system of international relations. The reason is that there is no rule of international law that would set corresponding criteria for the statehood and recognition. For the same reason, there is no international treaty of universal character that would provide such criteria and, accordingly, obligate UN members to recognise those territorial entities that correspond to the agreed principals. A deeper analysis of the situation reveals that the absence of universal criteria for the statehood is caused by the fact that the recognised members of the international community, especially the most powerful ones, have a vested interest in leaving the issue of recognition at their own discretion. The examples of Russia recognising Abkhazia and South Ossetia, but not recognising Kosovo, and the US recognising Kosovo, but not recognising Abkhazia and South Ossetia clearly demonstrate this point. The 6th Report of the UN International Commission suggested that the UN General Assembly should adopt a declaration that would list some attributes of statehood for the new breakaway territories which should be achieved before recognition. The Montevideo Convention is not sufficient for resolving the problem since it merely is an international treaty of the regional nature, and its provisions cannot be treated as legally binding.
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