The Montevideo Convention
on the Rights and Duties of States
and
Military Occupation
under the Law of War
This research paper discusses the inadequacy of the four criteria of the Montevideo Convention, Article 1, to correctly clarify the special situation of "foreign state equivalents" under international law.
This inadequacy is explained as follows. In many instances, according to the Montevideo Convention, certain types of entities fully meet the requirements of being sovereign states, when in fact they are not.
A real world example of the occupation of Castine, Maine, USA, by the British during the War of 1812 is overviewed, and some discussion of hypothetical scenario based on the Castine model are offered.
As a more illustrative example, the 1898 to 1902 period in Cuba, when it was under the occupation of the United States Military Government, is dissected in detail. As an academic exercise, additional scenarios are examined whereby if certain key parameters of the occupation of Cuba had been altered, or certain violations of international law carried out, Cuba would have faced a surprisingly different future.
Further scenarios are outlined which involve more complex situations of warring factions and military occupation, and the legal ramifications are examined.
By Scenario 5, it is clear that the four criteria of the Montevideo Convention, Article 1, have incorrectly identified a particular geographic area as
"an independent, sovereign state," when in fact it is not. Scenario 6 adds additional layers of political intrigue to this already complex example.
In conclusion, it is the author's intention that the Montevideo Convention, Article 1, must be expanded into a two-tiered analysis, becoming eight variables, and an additional ninth variable added, in order to correctly demarcate the state as a person of international law.
Introduction to the Montevideo Convention
The traditional analysis for attempting to determine if a "geographic area" meets the qualifications for statehood is provided by the Montevideo Convention on the Rights and Duties of States, which was signed at Montevideo, Uruguay, on 1933.Dec.26 and entered into force on 1934.Dec.26
Article 1 of the Montevideo Convention specifies that "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."
Montevideo Convention, complete text
The Situation of Castine, Maine, and the Montevideo Convention
The invasion and occupation of Castine, Maine, USA, by British troops during the War of 1812 provides a simple example where some observers might classify the entire port city as a "sovereign state", since it meets four qualifications of the Montevideo Convention. Of course, such an example would be even more persuasive if the British had occupied the entire state of Maine.
Military occupation
Military occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.
Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.
The Maine Example
With the hypothetical situation of the entire state of Maine being under British occupation during the War of 1812, Maine would clearly meet the requirements of having (a) a permanent population; (b) a defined territory; and a (c) government.
Considering the great distance from Maine to England, were the British Crown to grant a certain degree of self-autonomy, Maine would have (d) the capacity to enter into relations with the other states. This is especially true if the local "governing authorities" were to enter into all sorts of trade agreements and other mutually beneficial arrangements with European, African, and other states. Some casual observers, as well as many of the people in Maine who supported the British government, might be inclined to say "Maine is an independent and sovereign country."
The Montevideo Convention would be analyzed as follows
Confirmation of Autonomy
| variable | determination |
| defined territory | Yes |
| permanent population | Yes |
| government | Yes |
| independence for action, capacity to enter into relations with other states | Yes |
This is the chart which some people would produce, after doing a careful overview of this hypothetical situation of Maine, as outlined above. According to this analysis, Maine is no longer a state of the USA, but has already become a state of the world community. Other scholars might disagree with this analysis, stating that Maine doesn't fully meet the criteria of having its own government perhaps, or doesn't fully have the capacity to enter into relations with the other states, etc.
However, the mere fact that such disagreement arises is highly detrimental to the present situation of "international law" in the world today. After all, when disagreements arise over what the status of a geographic area is, and whether it meets the conditions for being a "state as a person of international law", the standard method for settling such arguments is to refer to the Montevideo Convention, Article 1! If there is disagreement over how to interpret this standard method, then it is clearly in need of more refinement.
In fact, in this hypothetical Maine example, the author feels that it is only proper to classify Maine as an "independent customs territory" under the laws of occupation -- an independent customs territory under the British government. It is not quite a full "foreign state equivalent", and certainly not a sovereign state under international law in such a scenario.
In summary, even with this simple example, it is obvious that the four criteria of the Montevideo Convention, Article 1, are not highly refined enough to fully delineate the correct situation in the view of all observers. It would be necessary to make a further examination of the historical record, and the so-called "paperwork trail", in order to clarify that Maine was in fact just a "separate customs territory," and had not yet achieved sovereign state status, even though many people would say that the Montevideo Convention indicated that it had.
Unfortunately, it will often be seen that in more complex examples even highly trained international legal experts can become confused as to whether some geographic area meets the conditions of being a sovereign state or not. Before we move on to the difficulties of dealing with situations where the authority for the occupation has been delegated to rebels or co-belligerents in the conflict, and the legal requirements and international precedent of the law of war have not been carefully followed, let's begin with a detailed overview of Cuba, which can serve as a classical textbook example.
Introduction to Occupied Cuba
The period of 1898 to 1902, from the surrender of Spanish troops in Cuba up through the founding of the Republic of Cuba, is organized here in a ten step formulation. This may be viewed as the classical model for the "transfer of sovereignty" via military occupation in the modern era. However, it should be noted that if one counts the steps and numbers them one to ten, the steps two through nine do not have to be completed in precisely this order.
Ten points are given in the charts, so that discussion may be facilitated by referring to Point A, Points B1 to B8, or Point C. In other words, Point A indicates the time period after the first step has been completed. Any of the Points in the "B Array" essentially indicate that some mid-range period in the occupation has been reached. Point C of course indicates the time period where all the steps have been completed, and "final status" has been reached.
A further analysis of cession, flag, allegiance, military government, interim status, annexation, and related topics is provided at the end, along with bibliographical references.
Cuba
Flowchart Analysis of the Transfer of Sovereignty
and the Road to Self-Autonomy
BASED ON THE LAW OF NATIONS
|
Spanish American War Ends |
|
Surrender by Spanish Forces on Cuba: July 17, 1898 (Cession by Conquest.) Beginning of Belligerent Occupation |
Occupation
by US military forces. Junior partners: none. United States Military Government (USMG) is the principal occupational
authority.
|
|
This step has been completed. |
Point A 
|
Treaty of Paris, Dec. 10, 1898 Article 1 Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property. |
(US Senate ratification: February 6, 1899)
|
(Cession by Treaty.)
The Treaty of Paris is available in English and Spanish versions.
According to the Insular Cases of the US Supreme Court, where USMG is the principal occupational authority, cession by treaty is unincorporated territory by default. |
|
This step has been completed. |
Point B1
|
Beginning of Friendly Occupation, Feb. 6, 1899. |
Civil Affairs Administration of a Military Government, which is USMG. |
|
This step has been completed. |
Point B2
|
Appointment of US Nationality Military Governor or civilian High Commissioner: Doctor Leonard Wood, John Brooke. |
The US nationality Military Governor or civilian High Commissioner oversees the Civil Affairs Administration. |
|
This step has been completed. |
Point B3
|
Adoption of a flag and flag etiquette by island citizens |
Symbol of the autonomous area. |
|
This step has been completed. |
Point B4
|
Constitutional Convention by island citizens. |
| Constitution promulgated. The drafting and promulgation of organic law for Cuba. |
|
This step has been completed. |
Point B5
|
Election of President by island citizens.
Election of Representatives (Legislature) by island citizens.
Executive Branch organized by representatives of the island citizens.
Judiciary organized by representatives of the island citizens |
Leaders determined. Judiciary organized. |
|
This step has been completed. |
Point B6
|
Scenario Formulation for Autonomy (1) Commonwealth, FAS, etc. of the United States (2) Republic of Cuba (3) SAR of ___________ |
All options are open for future finalization of status. SAR Examples: (Pick one) Mexico, Venezuela, Colombia, etc. |
|
This step has been completed. |
Point B7
|
Choice of Scenario Formulation or Goal of Final Status: Republic of Cuba |
After consideration of all possible scenarios, the choice of statehood in the international community is chosen. |
|
This step has been completed. |
Point B8
|
End of USMG occupation by proclamation: May 20, 1902. |
Military government continues until legally supplanted. |
|
This step has been completed. |
Point C
Confirmation of Autonomy
| variable | determination |
| defined territory | Yes |
| permanent population | Yes |
| government | Yes |
| independence for action, capacity to enter into relations with other states | Yes |
Conclusion as of May 20, 1902
|
Name: Republic of Cuba International Law Determination: Sovereign Nation Independence Day: May 20 Nationality of Populace: Rep. of Cuba citizens Status: Final Status Allegiance of Island Citizens: Republic of Cuba Flag of the Final Status: Flag of the Republic of Cuba National Anthem of the Final Status: La Bayamesa Language: Spanish Romanization (orthography): abc's Weights & Measures: N/A Constitution: Cuba Constitution Income Tax Liability: to Government of Cuba Stability Index (100 year timeline): Very Poor |
Flag and Allegiance
The flag of the principal occupying power should be flying from Point A to Point B8.
The law of nations and international precedent in regard to military occupation specifies that it is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile power. Practically speaking, this is interpreted as an injunction against the implementation of mandatory military conscription policies over the local populace, since compulsory military conscription under such circumstances violates Articles 40, 45, and 51 of the "Geneva Convention relative to the Protection of Civilian Persons in Time of War" (1949), as well as violating Article 45 of the "Annex to the Hague Convention No. IV embodying the Regulations Respecting the Laws and Customs of War on Land" (1907).
With full consideration of the above, the general doctrine in occupied territory is that the allegiance of the local populace is to the principal occupying power. This is an aspect of the law of occupation which is commonly called "the doctrine of temporary allegiance."
| An overview of cession, flag, allegiance, military government, interim status, US Constitution, annexation, and related topics Points of Confusion over the Cuba Question and Cuba Sovereignty up to May 20, 1902 |
Additional Research Information References |
Military Occupation, Scenarios 1 to 3
Military Occupation, Scenarios 4 to 6
Proposed Solution to the Inadequacy of the Montevideo Convention, Article 1