Montevideo Convention

01:09     18 January, 2015

From the series of "Internationally recognized small states"

There are many international documents according to which a territory can be recognized as a state.  The definitions in those documents are various, but there are also common concepts. For example, a group of communities may be considered a state, which has its territory; population, symbols, customs and its own political system. A state attributes also include population, state apparatus, taxation system. Besides a state has a special characteristic, sovereignty, which is expressed not only within the border of a state but also in its international activities.  Among special characteristics are also legal system, state symbols and its recognition by other states. If we take Nagorno-KarabakhRepublic as an example, then it is worth mentioning that except the recognition of other states, it has all other attributes mentioned. So does recognition play such an important role, even from the perspective of international documents?  

Let’s examine one of those legal acts – the Montevideo Convention. This Convention is one of those few international documents, in which features of a legal image of a state are defined from the perspective of international public law. The convention was signed during the 7^th pan-American conference in the capital of Uruguay in 1933. Still in the 19^th century, a state was considered sovereign, when it had a political recognition as well as status based on "the right of prescription and inclusion by custom". However, this doctrine was very vague and uncertain, because the criteria of "political recognition" could have been interpreted in different ways by the conflicting parties.

A state recognition was viewed in a new light in the 20^th century, when the international legal system acquired systematic and logical order. In 1919, during the formation of the League of Nations, when various international conferences were organized, the coordinators of those events appeared in a very difficult situation when deciding whom to invite to a conference and whom to include in the League of Nations. 

The problem was to be solved during the international conference in Montevideo in 1933. The outcome of the conference was the Final Convention, which was signed by 18 republics of South and North Americas, including the co-chair of the OSCE Minsk Group – the USA. The latter gave the legal definition of a state, including the following four criteria in the definition:

a) a permanent population;

b) a defined territory;

c) government;

d) capacity to enter into relations with other states.

According to the 3^rd article of the Convention the political existence of a state is independent of its recognition by the other states. Even before its recognition a state has the right to defend its integrity and independence to maintain it and to contribute to its prosperity, and consequently to organize itself as needed, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.

According to the 7^th article of the convection "The recognition of a state may be express or tacit." There is also another term "implicit recognition", when the states, which have recognition, establish economic, cultural or political relations with the states having no international recognition.  ThusNagorno-Karabakh Republic is being "implicitly recognized" by those states and organizations, who send their observers to participate in its elections, sportsmen - to its championships, musician - to its festivals and the like. Another example can be the Pridnestrovian Moldavian Republic (Transnistria), which has contacts with 92 other states. The international board of experts made a resolution on thePridnestrovian Moldavian Republic, stating that it is a republic having de-facto, implicit recognition by many states.

In this case what is meant by unrecognized state? Who decides how many states should recognize unrecognized state, for it to become a subject of international legal system? What is the upper limit of the number of states recognizing state having no international recognition for it to be able to become a member of the UN?  Why then is it stated that to become a UN member state it is enough to be a peaceful and follow its Charter.  In this context can the internationally recognized state of Azerbaijanbe a member of UN with its regular war rhetoric?  In this context it is worth to mention that the article 10^th of the same Montevideo Convention it is stated: "The primary interest of states is the preservation of peace. Differences of any nature which arise between them should be settled by recognized peaceful methods."

Be that as it may, the issue of a state recognition or non-recognition is disputable from the perspective of international documents and it leaves many questions open. For example, if a non-recognized state is not a member of UN yet, does it cease to have all those features of a state enumerated in the Montevideo Convention? Is in this case the article of the Convention which states that "The political existence of the state is independent of recognition by the other states" is not applicable for an unrecognized state?

Of course not, as the unrecognized state de-facto exists and the world will recognize it sometime in the future as it was in the case of Kosovo, especially, when there are separate European states, who accept the principles of the Montevideo Convention. For example Switzerland not once declared"Recognition is not enough for the establishment of a republic, at the same time non-recognition is not enough for any state to cease to exist."  Thus as it is stated in the Russian saying: "Hit the nail on the head."

 

By Karin Stepanyan