Defining Statehood: The Montevideo Convention and its Discontents
Defining Statehood
Independence, along with population, territory, and governmental capacity, both internal and external, would be widely cited in definitions of statehood from the 1970s on.
Widely the definition used by many and major countries
Montevideo: On the rights and duties of states
Capacity to to engage in international relations
Possess effective govt.
Clearly defined territory
Permanent population
like fulfilling treaty obligations
History
Legal thinkers around the time Montevideo was written were all in their own way writing the same criteria for statehood, the ones in Montevideo
As such, it wasn't challenged much and became widely accepted
Antecedent criteria pre Montevideo
Legitimism
Based on the regulating of changes in the age of monarchy
Statehood resided with the monarch and successors, so even if the prince is displaced he is sovereign
See the bourbon restoration
Contiguity
So long as no other European power claimed those adjacent lands, and so long as no other recognized state authority existed there, the state controlling the contiguous territory could extend its claims beyond the scope of its effective control.
Claims to 'empty' territory were accepted as valid even when the claimant exercised no effective control over the territory.
Explains claims to arctic and antarctic
Continued alongside montevideo, though unsuccessful
Ended with the General Act of Berlin 1885
The European claimant had to make a clear notification to other powers of its claim, and this notification had to be coupled with effective occupation of the territory in question.'
Criticizing Montevideo
Some argue it doesn't offer a complete definition, some argue its is over inclusive, some say it is of limited law-making force, overall, many criticisms of it exist
Over inclusive?
Capacity
many argue that it is a consequence of statehood, not a criteria
Also possessed by non-state actors
it is not an element in state's creation
Territory
Not necessary at least after statehood has been firmly established
Effectiveness:
consider annexed states of 1936 - 1940
isis land
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It therefore appears to be the case that once an entity has established itself in international society as a state, it does not lose statehood by losing its territory or effective control over that territory. To be sure, the Montevideo Convention was concerned with whether an entity became a state, not with how an entity might cease to be a state.
Can an entity become statehood without any territory? Nationhood
Not a complete definition?
Independence
creation of a state while under occupation
manchukuo
Many see this as a critical criterion
Standing by itself
political and military dimension
but doesn't necessarily affect the legal definition
Must also claim to be a state?
Taiwan
What about when a state claims to be a state and parent state revokes its claims on that state?
Fall of USSR
Self-Determination?
achieved through referenda
Democracy?
See states after the fall of the USSR
Treatment of minorities
see fall of yugoslavia
Recognition