Tuesday, July 22, 2008

MONTEVIDEO Convention

The Montevideo Convention on the Rights and Duties of States was a treaty (which was later accepted as part of customary international law) signed at Montevideo, Uruguay, on December 26, 1933, at the Seventh International Conference of American States.

A state as a person of international law should possess the following qualifications :

1. a permanent population – consist of a group of people, both sexes living together as a community. They must be sufficient in number to maintain and perpetuate themselves.
2. a defined territory – a known fixed portion on the earth’s surface occupied by the inhabitants.
3. government – must be organized, exercising control over and capable of maintaining law and order within the territory. It can be held internationally responsible for the acts of the inhabitants. The identity of the state is not affected by changes in government.
4. capacity to enter into relations with the other states – has an external sovereignty capable of conducting both its internal and foreign affairs.

The federal state constitute a sole person in the eys of international law. Thus, its fundamental rights are not susceptible of being affected in any manner whatsoever.

Determinative Factor of Statehood
- 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.

Judicial Equality among States
-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.

What is a recognition of a state ?
The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.
The recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognizing the new state.

Domestic Jurisdiction of states
-no state has the right to intervene in the internal or external affairs of another
-the jurisdiction of states within the limits of national territory applies to all the inhabitants
-nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.

Inviolability of states
-the contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which 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 territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

Montevideo Convention’s ratification
-defines the mode of it’s applicability based on contracting parties’ respective procedures
-involves the transmission of the aunthentic certified copies to the governments and the instrument of ratification shall be deposited in the archives of Pan American Union in Washington
- the signatory governments will be notified of the said deposit and thus, considered as an exchange of ratification

Effects of the Montevideo Convention
-the present Convention shall not affect obligations previously entered into by the High Contracting Parties by virtue of international agreements.
-the present Convention will enter into force between the High Contracting Parties in the order in which they deposit their respective ratifications.

Coventions’s enforceability duration
General Rule :
the present Convention shall remain in force indefinitely.
Exemption : may be denounced by means of one year's notice given to the Pan American Union, which shall transmit it to the other signatory governments. After the expiration of this period the Convention shall cease in its effects as regards the party which denounces but shall remain in effect for the remaining High Contracting Parties.

Signatories of the Convention
The states that signed this convention are:
Honduras, United States of America, El Salvador, Dominican Republic, Haiti, Argentina, Venezuela, Uruguay, Paraguay, Mexico, Panama, Guatemala, Brazil, Ecuador, Nicaragua, Colombia, Chile, Peru, Cuba.

Non- signatories of the Convention
- the present Convention shall be open for the adherence and accession of the States which are not signatories.

RESERVATIONS
(codification)
The Delegation of the United States of America, in signing the Convention on the Rights and Duties of States, does so with the express reservation presented to the Plenary Session of the Conference on December 22, 1933 :
“No time within which to prepare interpretations and definitions of these fundamental terms that are embraced in the report. Such definitions and interpretations would enable every government to proceed in a uniform way without any difference of opinion or of interpretations. In the meantime in case of differences of interpretations and also until they (the proposed doctrines and principles) can be worked out and codified for the common use of every government. The United States Government in all of its international associations and relationships and conduct will follow scrupulously the doctrines and policies which it has pursued which are embodied in the different addresses of President Roosevelt since that time and in the recent peace address on the 15th day of December before this Conference and in the law of nations as generally recognized and accepted".
The delegates of Brazil and Peru recorded the following private vote with regard to article 11: "That they accept the doctrine in principle but that they do not consider it codifiable because there are some countries which have not yet signed the Anti-War Pact of Rio de Janeiro 4 of which this doctrine is a part and therefore it does not yet constitute positive international law suitable for codification".

Montevideo Convention’s Impact
-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
-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."

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