Shackled by Montevideo: Indigenous Sovereignty and the Limits of Westphalian Statehood

Citation

Etone D & Fellows E Shackled by Montevideo: Indigenous Sovereignty and the Limits of Westphalian Statehood. International and Comparative Law Quarterly.

Abstract
This article critically examines the structural incompatibility between the Montevideo Convention's criteria for statehood and the rights of indigenous peoples under international law. Rooted in a rigid Westphalian state-centric paradigm, the Convention's four requirements, defined territory, permanent population, effective government, and capacity to conduct international relations, systematically marginalise indigenous communities whose claims to self-determination, cultural survival, and territorial governance do not map onto conventional notions of statehood. Drawing on international human rights law, customary international law, and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the article advances a tripartite argument: first, that the Convention's positivist architecture is constitutionally incapable of accommodating indigenous sovereignty; second, that alternative legal frameworks, particularly Inter-American human rights jurisprudence and evolving customary norms, offer more structurally adequate tools for protecting indigenous rights; and third, that a constructivist reconceptualisation of sovereignty, drawing on Alexander Wendt's social theory of international relations, provides a principled foundation for moving beyond the Convention's outdated paradigm. The argument is developed through four case studies. East Timor, the Chagos Archipelago, Awas Tingni (Nicaragua), and Namibia, which together reveal how geopolitical power, colonial legacies, and institutional formalism conspire against effective indigenous legal protection. The article concludes by proposing that state legitimacy in international law must be conditioned on compliance with indigenous rights norms, and that pluralistic, non-secessionist models of self-determination offer the most viable path toward a just global order.

Keywords
Montevideo Convention; indigenous peoples; self-determination; Westphalian statehood; UNDRIP; customary international law; sovereignty; constructivism; decolonisation