Is the Montevideo Convention Still Good Law?

by Julian Ku

This article by Steven Rosen about the legality of a Palestinian state and a short response by Josh Keating touch on this issue. In short, Rosen argues for some independent legal standard for determining statehood (and Palestine doesn’t meet it), such as the Montevideo Convention, while Keating basically argues that there are no such standards. A good and useful discussion to have. While I think Rosen has a pretty compelling argument on normative grounds, I think Keating’s views are a much better description of how the world actually works.

http://opiniojuris.org/2011/08/05/is-the-montevideo-convention-still-good-law/

8 Responses

  1. So if I understand the implications of Rosen’s logic, when Monaco’s independence was recognized in 1861, it could not in turn recognize the United States because that nation was de facto divided into the Union and Confederacy and a true ”national” Congress could not meet?

  2. No, the Montevideo Convention and other standards for statehood that look towards an entity’s empirical capabilities have been largely irrelevant since ~1960.  The debate over the statehood of post-colonial territories (such as Palestine) has centered on normative questions of whether these entities “deserve” statehood.  As Robert Jackson observed, decolonization put the normative cart before the empirical horse.
    For more on such “fictitious” states, see:
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1837496
     

  3. Thank you for this post. Fascinating and very important discussion, it makes it clear that the question of statehood is indeed one of the most challenging junctions between international law and politics. It appears that the discussions of this issue so far have conflated the two, law and politics – confusing, inter alia, internal arrangements with international status and non-legal terminology and concepts such as ‘UN recognition’.
    Some interesting and instructive further sources are:
    - Discussion on the International Law Observer – http://internationallawobserver.eu/2011/06/22/a-comment-on-palestine%E2%80%99s-statehood-recognition-and-un-membership/
    - M Kearney’s recently posted book chapter – http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1904898
    - V Kattan’s policy brief – http://al-shabaka.org/policy-brief/politics/state-palestine-case-un-recognition-and-membership
    - Al-Haq’s legal brief – http://www.alhaq.org/pdfs/qa_July_2011.pdf
     

  4. I note Mr. Finucane you go back to Jackson in Florida as evidence for this self-defense against non-state actors argument.  When does this self-defense model really stand for aggressive war?  Can’t we see Jackson’s Spanish “stirring up the Injuns” motif as just a pretext related to protecting Southern slavery and getting fugitive slaves back.  Even the recent CMCR decision was more circumspect about that experience than your draft.

    Why would the Seminoles not be viewed as the sovereign in their area? Had they made peace with the Spanish at that time accepting Spanish sovereignty? I was not under the impression that the Seminoles had accepted Spanish hegemony – or for that matter – any hegemony over them at that time.

    Secondly, even if there is such a self-defense rationale, why does not the incursion in the absence of consent by the host state not amount to an armed attack that triggers the inherent right of self-defense and/or Article 51 self-defense of the host state where the non-state actor is?

    I note your paper is being read by Ashley Deeks which I understand also has a paper at VJIL coming out at some point with the “unable and unwilling” line.  Sorry to seem like a broken record on this here but I have not had a satisfactory answer on this from anyone.

    That states have done these things asserting self-defense leaves me cold.  I vaguely remember a crossing into Poland ostensibly in “self-defense.”

    Best,
    Ben

  5. That last line was a bit pathetic BGD. I’m sure the domestic criminal legal doctrine of self-defence has been invoked by defence counsel in some egregiously abusive cases, but I’m also sure you don’t see it as a fundamentally flawed and malevolent doctrine that must be discarded.

  6. i am researching on this topic and what i found is that “the international politics had taken the possession of  the concept “recognition of legal personality in International law” since long time  and now we have no updated & certain criteria for legal person in IL. Through politics, the States in particular recognize only those entities from which it can fetch its interests and even through “economic organization recognition” the States fetch their interest and bargain Statehood with their interest.  The time has come to stand for taking this concept back from politics to law’s hand. Arbitrariness to be subjected through International law……….and gray areas to be defined by law !!!!

  7. Good point delenda est – it was there for effect.  I do not know why you go to domestic cases though because the domestic case has a sovereign who can sit in judgment on the self-defense argument.  On the state plane, there is no sovereign who sits in final judgment unless you want to call the Security Council and/or who wins the war the ultimate arbiters.

    I did it for effect because the trumpeting of the self-defense across borders by the attacking party but the ignoring or silence on the armed attack self-defense argument of the host country in this space is troubling.  The willingness to put together an adhoc “unable or unwilling”  (who decides?) gambit to make the attacking party “legitimate” I believe begs the question.  The host state has its reasons for doing what it does and attacking them triggers their right of self-defense.  We can’t just sit here with our heads in the sand and say because the US is going across borders that all is fine.  That’s hegemony law not international law.

    On the Seminole point, why does no one address this point.  Is it terribly uncomfortable to come to grips with the Seminoles not being a non-state actor but being a sovereign in their territory?  Very heavy isn’t it?  The history is so deep on these things and we blithely go over it without looking at the underlying truth.  It changes the entire way of looking at those events.  We have to be very suspicious of party lines and revisionist party lines if we are doing this kind of history.

    Best,
    Ben

  8. What I find noticeable about the piece by Rosen, irrespective of the view one takes on the Montevideo Convention’s ‘qualifications’, is the reversal effected with respect to the territory (or territories) claimed. Note that he argues that Fatah, the PA and the PLO are demanding title to lands and authority over populations they do not control (being under the rule of Hamas and Israel). First of all this evidences a confusion over norm and fact, since the fact that others control territory is taken to suggest that one cannot demand or claim such territory. Secondly, and this is the more important point, the title to territory to which he refers is not simply demanded but held. In other words, the Palestinians are not making a claim to the territory of another State, they are claiming that they possess title to the territory concerned. Note that the ICJ in its advisory opinion on the wall/fence noted that the course of the wall, encompassing major Israeli settlements on the West Bank, could lead to a fait accompli and de facto annexation (para. 121) and before this that events subsequent to 1967 have not altered the status of Israel as an occupying power in respect of these territories (para. 78). The suggestion by Rosen that GA action will create a State with borders that would annex territory under the control of other powers, is simply misleading because it suggests that those other powers have legitimate control of or title to the territory. Such is not the case, as under international law the Palestinian people holds the title to the territory concerned until such time as it has exercised its right to self-determination. Whichever of the entities concerned one considers to represent the Palestinian people (Hamas, Fatah, the PLO or the PA) has no impact on the entity in possession of the title to the territory.

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