By Eric Vandenbroeck and co-workers

Montevideo And The Geneva Conventions

In order to understand state formations in the modern era (like we illustrate underneath) one has to learn about the Montevideo Conference.

A state is an association of a considerable number of men living within a definite territory, constituted in fact as a political society and subject to the supreme authority of a sovereign..1This definition written in 1918 is one of the many antecedents to one of the important Montevideo Convention on the Rights and Duties of States of 1933 the only time in history that states decided to commit to a select criterion to provide a definition of a state. Surprisingly, the literature surrounding this event is rather scarce. There is hardly any evidence indicating why there was a need to codify statehood at that particular moment in history. Furthermore there is no evidence of why the four criteria were chosen for the definition of statehood and why the states insisted on these particular criteria. There is also no record of how the criterion was chosen and whether there were discussions or disagreements pertaining to it or whether it was chosen unanimously.2 British statesmen and legal scholars were the first to formulate the principles for the recognition of newly independent states. This was largely due to the necessity of dealing with the emancipation of the Latin America republic and their establishment as independent states.3 "The attempt of the great powers of Central and Eastern Europe to restore a European law of nations on the basis of a substantive principle of legitimate government was driven back to the view that new states and governments could only be recognized after a careful scrutiny of the lawfulness of the new states' formation and constitution.4

Recognition had to be refused if either the process of formation or the constitution were illegal or contrary to a claim of sovereign rights by the mother country. The official attitude of the British and American governments has been to regard recognition as an acknowledgment of facts. It was a declaration that a foreign community had acquired the qualifications of statehood and is willing to enter into the community of states. The revolt of the Spanish colonies, although not the first case in which the question of recognition had occurred, was the most important occasion for the formation of the Anglo-American practice on this subject. The spark of the independence movement in Latin America started with the French invasion of Spain in 1808. The loyal 'juntas' originally formed in the American Colonies in support of the Spanish Regency against the French invaders, were soon transformed into a number of separatist movements. The liberation of the Latin American States represented one of the most important cases of recognition in the nineteenth century. It signified a defeat of the principles advanced by the Holy Alliance and a victory for those advocated by Britain and the United States. In March 1822 the United States recognized the United Provinces of Rio de la Plata, Columbia, Chile and Mexico, and followed up with the exchanges of envoys. Two years later, Britain followed suit. Spanish protests at the time against these actions were based on the argument that Spain had not definitely lost effective control over these countries.5 The emergence of independent South American states resulted in the formulation of two important principles relating to recognition. First, Britain on the initiative of its Foreign Secretary, George Canning, made it clear to Brazil and Mexico that it viewed the abolition of the slave trade as a pre-condition for recognition. Recognition therefore, served as a policy tool providing incentives to countries and in a sense, forcing them to abide by international standards set in place. Secondly, since the process of decolonization and recognition of new states carried with itself the danger of states entering conflict over border issues, the South American States adopted the principle of uti possidetis, ensuring that the colonial borders were honored by the newly independent States. By acquiescing to this principle they prevented a significant number of territorial disputes. There have been other examples of additional conditions imposed on countries prior to their recognition. Lord Canning, one of the most prominent diplomats in Britain in his course of negotiations with the Latin American republics, introduced humanitarian considerations into the recognition of states by formulating four conditions for recognition. He stated that Britain would recognize a country if its government: had notified its independence by public acts; possessed the whole country; had reasonable consistency and stability; and had abolished the slave trade.6

It was clear that due to a lack of universal standards for recognition of new states, great powers themselves determined criteria which they used to establish which states qualified for recognition. As British requirements clearly demonstrated some of the conditions were extremely vague and open for interpretation by the recognizing country. The requirement of "reasonable consistency and stability" is a prime example of the extent to which recognition and its requirements were subjective. This was implemented more as a strategy to create leverage for powerful states to control not only which countries were recognized but also the timing of recognition i.e. recognizing powers giving themselves the authority to determine at which point in time the conditions in the country were considered 'consistent' and · stable'  Overall, one of the most significant changes that took place with respect to recognition was the fact that recognition no longer signified admission into the Christian European family of nations. Therefore, the prerequisite for acquiring "full international legal and representative capacity was no longer the cultural or religiously-based sense of belonging to the Christian European family of nations as had been presumed in respect of the United States by the French act of recognition of 1778.“7

Now the main requirement was development of a nation to a certain degree of civilization, abolition of slave trade being the main requirement. The importance of this new foundation of the international legal order did not become visible untillater.8 However, it impacted the way aspiring states developed and the policies they implemented. With the emancipation of Latin American State, one of the most important undertakings for the United States and the whole region of Latin America was to establish mechanisms for promoting peace on the American continent. Similarly to the great powers in Europe perceiving themselves as the guardians of peace in Europe, the United States viewed its role as ensuring peace and unity in Latin America. Ideas of Pan American cooperation are as old as the birth of the Latin American republics. A feeling of unity among these 'states', based on race, language and similar cultural and political heritage, was enhanced by the fear that Spain would attempt to regain its American colonies. The colonies realized that only security and political cooperation would make their continent safe for their future development as independent states.9

Latin American countries began organizing conferences and forming alliances for defense against foreign invasion and the peaceful settlement of inter-American disputes. The aim of these meetings was to develop closer political ties between the American countries and most of the proposals were political in nature. In 1877 a Congress of Jurists representing nine Spanish-American countries assembled at Lima to discuss the unification of private international law 10 Soon thereafter the United States initiated conferences with Latin American countries advocating more involvement. Both Latin America and the United States recognized that only by imposing agreements that were both legal and political would they achieve lasting and stable conditions. James G. Blaine, the U.S. Secretary of State, in his invitation of 1881 for a conference of the American states defined the purpose for the meeting to discuss methods of preventing war between the nations of America. This aim was also stressed by the United States Congress in 1882 when it requested the President to call a conference of the republics on the continent for the purpose of "discussing and recommending for adoption to their respective Governments some plan of arbitration for the settlement of disagreements and disputes that may hereafter arise between them.“11

In 1888 a bill authorizing the holding of a Pan-American conference passed both Houses of Congress and received the approval of President Cleveland. An invitation was extended to several Governments of the Republic of Mexico, Central and South America, Haiti, San Domingo and the Empire of Brazil to meet in Washington in 1889.Most of the items on the agenda of this First International Conference of American States, dealt with commercial or economic matters. However the conference did establish one of the mechanisms for peaceful dispute resolution. It stated: "The Republics of North, Central, and South America hereby adopt Arbitration as a principle of American International law for the settlement of the differences, disputes or controversies that may arise between two or more of them.“12 Another concrete achievement was the establishment of the Commercial Bureau of the American Republics in Washington, an organization which later became the Pan American Union.13

The Second International Conference of American States met at the initiation of President McKinley in 1889 and was held in Mexico from 1901 until 1902. At this conference, the same types of questions were considered as at the First Conference. One result of this conference was a protocol in which the American republics recognized as a part of "Public International American Law", the principles of the First Hague Conference 14 for the pacific settlement of international disputes. A number of the Latin American states signed a treaty on compulsory arbitration and the representatives of seventeen countries, including the United States, signed a treaty for the "Arbitration of Pecuniary Claims".15 The Third International Conference of American States, held in Rio de Janeiro in 1906, adopted a resolution "to ratify adherence to the principle of arbitration; and to recommend to the Nations represented at this Conference that instructions be given to their Delegates to the Second Conference to be held at The Hague, to endeavor to secure by the said Assembly the celebration of a General Arbitration Convention." Significantly, a Convention on International Law was also adopted, and the International Commission of Jurists provided for in this agreement held its first meeting in Rio de Janeiro in 1912. This was the beginning of the efforts to advance peaceful international relations by the gradual codification of international law. At the time many Latin American countries felt that political agreements could only make a limited contribution to countries abiding by signed commitments. They perceived that only legal standards could make a lasting impact on state practices. One of the primary concerns of the Latin American countries was the question of intervention by the United States into the affairs of Latin American countries. This issue was especially debated at the Havana and Montevideo conferences.16

 Along with efforts towards codification, the treaty signed in Washington D.C. on December 20, 1907 by Costa Rica, Guatemala, Honduras, Nicaragua, and EI Salvador established the first permanent International Court of Justice.17 Unfortunately, due to political events and turmoil, it went out of existence. This effort pointed to the fact that the Latin American countries and the United States were undoubtedly moving in the direction of establishing norms and promoting the development of international law. The development of new standards and regulations as prescribed by international law rather than politics only, was perceived as a clear indication that the conferences were making a lasting and more profound contribution to peaceful co-existence of nations. Another development at the time was the fact that countries began to rely on international courts for peaceful resolution of conflict. The Fourth International Conference of American States meeting at Buenos Aires in 1910 adopted a general claims convention providing for the submission of claims to the Permanent Court of Arbitration at The Hague, unless both parties agreed to constitute a special jurisdiction.18

The promise for world peace then emanating from The Hague undoubtedly made it appear less necessary for the American republics to take further action. This new change clearly showed countries' desire to develop international standards and universal codes supported by international institutions that would ensure that international law principles were upheld. New developments, which took place in the field of international relations between 1910 and 1923, gave the development of American peace machinery a new incentive. Several factors during this period aided the program of Pan-Americanism. When the United States accepted the mediation of the ABC powers (Argentina, Brazil and Chile) in its dispute with Mexico and joined these countries in a meeting at Niagara, there was profound satisfaction in Latin America. Comments in the press of both North and South America were unanimously favorable, and the other members of the Pan American Union supported the idea of joint mediation.19 The Latin American countries perceived it as a clear indication that the United States was willing to abandon intervention for more diplomatic efforts such as negotiations. At the Santiago conference in 1923 the most decisive step toward the establishment of definite and far-reaching peace machinery was made through the adoption of the "Treaty to Avoid or Prevent Conflicts between the American States", also known as Gondra Treaty. The treaty was significant because for the first time a Commission of Inquiry was established. Even though there had been previous attempts to develop such a commission, 279 the Gondra Treaty 20 went much further and attempted to develop a permanent commission that might be called into action whenever a dispute arose or there was danger of conflict in international relations.21

 Moreover, the Gondra Treaty set up two diplomatic commissions one in Washington and the other at Montevideo. They were made up of three senior diplomatic representatives of American states and were entrusted with the appointment of the specific commissions that would serve as agents of inquiry whenever a controversy or dispute arose between two or more states, acting on the request of any signatory state. Along with dispute resolution mechanisms, before any further advancement could be made in the sphere of international law, it became apparent that there was a need to establish a sense of equality among states. This affirmation was necessary in order to establish firm legal principles. The American Institute of International Law while doing preparatory work for the International Conferences of American States, restated in 1924 a fundamental principle which it had already established on January 6, 1916, in its Declaration of the Rights and Duties of Nations: "Every nation is in law and before the law the equal of every other nation belonging to the society of nations, and all nations have the right to claim and, according to the Declaration of Independence of the United States, 'to assume, among the Powers of the Earth, the separate and equal station to which the laws of nature and of nature's God entitle them.22 In the project of a convention on "Nations" which the institute submitted to the Pan American Union in 1925 for the consideration of the International Commission of Jurists23 at its meeting in Rio de Janeiro, article 2 read: "Nations are legally equal. The rights of each do not depend upon the power at its command to insure their exercise. Nations enjoy equal rights and equal capacity to exercise them.“24 The Rio de Janeiro Commission of Jurists, composed of members officially appointed by all the American Republics, added to this article, in its 1927 meeting, an even more radical form: "States are legally equal; enjoy equal rights and have equal capacity to exercise them. The rights of each State do not depend upon the power at its command to insure their exercise but only upon the fact of their existence as personalities in international law.“25 The International Commission of Jurists met in Rio de Janeiro in 1927 and submitted to the Havana Conference twelve projects on public international law and a code of private international law. One of the projects relating to the rights and duties of states included the phrase: "No state may intervene in the internal affairs ofanother".26

This concept of non-intervention was to become one of the central topics during all conferences. The unfavorable conditions surrounding the Sixth Conference or Havana Conference in 1928 due mainly to the aloofhess of certain states like Argentina and the suspicions and resentments that occupation of Nicaragua by the United States Marines had aroused, prevented any further developments in the maintenance of peace. However the Washington Conference of American States on Conciliation and Arbitration still met in Washington from December 10, 1928 to January 5, 1929 and adopted a resolution condemning war as an instrument of national policy.27 The American republics, at this conference, expressed the "most fervent desire" to contribute "in every possible manner to the development of international means for the pacific settlement of conflicts between States" and resolving that "the American Republics adopt obligatory arbitration as the means which they will employ for the pacific solution of their international differences of a juridical character.“28 The Conference also adopted a General Convention of InterAmerican Conciliation by which the parties agreed to submit to the procedure of conciliation all controversies which have arisen between them for any reason and which it may not have been possible to settle through diplomatic channels. This convention in addition gave the commissions of inquiry established by the Gondra Treaty the character of commissions on conciliation as well as inquiry. The Conference adopted a "General Treaty of Inter-American Arbitration" by which the parties "bind themselves to submit to arbitration disputes that arise between them. Moreover, the Conference adopted a "Protocol of Progressive Arbitration" by which any party to the General Treaty may at any time deposit with the Department of State "an appropriate instrument evidencing that it has abandoned in whole or in part the exceptions from arbitration stipulated in the treaty. The Convention was ratified by fourteen of the twenty-one American Republics and the General Treaty and Protocol by twelve.29

The United States signed the arbitration treaty on January 19, 1932 subject to the reservation that the treaty should not be applicable to disputes arising out of previously negotiated treaties.30 Another important development was the Treaty for the Renunciation of War, known as the Pact of Paris which was adhered to by all of the Latin-American states, with the exception of Argentina, Bolivia, Brazil, El Salvador, and Uruguay. Of these, Bolivia, EI Salvador, and Uruguay expressed an intention to abide by it, while Argentina agreed to adhere in exchange for the signature of the United State to the Argentine Anti-War Pact, an agreement informally negotiated at the Montevideo Conference of 1933. In addition, every Latin American republic with the exception of Ecuador became a member of the League of Nations. The Washington Conference was one of the most important meetings in modem history for the promotion of peace machinery and the outlawing ofwar.31

However, lacking measures of enforcement, it achieved very little and left Latin American states insecure about their future with respect to intervention and security. At the beginning of the twentieth century, the Americas were again the focus of developments in recognition policy. Recognition or refusal to recognize revolutionary regimes was seen as a political tool in providing incentives to governments to abide by conventions and agreements. Both President Wilson's policy of"constitutionalism“32 and the Tobar doctrine,33 contained in Latin American conventions of 1907 and 1923,34 sought to protect constitutional govenunents against revolution by threatening revolutionary regimes with non-recognition. Recognition was widely construed as intervention in the internal affairs of States, and was not able to withstand its rival, the Estrada doctrine35 of 1930. Latin American countries promoted the Tobar Doctrine which provided that: "The American Republics for the sake of their good name and credit, apart from other humanitarian or altruistic considerations, should not intervene in the internal dissensions of the Republics of the Continent. Such intervention might consist at least in the non-recognition of de facto, revolutionary governments created contrary to the constitution.“36 It is clear that both Wilson and Tobar were motivated largely by considerations of humanity and respect for democratic institutions.37

The Tobar Doctrine dominated the state practice of that period. This period was also characterized by instability and uncertainty in Latin America. Henry L. Stimson, Secretary of State in 1931 illustrated the intolerable situation in the Western Hemisphere characterized by economic depression and unemployment, which brought instability and unrest to many countries. In the short period of only few years starting in March 1929, Latin America witnessed seven revolutions resulting in the forcible overthrow of governments in six countries.38 Stimson addressed the recognition policy of the United States towards new governments as well as the sale and transportation of arms and munitions to the countries involved in the strife. He referred to the Monroe Doctrine and clarified that it did not stand for "suzerainty over our sister republics" but rather it represented "an assertion of their individual rights as independent nations".39 It was a declaration that the independence of nations was vital to the safety of the United States. With respect to recognition, Henry Stimson defined recognition of a new state as the "assurance given to it that it will be permitted to hold its place and rank in the character of an independent political organism in the society of nations.“40 President Woodrow Wilson's government sought to put this new policy into effect in respect to the recognition of the then Government of Mexico headed by President Victoriano Huerta. Although Huerta's government was in de facto possession, Wilson refused to recognize it, and he sought through the influence and pressure of his office to force it from power. Wilson's policy differed from his predecessors in seeking actively to propagate the development of free constitutional institutions among the people of Latin America.40

In 1907 five republics of Central America: Guatemala, Honduras, Salvador, Nicaragua, and Costa Rica were engulfed in conflict and their governments were under constant revolutionary attacks. These countries met at the joint suggestion and mediation of the governments of the United States and Mexico and agreed to the following: "The Governments of the high contracting parties shall not recognize any other government which may come into power in any of the five republics as a consequence of a coup d' etat, or of a revolution against the recognized government, so long as the freely elected representatives of the people thereof, have not constitutionally reorganized the country.“40 The policy of denying recognition to governments that were formed by illegitimate means was followed in the case of Guatemala. On December 16, 1930 General Orellano, the leader of the revolt, set himself up as the provisional president of the republic. On December 22, 1931, the United States notified him that in accordance with the policy established by the 1923 treaty he would not be recognized. Soon thereafter, Orellano resigned and retired from office. On January 2, 1931 through the constitutional forms provided in the Guatemalan Constitution, Senor Reina Andrade was chosen provisional president by the Guatemalan Congress and immediately called a new election for a permanent president. Secretary of State Henry L. Stimson pointed out that: "since the adoption by Secretary Hughes, in 1923, of the policy of recognition agreed upon by the five republics in their convention, not one single revolutionary government has been able to maintain itself in those five republics.“41

It was clear that the Latin American countries and the United States have embarked on a road to cooperation and that the agreements they achieved with respect to recognition were being enforced. By the nineteenth century, the great powers were claiming an international legal right to protect their nationals and their nationals' property anywhere in the world, a right  that could be pursued according to a variety of means, from diplomacy to armed force. The legality of intervention was first challenged by the Argentine diplomat and jurist Carlos Calvo (1822-1906), who formulated what became known as the Calvo Doctrine.42 Its two core principles included the absolute right to freedom from intervention, and the absolute equality of foreigners and nationals. Based on the dismal Latin American experience with international intervention, Calvo argued that the countries of Latin America were entitled to the same degree of respect for their internal sovereignty as the US and the countries of Europe.43 He proposed that states should be free, within reason from interference in the conduct of their domestic policy. Calvo's principles did live in the "Calvo Clause", an attempt to implement the doctrine by including it in contracts with foreigners. Calvo argued that foreign nationals could not lay claim to greater protection in their disputes with sovereign states than the citizens of those same countries. Foreign nationals who chose to establish themselves within the territorial confines of the host state through direct investment, for example, were entitled to no greater protection from state action than those nationals residing within the acting state. These precepts came to be reflected in the Mexican Constitution's Calvo Clause which prohibits foreign investors from seeking the protection of their home state in any dispute with the Mexican host state.44 His doctrine was transformed from a general legal claim into a binding personal commitment, freely accepted by the signers of contracts not to call on their own governments in cases of contractual disputes.307 In the form of contractual clause Calvo's doctrine has been widely implemented in Latin America, and some constitutions, such as that of Mexico, even required it in contracts with foreigners. The greatest obstacle to Pan-American cooperation was the Latin American policy of the United States. This policy was based on the Monroe Doctrine 45, the meaning of which radically changed during the century following its promulgation in 1823. At the beginning the doctrine was regarded as an instrument for defense of the United States. Under the doctrine the U.S. claimed the right to prevent acts of European aggression on the American continents, but did not claim the right to control the acts of Latin American states.45

President William McKinley (1897-1901) had allegedly sought to avoid war with Spain when he was elected in 1896. However a series of events, including the mysterious sinking of the battleship U.S.S. Maine in a Cuban harbor on February 15, 1898, as well as sensationalist newspaper reporting about Spanish atrocities against Cuban insurgents, increased the popular pressure for U.S. intervention to liberate Cuba from Spain. On April 11, 1898 McKinley asked Congress for authority to use force against Spain to defend U.S. interests. Congress complied and on April 24, Spain declared war on the United States, which was followed by a congressional declaration of war against Spain the next day.56 Following these events Theodore Roosevelt's famous corollary to the Monroe Doctrine took on a new interpretation. According to it, the United States was justified in intervening in the internal affairs of the Latin American states not only to protect its own interests, but also European interests in the hemisphere. President Theodore Roosevelt pointed out that "the American continents are ...not to be considered as subjects for future colonization by any European power. . . the Monroe Doctrine is a declaration that there must be no territorial aggrandizement by any non-American power at the expense of any American power on American soil.“57 Roosevelt added that "in case of financial or other difficulties in weak Latin American countries, the United States should attempt an adjustment there of lest European Governments should intervene, and intervening should occupy territory.“58

An important step towards non-intervention was taken by the United States in 1898 when it took part in the Pacific Settlement Convention of the first of the Hague Conferences. IN the first paragraph of Article 27 it provided: The signatory Powers consider it their duty, if a serious dispute threatens to break out between two or more of them, to remind these latter that the Permanent Court is open to them.“58 The convention was signed by the delegation of the United States, with a reservation to this article, and was advised and consented to by the Senate, with the reservation stated as a part of the act of ratification: "Nothing contained in this convention shall be so construed as to require the United Stats of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the political questions of [or] policy or internal administration of any foreign state; nor shall anything contained in the said convention be construed to imply a relinquishment by the United States of America of its traditional attitude towards purely American questions.“59

The Pacific Settlement convention was ratified with this reservation by President McKinley on April 7, 1900. The ratifications containing this reservation were deposited on September 4, 1900 and the convention was proclaimed on November 1, 1901 by President Theodore Roosevelt. Theodore Roosevelt in his 1902 message to the Congress pointed out: "More and more, the increasing interdependence and complexity of international political and economic relations render it incumbent on all civilized and orderly powers to insist on the proper policing of the world." m During his presidency, the United States thought of itself as a protector utilizing both diplomatic and military means to safeguard the territory of Latin America. The United States was willing to uphold the promise of "non-interposition" to use the language of the Monroe Doctrine or no "intervention" or "intermeddling" of any kind in the internal or foreign affairs of the Latin American countries.60 It literally became a sheriff for the Western Hemisphere or at least for those countries in the close proximity to the Panama Canal.61 Examples of the new policy were evident everywhere. It assisted in bringing the Republic of Panama into existence in 1903 and in return Panama concluded a treaty with the United States providing it with wide power of intervention in Panama and authorizing it to construct an Americanized and militarized cana1.62

At the end of the World War I a number of prominent Americans gave warning that because of the Monroe Doctrine, the United States would not consent to the intervention of the League of Nations in the Western Hemisphere. The fear of Latin Americans was increased in 1921 when Secretary of State Charles Evans Hughes appointed by the Coolidge administration, sent a battleship and 400 marines to Panama for the purpose of forcing it to turn over certain territory to Costa Rica, following an arbitral award which Panama had protested as invalid.63 This was a clear indication that the period of intervention was not over. When the Sixth International Conference of American States convened in Havana from January 16 to February 20, 1928, U.S. troops were occupying Haiti and fighting a guerrilla war in Nicaragua against the peasant army led by Augusto C. Sandino. Charles Evans Hughes headed the U.S. delegation to the conference. Resentment increased in Latin America against the U.S. intervention in the region, and Washington was expecting a great deal of criticism. Two important issues debated at Havana were the question of intervention and codification of public international law. Unfortunately, the only decision that was reached was to defer the final decision until the Seventh Conference. One of the projects relating to the codification of public international law, entitled: "States: Existence-Equality-Recognition," contained a provision that "no state may intervene in the internal affairs of another.“64

As head of the delegation Charles Evans Hughes in his address of February 18 declared: "From time to time there arises a situation most deplorable and regrettable in which sovereignty is not at work, in which for a time in certain areas there is no government at all. What are we to do when government breaks down and American citizens are in danger of their lives? Are we to stand by and see them killed because a government in circumstances which it cannot control and for which it may not be responsible can no longer afford reasonable protection? Now it is the principle of international law that in such a case a government is fully justified in taking action - I would call it interposition of a tempo~ character for the purpose of protecting the lives and property of its nationals."65 Put in such a context intervention was perceived as a noble act; however Latin American countries could not accept it as their reality and wanted to see a change in policy. The roots of transformation in U.S. policy toward Latin America known as the Good Neighbor Policy are associated with the administrations of Presidents Woodrow Wilson, Calvin Coolidge and Herbert Hoover. The phrase "good neighbor" was used by President Hoover during a ten-country tour of Latin America between his election in 1928 and his inauguration in 1929. The new direction that Hoover seemed to be promising was officially launched and implemented by President Franklin D. Roosevelt, who served in the White House from 1933 until 1945. As early as 1928, Franklin Roosevelt had publicly criticized the Coolidge and Harding administrations for their failure to do more to create good will in Latin America. He denounced the habit of intervention, though as assistant secretary of the Navy in the Wilson administration, Roosevelt had played a key role in the U.S. occupations of Haiti, the Dominican Republic and the Mexican port of Veracruz. The United States attempted to reinterpret the Monroe Doctrine and in the spring of 1930, the State Department published a memorandum written by J. Reuben Clark when Under-Secretary of State, which rejected the Theodore Roosevelt corollary of the Doctrine under which the United States had claimed the right to police the Caribbean.66 But the Memorandum officially endorsed by the Hoover administration declared that intervention might still be justified by the necessities of self defense. Both Mexico and Argentina when joining the League of Nations in 1931 and 1933, made reservations declining to recognize the Monroe Doctrine under Article XXI of the Covenant. In his inaugural address on March 4, 1933, Franklin Roosevelt declared that his world policy would be that of ''the good neighbor - the neighbor who resolutely respects himself and, because he does so, respects the rights of others - the neighbor who respects his obligations and respects the sanctity of his agreements in an with a world of neighbors." He used the term "good neighbor" specifically in connection with LatinAmerica in this speech before the Governing Board of the Pan American Union in Washington, on April 12, 1933, which was the "Pan-American Day.“67 President Franklin D. Roosevelt's Good Neighbor Policy encountered its first serious test in Cuba, where open warfare had erupted against the dictatorial government of Gerardo Machado. Opponents of Machado seemed to be leading the country toward a social revolution. In May 1933, Roosevelt appointed his assistant Secretary of State, Sumner Welles, as the U.S. Ambassador to Cuba, with orders to resolve the crisis through mediation. Machado resisted Welles's persistent efforts to convince him to resign until the Cuban army turned against him in August and forced Machado to leave. Welles efforts were frustrated, however, by his inability to control subsequent events. In September, Welles choice for president, Carlos Manuel de Cespedes, was overthrown and university professor, Ramon Grau San Martin, took power with the support of a group of army sergeants, corporals and enlisted men led by Sergeant Fulgencio Batista. Refusing to recognize Grau San Martin's reform-oriented government, the United States continued to seek an alternative, which it finally achieved in January 1934 when Colonel Fulgencio Batista, switched his support from Grau San Martin to Carlos Mendieta.77 In this case non-recognition of the government was used as a coercive tool to prevent Grau San Marin from coming to power. As the Hoover and Roosevelt administrations moved closer toward pledging Washington to a policy of nonintervention, Latin Americans insisted that Washington make it official. To them, a legally binding promise renouncing the right to intervene under any circumstance was the most effective way for the United States to prove its commitment to nonintervention. Such a promise had been asked of Washington at Havana in 1928 and denied. It wasn't until Montevideo that the wish of the Latin American countries was granted by the government in Washington.

 

Montevideo Conference

There was little enthusiasm evident in the events preceding the Montevideo Conference. A number of the influential foreign offices in South America cabled expressing their doubts about the chances of the success of the conference. This was largely based on the outcomes of previous conferences. Even though some ended in agreements, the actions of states indicated they were not prepared to give up their current practices. Skepticism was also stemming from the temporary failures of the London Economic Conference and the Geneva Disarmament Conference. According to Secretary Hull: "the statesmanship and leadership and public opinion in many other parts of the world had become stagnant, and passive, with the result that hopes of the friends and peace and progress and the supporters of general economic rehabilitation were extremely  low".78 At the time there were even comments regarding possible postponement of the conference until the conditions in Latin America became more stable and open to cooperation.326 Parallel to this air of skepticism, there was a movement to advance international law through codification. The first Conference for the Codification of International Law was held at The Hague from March 13 to April 13, 1930. The outcome of the conference were a Draft Convention on Nationality, a Protocol on Military Obligations, and two Protocols on Statelessness, submitted to the further consideration of the govemments.79 In the preamble of the resolution of the Assembly of the League of Nations which was adopted October 3, 1930, the following outline of policy for codification is stated: "That the Assembly decides to continue the work of codification with the object of drawing up conventions which shall place the relations of States on a legal and secure basis without jeopardizing the customary international law which should result progressively from the practice of States and the development of jurisprudence.“80

Professor A. Pearce Higgins, of Cambridge University, commented upon The Hague Codification Conference as follows: "The word "codification" has several meanings, and in the sense in which it is understood at The Hague, it meant more than the compilation of a systematic statement of the existing law on the several subjects, which is its ordinary significance. It meant the making of new rules of law, in other words, legislation.81 Against all odds, the Seventh International Conference of American States held at Montevideo December 3-26, 1933, proved to be one of the most successful and promising in accomplishment of all of the Pan-American conferences.33o It marked the departure from previous American conference as it allowed the observers from non American states (Spain and Portugal) and from a non-American organization (the League of Nations) to be admitted.82 Moreover, by 1933 the U.S. marines were finally out of Nicaragua, and President Roosevelt's policy of non-intervention in Cuba opened the door for a new Pan American policy. The Conference showed a movement of states toward greater cooperation with European agencies for promoting better international relations, and removing many sources of suspicion, fear and initation between the United States and Latin American.83 In addition the proposal was made that all nations give their adherence to the existing peace convention since the Gondra Pact that have not been signed.84 This was an effort to show commitment to peace and non-intervention into the affairs of other states. The agenda of the conference was quite lengthy consisting of eight chapters and comprising twenty-eight major topics covering social, political, economic, scientific, and literary issues. They included both broad concerns such as the organizations of peace and problems of international law as well as economic and financial problems to specific issues of political and civil rights of women and transportation.334 Amazingly, there were a total of ninety-five resolutions adopted by the conference. From the beginning the Conference focused on two most important concerns: 1) to give Pan Americanism an economic content, through emphasis that the American Republics must remove the barriers to trade and reduce tariffs, abolish quota systems, and other restriction of similar nature; and 2) to establish on a firm foundations the doctrine of the equality of States, with a declaration against the intervention of one State in the internal affairs of another.85 It was precisely around these two questions the most important discussions and decisions were centered. The conference addressed destructive commercial policies, demanding that rising trade barriers be lowered to moderate level and it developed a comprehensive program for economic rehabilitation, which combined a policy of mutually profitable international trade with domestic economic policies and programs.86

At Montevideo, there were six conventions that were signed dealing with such diverse subjects as nationality, extradition, political asylum, teaching of history and rights and duties of states.87 Of great interest to the Conference was the Conference's adoption of a report on the "Rights and Duties of States". This topic was resolved in Montevideo. This document proposed four criteria of statehood. It stated in 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.“88 Statehood, according to this definition, is not a factual situation, but a legally defined claim to right, specifically to the competence to govern a certain territory. In addition to statehood the Montevideo convention embraced such matters as recognition, equality, non-intervention, and territorial inviolability. Article VIII stated: "No state has the right to intervene in the internal or external affairs of another."89 The sovereignty of states was also re-affirmed in another declaration which stated: "The territory of the States is inviolate and may not be the object of military occupations or of other measures of force imposed by other States, either directly or indirectly, or for any motive, or even of a temporary nature.“90

Willingness of the United States to abide by this principle was evident in the speech made by President Roosevelt shortly after the close of the conference. Speaking before the Woodrow Wilson Foundation on December 28, 1983 he asserted: "The definite policy of the United States from now on is one opposed to armed intervention.“91 Secretary of State Hull still insisted on adding a "reservation“92 that left the door open to intervention under certain circumstances, that were "generally recognized and accepted" by the law of nations.93 With respect to the recognition of states, Article 3 of the Convention stated: "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. The exercise of these rights has no limitation than the exercise of the rights of other states according to internationallaw."94

Article 6 of the Convention pointed out: "the recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.“95 The Conference recognized that the existing peace instruments would be sufficient to guarantee peace, the progress of law and international justice and the abolition of the use of force and violence only if they were ratified by states. Therefore, under Chapter I of the Conference titled "Organization of Peace" a resolution was passed for all member states to ratify the peace treaties. These instruments included: the Treaty for Avoiding and Preventing Conflicts (Gondra Treaty) signed at Santiago, Chile in 1923; Kellogg-Briand General Pact for the Renunciation of War, signed at Paris, in 1928; General convention of Inter-American Conciliation, signed at Washington, in 1929; General Treaty of Inter-American Arbitration, signed at Washington in 1929; Anti-War Pact, initiated by Argentina and signed at Rio de Janeiro, in 1933.96 The Conference adopted a resolution inviting the countries represented to adhere to those instruments. The significance of the ratification of peace instruments was also pointed out by Secretary Hull in an address before the National Press Club, February 10, 1934, shortly after his return from Montevideo: "The peace agencies of this hemisphere, five in number, hitherto inefficient because unsigned by some 15 governments, with the result that two wars had been permitted, were promptly strengthened by the signatures or pledges to sign of the 15 delinquent governments. Our peace machinery as thus strengthened will, according to all human calculations, prevent future wars in this hemisphere.“97

Even though it was not initially on the agenda, the Conference also dedicated itself to finding a peaceful means to ending the war between Bolivia and Paraguay over the Chaco region. On August 3, 1932 nineteen American states declared that no territorial arrangement should be recognized which had not been obtained by peaceful means. 98 The anti-war pact, initiated that same year by Argentina and signed on October 10, 1933 at Rio de Janeiro by six American states, reiterated this declaration. For example, previously all of the efforts including a Commission of Neutrals presided over by the United States, or the ABC-Peru group (Argentina, Brazil, Chile and Peru), and the League Council had failed to establish peace in the Chaco. On July 3, 1933, the League Council decided to send a commission to the Chaco to negotiate agreements for arbitration and cessation of hostilities and to conduct a full inquiry into the dispute. The League commission then went to Montevideo in hope that the Conference would offer some solutions for the dispute. The issue was of such relevance that the President of Uruguay, Dr. Gabriel Terra used his opening remarks to urge all states present to work hard in finding peaceful solutions through arbitration to the conflict. 99

At the first meeting, of the Committee on the Organization of Peace, a subcommittee on the Chaco was appointed, composed of the chairmen of the delegations of Argentina, Brazil, Chile, Peru, Mexico, Guatemala, and Uruguay. The purpose of this effort was to study the possibilities and the way in which the conference could cooperate with the Committee of the League of Nations that was inquiring into the situation of the Chaco. One week before the end of the conference, a ceasefire was announced which was extended until January In addition to the Convention on the Rights and Duties of States the conference at Montevideo approved three other conventions on international law: on nationality, on extradition, and on political asylum. It furthermore approved a program for continuing in the future the work of codifying international law. In article LXX on the Methods of Codification of International Law the conference stated: "That the codification of international law must be gradual and progressive, it being a vain illusion to think for a long time of the possibility of carrying it out completely."100

Pointing out that Conference acknowledged the necessity of adopting new methods and procedures for the organization of the work of Codification of Public International Law and of Private International Law in America, the Conference stressed that it is necessary to do practica work and to seek the conjunction of the juridical viewpoints.101 With reference to this point, a resolution was passed providing for: "1) the maintenance of the International Commission of Jurisconsults created by the Rio Conference of 1906 and to be composed of jurists named by each Government; 2) the creation by each Government of a national committee on codification of international law; 3) the creation of a commission of experts of seven jurists with the duty of organizing and preparing the work of codification.“102 While the Sixth Conference of Havana condemned wars of aggression, the Montevideo Conference extended that condemnation to all wars.103 President of Uruguay Gabriel Terra, in his address of the Conference pointed out that there is a parallel between the programme of work of the Conference and the general programme upon which the League of Nations has been working on the basis of universality. He found the similarity "inevitable as inter-state relations turn upon questions of pacific settlement, economic and commercial relations, improvement of legal and judicial procedure, and progress through greater uniformity in social and humanitarian legislation."104

President Terra stated: "Let us repeat with President Roosevelt, the utterance of his illustrious predecessor, McKinley, in his public message of 1909: The period of exclusion has ended. The period of cooperation and expansion of trade and commerce is the problem of the moment. The treaties of reciprocity are in harmony with the spirit of the times, but not so the measures of retaliation.“105 Consensus on territoriality and effectiveness by the eve of Montevideo probably explains the lack of analysis regarding the elements of the Convention. However, consensus obscured that these concepts were not absolute. Though the Montevideo criteria were very much a part of the international legal environment by 1933, territorial power and effectiveness had not monopolized state theory for very long. Well into the nineteenth century, statehood was thought to be bound to a set of political criteria as much or more than the fact of territorial power. Legitimism was at times the prevailing concept in theory and practice concerning statehood. The interesting question regarding the conference is why Pan-American powers in 1933 decided to announce what constitutes a state? At that time in history both notions of effectiveness and territoriality were prevalent in international affairs. In addition several Latin American states had displayed the inclination before the conference to codify international norms as was evident in Estrada and Tobar Doctrines. Inclination for codification reflected the Roman law roots of Latin America legal system. The American Law Institute (ALI) was established in 1923 to promote the "clarification and simplification of the law and its better adaptation to social needs." The United States at the time was in the Restatement movement. The Restatements, the ALl's principal work product, were formulated by committees of judges, scholars, and practitioners selected for their reputation in different fields of law.105

It is possible that the same quasi legislative, quasi-academic inspiration to organize the common law into code-like compilations which had moved the ALl had also moved United States State Department lawyers. Internationalism prevalent in much of the interwar world made for an environment conducive to the Montevideo agenda.106 One point that is of crucial importance and at the time was a surprise to other countries was the Reservations that the delegation of the United States made in signing the Convention on the Rights and Duties of States. While the delegation did recognize the importance of non-intervention and it committed to upholding this principle, it felt uneasy about committing to the eleven articles of this convention dealing with the most fundamental questions. The reservation stated the following: "I think it unfortunate that during the brief period of this Conference there is apparently not time within which to prepare interpretations and definitions of these fundamental terms that are embraced in this report. Such definitions and interpretations would enable every government to proceed in a uniform way without any difference of opinion or of interpretations.“107

This statement and reservation clearly shows the uneasiness on the part of the United States to accept the definitions of statehood and recognition. It further points to the fact that Montevideo was never truly about those matters but rather about non-intervention. The numerous failed attempts to codify statehood in the period after Montevideo clearly show the ambiguity of the terms and unwillingness and uneasiness of the countries to commit to a blue print on such fundamental terms. Post-Montevideo attempts toward codification Montevideo Conference provided only the basic criterion for statehood. Even though the criteria are rather vague and insufficient requirement for statehood, to this day it remains the single most referred to document with respect to questions of statehood. In addition, it remains the only time in history that countries were willing, able and the conditions in the world enabled them to codify statehood. The Montevideo definition is often quoted on the subject of recognition of States. The Institute of International Law in 1936 defined recognition as "the free act by which one or more States acknowledge the existence on a definite territory of a human society politically organized, independent of any other existing State, and capable of observing the obligations of intemational law, and by which they manifest therefore their intention to consider it a member of international community.“108 The definition of recognition became a replica of the Montevideo Convention. The two concepts from that point were often blurred together which caused for a lot of confusion and ineffectiveness. Following Montevideo, the issue of recognition was again addressed at the meeting of the International Law Commission between 12 April and 9 June 1949. At that meeting, it was pointed out that the question of recognition was mentioned in paragraph 42 of the Secretary-General's memorandum and noted that the transition from individual action of states to collective recognition would mark a step forward in the development of international law . It was further stated that the question had often been considered a political rather than a legal question.108 Furthermore, the chairmen of the meeting reiterated that the question of recognition was not resolved at The Ninth International Conference of American States.110 The debate referred back to the Draft Declaration on the Rights and Duties of States and questioned whether there should be universally accepted criteria as a guide for deciding which bodies of people could be recognized as states.111

The International Law Commission concluded that the question of recognition was too delicate and too fraught with political implications to be dealt with in a brief paragraph in the Draft Declaration on Rights and Duties of States, and it noted that the topic was one of fourteen topics the codification of which has been deemed by the Commission to be necessary or desirable.113 The topic of recognition of states and governments has been debated by the International Law Commission from 1949 to 1973. At the 1973 session, during a discussion on the future work programme, the consensus was that: "The question of recognition of states and governments should be set aside for the time being, for although it had legal consequences, it raised many political problems which did not lend themselves to regulation by law.“112

There have also been numerous unsuccessful efforts to codify statehood. General Assembly Resolution 3314 of 14 December 1974 adopted a definition of aggression, explained in Article 1 that the term State is used without prejudice to questions of recognition. In the same year, the International Law Commission selected fourteen topics for codification, one of which was the recognition of States and governments.113 One member of the Commission concluded "the question of recognition of States and governments should be set aside for the time being, for although it had legal consequences, it raised many political problems which did not led themselves to regulations by law.“114 The subject was never codified. Although a definition of the word 'State' was not set forth in a separate legal instrument, the International Law Commission did concern itself with suggested definitions in the framework of general declarations or conventions. The first attempt to clarify the meaning of the term 'State' was made in 1949 with regard to a draft Declaration on the Rights and Duties of States. Special Rapporteur Alfaro had not included an article on statehood in his draft, as he thought that ''the definition of the State had no place in a Declaration on the Rights and Duties of States.“115

He stated that "if a country did not satisfy the conditions required for the existence of a State, it was not a State; on the other hand, if a State existed, that meant that it had fulfilled the conditions necessary for its existence and that it could not be called upon to fulfill those conditions.“116 India and the United Kingdom had urged the inclusion of a definition of the term 'State', but the International Law Commission did not think it would come to a consensus on its meaning.118 The International Law Commission decided not to include a definition of 'State' in the draft Declaration and stated that the word had been used without definition before and that there was no useful purpose that would be served by defining the term.119 It was decided that the word 'State' would be used "in the sense commonly accepted in international practice".120 Hence, the term was left undefined and ambiguous. The same discussion arose at the time of the drafting of the Convention on the Law of Treaties. In the Article 'use of terms' of the draft Convention, Special Rapporteur Firzmaurice envisaged the definition of the term 'State'. His draft Article 3 of 1956 which stated: "a) In addition to the case of entities recognized as being States on special grounds, the term "State": (i) means an entity consisting of a people inhabiting a defined territory, under an organized system of government, and having the capacity to enter into international relations binding the entity as such, either directly or through some other State; (ii) Includes the government of the State,121

In essence, this reflected the declaratory theory. He added that recognition was only constitutive when an entity does not otherwise qualify as a State i.e. the States on special grounds. A later draft Article of 1966 aimed at adding to the present Article 6 of the Vienna Convention: "The term "State" is used in this paragraph with the same meaning as in: (a) the Charter of the United Nations; (b) the Statute of the Court; (c) the Geneva Conventions on the Law of the Sea; (d) the Vienna Convention on Diplomatic Relations, i.e. it means a State for the purposes of International Law.“122 Neither draft proposition was ever adopted. After all the above debates and attempts to codify statehood, the definition of a State remains acontroversial and politically loaded subject. Even though the contribution of Montevideo to statehood and our understanding of the concept is limited, the success of the conference with respect to making intervention illegal and setting standards for both economic and political cooperation was significant. Montevideo was the beginning of development of good relations between the United States and Latin America. The Inter-American Treaty of Reciprocal Assistance between the United States of America and other American Republics, also known as the Rio Pace75 of 1947 was in essence an extension of Montevideo. It represented a significant development in international security. From codifying statehood, establishing equality of all states and committing to non-intervention at Montevideo, the system evolved to countries' condemning war and aggression, committing to collective self defense and resolving disputes by peaceful means at Rio. Interestingly while during Montevideo the Untied States was viewed as an aggressor, Rio Treaty under Article 3 points out that "an armed attack by any State against an American State shall be considered as an attack against all the American States and, consequently, each one of the said Contracting Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defense“123 Therefore aggression or the threat of aggression would necessitate consultation among the American Republics with a possibility of collective measures of defense. This was a giant step in the right direction with respect to achieving a sound security mechanism for the whole region.

From Belgium to Kosovo P.1.

From Belgium to Kosovo P.3.

From Belgium to Kosovo P.4.

From Belgium to Kosovo P.5.

From Belgium to Kosovo P.6.

From Belgium to Kosovo P.7.

 

1 Pasquale Fiore, International Law Codified and its Legal Sanction or the Legal Organization of the Society of States. p. 36.

2 Even though the agenda ofthe conference was available at the New York Public Library, there were no minutes of the meetings nor was there any evidence in writing of the proceedings and discu5sions that took place with respect to the criteria of statehood.

3 Willhelm G. Grewe, The Epochs a/International Law, p. 497.

4 Ibid.

5 J.A. Frowein "Die Entwicklung der Anerkennung yon Staaten and Regierunged im Voelkerreicht" (1972 11 Der Staat 158) in Grewe The Epochs of International Law, p.498.

6 Harold Temperley, The Foreign Policy of Canning 1979-/939, pp.498-500 266 Willhelm G. Grewe, The Epochs of International Law, p. 499

7 Willhelm G. Grewe, The Epochs of International Law, p. 499

8 Raymond Leslie Buell, The Montevideo Conference and the Latin American Policy of the United States, Foreign Policy Reports, Vol. IX, No. 19, p. 213.

9 Ibid.

10 James Brown Scott, International Conferences of American States, p. 3.

11 Ibid. pp. 40-43. The treaty based on this plan was signed by eleven states (Bolivia, Brazil, Ecuador, Guatemala, Haiti,Honduras, Nicaragua, EI Salvador, United States, Uruguay and Venezuela - but lapsed through the failure of all its signatories to exchange ratifications within the required time.

12 Raymon Leslie Buell, The Montevideo Conference, p. 214.

13 The Hague Peace Conference of 1899 marked the beginning of a third phase in the modem history of international arbitration. The chief object of the Conference, in which - a remarkable innovation - the smaller States of Europe, some Asian states and Mexico also participated, was to discuss peace and disarmament. It ended by adopting a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation. With respect to arbitration, the 1899 Convention made provision for the creation of permanent machinery which would enable arbitral tribunals to be set up as desired and would facilitate their work. This institution, known as the Permanent Court of Arbitration, consisted in essence of a panel of jurists designated by each country acceding to the Convention.

14 The Treaty of Compulsory Arbitration was ratified by the Dominican Republic, Guatemala, Mexico, Peru, El Salvador, and Uruguay, and the Treaty of Arbitration for Pecuniary Claims was ratified by Columbia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Peru, El Salvador, and the United States and was extended at the third conference. See Scott, pp. 100-105. 132-133.

15 Carlos Davila, The Montevideo Conference: Antecedents and Accomplishments, International Conciliation Documents for the Year 1934, p. 123.

16 Antonio S. de Bustamante, America and International Law, p. 164.

17 This convention is in force as regards the United States, Bolivia, Brazil, Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Nicaragua, Panama, Paraguay, and Uruguay, Department of State, Treaty Information, December 31, 1932.

18 Raymond Leslie Buell, The Montevideo Conference, p. 215

19 The First Hague Convention bad proposed the creation of international commissions of inquiry to be fact -finding and without arbitral award. Other attempts include the Treaty on Compulsory Arbitration adopted at the Second International Conference of American States as well as the Bryan treaties of 1913 and 1914.

20 The Santiago or Gondra Treaty of 1923 was ratified by nineteen of the twenty-one republics: United States, Brazil, Chile, Columbia, Costa Rica, Cuba, Dominican Republic. Ecuador, Guatemala, Haiti. Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, EI Salvador, Uruguay, Venezuela. The two countries that did not sign were Argentina and Bolivia. Department of State. Treaty Infonnation, December 31, 1932 and Diorio of the Montevideo Conference. No. 14, p. 6.

21 Carlos Davila, The Montevideo Conference: Antecedents and Accomplishments, p. 124.

22 Carlos Davila, The Montevideo Conference: Antecedents and Accomplishments, p. 124.

23 The International Conunission of Jurists was set up by the Third Conference in 1906.

24 Antonio D. De Bustamante, American and International Law, The Pan American Union Bulletin 3, p. 158.

25 Ibid. p. 159

26 Ibid.

27 This is the same time that the Kellogg-Briand Pact was signed - August 27, 1928. This agreement similarly to the Washington Conference condemned "recourse to war for the solution of international controversies. In June 1927 Artistide Briand Foreign Minister of France proposed to the US government a treaty outlawing war between the two countries. Frank B. Kellogg, the US Secretary of State returned a proposal for a general pact against war and after prolonged negotiations the Pact of Paris was signed by 15 nations: Australia, Belgium, Canada, Czechoslovakia, France, Germany Great Britain, India, the Irish Free State, Italy, Japan, New Zealand, Poland, South Amca and the US. The contracting parties agreed that all settlements of conflict that might arise among them should be sought only by pacific means and that war was to be renounced as an instrument of national policy. Although 62 nations ultimately ratified the pact, its effectiveness was undermined by its failure to provide measures of enforcement.

28 Resolution adopted February 18, 1928 Final Act, p. 175

29 Convention: Brazil, Chile, Cuba, Dominican Republic, Ecuador, EI Salvador, Guatemala, Haiti, Mexico, Nicaragua, Panama, Peru, United States, Uruguay.

30 General Treaty: Brazil, Chile, Cuba, Dominican Republic, Ecuador, EI Salvador, Guatemala, Haiti, Mexico, Nicaragua, Panama, Peru, United States, Uruguay.

31 "Apparently because it believed this reservation nullified the obligatory arbitration provisions of the agreement, the State Department has not proceeded to ratify the arbitration treaty." Raymond Leslie Buell in The Montevideo Conference on the Latin American Policy of the United States (Foreign Policy Reports, Vol. IX, No. 19 November 22, 1922).

32 Carlos Davila, Montevideo Conference, p. 126.

33 L. Thomas Galloway Recognizing Foreign Governments. The Practice of the United States (1978) 27.

34 Cited in Brown, Legal Effects of Recognition' 44 American Journal of International Law, p. 62.

35 Ibid.

36 Mexican Secretary of Foreign Relations Don Genaro Estrada established that recognition and nonrecognition policy of governments is not proper policy and the state contemplating a change in the internal organization of another should simply respond to the de facto situation.

37 The text of Estrada is cited in 25 American Journal of International Law, supp. 203 (1930).

38 Ibid.

39 In President Wilson's policy statement on this subject he declared ''that just government rests always upon the consent of the governed, and that there can be no freedom without order based upon law and upon the public conscience and approval": See Hackworth Digest of International Law. vol. 1 (1940) 181.

40 Address by the Honorable Henry L. Stimson before the Council on Foreign Relations, New York City, February 6, 1931. The United States and the Other American Republics, Publication of the Department of State, Latin American Series, No.4, p. 1.

41 Ibid., pp. 2-3.

42 Ibid., p.6

43 Address by Honorable Henry L. Stimson, Secretary of State, p. 8

44 Address by Honorable Henry L. Stimson, Secretary of State, p.9

45 Address by the Honorable Henry L. Stimson, Secretary of State before the Council on Foreign Relations, New York City, February 6, 1931, Publications of the Department of State, Latin American Series, No.4. U.S. Government Printing Office, Washington 1931.

46 Carlos Calvo, Le droit international theorique et pratique (5th ed., Paris, 1896) 1:350-51, 231, 140, 142,

47 Quoted in Donald R. Shea. The Calvo Clause: A Problem in Inter-American and International Law and Diplomacypp. 17-19.

48 Ibid.

49 See Mexican Constitution art 27 (I) Calvo's principles attracted international support in the 1970s appearing in a variety of international resolutions, including the U.N. General Assembly Resolution of 1973 - declaring the New International Economic Order - and the 1974 U.N. Charter of Economic Rights and Duties of States Art.2 of the Charter declares the laws governing nationalization and expropriation of property are those of the nationalizing state and not those of international law.

50 Robert H. Holden and Eric Zolov, Latin America and the United States: A Documentary History, No. 23.

51 The Monroe Doctrine was proclaimed by President Monroe on December 9, 1823 in President Monroe's address to Congress. This proclamation of essential principle of American foreign policy in the Western Hemisphere was induced by several factors - the intervention of the three absolute monarchies of Russia, Austria, and Prussia ("Holly Alliance") in the affairs of other European countries, the fear that they might attempt to overthrow the newly independent Latin-American states and restore them as Spanish colonies, and Russian claims in the Western Hemisphere. Alvarez, The Monroe Doctrine, 6-7 (1924).

52 Raymod Leslie Buell, The Montevideo Conference, p. 217.

56 U.S. Department of State. "Message" Papers Relating to the Foreign Relations of the United States, 1898 pp. 750-60 Washington, D.C.: GPO, 1901.

57 Abram Chayes, The Cuban Missile Crisis: International Crisis and the Role of International Law, p. 122

58 Clark, Memorandum on the Monroe Doctrine, December 17, 1928, State Department Publication, XXIII , 1930

59 Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and Other Powers, 1776-1909, compiled by William M. Malloy (Washington, D.C. 1910), Vol. II. p. 2025.

60 Ibid.

61 John Morton Blum, The Republican Roosevelt, Cambridge, Mass: Harvard University Press, 1967 p. 127.

62 James Brown Scott, The Seventh International Conference of American States, AJIL, p. 225.

63 John Morton Blum, The Republican Roosevelt, Cambridge, Mass: Harvard University Press, 1967 E.127.

64 Raymond L. Buell, "Cuba and the Platt Amendment" Foreign Policy Association, Information Service. April 17, 1929.

65 Raymond Leslie Buell, The Montevideo Conference, p.218.

66 Raymond Leslie Buell, The Montevideo Conference, p. 218.

67 "The Sixth Pan-American Conference," cited p. 71. Available at the Library of Congress, Washington, D.C.

68 U.S. Department of State, Memorandum on the Monroe Doctrine, 1930.

69 Franklin D. Roosevelt. The Public Papers and Addresses of Franklin D. Roosevelt, Vol. 2, The Year of Crisis. 1933, pp. 129-33. New York: Random House, 1938.

70 Sumner Welles, The Time for Decision, pp. 193-199.

71 Honorable Cordell Hull, Secretary of State, at a luncheon given in his honor by the National Press Club, Washington D.C., Feb. 10, 1934.

72 Henry Grattin Doyle, The Conference at Montevideo, Current History, 1934, p. 466.

73 Philip Marshall Brown, 'The Codification of International Law', American Journal of International Law, Vol. 29, 1935, p. 27.

74 Ibid.

75 British Year Book of International Law, 1932, p. 7.

76 See Report on the Steps taken by the Pan American Union in fulfillment of the Conventions and Resolutions adopted at the Seventh International Conference of American States, Montevideo, December 3-26, 1993. Submitted to the Governing Board of the Pan American Union by the Director General at a Special Session held on Wednesday, June 27, 1934, available at the Library of Congress, Washington D.C.

77 Herbert Wright, The Montevideo Conference and Organization for Peace, World Affairs Vol. 97 March 1934 No.1 p. 100.

78 Donald R. Heath, The Montevideo Conference, The America Foreign Service Journal, Vol. XI, No.2, February 1934. p. 47.

79 The five pacts included: Kellogg-Briand Peace Pact (Pact of Paris); Anti-War Pact; Treaty to Avoid or Prevent Conflict between the American States, General Convention on Inter-American Conciliation; General Treaty of Inter-American Arbitration. Press Releases, Dept. Of State, Weekly Issue No. 220, pp. 343-346. Available in Ellery C. Stowell, "The New Deal in Intervention", AJIL Vol. 28, p. 316.

80 Program of the Seventh International Conference of American States, to Assemble at Montevideo, Uruguay in December 1933, signed by E. Oil Borges and Cordell Hull. Chapter I: Organization of Peace, Chapter II: Problems of International Law; Chapter III: Political and Civil Rights of Women; Chapter IV Economic and Financial Problems; Chapter V: Social Problems; Chapter VI: Intellectual Cooperation; Chapter VII: Transportation; Chapter VIII: International Conferences of American States.

81 L.S. Rowe, The Seventh International Conference of American States, Bulletin of the Pan American Union, Vol. LXVIII, March 1934 No.3 p. 155.

82 Honorable Cordell Hull, Secretary of State, Feb. 10,1934, Washington D.C. p. 10.

83 C. H. Haring, Recent Pan American Achievement, Bulletin of Pan American Union. Andrew Carnegie Centennial Commemoration, January 1936, p.79.

84 American Journal of International Law, 28, p. 76; 165 League of Nations Official Journal 19. cr. Crane, The State in Constitutional and International Law (Baltimore, 1907),65; Kelsen (1929) 4 Revue de Droit International (De la Pradelle) pp. 613-41,614.

85 Minutes of the Seventh Conference of Pan American States, Available at the New York Public Library.

86 Report on the steps taken by the Pan American Union in fulfillment of the conventions and revolutions adopted at the Seventh International Conference of American States, Montevideo, December 3-26, 1933. Available at the Library of Congress, Washington DC.

87 L.S. Rowe, The Seventh International Conference of American States, p. 156.

88 The Senate of the United States ratified this Convention with the reservation that "in cases of differences of interpretations" the United States "will follow scrupulously the doctrines and policies" of the Presidentan obvious evasion of the issue, which cannot help but remind one of the answer of Secretary of State Lansing: when called upon to defme the Monroe Doctrine, Lansing referred the Salvadorian government to "the views of President Wilson" on the subject.

89 The International Conferences of American States. First Supplement, 1933-1940. Collected and edited in the Division of lnternational Law of the Carnegie Endowment for International Peace, pp. 121-24. Washington, D.C.: Carnegie Endowment for International Peace, 1940.

90 Montevideo Convention on the Rights and Duties of States, signed at Montevideo 26 December 1933, available in the League of Nations Treaty Series, New York Public Library.

91 Ibid.

92 Herbert Wright, The Montevideo Conference and Organization for Peace, World Affairs, Vol. 97, March 1934, p. 100.

93 Ibid. p. 101.

94 Raymond Leslie Buell, The Montevideo Conference and the Latin American Policy aCthe United States, Foreign Policy Reports, November 22, 1933, Vol. IX, No. 95. p.21 1.

96 William Manger, The Seventh International conference of American States, Bulletin of the Pan American Union April 1934 Washington, D.C. vol. 68.p. 272.

97 Donald R. Heath, The Montevideo Conference, p. 48.

98 Supplement to the American Journal of International Law, Vol. 28, 1834, Official Documents, 1934, p.SS.

99 Minutes of the Seventh International Conference of American States Plenary Session, Montevideo, 1933, p. 111.

100 William Manger, The Seventh International Conference of American States, Bulleting of the Pan American Union, April 1934, Washington, D.C. vol. 68. pp.276-277.

101 Minutes of the Seventh International Conference of American States plenary Sessions Minutes and Antecedents Montevideo, 1933, pp. 138-139, available at the New York Public Library.

102 Ibid. p. 145.

103 Minutes of the Seventh International Conference of American States plenary Sessions Minutes and Antecedents Montevideo, 1933, p. 21. Available at the New York Public Library.

104 See American Law Institute, The Restatement (Third) of the Foreign Relations Law of the United States. Vol. I (St. Paul: American Law Institute Publishers, 1986)

105 Other examples of interwar internationalism included the Kellogg-Briand Pact. the Washington Treaty of 1922 for the Limitation of Naval Armament, the London Treaty for the Limitation and Reduction of Naval Armament, and American participation in the Permanent Court of International Justice.

106 Supplement to the American Journal of International Law, Vol. 28, Official Documents, The American Society of Intemational Law, p. 78.

107 American Journal of International Law, 1936 Supplement 185, p.30.

108 Statement made by the Chairman Mr. Manley O. Hudson, 51b meeting Tuesday 19 April 1949, Yearbook of the International Law Commission 1949, p. 37.

109 See Final Act of the Ninth International Conference of American States. Pan American Union, Washington D.C. 1948, p. 51.

110 Opinion of Mr. Georges Scelle clearly supported the establishment of criterion for recognition. Yearbook of the International Law Commission, p. 38.

111 Report of the International Law Commission Covering its First Session, April 12-June 9,1949,44 AJIL Supplement pp. 1-21.

112 International Law Commission Yearbook j' d175.

113 UN Doc. A/925, para. 16 GAOR, 1949,4 Session, Suppl. No.10.

114 Mr. Bilge: ICL Yearbook (1973) vol. I, p. 175, para 39.

115 ILC Yearbook (1949) p. 61 para. 69.

116 Ibid.

117 Ibid., p. 289, para 49.

118 Mr Koretsky ILC Yearbook (1949) p. 70 para 11.

119 Ibid.

120 ILC Yearbook (1956) vol. II. p. 107, para.4.

121 ILC Yearbook (1966), p. 192.

122 Text of the Inter-American Treaty of Reciprocal Assistance between the United States of America and other American Republics (Rio Pact), 2 September 1947, Headquarters Department of the Army, Pamphlet 27-24, 1 December 1976, Selected International Agreements Volume II.

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