The Montevideo Convention on Statehood of 1933 - Assignment Example

International Law Criteria of hood The Montevideo Convention on hood of 1933 established numerous requisites for statehood. The convention found the following measures: a permanent population, a government, a defined territory, and a capacity to enter into associations with other states (Evans 205). This convention perceived states as a form of sui generis legal entities existing and functioning under its authority and power. Article 3 of the convention states: “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." Additionally, article 6 of the convention asserts: “The recognition of a state merely signifies that the state that recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.” However, Modern debates ponder over whether satisfying the Montevideo requirements alone are adequate for statehood. The declaration theory asserts that an entity becomes a state upon satisfaction of Montevideo criteria. This is also in agreement with the convention and the assertions in article three and 6. There are entities that genuinely satisfy the requirements of the Montevideo Convention criteria but do not achieve any advantages for being “states” and do not attain any rights that come with such status (Evans 209). 2. Examples of unrecognized and partly recognized states. Some of the partly recognized states that de facto satisfy the criteria of Montevideo Convention criteria include Abkhazia, the Republic of China, and the Turkish Republic of Northern Cyprus, Nagorno-Karabakh and South Ossetia. On the other hand, unrecognized states that satisfy the criteria for the Montevideo Convention include Somaliland and Transnistria (Evans 212). 3. Definition of State Recognition State recognition refers to the process where facts about an entity are acknowledged and the entity endowed with a legal status of statehood. The declaration theory of statehood states that recognition is the act of acceptance of an already subsisting truthful situation such as the conformity with the criteria of statehood (Evans 212). State recognition implies the resolution of the state to deal with another entity as a sovereign state. 4. Theories of Recognition International law is predominated by two theories of state recognition. These include the declaratory and constitutive theories of recognition. The constitutive theory asserts that the recognition of an entity is not instinctive. An entity is only a state when other states recognize it as such. It is only after recognition by the other states that an entity’s legal status of statehood exists. In this regard, recognition by other states is a necessary condition for personality and statehood. This theory defines recognition as the process through which an entity attains personality and acquires membership to the family of states. However, this theory is questioned on what will happen if some existing states recognize a new state and others do not, and how measures could be put to restrain aggression against the unrecognized state. In this regard, there is an absence of a law that requires states to recognize new states. Additionally, in this theory, recognition is diplomatic and political and not legal (Evans 214-17). In contrast, the declarative theory describes a state as a person if it satisfies the requirements stipulated in the Montevideo Convention. According to this theory, an entity’s statehood is autonomous of its recognition by other countries. According to this theory, the status of statehood is grounded on the fact, not on individual state discernment. A new state becomes a section of the larger nation family ipso facto by its imminent actuality. However, the declarative theory fails to delineate the legal rights of the state. For example, Taiwan is a democratic state that is least recognized by other states (Evans 217-19). 5. The problem with recognition of Palestine The issue on Palestinian statehood has been discussed for more than six decades between Israeli and Palestinians. After being taken to the United Nations, the UN seems willing to recognize Palestinian state. The vote casted by UN officials to make Palestine a state has been questioned whether they were political or legal. The big question has been whether Palestine satisfies the criteria for statehood. Indeed, Palestine satisfies the Montevideo Convention requirements for statehood. Firstly, The Palestinian people’s right to self-determination has been recognized internationally. Secondly, the Palestinian territories are geographically definite. The ICJ consultative judgment confirmed this. Thirdly, there is a permanent population living in the territory. Apparently, international law does not require border separations before attaining statehood. For example, Israel does not have border separations. Additionally, the borders of China and India have not been well demarcated but still the United Nations recognizes the nations. Finally, Palestine meets the final criteria of capacity to enter into associations with other countries through its membership in international organizations and recognition by more than 120 states. 6. The problem with recognition of Kosovo Kosovo has for some time remained in international limbo. This is because only 75 out of 192 states recognize it as a new state. Although Kosovo was ruled to be legally recognized as a state under international law, some countries are reluctant to establish formal contacts. Even after its independence, this changed little on its international status. Most of the countries that have refused to recognize Kosovo’s statehood because the process by which it became a state was illegal and there is a need for continued negotiation framework with Serbia. 7. The problem with Turkish Republic of Northern Cyprus The Turkish Republic of Northern Cyprus is a self-declared state that is only recognized by Turkey. The United States recognize Turkish Republic of Northern Cyprus as a territory of the Republic of Cyprus. Most nations do not want to make official contact with the entity because the United Nations considered the announcement of independence by the entity illegal. 8. Can a part of an existing state develop a new state? It is legally valid for an existing part of the state to form a state. In this case, an entity can withdraw from a state or states to form a new and separate area (Evans 221). Currently, several states have presented proposals to withdraw from the United States Union. This process is known as state secession. The international law neither outlaws nor recognizes the right of a group to secede from the state. International law promotes the principle of self-determination where individuals have a right to establish a social and political regime under which they live and solve all matters under their jurisdiction. This gives the people the right to exercise their cultural and political wishes without interference by other states (Evans 223-25). 9. Examples of Successful and unsuccessful Secession An example of successful secession is that of South Sudan from the Republic of Sudan and that of Kosovo. An unsuccessful secession is that of the Turkish Republic of Northern Cyprus and Nagorno-Karabakh. 10. Means of Recognition Recognition is about intention and should be implied or expressed. In order to apprehend how a state may recognize another state by implication, it is necessary to consider various circumstances. In essence, establishing a diplomatic association and bilateral treaties between states justify implication. Expressed recognition is when the state offers a congratulatory message to the new state for attaining sovereignty (Evans 231). By virtue of being signed in a multilateral treaty, a state cannot be seen as having expressed its recognition. For instance, Many Arab states and Israel are United Nations members, but this does not change the Arab’s non-recognition of the Israel nation. However, when the state supports the membership of an entity to the United Nations, then that is recognition. 11. Modes of Recognition There are two modes of state recognition, which include de facto and de jure. De facto recognition is a temporary recognition. This is because it can be withdrawn at any moment by states. Recognition is not legally binding but by fact. Notably, a state may have more than one governing authority and there may be the absence of ambassadorial representatives’ exchange. Additionally, succession of states may not occur. Therefore, de facto membership is not a guarantee to United Nation’s membership (Evans 233- 35). As opposed to the de facto recognition, de jure recognition is permanent and once granted cannot be withdrawn at any moment by any other state. In contrast to de facto recognition, it is rightful and legally binding. A state can only have one governing authority under de jure recognition and has ambassadorial representatives. Needless to say, there is the succession of states and de facto recognition is necessary for UN membership (Evans 237). 12. Circumstances where problem of Recognition of Government arise The decision to recognize a state involves recognition of the government. However, the recognition of the government is distinct from that of the state. The recognition of the government is only pertinent to the condition of the administrative authority. On the other hand, the recognition of the government would be talked over where there is an unconstitutional change of government. However, such an unconstitutional change of government can be recognized if the people accept it. In this case, the legal personality of the state will be affected. This was seen in Central America where United States used it to safeguard stability (Evans 239-40). 13. Criteria for Recognition of Governments When a state acknowledges a government, it implies that the state recognizes the individual or group of individuals as capable of performing as the organ of the country to symbolize it in international associations. The only criterion for the recognition of governments is its execution of active control over the state’s territory (Evans 240). 14. What are governments in Exile? A government in exile is a political organization of a given state that proclaims to be its legitimate government, but is not in a position to execute its legal powers since it resides in a foreign country. For a government in exile to exist the governing authority should reside in a foreign country (Evans 243). Examples of such governments are the Republic of Somalia government that resides in Kenya and Tibetan government in India. Works Cited Evans, Malcolm D. International Law. Oxford: Oxford University Press, 2010. Print. Read More