BARBER: Independence and the Montevideo Convention

The Montevideo Convention on the Rights and Duties of States is a 1933 treaty signed by countries in both North and South America (League of Nations — Treaty Series, #3802). Bolivia was the only independent country not to sign. As many of the nations that emerged in the Americas were once colonies and their independence was not acknowledged by their colonial powers, this agreement established standards for recognition of independence. Although binding on the Americas, its core principles were well thought through and soon became accepted worldwide. The treaty comprises only sixteen concise articles. 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 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 seems fit, to legislate upon its interests, administer its services, and 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 3 reinforces the principle that the political existence of a State is independent of recognition by other States. The most vague clause in this convention is Article 1(d), which provides that the State must possess “capacity to enter into relations with other States.” The phrase is undefined and is commonly understood to denote the practical ability to conduct independent external relations, presupposing internal sovereignty and absence of subordination to any greater legal entity. Neither “sovereignty” nor “independence” are defined in the Convention or other core instruments of international law. States have become independent through recognition by other States, declaration of independence, revolution, constitutional separation, consent of former sovereign, absence of legal subordination, effective control over territory, exercise of effective government, admission to international organizations, and independent conduct of foreign relations..In the 1800s, Spanish colonies in South America gained independence, yet Spain did not recognize their independence for decades. Other nations initiated recognition as sovereign States by signing bilateral treaties. A closer analysis of Chile as an example is illuminating. Chile was colonized by Spain in the sixteenth century and declared independence in 1818, but it was not recognized by Spain until 1844. Chile satisfied the first three requirements of the Montevideo Convention: a permanent population, defined territory, and effective government. Even after its war for independence, its capacity to enter relations with other States remained contested by Spain.A counterexample may also be helpful. Palestine wishes to be recognized as an independent State. However, it does not meet all the requirements of the Montevideo Convention. It possesses a permanent population but lacks a defined territory and a fully effective government. Nevertheless, the State of Palestine has been recognized as a sovereign State by many other States, including Canada.Canada was not a signatory to the Montevideo Convention because, in 1933, it was still a Dominion. It is therefore not legally bound by the Convention, although it generally has followed its principles. An important exception is that Canada recognized the independence of Palestine. Canada also recognized the independence of Lithuania while the country was still legally subordinate to the Soviet Union, before the fall of the USSR. Canada also recognized Ukraine in the same month that the USSR dissolved. Since Canada is not a signatory to the Montevideo Convention, it accords greater weight to precedence and political considerations in its recognition decisions.One can argue that a territory establishing its independence without revolutionary war or constitutional separation must demonstrate as many of the remaining Montevideo criteria as possible. This would include a declaration of independence, control of a defined territory, effective government and functioning courts, a permanent population, recognition by other States and international organizations, and independent conduct of foreign relations. Such an accomplishment would require considerable planning and sustained international dialogues.Dr. A.W. Barber is the former Director of Asian Studies at the University of Calgary. He is internationally active and has wide-ranging interests.

BARBER: Independence and the Montevideo Convention

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