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Australian Year Book of International Law |
Tomáš Bartoš[#]
Over recent times the world has seen an increase in the number of new States,[2] most notably due to the disaggregation of former sovereign entities.[3] This has generated renewed interest in the nexus between statehood and nationality,[4] and confirmed the necessity for international law to balance the forces of both stability and change in international life. Existing States, fearing an uncontrollable swelling of the international community’s ranks, have buttressed established borders and the territorial status quo,[5] yet at the same time trends towards regionalism and globalism amongst these States have rendered borders more permeable and reduced the significance of territoriality.[6] A key aspect of this tension between “fragmentation” and “globalisation”[7] has been the principle of self-determination.[8]
The principle is historically interwoven with the dismantling of European empires and subsequent waves of twentieth century decolonisation and, in its most modern incarnation, it may even operate to alter existing States.[9] The concept has inspired an enormous wealth of literature,[10] but is “increasingly at war with itself”[11] and has become so notoriously open-textured that its utility as a substantive legal norm is severely threatened. The primary aim of this paper is not to salvage the principle of self-determination from its “descent into incoherence”.[12] Rather, an attempt will be made to doctrinally disambiguate the principle of uti possidetis.[13]
The essence of uti possidetis is to secure respect for the territorial boundaries of a newly independent State at the moment when independence from a colonial power is achieved.[14] The term uti possidetis derives from a classical Roman edict,[15] according to which the Praetor forbade the disturbance of the existing state of possession of immovables as between two individuals.[16] In Hadrian’s Edict it was expounded thus:
Uti nunc eas aedes, quibus de agitur, nec vi nec clam nec precario alter ab altero possidetis, quo minus ita possideatis, vim fieri veto.[17]
In the Roman era it enshrined the notion, now reflected in the common law doctrine of “adverse possession”,[18] that peaceful possession of property may found good title. It shifted the burden of proof to the party seeking to dislodge the other from occupancy.[19] The interdict’s concluding words, uti possidetis, ita possideatis (“as you possess, so may you possess”), indicate the significance of factual possession. However, once the principle became relevant in international law, its emphasis apparently shifted towards a legal right to possess. This shift facilitated the dual function of uti possidetis, which was (1) to provide a basis of sovereignty for the European powers that discovered and colonised Latin America (in which context it justified forceful acquisition of territory, thereby also eschewing the principle’s original requirement that possession be peaceful); and (2) to guide the settlement of boundary disputes between the Latin-American States once they won independence.[20]
Due to its role in preserving territorial arrangements amongst new States, uti possidetis is related to — but not synonymous with[21] — the norm of territorial integrity and, owing to the relationship between territorial integrity and self-determination, uti possidetis has infiltrated the self-determination discourse. In the process it has been subjected to unsatisfactory transmutation, and an earnest examination is now imperative lest the principle meet the same ignominious theoretical fate as that of self-determination. Investigation of uti possidetis is also desirable as a consequence of its potential relevance in boundary dispute litigation between both existing States and new States.[22] Mutually satisfactory outcomes in such litigation are essential for averting the instability — and even armed conflict — that is frequently associated with boundary disputes.[23]
Three relatively recent applications of uti possidetis in different contexts will be explored here. Namely, (1) the El Salvador case,[24] which illustrates how the principle may still apply in Latin-American boundary disputes; (2) the Burkina Faso case,[25] which purports to consecrate the principle not merely as a regional norm pertaining to African boundaries, but as a universally applicable norm of customary international law;[26] and (3) the Opinions of the Arbitration Commission concerning the crisis in Yugoslavia,[27] which purport to further expand uti possidetis to encompass boundaries of States that have achieved independence otherwise than by means of decolonisation. Other applications of uti possidetis have arisen from the developments seen in the context of the Yugoslavian crisis and from interpretations of the Soviet Union’s dissolution and Czechoslovakia’s division.[28] For example, some discussion has considered the principle’s possible application to a secession of Quebec from Canada,[29] and there was also a chance that a breach of uti possidetis would amount to an internationally unlawful act involving State responsibility of the offending party and one for which reparations may fall due.[30]
The present discussion examines the role of uti possidetis both as a tool in resolving boundary disputes and as a concept manipulated to buttress a framework of international law that is struggling to accommodate conflicting currents of stability (maintaining territorial arrangements) and change (modifying them). In Chapter II, the practical difficulties of resolving boundary disputes by applying uti possidetis are outlined. The manner in which the principle is balanced with other factors is explored, primarily by reference to the principle’s traditional battleground in Latin-America. Chapter III traces the inception and conceptual expansion of uti possidetis in Africa, revealing both its newly introduced shortcomings and its persistent deficiencies. This Chapter also serves as a transitional stage where uti possidetis can be seen to move beyond the confines of boundary dispute litigation and engage with the broader themes of self-determination and statehood. Chapter IV assesses the application of uti possidetis to another region, Central and Eastern Europe, most notably the former Yugoslavia. It is concluded, first, that the application of uti possidetis to this region is doubtful and, in particular, the version of the principle fabricated as a response to the Yugoslavian crisis is legally defective and should be rejected; and secondly, that uti possidetis, both in the traditional (Latin-American) and newer (African) formulations, must be applied with some caution in boundary disputes. In all contexts, this discussion will assume that uti possidetis functions as a legal principle rather than a legal rule. Accordingly, the conclusion will be reached that it should be used not as a matter of course but only as a guideline where it may help to resolve a dispute and where the relevant parties consent to its application.[31]
Territoriality is one of the fundamental tenets of sovereign statehood,[33] the concept of a State’s sovereignty being itself predicated on the legal right to exercise administrative control with respect to a specified territory.[34] Boundaries in international law[35] delineate the limits of a State’s territory, and thereby circumscribe jurisdictions between neighbouring States.[36] Two features central to boundaries are (1) consent and (2) stability. A boundary must be accepted by the States concerned in order to be effective,[37] and the assumption is that “when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality”.[38]
Boundary problems may be contrasted with territorial disputes in that the former concern the lines drawn between the areas of sovereignty of adjacent States, whereas the latter involve one State attempting to dislodge another from an area of its sovereignty on the ground of better title.[39] These types of disputes are not identical. A claim by one State to the entirety or a substantial part of another State will almost certainly be a dispute wholly over territory rather than boundaries, whereas a disagreement as to the demarcated accuracy of a boundary line’s delimitation[40] is almost certainly a boundary dispute rather than a territorial dispute. However, the distinction is occasionally a question of degree, such as where a boundary dispute will encompass such an extensive tract of land as to constitute a fully-fledged territorial claim.[41]
The effect of uti possidetis was that the new republics of South America and Central America, freed from the colonial yoke in 1810 and 1821 respectively, should inherit the boundaries of the Spanish administrative subdivisions for which they were substituted.[42] Concerned as much with title to territory as with location of boundaries,[43] uti possidetis deemed that the new republics were occupied in law, such that “there was not in law in the old Spanish America any territory without an owner”.[44] This convenient legal fiction of constructive possession was peculiarly adapted to a continent which was vast, sparsely populated,[45] and liable to being acquired in a second wave of European colonisation.[46] It scotched the designs of competing colonial powers who may have made claims to territory on the basis of terra nullius (land not under any sovereignty[47]). Thus uti possidetis had two aspects.[48] First, all territory in Spanish-America, however remote or inhospitable, was deemed to have been part of one of the former colonial administrative divisions.[49] Secondly, the title to any given locality became automatically vested in whatever Spanish-American State inherited the former administrative domain.[50]
The doctrine was expected to avoid boundary disputes between the new States, but it failed to do so and boundary disputes proliferated.[51] Even the unified Central American entity of Guatemala split to form El Salvador, Honduras, Nicaragua and Guatemala shortly after its independence in 1821.[52] Colonial jurisdictions (eg viceroyalties, captaincies-general, audiencias)[53] were often vague, with their meanings occasionally changing over time,[54] boundary surveys were frequently inadequate,[55] and territorial allocation occurred in general ignorance of local geography.[56] For example, neither line advanced by the parties in the Bolivia — Peru Arbitration was found by the arbitrator to be supported by the evidence.[57] The nature of uti possidetis was also interpreted as States found convenient.[58] Where the colonial administrative authorities had in fact been exercising authority beyond their delimited jurisdiction, the successor State interpreted uti possidetis as meaning actual administrative possession at the time of independence (de facto). The other party whose territory had been factually diminished by its neighbour’s expansionism would assert that uti possidetis referred only to the juridical line supported by legal authority (de jure[59]
In the Honduras Borders case,[60] both parties agreed that the uti possidetis line of 1821 was to apply, but disagreed as to whether its interpretation should be the “fact of possession” or the “right to possess”.[61] Heralding the popular modern terminology of “uti possidetis juris”, the latter view seems to have been adopted — but subject to at least two qualifications.
First, the specific formulation of the test as “administrative control which rested on the will of the Spanish Crown”[62] was effectively a compromise between de jure and de facto versions of uti possidetis,[63] the de jure limb requiring examination of express conferral of sovereign authority in such forms as royal orders, laws and decrees; the de facto limb involving consideration of factual assertion of authority coupled with acquiescence in the form of an absence of sovereign disapproval. In this latter guise, uti possidetis resembled acquisition of territory by prescription.[64] For example, the claim of Honduras to territory between the Motagua river and British Honduras failed due to continuous assertions of authority by Guatemala in the area which had gone unopposed by Honduras.
Secondly, the tribunal indicated that it was appropriate to apply the test of “right to possession … at the moment the colonial regime was terminated” only where the parties to the dispute had not “derived rights from different sovereigns”.[65] As the tribunal observed:
The territory of each Party had belonged to the Crown of Spain. The ownership of the Spanish monarch had been absolute. In fact and law, the Spanish monarch had been in possession of all the territory of each. Prior to independence, each colonial entity being simply a unit of administration in all respects subject to the Spanish King, there was not possession in fact or in law, in a political sense, independent of his possession. The only possession of either colonial entity before independence was such as could be ascribed to it by virtue of the administrative authority it enjoyed.[66]
The significance of common colonial heritage in regarding uti possidetis as relating to a juridical rather than factual line is confirmed by the evidence that Brazil, the only new State of this era that had not formerly been a Spanish colony (having been Portuguese), argued that uti possidetis must be based on actual physical possession or occupation of territory. There is thus a clear distinction between the “right to possess according to Spanish legislation” and “the Brazilian uti possidetis”,[67] the latter leaning strongly towards de facto.[68] Furthermore, Brazil did not regard itself bound by the principle at all until it had concluded treaties with its Spanish-speaking neighbours to that effect.[69] The Spanish-American States in turn expressly accepted uti possidetis either in national constitutions or in their relations inter se.[70]
Reminiscent of earlier Latin-American litigation, the parties to the more recent El Salvador case agreed, in resolving their century-old dispute, that uti possidetis was to apply in relation to the contested land boundary, but disagreed as to the principle’s content[71] El Salvador argued that uti possidetis should be taken into account along with other considerations, eg post-independence acts of administration (“effectivités”), together with demographic needs and distribution of natural resources. Honduras countered that considerations such as those based on effective control had no place once uti possidetis was applicable, but nevertheless also submitted various factual arguments on which it relied should such additional considerations be regarded as relevant. In the result, the Chambe[72] held that El Salvador’s arguments based on demography and disparity of natural resources were irrelevant[73] but that effectivités could be of some utility in ascertaining or confirming a boundary line. Similarly, whilst equity infra legem could not be resorted to in order to modify an established frontier inherited from the colonial period (whatever its deficiencies might be)[74] it could be resorted to where determination of the uti possidetis line was not possible on the evidence available[75]
In international law the doctrine of “critical date” sets the point of time at which the material facts of a dispute have occurred and after which the actions of the parties can no longer affect the issue.[76] Since one of its traditional functions is to consolidate historical title,[77] the doctrine often needs to be considered in uti possidetis cases. Although uti possidetis is sometimes stated in absolute terms, suggesting that the position at the date of independence is always determinative, this point may be illusory in regions that have changed status,[78] and a later critical date may in fact arise from a boundary treaty or previous adjudication.[79] Also, the critical date may be particularly difficult to pinpoint where the States are created from secession or dissolution and the lines may have changed prior to and during this process.
A court may be flexible with fixing the critical date so as to reach a conclusion based on all the circumstances.[80] However, this flexibility is normally limited as follows. Matters before the critical date are considered only to the extent that they, or subsequent developments from those matters, may remove doubts or confirm findings as to the location of the line.[81] Matters after the critical date are considered “not in terms of a change of the situation, but only to the extent that they may reveal or illustrate the understanding of the situation as it was during the critical period”.[82]
Eritrea provides an illustration of the significance of the critical date in resolving the applicability of uti possidetis. Whether its federation with Ethiopia in 1950 was consistent or inconsistent with uti possidetis depends on which critical date is adopted. It could be 1941 (when Italians were driven out by the British);[83] 1947 (when Italians formally renounced right and title to the region); 1952 (federation with Ethiopia); or 1962 (annexation by Ethiopia). If the critical date is before 1952 then uti possidetis should apply since Eritrea was a distinct territory at that time and its accession to independence could be viewed as a return to such a position rather than as an instance of secession. Another illustration is the case of the Baltic States of the former USSR. If uti possidetis is to apply to them, the question is whether it is to operate with respect to the internal frontiers of 1991 or the delimitations of those entities prior to Soviet annexation (ie pre–1940)[84]
From the time of the “critical date”, there may have been factual modifications to the disputed region, such as occupation by one party’s nationals and exploitation of the natural resources of the area.[85] For instance, property rights granted under the law of one State to its citizens might no longer be valid since they pertain to land falling within the territory of the other State. Hence, flexible application of uti possidetis — particularly if the critical date doctrine is inflexibly applied — would seem required in order to achieve stability of the resultant boundary line.[86] Alternatively, sometimes there may be no recourse at all to uti possidetis to change a set of circumstances that has arisen. For example, in the Northern Cameroons case, Cameroon sought an order from the International Court of Justice (ICJ) that the incorporation of the Northern Cameroons Trust Territory into Nigeria was invalid.[87] The claim was brought after a plebiscite in which the inhabitants of the North chose to join Nigeria rather than Cameroon. This claim actually relied on the notion of uti possidetis — since there had been only one UN Trusteeship agreement, the trust territory should have been administered as one unit and consulted as such. However, the ICJ relied on the fact that the plebiscite had already occurred and had been accepted by the General Assembly as a basis for terminating the trusteeship arrangement.
An illustration of the dangers of strictly applying uti possidetis at the expense of other considerations can be found in the Beagle Channel Arbitration. Argentina’s argument based on the “Oceanic principle”, according to which Argentina and Chile were respectively entitled to land east and west of the Cordillera of the Andes, was rejected as irrelevant to interpreting the 1881 Treaty between the parties.[88] This approach contributed to the manifestly unsatisfactory result of the Award from Argentina’s perspective, leading to hostilities with Chile that were only terminated pursuant to Papal mediation. Coupled with the extra-legal factors that impinged on the dispute, such as fears of losing access to the Channel, the potential for oil exploitation therein, and competition for nearby Antarctic regions, this “unsympathetic” exclusion of the Oceanic principle[89] — a principle which could be regarded as the “substratum” of the 1881 Treaty and thus relevant to its interpretation[90] — made the result of the litigation unlikely to provide a mutually satisfactory result.
A tribunal’s function is to decide in accordance with international law such disputes as are submitted to it,[91] and in Latin America this typically includes application of uti possidetis at the behest of the parties. Often, however, application of uti possidetis is inconclusive,[92] in which case establishing a boundary line may require recourse to other factors, agreement for reciprocal cession of territory,[93] or even the “inventing” of a boundary line that does not entirely correspond to either party’s asserted claim.[94] Of course, the exact limits of the tribunal’s jurisdiction will be established by the compromis, which may expressly allow or preclude the invention of a line which departs from the position advanced by either party.[95] Factors that may arise in the context of applying uti possidetis include (i) traditional control of the territory, (ii) effectivités, and (iii) equity.
Considerations of traditional control have occasionally been of determinative significance in litigated boundary disputes.[96] In the absence of royal rescript or other executive order allocating territory, the Tribunal in the Honduras Borders case took account of the fact that Guatemalans living north of the Rio Frio had protested the issue of Honduran land grants on that side of the river and had claimed that “their forefathers … had possessed and worked the lands of Las Granadillas mountain”,[97] and even considered that priority of settlement in good faith could outweigh historical claims. In Costa Rica v Panama, the fact that Colombia (Panama’s predecessor) had limited its settlements to the east bank of the Saxiola river, while Costa Rica’s extended to the west bank, was relevant to the eventual delimitation.[98] Claims of history, religion and tradition “may have some relevance in a case about territorial sovereignty which turns on the weight of factual evidence that each party can adduce in support of its claim, and not on any more concrete and positive element, such as a treaty”.[99]
The term effectivité denotes an act of administrative authority and effective possession with respect to a particular area. Such effectivités of the independent State are distinguishable from so-called effectivités coloniales, which relate to the effective exercise of territorial jurisdiction by colonial authorities during the colonial period and thus provide circumstantial evidence in determining the uti possidetis line itself.[100] Once location of the uti possidetis line has been attempted, effectivités of the independent State in respect of the contested area may have probative value, either in confirming the existence of legal title already determined by uti possidetis or by clarifying a territorial delimitation which other evidence has left inconclusive.[101]
In order for a court or tribunal to fulfil its function, recourse to equity is often necessary,[102] even where there is no instruction to “decide the question equitably”.[103] For example, where the evidence in the Honduras Borders case afforded “no sufficient basis” for drawing the uti possidetis line of 1821 so as to include the disputed region of Omoa in either Guatemala or Honduras, the boundary through Omoa was established on the basis of “equity and justice” (meaning, in this case, reference to hydrography).[104] A similar approach was taken with respect to the ambiguous titles to the Cuyamal area, the Motagua Valley, and Managuá–Motagua confluence.[105]
Equity has often been an express factor for consideration in territorial and boundary disputes.[106] It has also been adopted impliedly, for example by considering the totality of allegations and evidence,[107] applying the spirit of a treaty to strike a balance between parties’ competing treaty interpretations,[108] or even having regard to ethnic and religious distribution.[109] Of crucial significance is that the decision-maker will not, unless specifically directed, entertain claims of equity based on the unsatisfactory nature of a frontier due to ethnic, geographical, population or natural resources criteria.[110] Rather, the relative strengths of the parties’ cases are weighed up where the claims of either side in themselves offer insufficiently compelling evidence to support a definite solution.[111] In such cases the approach will be to not merely decide which of two alternative lines is right or wrong, but to determine a novel line located somewhere in between.[112] Estoppel and acquiescence may also need to be balanced with uti possidetis. The rule is that long and uninterrupted maintenance of a boundary by State A against State B will preclude State B from later contesting the validity or location of that line, provided that it had actual or constructive knowledge of such administration but failed to reserve its rights to the location of the alignment or the territory attributed by it.[113]
It is submitted that a balancing of uti possidetis with other factors is to be preferred, especially in regions where boundaries have not been finally and accurately delimited.[114] Uti possidetis should be treated more as a material fact to be weighed with other circumstances (eg affiliation of population, land use since independence),[115] or a principle to be weighed against other principles (eg acquiescence), than as an absolute rule.[116] Just as the uti possidetis position may be qualified by treaty or past adjudication, other qualifying factors such as acquisition and recognition may be available.[117] Similarly, where it is impossible to determine the location of the uti possidetis line, equity infra legem can itself be determinative.[118]
This balancing process may be understood in the following series of steps. The first step is to establish the “critical date” (or dates), by reference to which subsequent steps are taken. The second step is to refer to the acts of the former sovereign and, if the result is uncertain, the third step is to examine the constitutional and administrative acts of the new States. If uncertainty persists, a final step is for the decision to be guided by effective possession and acquiescence such that “[p]ossession backed by the exercise of sovereignty may be taken as evidence confirming the uti possidetis title”[119] and it is possible that “such possession could be recognised even in contradiction of such a title”.[120]
The application of uti possidetis should reflect the fact that each boundary question exhibits a sui generis blend of background circumstances,[121] and that the taking into account of all “relevant circumstances” in a given case is now well established in international adjudication.[122] Where the relevant administrative boundary is ill-defined or its position disputed, the behaviour of the newly independent States in the years following independence may provide a guide as to the boundary’s location, either on the basis of a shared view or a view acted on by one and acquiesced in by the other.[123] Therefore, notwithstanding the firm prima facie preference for the de jure version of uti possidetis in Latin-American boundary disputes, additional considerations, which tend towards what was originally viewed as the de facto version, remain relevant in definitively determining the boundary line.
The Chamber[125] in the Burkina Faso case recognised that it was not necessary in deciding the case for uti possidetis to be a general principle of international law, yet it nevertheless sought to emphasise its general scope “in view of its exceptional importance for the African continent”.[126] In an astonishing jurisprudential expansion of the principle, the Chamber observed that,[127]
the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.
In support of this view, much emphasis was placed on: the Charter of the Organization of African Unity (OAU), by which Members pledged “[r]espect for the sovereignty and territorial integrity of each State”;[128] the Cairo Declaration, which asserted that “all Member States pledge themselves to respect the borders existing on their achievement of national independence”;[129] and the “many declarations made by African leaders in the dawn of independence”.[130] At the inaugural OAU summit of 1963, delegates of newly independent States insisted that existing boundaries, “whether they are good or bad”, should not be modified;[131] for should race, religion or language be taken as criteria in setting boundaries “on ne trouvera en Afrique aucune véritable nation”.[132]
Of these potential sources for uti possidetis in Africa, only the Charter is legally binding.[133] However, it only affirms the principle of respect for the territorial integrity of States, which would have arguably bound post-decolonisation African States in any event by virtue of United Nations membership.[134] Whilst having some utility in protecting boundaries by precluding post-independence territorial claims,[135] respect for territorial integrity is not synonymous with uti possidetis. Whereas the former dictates respect for the established territory of existing States, the latter establishes what the territory of new States is. Therefore the Charter does not truly encapsulate uti possidetis, and it is necessary to consider the Cairo Declaration and post-independence governmental articulations.
It is true that most African States have in principle accepted the territory bequeathed to them by their colonial predecessors,[136] but this does not ineluctably stem from a sense of legal obligation (such opinio juris being a necessary element of customary international law[137]). Rather,
[t]he attitude of the founders of the Organization of African Unity … was inspired by realism and political wisdom. Colonial administrative boundaries were made international boundaries in an effort to avoid throwing the political map of Africa into dangerous confusion.[138]
Many African States exhibit a lack of internal ethnic cohesion and so, based on a “calculus of vulnerability”,[139] it was politically expedient to respect the territorial status quo and avoid the risk of losing territory to neighbouring States.[140] Since the Cairo Declaration says nothing of situations where colonial boundaries are physically non-existent, or incorrectly demarcated, or where boundary documents cannot be interpreted without recourse to arbitration, the Declaration is meaningless unless viewed as “standing only for a broad principle” of inheriting colonial boundaries.[141] Some decades have now passed, and continued maintenance of the territorial status quo may have crystallised a more definite regional norm. Such a norm could bind at least those States who have not objected to it,[142] that is, those who have “never denied its compulsory nature”,[143] although the strength of this hypothesis is diminished by the fact that disputes have continued even amongst States who initially embraced the OAU position.[144]
In any event, the Chamber went on to describe the OAU developments of the 1960s as “declaratory rather than constitutive: they recognise and confirm an existing principle, and do not seek to consecrate a new principle or the extension to Africa of a rule previously applied only in another continent”.[145] Therefore the intention in the judgment was not merely to locate a “regional” norm[146] applicable to Africa, but to regard uti possidetis as already being a universal norm of customary international law by the time both parties to the case acquired independence — in 1960. This conclusion is unsupportable.
Between 1958 and 1963 the reasonably prominent Pan-African political movement proclaimed a vision to disassemble colonial boundaries and form regional groupings based on culture, religion and linguistic commonality,[147] a vision fundamentally irreconcilable with any notion of uti possidetis. Even after the Cairo Declaration it was observed that “[w]hile uti possidetis was generally accepted by all Latin-American States, it has no validity in universal international law”.[148] In the Beagle Channel Arbitration, the court[149] was equally emphatic as to the principle’s specificity: “[t]his doctrine … is peculiar to the field of the Spanish-American States whose territories were formerly under the rule of the Spanish Crown”.[150] The principle has never been applied by a tribunal in the absence of specific compromisory direction by the disputants to that effect.[151] Over the years uti possidetis has been regarded with contempt rather than veneration,[152] and even outright rejection.[153] To say only that the Chamber’s approach “takes little account of the rule of intertemporal law”[154] is therefore a very mild criticism indeed.
The new position has nevertheless gained support. Judge Ajibola has asserted:
in strongly supporting the view of the Chamber of the Court in [the Burkina Faso case], the uti possidetis principle should no longer be viewed as a principle limited in its application and scope to Latin America and African States, but one of general scope and universality which has now finally emerged as a principle of customary international law.[155]
In support of this proposition, reliance was placed on the dissenting opinions of Judges Armond-Ugon and Moreno Quintana in Sovereignty Over Certain Frontier Lands (Belgium/Netherlands),[156] but those opinions followed the Roman law tradition (as incorporated into some Civil Law systems) of uti possidetis providing a basis for good title where one of two parties has been in effective occupation and control of the property (territory) in dispute — that is, in cases of doubt the status quo with regard to possession prevails. Indeed, in deciding the case, the majority did not advert to uti possidetis at all but relied on treaties and evidence of diplomatic relations between the parties concerning the disputed area.[157] Judge Ajibola’s reliance on Rann of Kutch and Temple of Preah Vihear cases[158] must similarly be treated with circumspection since in those cases the disposition and crystallisation of colonial boundaries was coloured by treaty arrangements and the substantial operation of equitable factors such as estoppel and acquiescence by one party vis-à-vis the other.
Equation of the preservation of colonial boundaries with uti possidetis is “both false and misleading in an African context”[159] because in many cases new States are already bound by territorial arrangements originally established by treaties between colonial powers. Owing to the sui generis character of boundary treaties, neither the doctrine of fundamental change of circumstances (rebus sic stantibus) nor the tabula rasa doctrine of State succession would justify new States unilaterally departing from such arrangements. Furthermore, such arrangements might not even be assailable by the principle of self-determination. On the basis of these observations, the following comments aim to demonstrate that uti possidetis is properly confined to boundaries between States where no treaty or other international instrument has been involved (which, in the vast majority of cases, will mean States of common colonial heritage). The tantalisingly obscure reference in the Burkina Faso case to the relationship between uti possidetis and self-determination will also be addressed.
a. Non-applicability of the doctrine of rebus sic stantibus. It would not be open for a newly independent State, on the view that decolonisation amounts to a fundamental change of circumstances, to rely on the doctrine of rebus sic stantibus to unilaterally terminate a boundary treaty originally concluded between predecessor colonial powers.[160] Apart from general judicial reluctance to apply the doctrine,[161] Article 62(2) of the Vienna Convention on the Law of Treaties[162] provides that a fundamental change of circumstances “may not be invoked as a ground for terminating or withdrawing from a treaty” if “the treaty establishes a boundary”. The commentary of the International Law Commission suggests that this Article “would not exclude the operation of the principle of self-determination in any case where the conditions for its legitimate operation existed”, but the appropriate “conditions” have never arisen to test the status of this point.[163]
b. Non-applicability of the tabula rasa doctrine of State succession. In international law succession occurs when a change of territorial sovereignty leads to the devolution of any rights and obligations of one State or government on another.[164] The tabula rasa view of State succession[165] is now clearly adopted by Article 16 of the Vienna Convention on Succession of States in Respect of Treaties, which provides that,
a newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates.[166]
However, according to Article 11, boundary treaties are unaffected by succession “as such”.[167] This formulation might conceivably afford the revision or setting aside of the boundary settlement due to the operation of self-determination or the invalidity or termination of the treaty, but in general a State will succeed to the territorial limits of its predecessor.[168] The justification for such “devolution” is that boundary treaties are regarded as executed once ratified and thus operate as a sort of conveyance of the limits of territory stipulated in the treaty.[169]
c. Non-applicability of the principle of self-determination to modify inherited territorial arrangements. It is possible for a treaty to be void ab initio insofar as it may conflict with jus cogens norms, and this raises the possibility that a colonial boundary treaty, and arrangements flowing therefrom, might be void for conflicting with a jus cogens norm by impeding the exercise of the right of self-determination.[170] However, even assuming that the relevant provisions of the Vienna Convention on the Law of Treaties pertaining to jus cogens codify customary international law, and thus may be applicable to treaties concluded prior to the Convention’s entry into force and between States not parties thereto,[171] any application of the invalidating capacity of jus cogens to boundary treaties was decisively curtailed in the Convention’s drafting stages. By providing in Article 64 that any existing treaty in conflict with a peremptory norm that subsequently emerges “becomes void and terminates” the intention was that “the emergence of a new rule of jus cogens is not to have retroactive effects on the validity of a treaty”.[172] Article 71(2)(b) further provides that even if a treaty becomes void and terminates under Article 64, any legal situation created through the execution of the treaty prior to its termination is unaffected, thereby retaining an established boundary regime with respect to which a treaty executes a conveyance.
In the Burkina Faso case it is apparent that uti possidetis was seen as relevant both where there is succession to international limits of territory and where administrative borders within a colony become boundaries of new States.[173] However, the former paradigm is not true uti possidetis. As the Chamber observed:
the obligation to respect pre-existing international frontiers in the event of a State succession derives from a general rule of international law, whether or not the rule is expressed in the formula uti possidetis.[174]
The reason why this rule does not need to be labelled uti possidetis is because uti possidetis is redundant in this context. It only needs to be applied where the new States succeed to different administrative units of the same colonial power. It is unnecessary to have recourse to uti possidetis where the inherited boundaries were between different colonial powers because there will almost invariably be some indication in the form of agreement between those powers[175] or other international instrument[176] as to where the boundary is to lie, notwithstanding that there may be incompleteness[177] or even unresolved territorial claims involved.[178] For example, the majority of the Chamber in the subsequent case between Libya (formerly an Italian colony) and Chad (formerly French) resolved the case “in a simple and straight-forward manner through the application of the law of treaties”.[179] Despite Judge Ajibola proceeding to do so in a separate opinion, no consideration of uti possidetis was called for. If there is no explicit agreement, then a newly independent State that either does not object to existing boundaries or expressly waives such right of objection by affirming the territorial status quo “succeeds to a legal situation created and continued by custom”.[180] Thus it follows, for example, that the Cairo Declaration is not necessarily an affirmation of uti possidetis at all. Rather, it is readily explicable in terms of waiving a right to object to inherited territorial arrangements of the colonial predecessors, arrangements which would in any case rapidly crystallise under customary law.[181]
The instruments, principles and practice deriving from the OAU are sometimes referred to as being strictly equivalent to uti possidetis,[182] but the more accurate view is that a novel — albeit functionally similar[183] — version of uti possidetis has been conceived in Africa.[184] As the majority in the Guinea-Bissau Arbitration observed:
In Africa uti possidetis has a broader meaning [than in America] because it concerns both the boundaries of countries born of the same colonial empire and boundaries which during the colonial era had already an international character because they separated colonies belonging to different colonial empires.[185]
Dissenting, Mr Bedjaoui claimed that this distinction between Latin-American and African versions of uti possidetis was unfounded, suggesting that no such distinction was made in the writings of jurists. However, if reference is made to the writings of jurists then the response must surely be that prior to the Burkina Faso case the common position was that the two versions were not identical, and indeed that case was the very first judicial instance — (Judge) Bedjaoui himself presiding — when the Latin-American version of uti possidetis, the OAU principles (including respect for territorial integrity), and the customary international law norms of State succession to boundary regimes were lumped together under the all-encompassing label of “uti possidetis”.[186] Considering that the Burkina Faso case was decided in 1986, and the Guinea-Bissau arbitration commenced in 1985, it is disingenuous to claim that a paucity of juristic exegesis at the time the arbitral award for the latter was rendered (in 1989) supported a conclusion one way or the other. Indeed, a writer in 1987 specifically adverted to the fact that in the Burkina Faso case “the principle of uti possidetis was reinterpreted in one major respect; in Africa the principle encompasses the principle of territorial integrity”.[187]
Distinguishing between true uti possidetis, where there is common colonial heritage, and the more expansive version, where there is not, is not merely of academic interest: the techniques for resolving boundary disputes may vary depending on which paradigm applies. For example, where a treaty has defined territorial relations, uti possidetis is unlikely to be relevant. The court in the Beagle Channel Arbitration in rejecting Argentina’s submission that uti possidetis was to be applied in interpreting the 1881 Treaty with Chile, observed that:
no useful purpose would be served by attempting to resolve doubts or conflicts regarding the Treaty, merely by referring to the very same principle or doctrine, the uncertain effect of which in the territorial relations between the Parties, had itself caused the Treaty to be entered into… To proceed in such manner would merely be to enter a circulus inextricabilis.[188]
Of course, where true uti possidetis applies, the old problem persists as to whether the boundaries existing at the achievement of independence are to be determined with respect to the factual limits of the new State’s territorial jurisdiction (de facto) or with respect to limits it is legally entitled to (de jure). For example, Sudan took advantage of the acquiescence of Egypt in the face of sovereign authority to incorporate (de facto) a region into its territory that lay beyond the boundary established (de jure) along the 22nd parallel by the Anglo-Egyptian Treaty of 19 January 1899.[189]
Ultimately, the position is that uti possidetis will rarely provide a solution to a dispute by itself. Due to the confusion often engendered in its application, it is best left out of the dispute’s resolution process altogether wherever possible, as was the approach taken by the majority in both the Libya-Chad case, discussed above, and the Taba Award, which will now be outlined. The safer course to adopt seems to be that uti possidetis should only apply where the relevant parties agree to its application.
In the Taba Award, the majority regarded the reference in the Treaty of Peace[190] to the “recognised international boundary” as ambiguous, and the reference in the British and Egyptian declarations of 1926 to the boundary “defined in 1906” as including both the 1906 Agreement[191] and the physical demarcation undertaken in the area in 1906–1907. In dissent, Professor Lapidoth argued that: the present international boundary would have been the line delimited by Article 1 of the 1906 Agreement and demarcated on the ground by wooden telegraph poles under the supervision of the Turkish-Egyptian Commission in 1906; the replacement of these poles with masonry pillars during 1906–1907 could not have formed part of the official demarcation process because the operation had been unsupervised by the Commission; and the majority had erred in choosing the de facto line of masonry pillars when in fact application of uti possidetis juris demanded that the principle of respect for the stability and permanence of existing boundaries should only apply to the de jure boundary, being the line delimited and demarcated in 1906.
Thus Lapidoth criticised the significance placed by the majority on the demarcation with masonry pillars because this approach rested on the assumption that demarcation prevails over delimitation. However, although it was accurate to stress that demarcation probably “only shifts the burden of evidence to that party which wants to argue that the demarcation was wrong”,[192] it is also true that a demarcation may be “an authentic interpretation of the relevant international law title” where the parties have for a long time considered the demarcated line to be valid,[193] so that in essence “the relative weight of delimitation and demarcation depends on the circumstances of each case”,[194] and in this case the facts were sufficiently ambiguous to permit the majority to adopt the course of preferring demarcation over delimitation.
Lapidoth also reprimanded the majority for overlooking the distinction between the Temple case and the present case, by stating the following:
[T]he Temple of Preah Vihear case… sanctifies the permanence and stability of established boundaries. I wholeheartedly agree that boundaries have to be stable and permanent, but the question in our case is, which line is the relevant boundary? Is it the line that was established by the telegraph poles, or is it some other line deviating from the one prescribed by the 1906 Agreement? There can be no doubt in my mind that the stability and permanence referred to in [the Temple case] should be attributed to the de jure boundary, the line delimited and demarcated in 1906.[195]
However, reference is then made to a judgment of the Swiss Federal Court in 1980[196] which had “some interesting similarities to the present arbitration”[197] in that it also concerned an area which was “small, uninhabited, and without economic importance”.[198] In this dispute between the cantons of Valais and Ticino, the Court applied public international law by analogy, and distinguished the Temple case, to reject the validity of a boundary which had been erroneously depicted on a 1947 map. It did this on the basis that requiring Valais to be aware of the cartographical error would be too onerous under the circumstances, namely, in relation to a small, uninhabited and economically unimportant area. Lapidoth’s adoption of this municipal decision, which preferred a de jure line over a more recent but erroneous de facto line which had gone unchallenged for a considerable time, may be sound on the specific facts of the Taba Award. Yet, as a broader principle, the need for reference to factual characteristics of the land such as level of habitation comes dangerously close to recognising the relevance of effective occupation and thereby perpetuating the old tension between de jure and de facto versions of the principle.
Maintaining the status quo does not make sense if what is meant by the status quo is not clearly known.[199]
Since the very definition of what amounts to the “status quo” is logically dependent on which version of uti possidetis is applied, the distinction between the two types must be appreciated.[200] The lines derived from each may conflict, giving rise to the very disputes that are sought to be avoided in the first place. For example, in the Guinea-Bissau arbitration, the point on which the parties disagreed was “the scope of [uti possidetis] and not its existence and binding nature”.[201] Peaceful territorial change is more likely to occur when parties agree not only as to applicable legal norms, but also concur as to the method of implementing them.[202]
Additionally, if the States’ predecessors had rival claims against one another, and these claims run with the land as does the boundary,[203] then the status quo itself may be a volatile arrangement. This arrangement may perpetuate disputes or uncertainties as to the location of the boundary and the allocation of territory on either side of it. Attempting to preserve the status quo without a rapprochement of the parties’ underlying differences may therefore be a futile exercise.
It will be recalled that boundary determination is only one of the traditional functions of uti possidetis. The other relates to acquisition of territory on the basis of constructive occupation, by either maintaining title initially acquired by, or consolidating the inchoate title of,[204] discovery. In relation to America, the Spaniards regarded symbolic acts (eg building cairns of stones, erecting crosses, and performing ceremonies), in conjunction with the authority extended to them by Papal Bull, as sufficient per se to establish territorial title opposable against all others, with no requirement to perfect title by further acts such as effective occupation.[205] In contrast, State practice of the colonial period reveals that Africa was not regarded as terra nullius and that mere discovery and occupation were insufficient modes of acquiring territory; further acquisitive prescription or quasi-cession — by “treaties” with native chiefs — being required.[206] Confirmation for this view can be found in the Western Sahara Advisory Opinion, where it was observed that State practice of the relevant colonial period indicated that territories inhabited by tribes or peoples having a social and political organisation were not regarded as terra nullius.[207]
From the contrast in mode of territorial acquisition between America and Africa, it may be inferred that the respective balance between competing de facto and de jure versions of uti possidetis may also be different. Whereas in the Latin-American context title flowed from deemed rather than actual possession, title in Africa rested more on substantive rather than deemed control. Therefore, in contrast to the Latin-American preference for legally sanctioned possession over factual possession, in Africa there might reasonably be a presumption in favour of the limits of de facto possession transferred by the colonial power to the successor State, with exercise of administrative authority in the area coupled with acquiescence being accorded greater weight than in Latin-American cases.
Allowing the use of shared border resources was commonplace in traditional African societies.[208] Accommodating such creative compromises could both ameliorate the rigidity of many “arbitrary” boundaries and strengthen “the role of conciliation in international law”;[209] however, an overly strict application of uti possidetis would unfortunately preclude such an approach. In any case, regardless of their respective weights, factors other than uti possidetis can be relevant in African boundary disputes even if uti possidetis does apply — just as they are in Latin America. Recourse to equity, for instance, was required in the Burkina Faso case where uti possidetis did not by itself indicate how the frontier pools of Soum and In Abao should be divided.[210]
The artificiality of colonial boundaries is a popular theme,[211] and it has virtually become a truism to state that “the boundaries of many colonial territories were drawn quite arbitrarily”.[212] In pre-colonial Africa, division of territory was by frontiers or zones rather than strict linear boundaries.[213] In contrast, colonial boundaries were often established on largely geometric lines radiating into the continent’s interior from the coast,[214] oblivious to inhabitants and geography. For example, commenting on negotiations between Britain and France in 1890, Lord Salisbury observed: “we have been giving away mountains and rivers and lakes to each other, only hindered by the small impediment that we never knew exactly where the mountains and rivers and lakes were”.[215] Only occasionally did the establishment of colonial boundaries in Africa consider ethnological, tribal and traditional factors,[216] and the general absence of such factors might be regarded as inherently conflict-generating,[217] such as where ethnic groups were split apart or combined with other groups with which there had been a history of conflict.[218] Incongruity between borders and ethnic nations is not confined to Africa. In the former Soviet Union, boundaries often separated similar peoples, and approximately 75 million people belonged to groups that received no official recognition.[219] Indeed, the drawing of lines according to nationality at the Paris Peace Conference[220] is historically quite exceptional.
These considerations, along with the graphic description of uti possidetis as a “straightjacket which continues to deny freedom to millions of Africans”,[221] inspire the question of how uti possidetis relates to the principle of self-determination. The Chamber in the Burkina Faso case observed the following:
At first sight this principle conflicts outright with another one, the right of peoples to self-determination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice.[222]
Clearly there would be a conflict if the term peoples in the phrase “self-determination of peoples” had, as would seem logical, some anthropological basis. However, as currently formulated and applied, the basis of self-determination is territorial rather than anthropological.[223] Attempts to broaden the spirit of self-determination beyond its virtual synonymity with decolonisation have proved chimerical,[224] particularly for peoples under despotic regimes in post-colonial States.[225] Apart from the permissible exceptions to obtaining independence within former colonial frontiers, that is, integration into the territory of the administering power or of another State,[226] self-determination almost never affects existing territorial arrangements.[227] Principle 6 of the 1970 Friendly Relations Declaration,[228] with its notorious implication that a State’s territorial integrity is only sacrosanct insofar as that State is “representative of the people” of the territory,[229] thus suggesting that deprivation of a people’s right of self-determination might justify territorial modifications to the State, has over several decades amounted to little more than an academic curio. The only way to justify the Chamber’s observations in the above passage would be to adopt a view of self-determination which is broader than that supported by State practice at the time of the decision. To see self-determination as “conceptually contradictory with uti possidetis”[230] one must therefore have a rather more expansive conception of self-determination than is supported by the available evidence.[231] Exactly how uti possidetis meshes with the newer variety of “internal” self-determination will be outlined in Chapter IV.
The so-called Badinter Arbitration Commission,[233] established by the European Community to provide “legal” opinions pertaining to the crisis in Yugoslavia,[234] applied uti possidetis to the internal boundaries between Croatia and Serbia and between Bosnia-Herzegovina and Serbia. Its conclusion, which resulted in a new version of the principle (denoted in this discussion as “uti possidetis modernis”), was that the internal boundaries of the former federal States of the Socialist Federal Republic of Yugoslavia (SFRY) had been transformed into international boundaries protected by international law and capable of modification only by agreement.[235] As will be seen, this conclusion was but the final link in a weakly wrought chain of faulty legal reasoning.
In Opinion 1, the Commission determined that, rather than secession having occurred, Yugoslavia was “in the process of dissolution”.[236] To conclude this it was necessary to assume that (i) “in the case of a federal-type State … the existence of the State implies that the federal organs represent the components of the federation”[237] — the federal Yugoslav organs no longer exhibiting such “representation”; and (ii) the referenda in Slovenia, Croatia, Macedonia and Bosnia-Herzegovina expressing the desire for independence evidenced a move towards dissolution rather than secession. The first assumption had no basis either in the Constitution of the SFRY[238] or in the comparative theory and practice of federalism[239] — sovereignty in a federation does not reside exclusively in a federal State; its every power is subordinate to and controlled by its constitution.[240] The second assumption was flawed because the Yugoslav Constitution prohibited both disruption to the “federal order of the State” (Article 114) and activities leading to secession (Article 116).[241] The referenda, even if they were reliably conducted, could therefore not be regarded as the dissolution of an organism owing its existence to a federal compact; the federal units did not (and in theory do not)[242] have the ability to unilaterally terminate such a compact. Nor could the truncation of the SFRY’s territory (by 40%) and population (by 45%)[243] necessarily imply dissolution: a State’s legal personality is not automatically affected by loss of territory[244] or population.[245] Subsequently, in Opinion 8, the Commission pointed to the new constitution adopted by Serbia and Montenegro as also implying a move to dissolve the federation by forming a new State.[246] As with territory, however, mere change to a constitution and form of government does not affect a State’s continuity.[247] Therefore the moves to independence by four of the six SFRY may be regarded as instances of secession, with the SFRY continuing (albeit substantially reduced) in the form of the federal units of Serbia and Montenegro.[248]
Having concluded that Yugoslavia was in dissolution (Opinion 1), and affirmed that self-determination could not operate to change “existing frontiers at the time of independence” (Opinion 2),[249] the Commission asserted that the former administrative boundaries of the federal republics were to become the international frontiers of the new States (Opinion 3).[250] It relied on the principle of territorial integrity,[251] conveniently overlooking the fact that this principle applies only with respect to limits established between existing States, not to administrative boundaries within a State. Furthermore, reliance on principles of State succession was misplaced because, even if a “dissolved” State is capable of transferring title, there was no “boundary established by a treaty” delimiting the ex-Yugoslavian republics inter se.[252] To buttress its conclusion the Commission also relied upon the SFRY Constitution, which provided in Article 5 that the territories and boundaries of the SFRY’s constituent republics could not be altered without their consent.[253] However, it was logically incongruous to rely upon, as having any legally binding character, the constitution of a State that was in the process of dissolution,[254] or indeed had already dissolved,[255] and so had ceased to exist.
An alternative argument for the inappropriateness of relying on the Constitution runs by way of analogy to the rule in treaty law that withdrawal from a treaty is permissible owing to the “permanent disappearance or destruction of an object indispensable” for the treaty’s execution.[256] Delimitation of internal borders is typically premised on the continuity of the State as an integrated entity in which the administrative units are not homogenous but possess separate identities.[257] Applying the analogy, the “treaty” would be the pact by which internal units are bound together in a federal system, and the collapse or dissolution of the federal State would be the “object” which permanently disappears. Refusal to recognise the disintegration of the federal compact by insisting on the retention of old lines may actually inhibit attempts at peacefully resolving competing claims caused by a defunct federal State, such as where refusal to make Yugoslavia’s internal borders negotiable “put all peacemaking within a straightjacket that greatly inhibited compromises”.[258]
Finally, the Commission relied on uti possidetis, based on the perception that the Burkina Faso case had established it to be a general principle of universal applicability.[259] In fact, that decision did nothing of the sort. Rather, uti possidetis was described as generally applicable in the context of decolonisation. Indeed, the Commission took the intriguing course of quoting from the judgment with respect to the proposition that uti possidetis is a general principle “connected with the phenomenon of the obtaining of independence” whilst conveniently omitting reference to the crucial contextual qualification: “following the withdrawal of the administering power”.[260] Considering that the Chamber in the Burkina Faso case observed that uti possidetis was “a firmly established principle of international law wherever decolonisation is concerned”,[261] that it was first applied in Spanish America, “inasmuch as this was the continent which first witnessed the phenomenon of decolonisation”,[262] and that it is “logically connected” with “decolonisation”,[263] it is inconceivable that the case stands for any proposition extending beyond the context of decolonisation. Therefore, even assuming that the Burkina Faso case is beyond reproach in its application of uti possidetis to decolonisation, the Commission’s employment of the principle in the Yugoslavian context is unsupportable.[264]
The Commission’s conclusion may have been logically supportable either (i) if the republics of the SFRY were regarded as being in the process of secession rather than dissolution; or (ii) if the situation were itself characterised as an instance of decolonisation.
A situation of secession would be analogous to the traditional context of administrative entities declaring independence from a sovereign State, with the result that these entities become new States and the sovereign State which previously governed them continues to exist. Secession is also more reconcilable with the generally accepted approach to the critical date according to which uti possidetis operates at the moment of independence.[265] Whereas secession can have a clear nexus with an (actual or claimed) occurrence of this moment, dissolution of an existing State may have no such nexus. With dissolution, the emphasis is on the disruption or loss of an existing State’s identity rather than on the formation or independence of a new State.
Whether secession or dissolution is the more accurate characterisation is a question of degree. Just as Slovenia’s departure alone would not amount to dissolution, the separation of almost all sub-units tends to imply something more than secession. Yet Yugoslavia’s creation as an amalgamation of territories around the nucleus of Serbia, the only existing pre-First World War State, suggests that Serbia could continue to exist as the successor of Yugoslavia without its (seceding) non-Serbian partner territories. Together with Serbia’s cultural, political and military dominance in Yugoslavia, and the Serbs’ strong emphasis on a unitary and centralised State,[266] it is submitted that this could warrant secession as being the more appropriate characterisation of the situation.
The Commission preferred to view the Yugoslavian situation as one of dissolution, refusing to set a precedent for the secession of national groups within existing States. Characterisation of the situation in this manner had two immediate political benefits. First, since unlawful intervention in the domestic affairs of a State[267] is by definition impossible where no State exists, international intervention on the scene could be justified.[268] Second, since Serbia and Montenegro would not be the successor(s)-in-title to the SFRY, recognition of international personality could be withheld as a “political tool”.[269]
Even if there truly was a dissolution occurring, the Commission’s views seem at odds with the jurisprudentially significant opinion of the Commission of Jurists appointed by the League of Nations to examine the Aaland Islands question. In that instance, the view was expressed that lack of territorial sovereignty, either because a State is not fully formed or because it is undergoing transformation or dissolution, produced an obscure and uncertain legal situation which will not crystallise until the developmental period is completed. It was in such a situation that the principle of self-determination could operate, taking into account the aspirations of a nation (based on tradition or common language) in the interests of the internal and external peace of nations.[270] This view clearly implied that, where dissolution of an existing State occurs, international law may not require previous boundary lines necessarily to be retained.
There is “no rule that the land frontiers of a State must be fully delimited and defined” before a State can be recognised as such,[271] nor does recognition of a State ipso facto attribute to the recognising State knowledge of the boundaries of the newly independent State.[272] Many States are capable of existing without a definitively established boundary at the moment of independence, such as Argentina, Chile, Colombia and Venezuela in the nineteenth century, Ethiopia in the early twentieth century, Poland in 1920 and Israel in 1948.[273] It follows that even a substantial dispute as to boundaries or territory will not necessarily preclude the attainment of statehood.[274] Accordingly, the new States emerging from the SFRY which satisfied the criteria of statehood could be granted recognition,[275] with a decision on the exact location of the boundaries being reserved for subsequent consideration. The inappropriateness of uti possidetis is illustrated by the fact that ad hoc territorial modifications ultimately needed to be devised to deal with the crisis.[276] Therefore, not only was the uti possidetis modernis applied by the Badinter Commission incongruent with the well established and (marginally) more respectable principle of uti possidetis, but the fundamental characteristic of retaining former borders was ultimately discarded in the case of Bosnia-Herzegovina since the Dayton Accords wrought a de facto re-partition of that entity.[277]
According to one view,[278] the fact that there may be no sound basis in international law for the application of uti possidetis outside decolonisation does not fetter the application of uti possidetis because Yugoslavia’s fragmentation, as with the deconstruction of the Austro-Hungarian Empire and the dissolution of the Soviet Union, is characterisable as an instance of decolonisation. A danger in this approach is that it could by logical extension be applied to virtually any accession to independence, and “[i]n legal discourse, the term ‘decolonisation’ should be used only with great caution and must above all not be confused with accession to independence”.[279] There are two further factors impeding the acceptability of this approach: first, the absence of support for it in the re-drawing of the map of Europe after the First World War; and secondly, the implications of it in activating the principle of self-determination.
a. Re-drawing the map of Europe after the First World War. Very few of the numerous precedents for the dismantling of neo-colonial empires and boundary re-alignments which occurred across the European continent after the First World War suggest anything akin to uti possidetis. Indeed, the absence of the principle is particularly glaring considering the prevalence of it in numerous Latin American boundary disputes of precisely the same era. The delineation of Poland’s boundary owed much to the perception that it would provide a cordon sanitaire against the spread of bolshevism,[280] analogous to the award of the militarily significant Aaland Islands to the Finns despite the Aalanders being of Swedish stock and sentiments.[281] Lack of regard for lines that formally had existed is shown in the fact that Poland’s attempt to reinstate its original boundaries of 1772 was unsuccessful, and the division of a territory of two million inhabitants between Poland and Germany in 1922 was determined by plebiscite rather than by reference to lines of title. Poland’s eastern boundary was established by acceptance of a fait accompli: after the Russo-Polish war in 1920, and numerous negotiations, Poland was allowed to annex the region of Eastern Galicia in 1923.[282] Ethnicity-based arguments did not assist Bulgaria in its territorial claims against Rumania and Turkey,[283] but Rumania in contrast argued successfully on ethnic grounds for its acquisition of the Russian region of Bessarabia as well as much of Hungary’s Bukovina, Transylvania and Banat regions.[284] Occupation of two-thirds of de-militarised Hungary by Serb, Czech and Rumanian claimants was tolerated by the Allies, despite being contrary to the armistice conditions as well as in total disregard of boundary lines.[285] Hungary was left with one-third of its territory and 41.6 per cent of its former population.[286]
The replacement of much of Hungary’s territory both by new States and through the encroachments of existing States occurred notwithstanding the fact that Hungary had existed for a thousand years within frontiers which had been characterised by a remarkable degree of stability.[287] Such extensive fragmentation did not imply that Hungary had disintegrated, and the extreme lack of correspondence between pre-war territorial delimitations and eventual borders, internationally recognised and Allied-approved (albeit by acquiescence),[288] shows outright rejection of anything like uti possidetis.[289] Certainly, in the terms of the Treaty of Trianon, which Hungary was practically compelled to accept,[290] there is no inkling of uti possidetis in the sense of “decolonisation” of ethnically conglomerated empires. Nor was the approach consistent with the simple dichotomy of uti possidetis and self-determination, because ethnographic boundaries were not exactly followed. Such boundaries were rarely clear and frequently contradicted economic and other requirements.[291]
Post-war reconstruction of Europe turned, not on former boundaries or historic titles, but on two foundations: (1) the ability of national groups most efficiently to organise themselves into staking claims; and (2) the general interest of Europe as a whole.
One clear example of the first ground was the spirit of nationalism which Masaryk and Beneš manufactured abroad during the war years as a prelude to the establishment of Czechoslovakia.[292] In contrast, nationalist sentiments were so faint amongst the Ruthenes of the Autonomous Territory of Ruthenia that “no great violence was done” to it by assigning them to Czechoslovakia.[293] Whilst the Czech region had clear origins in the old Bohemia, the Czech’s claim to incorporate Slovakia was based on rhetoric more than ethnic or territorial facts.[294] The historic frontiers of ancient Bohemia were adopted with respect to the Sudeten borderlands with Germany, passing sovereignty over the territory and over the three million German-speaking inhabitants to the Czechs. However, this result was not a victory of uti possidetis over self-determination because neither the need to “maintain” earlier borders nor the need to acknowledge the desires of the German-speaking inhabitants was at issue. Rather, the aim was to convey to the Czechs the mineral resources and mountain defences of Sudetenland, thereby alleviating doubts as to whether the Czech State would be “economically and strategically viable”.[295]
An example of the second ground was the division of the rich coal and industrial duchy of Teschen between Czechoslovakia, which had an historic territorial claim, and Poland, with an ethnic claim. Rather than a diametric tension between these two species of claims, there was a characteristic interplay of many considerations; historical boundaries, inhabitant ethnicity, economic viability and the general interests of Europe in terms of strategic and regional stability were all taken into account.[296]
Where historic frontiers were retained, most usually by coincidence rather than by design, the results were often unsuccessful. For example, with the line between Germany and the former Austro-Hungarian empire remaining in place, the (purported) dissatisfactions of German minorities isolated in Sudetenland and in the new entity of Austria, whose desire to express self-determination by unification with Germany had been rejected by the League,[297] precipitated unrest which contributed to the Second World War.
b. Activation of the principle of self-determination. Justifying the application of uti possidetis to internal boundaries, on the basis that the original State was a politically oppressive neo-colonialist structure,[298] would be a volatile position to adopt. Colonial domination is a context squarely within the scope of self-determination.[299] A remedy in the form of a new State for the dominated people(s) may thus be warranted, which would effectively introduce a legal right of secession. Eritrea’s secession from Ethiopia may be viewed as an example of just such a secession from a neo-colonial arrangement, particularly where the seceding entity has exhibited persistent objection since independence.[300] Ironically, this East African episode could be interpreted as authority both for and against uti possidetis: the secession itself changed the borders Ethiopia had inherited for virtually the whole period since decolonisation, but the new territorial boundary now accords with the delimitation of the colonial Italo-Ethiopian Treaties of 10 July 1900 and 16 May 1908[301] which were subsequently used as internal subdivisions. If uti possidetis is extended to internal boundaries without qualification then it may undermine itself. For example, if the Yugoslav crisis is viewed as an example of secession then:
[t]he principle that borders should not be altered except by mutual agreement has been elevated to a hypocritical immutability and contradicted by the very act of recognizing secessionist states.[302]
Fortunately, this paradox does not arise in Eritrea’s case because the boundary line existed as a line of division between separate entities prior to becoming an internal line of division within one State. Also, the United Nations supervision of the referendum for the independence of Eritrea was premised on agreement between Ethiopia and Eritrean nationalists that Ethiopia would permit independence if a favourable vote were returned, so the outcome was underpinned by an arrangement of consent on both sides.[303] The general principle to identify is that parties must agree on how (if at all) uti possidetis is to be applied, and this general principle is in turn subsidiary to the overriding consideration that a sound borderline will be a product of consent. Often this consent is identifiable where separate States are involved, but it becomes elusive when there is a dissolution or secession involving one or more non-State entities vying for land, for autonomy, or for outright independence.
Former Soviet States which are party to the Charter of the Commonwealth of Independent States (CIS) have not reached a clear consensus as to the permissibility of future territorial adjustments, and persist in pressing numerous claims against each other,[304] despite the Charter’s admonition for the “recognition of existing frontiers and renouncement of illegal acquisition of territories”.[305] Just as in the days of Creole struggles for independence in the New World, States must not merely agree that uti possidetis will apply in their relations with each other. They must also agree on the nature of the principle’s application, including the relevant critical date(s) and the kind of evidence which is sufficient to demonstrate title. In the CIS Charter there is ample scope for disagreement as to the exact location of “existing frontiers” as well as the question of whether or not any disputed acquisitions of territory were “illegal” in nature.
Territories such as Armenia, Azerbaijan, Georgia, Ukraine, and White Russia (Belarus), which briefly experienced independence at the close of the First World War, as well as regions in Central Asia, were incorporated into the Soviet Union in the 1920s.[306] Stalin’s moves to centralise power and stem the rise of any ethno-nationalistic sentiments quickly rewound any progress that had been made at first in accommodating ethnic factors, such as in the division of the eight Union Republics existing in 1926.[307] Whilst the CIS Charter rejects revisionism, the removal of centralist authority has invited ethnic groups with a reinvigorated sense of identity to claim lands which for them are imbued with psychological significance. Indeed, beginning in 1988 with Nagorno-Karabakh Autonomous Oblast, an Armenian enclave in Azerbajdzhan that attempted to secede and become part of Armenia,[308] intrarepublic and interrepublic territorial disputes have proliferated through claims of demographic majority and historic ethnic homeland ties with respect to particular regions.[309]
The numerous boundary disputes and territorial claims arising from the Soviet Union’s dissolution either suggest that uti possidetis was not truly endorsed by the new entities or confirm that the principle has limited value in averting disagreements. Furthermore, the dissolution of the Union might be explicable as a genuine application of the terms of the Soviet Constitution which had for many years been subject to factual usurpation by the central (Russian) government.[310] The factual usurpation flowed from the Constitutional provisions stating that the central government had unlimited competence,[311] and union law was supreme over republican law[312] throughout the territory of the USSR.[313] However, technically the Republics were in “voluntary association” by “free self-determination of nations”[314] with the right to secede[315] and the USSR responsible to “safeguard the sovereign rights of the union republics”,[316] each republic being a “sovereign Soviet socialist State”.[317]
The earliest State from which today’s Czechs claim their ancestry began to take shape in the heart of Bohemia under the rule of the Přemyslid Dynasty with Duke Bořivoj founding a castle in Prague in the late-ninth century.[318] The territory of the modern Czech Republic, consisting of the ancient regions of Bohemia, Moravia and part of Silesia, was as early as the eleventh century defined by borders that closely approximate the boundaries of today.[319] In 1212 the first hereditary monarch of Bohemia, Přemysl Otakar I, received the Golden Bull of Sicily, proclaiming the indivisibility of the kingdom of Bohemia, and the region was officially named the Crownlands of Bohemia by Charles IV in 1348.[320] From 1526 until the collapse of the Austro-Hungarian empire in 1918, the Hapsburgs reigned over both Bohemia and Hungary.[321] Historically, the territory of the modern Slovak Republic was an integral part of the ancient lands of Hungary. Combining of the Czech and Slovak lands post the First World War, together with the former Hungarian region of Ruthenia,[322] was part of the extensive truncations committed by the Allies on Hungary by the Treaty of Trianon.[323]
Establishment of the border between the present-day Czech and Slovak Republics[324] is thus more plausibly associated with the historical pedigree of that line rather than with the line’s later status as an internal administrative subdivision of the former Czechoslovakia.[325] To regard the partition of Czechoslovakia as an instance of internal lines transforming into international frontiers by operation uti possidetis is not inconceivable. However, there is no reason why it could not instead stand as a precedent for the very same transformation occurring as a result of the resurrection of historic interstate divisions. Further support for this potentially more volatile interpretation is that uti possidetis was rejected by the newly independent Baltic States of Estonia, Latvia and Lithuania, which had been invaded and annexed by the USSR in 1939 and 1940 according to the Molotov-Ribbentrop Pact.[326] As their boundaries had been modified subsequent to Soviet absorption, transformation of former internal Soviet administrative lines into international boundaries would have been to their detriment.
From the above reasoning it appears that the partition of Czechoslovakia cannot persuasively be taken as evidence of State practice “apparently sanctifying the former internal administrative lines as interstate frontiers”.[327] Indeed, to classify all cases where internal lines become international boundaries as instances of uti possidetis in operation, simply because the operation of uti possidetis may produce this effect in some cases, is to commit a logical fallacy.[328]
Why was uti possidetis purportedly relied upon by the Badinter Commission whilst being seriously misrepresented as to its content? Perhaps the term “uti possidetis” itself has a subtle psychological attraction: its ancient Roman origins and long establishment in interstate disputes conveys an aura of respectability and pedigree. Perhaps the Badinter Commission’s invocation of it was partly an effort to import some of this respectability into its otherwise legally suspect conclusions. Indeed:
concepts once developed have a kind of intrinsic inertia... It is practically economical to use a concept ready at hand rather than to take time and trouble and effort to change it or to devise a new one. The use of prior ready-made and familiar concepts also give rise to a sense of stability…[329]
If the boundaries of the ex-Yugoslav republics happen to coincide with former internal administrative subdivisions of SFRY, then this is neither a demonstration of the principle’s enlargement to cover a new context nor evidence for the status of uti possidetis as a norm of customary international law. With the Badinter Commission professing the applicability of the new principle to entities which at the time could only tenuously be regarded as “States”,[330] the only possible “State practice” was that of the CSCE members who themselves established the Commission — a clear departure from all previous cases where the new State has been the entity responsible for addressing the applicability of uti possidetis. With little indication from the new republics that they regarded themselves obliged to adopt the principle, opinio juris is also difficult to discern — a position consistent with the observation that the principle has never been attended with any sense of legal compulsion on the part of the States applying it.
Therefore, rather than subscribing to a contorted version of uti possidetis, we should confront the possibility that a new norm of customary international law may have crystallised in Europe. Part of the evidence for it derives from the Bosnian conflict. Instead of emanating from the new-found States and their respective delineations, it has been wrought at the hands of the other European States which became involved in the crisis. In broad terms the norm allows collective intervention by States, during times of actual or impending crisis, in a territory of doubtful sovereignty. A potential articulation of this norm in more specific terms could be as follows:
European States may, by collective action, intervene in the territory of another State (or formerly existing State) of the European region where that State (or formerly existing State) is not subject to or part of another regional strategic bloc of sovereign States[331] and is,
(a) in the process of dissolution or dissolved; or
(b) otherwise subject to[332] strife, conflict or instability which:
(i) threatens the peace and security of the region; and/or
(ii) threatens to cause, or amounts to, serious breaches of the laws of armed conflict; and/or
(iii) seriously endangers human life at the level of whole communities or nations of people.
Even if the redrawing of Europe’s map is more accurately portrayed as evidence for a norm of uti possidetis modernis rather than for the norm suggested here, there are serious difficulties with uti possidetis modernis that warrant considerable reluctance to accept it.
Uncareful extension of uti possidetis as performed by the Badinter Commission may jeopardise the promotion of “internal” self-determination,[333] which requires the involvement of all segments of the population in participatory democracy and may include the extension of autonomy rather than independence to sub-national groups.[334] Existing States would be reluctant to extend such autonomy if administrative sub-divisions could potentially be “up-graded” to the status of international boundaries.[335] States with federal arrangements could be destabilised by uti possidetis modernis since internal boundary lines would provide sub-divisional populations a clear point of departure to fracture the State and define the new entity. In addition to this threat to existing States, there is the irony that uti possidetis modernis would be displaced, by the very norm of internal self-determination which it undermines, in that “an adjustment of the territory may prove necessary for democracy building”.[336] Adjustments may also be necessitated by the exercise of self-determination by groups within the new State who do not wish to join the new State, such as the indigenous Cree Indians who might seek to remain with Canada in the event of secession by Quebec.[337]
Uti possidetis modernis is inconsistent with the view that domestic boundary disputes between federal States do not need to be settled in accordance with international law unless such boundaries are fixed by international agreement (eg where an independent State joins a federation).[338] International law has no validity within a State unless previously incorporated or transformed into municipal law,[339] nor can federal law be equated with international law, for its subjects are not sovereign[340] and are thus not in a position to establish a conclusive boundary between themselves by mutual agreement. Uti possidetis modernis also disregards certain fundamental distinctions between internal and international boundaries.[341] International boundaries are devices of separation, circumscribing jurisdiction of States to prescribe and apply laws and policies concerning, inter alia, citizenship and taxation.[342] Internal boundaries are instruments of cohesion, involving some degree of devolution of authority to the subnational level which is premised on the need to effectively ensure the continuing unity of the State.[343] In modern international law the line — rather than the frontier zone — is the relevant mechanism for delimiting a State’s legal jurisdiction,[344] as well as circumscribing the activities of a State which may not legally be exercised in the territory of another State.[345] Internal divisions are in contrast more amenable to characterisation as frontier zones, with neighbouring units exercising joint factual control over certain areas. Therefore, even if the theoretical objections to the new version of uti possidetis could be somehow circumvented, the divergent characters of international and internal boundaries, together with the frequent absence of spatial and temporal clarity in many boundaries,[346] would cause perpetuation of the traditional tension between de jure and de facto interpretations of the principle. Furthermore, in the SFRY, municipal borders were drawn by the Communist Party’s Politbureau, taking little account of ethnic factors.[347] With the “internationalisation” of previous intra-state limits, the effect of boundaries on the division of ethnic groups, resource-sharing and population movement — which formerly had been “imperceptible”[348] — has suddenly become keenly felt. Used in this way, uti possidetis contradicts the whole notion of acceptance rather than imposition as being the basis of boundary stability; instead of reducing pre-existing tensions, it merely exacerbates them.
Boundaries between different parts of a colonial empire were functionally more akin to lines of division than are typical internal boundaries.[349] Colonial administrators often exercised independent authority,[350] suggesting that these divisions bore closer semblance to international boundaries than to the internal subdivisions of today’s States.[351] This distinction precludes the unchecked evolution of uti possidetis modernis by applying a facile analogy between the federal States of today and the colonial structures of a past era. Thus,
[one] cannot attribute the same value to a boundary which has been settled under a treaty or as the result of an arbitral or judicial proceeding … as to a boundary which has been established by way of an administrative decision emanating from an authority which would have failed to take account of the parties’ views and arising in a situation of inherent inequality.[352]
Nevertheless, there may be instances where transmutation of internal lines into State boundaries is admittedly less arduous in practise than the faulty underpinnings of uti possidetis modernis would suggest. This may occur where the internal boundaries are already inherited in the form of colonial land grants or ancient lines of power, based for instance on feudal or monarchical divisions, as opposed to being established by a central government in a bid to staunch centrifugal subnational movements and promote nation-building.[353] In contrast, where the central government’s capacity to change the borders of subnational units is in the form of an absolute discretion, as opposed to a requirement of consent on the part of those units,[354] then the disparate functions of internal and international borders may render uti possidetis modernis even more unworkable. Since international boundaries are premised on the consent of the relevant States, if intrastates lines are to be transformed into interstate lines then it follows that consent should be a relevant factor in assessing the relevance of those intrastate lines to the new State’s eventual boundary.[355] Consequently, where consent initially was absent, uti possidetis modernis should be no more than a provisional solution pending an agreed delimitation.[356] Within the rubric of consent, suitability of internal lines may be assessed by reference to factors such as the age of the line and the equality of the participants in the creation of the line.[357]
The idea of a boundary line set forth with the accuracy of a deed transferring private property in land follows rather than precedes the establishment of the modern territorial State,[359] “arising as States developed in the post-Westphalian era and populations expanded into border areas”.[360] Nations in various historical epochs have been defined not only by territoriality but also by ties of kinship and allegiance,[361] and over time the typical unit of sovereignty has vacillated in emphasis between discrete localisation and combinatory conglomeration (eg city-States v empires).[362] Predictions that rampant fragmentation of States into “mini-State” entities will bode the end of any workable international system — or will actually occur — are exposed as fallacious when it is appreciated that mini-States have existed throughout history,[363] with many modern instances being identifiable,[364] and that the turmoil witnessed in Yugoslavia is absent in many other States exhibiting similar ethnic and religious heterogeneity.
Until this century, secession was the most conspicuous and most usual method of creation of new States.[365] Whereas integration and disintegration are often perceived as diametrically opposing phenomena, disintegration of pre-existing unstable systems may be a necessary pre-condition for the creation of newer and more stable systems via integration.[366] Similarly, the concepts of stability and peace are often conflated — the bipolar Cold War era was (globally) peaceful but (globally) unstable, whereas a system that survives conflict and war may exhibit stability but not peace.[367]
In grappling with the confused state of law in the area of newly independent States, involving contentious questions of territory and self-determination, some commentators have sought to shape the legal discourse by reference to non-legal normative prescriptions. For example, the “economic inefficiencies” of small-scale replication of governmental functions, and questionable economic viability of small nations, has been invoked to justify the assertion that further proliferation of States beyond present numbers is undesirable.[368] Yet economic efficiency has never been a factor in the question of statehood. If it were, the logical extension of the proposition could lead to the absurd situation of economically inefficient States, diminutive in population and resources, having an obligation to unite as a single federal entity.
Another assertion is that the formation of new States is undesirable because it is ethnically divisive. This sociological position is more complex because it has a certain legal aspect in that a central theme of the modern international law of human rights is the equality of human beings, demanding equal respect for the sanctity of all persons. Over time this theme has expanded to include respect for the equality and unique characteristics of social groups, as reflected in the general norm of nondiscrimination and standards concerning the rights of minorities and indigenous peoples.[369] The argument runs that fragmentation of States to form new entities promotes ethnic exclusiveness which runs against these cosmopolitan trends in the field of human rights.
First, strict compliance with human rights’ norms, particularly with norms of relatively modern vintage such as minority rights, has never been a prerequisite for statehood, although the policy decision of some existing governments to extend formal recognition of statehood may admittedly be conditional in some instances on the new State undertaking to respect the rights of its minorities.[370] Second, failings in the field of human rights do not lead to an existing State losing its status as a State but instead may only, in extreme cases, lead to sanctions being imposed on that State.[371] Thirdly, there inevitably will be instances where all ethnic groups cohabiting a certain territory cannot be securely protected within the framework of a single State due to tension between them, frequently as a result of the homogenising agenda of the dominant ethnic group.[372]
Uti possidetis reflects the fundamental preference in international law for maintaining the status quo,[373] stemming from the perception that international law is not concerned with occurrences within a State’s domestic jurisdiction and accordingly exhibits “stability” when there is peace between States. If, say, the entire African continent was one State then no truly “international” disputes would ever arise. Yet it is perverse to suggest that such an arrangement would necessarily be “stable” just because “international” conflicts could not by definition occur. In reality, uti possidetis has not really prevented fratricidal struggles at all, but has only relegated them from the interstate to the intrastate level. Collapsed and failed States such as Liberia, Rwanda and Somalia have in recent times been testimony to the instability of present arrangements, and more States purportedly maintain a precarious balance on the political precipice[374] — “the protracted problems of the post-colonial African State have raised anew the meaning of State legitimacy and brought forward disturbing questions about the concepts of territorial sovereignty and statehood”.[375] Similarly, a popular view is that, in Yugoslavia, “deep-seated ethnic resentments … simmering beneath the façade of contrived stability and cohesion” were constrained by successive rulers in Constantinople, Vienna, Budapest and Belgrade, only to rise to the fore in the early 1990s.[376]
However, blaming all instability on the supposed conflict between boundaries and national groupings is blindingly simplistic. For example, any reasonable survey of the evidence (eg inter-ethnic marriage statistics) would demonstrate that there was nothing inevitable about the ethnic conflict in Bosnia-Herzegovina, and that the disintegration of SFRY was far from wholly attributable to historic hatreds (although such hatreds helped to both sustain and exacerbate the conflict). Rather, recent economic problems,[377] media-generated communist propaganda at the instigation of powerful political figures,[378] together with the well-equipped federal army’s brutal oppression of non-Serb autonomous regions,[379] were the main catalysts responsible. Indeed, at the outset the government of Bosnia-Herzegovina had struggled to maintain the peace in its multi-ethnic State.[380] Once the conflict had truly ignited, there were many dozens of groups, at varying levels of organisation, embroiled in the violence[381] – far more groups than there could be “nations” or “peoples”. With the conflict having largely subsided, underlying tensions persist, uncured by uti possidetis modernis. The elections of September 1996 in Bosnia-Herzegovina were not without serious defects.[382] The Dayton Peace Accord imposes a parliamentary system that is rendered extremely cumbersome by its stringent multi-partite procedural requirements.[383] The Accord also obscures persistent tensions: whereas the Bosnian government views it as preserving the State’s (51%) territory,[384] the Bosnian Serbs interpret the extension of autonomy and conferral of (49%) territory to them as recognising the region of Srpska as (actually or potentially) being an independent State.[385]
The issue of rampant State proliferation only intersects with uti possidetis to the extent that a given formulation of uti possidetis is regarded as promoting or preventing the fragmentation of existing States. Yet in truth uti possidetis is “agnostic on whether secessions or breakups should occur”[386] and consequently it cannot of itself create or maintain stability among sovereign (or other) units where surrounding circumstances generate instability. In applying the principle the question is simply where should the boundary line of the new State be drawn? Just as the attainment of independence by Bangladesh in 1971 and Eritrea in 1993 cannot be challenged simply by application of uti possidetis to Pakistan and Ethiopia (respectively), there is no role for uti possidetis in determining whether new States have legitimately emerged or not from a predecessor State. Whereas Bangladesh might correspond to the region which was East Pakistan, and Eritrea might correspond to a former province of Ethiopia, to suggest that the absence of a federal-style structure sub-dividing these States prior to their independence would have prevented them reaching independence would be utterly preposterous.
Application of uti possidetis is appropriate where (1) the new States agree it is to apply in their relations inter se, or (2) where a State attains independence in a region where a customary norm of international law dictates that, in the absence of persistent protest by the new-born nation, the principle is to be observed. The first instance reflects the long-established application of uti possidetis in international relations. The second instance reflects the possible developments in customary norms foreshadowed in the ICJ’s post-decolonisation jurisprudence in respect of the African continent. Perhaps there is evidence for a similar norm in respect of the (Central and Eastern) European region, but it has been suggested here that this is not the preferable interpretation of the cases of new States emerging from the former Soviet Union and Czechoslovakia.
Instruments which apparently adopt uti possidetis as a guiding principle may be regarded as indicating one of the following: (1) the parties wish explicitly to reaffirm an existing norm, such that the instrument merely reflects customary international law; (2) the instrument amounts to evidence of State practice formative of a newly emerging customary norm; or (3) the parties wish to conclude a specific binding agreement for regulating their mutual affairs and clarifying territorial relations between them. Amongst new States which did not conclude agreements affirming inherited boundaries upon attaining their independence, there is far more evidence of disputation over land and attempted territorial aggrandisement than there is of contented acceptance of the territorial status quo.[387] Therefore, there is scant support for alternative (1) in that there might be some established norm existing outside the terms of new States’ treaty arrangements.[388] A generous interpretation of the evidence may nevertheless support a combination of alternatives (2) and (3), but the issue which then arises is: to whom does the customary norm apply?
At first blush it could only be amongst the States party to such instruments. Over time such a norm could encompass other States in the region, and possibly elsewhere on the globe, where those States did not, from the time of their independence, expressly and persistently object to that norm’s application. Where the State is such a persistent objector, a norm may only apply to that State either (i) because the norm is a peremptory rule from which no derogation is permissible (jus cogens), or (ii) on the basis that new States joining the existing community of States must generally accept the corpus of law in force at the time of their admission to the ranks of that community. Since States have always been able to modify their borders by mutual consent,[389] uti possidetis is patently not a norm of jus cogens pedigree.[390] An absence of evidence for the application of uti possidetis without the express affirmation of the principle by the new States, and outside the context of decolonisation, would also outrule the “inherited corpus of law” possibility, as does the various instances where the principle has been blatantly discarded. France and Britain split German Kamerun[391] and the German colony of Togo after the First World War,[392] the distinct entities of British and Italian Somaliland attained independence as a unitary State,[393] and the United Nations itself obstructed the operation of uti possidetis, in respect of the unitary Belgian Trusteeship territory of Ruanda-Urundi, with the contemporaneous but separate independence of the Republic of Rwanda and the Kingdom of Burundi on 1 July 1962.[394]
The borders of new States which have emerged from the dissolved Yugoslavia were imposed by other States, in stark contrast to the majority of African States which specifically embraced the territorial status quo on their own initiative.[395] This is the reason why it has been suggested that uti possidetis “remained a mirage” for the borders among Serbia, Croatia, and Bosnia.[396] History has shown that uti possidetis is a weak precaution against conflict even in circumstances where States agree that it should apply. For example, in the case of the partitioning of the new Czech and Slovak Republics on 1 January 1993, which occurred by way of amicable agreement,[397] some minor territorial adjustments were necessary.[398] To suggest that imposing the principle will prevent problems arising where the protagonists disagree on its application verges on the naïve.
Contrary to the current African approach, a distinction should be made between contexts where true uti possidetis applies and contexts where other mechanisms such as State succession to treaties render uti possidetis redundant. Careless extension of uti possidetis to contexts where the juridical field is already covered may mar balancing of the principle with other factors — such balancing being less likely, or even unavailable, where treaty terms provide the delimitation. Disputants rarely disagree on whether uti possidetis is to apply,[399] but frequently disagree as to its content. In theory, uti possidetis provides a definitive mechanism for ascertaining a boundary. In practise, the ambiguous position of many “uti possidetis lines” can create such uncertainty that the States concerned are impelled to resolve the boundary’s position de novo,[400] or at least abridgment of the lacunae with additional factors may be required in order for the alignment to be judicially determined.[401]
Were uti possidetis to represent a universal norm of customary international law, it would have the effect of applying to a dispute unless parties specifically directed the Court not to apply it.[402] This would turn the traditional procedure for resolving boundary disputes on its head: disputes between Latin-American States (and also in the Burkina Faso case) have always proceeded on the footing that the disputants “invoked” uti possidetis.[403] Automatic application of uti possidetis would amount to a fettering of the scope for the flexible resolution of boundary disputes. Owing to the potentially inflammatory nature of such disputes, an approach allowing for greater flexibility in the negotiated establishment of criteria for adjudication is to be preferred.[404] Since international law is not “law” in the Austinian sense of deriving from a higher authority, but is instead based on the principle of effectiveness, stability is best achieved by adhering to the notion that a boundary must be consented to by the States concerned.
Consistent with this experience, uti possidetis should be viewed as a starting-point or material consideration in the litigation of boundary disputes rather than an absolute rule of paramount significance. Many international disputes, particularly those pertaining to boundaries, are political rather than legal in nature, and can extend beyond mere uncertainties in delimitation to embrace numerous extra-legal issues. In relation to those disputes that are legally soluble, it is to be hoped that a sound appreciation of uti possidetis can be of assistance.
* BSc (Hons) LLB (Hons) ANU, Partner, Smith and Barto[#]. The author may be contacted at: Tom.Bartos@smithbartos.com.
The author wishes to point out that there has not been an opportunity in this paper to consider an article on the same subject in the 1996 volume of the British Yearbook of International Law, which appeared in print whilst this paper was being published.
[1] Grotius H, De Jure Belli ac Pacis Libri Tres, Prolegomena, paragraph 24.
[2] See list in Wa Mutua M, “Why Redraw the Map of Africa: A Moral and Legal Inquiry” (1995) 16 Michigan Journal of International Law 1113 at 1113, fn 1.
[3] Charter of the Commonwealth of Independent States, 22 June 1993, Article 3 (1995) 34 ILM 1279 at 1283 (dissolution of the former Soviet Union); SC Res 713, preambular paragraph 8, UN Doc S/INF/47 (1991) p 42, (break-up of the former Yugoslavia); Twining D, The New Eurasia (1993); Henkin L, International Law: Politics and Values (1995) pp 282, 287.
[4] See, eg, Charzan N ed, Irredentism and International Politics (1991) p 1 (“the tenuous connection between State boundaries and historical, cultural, and symbolic communities”); Kacowicz AM, Peaceful Territorial Change (1994) p 7; Henkin, n 3 above, p 279; Necatagil ZM, The Cyprus Question and the Turkish Position in International Law (1993) p 232; Koskenniemi M, “National Self-Determination Today: Problems of Legal Theory and Practice” (1994) 43 International and Comparative Law Review 241; Anaya SJ, “The Capacity of International Law to Advance Ethnic or Nationality Claims” (1990) 75 Iowa Law Review 837.
[5] See, eg, European Community Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (Brussels, 16 December 1991), European Political Cooperation Press Release P 129/91, reproduced in (1992) 31 ILM 1485 at 1487 (“respect for the inviolability of all frontiers”). Shustov V, “The Present and Future Development of the Situation in Europe and the Role of the CSCE” in Clesse A, Cooper R and Sakamoto Y eds, The International System After the Collapse of the East-West Order (1994) p 749 at 754.
[6] Huntington SP, “The Clash of Civilizations?” in Clesse et al, n 5 above, p 7; Henkin, n 3 above, p 280; Koskenniemi, n 4 above, at 259; Téson F, “The Kantian Theory of International Law” (1992) 92 Colorado Law Review 53; Sorel J-M and Mehdi R, “L'Uti Possidetis entre la Consécration Juridique et la Pratique: Essai de Réactualization” (1994) 40 Annuaire Français de Droit International 11 at 35. See also Kaiser RJ, The Geography of Nationalism in Russian and the USSR (1994) p 13 (rise of capitalism reduces nationalism as a barrier to integration). Developments in technology play a prominent role in removing geo-political divisions; eg, Dyson E, Release 2.0: A Design For Living in the Digital Age (1997) pp 103–30 (the Internet as a contributing factor in the privatisation of the role of government); Negropronte N, Being Digital (1995) p 163 (digitalisation of information leads to removal of the limitations of geography); Gates W, The Road Ahead (1996) pp 296–99 (communications systems reduce the importance of national boundaries and promote more widespread participation in the world economy); Mulgan G, Connexity: How to Live in a Connected World (1997) pp 27–29, 62–68 (regulation of international matters in political and economic spheres).
[7] Franck TM, Fairness in International Law and Institutions (1995) p 482; Bykov ON, “Beyond Superpowership” in Clesse et al, n 5 above, p 63 at 80; Brown S, “Building Order and Justice into the Emerging Global Polyarchy” in Clesse et al, n 5 above, p 127 at 127–28; Andrén N, “Federalism in the Setting of Globalism, Regionalism, and Nationalism” in Clesse et al, n 5 above, p 362 at 362; Kaiser, n 6 above, p 3.
[8] Articles 1(2) and 55 of the Charter of the United Nations; Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514 (XV), UN Doc A/4684 (1960); Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV), UN Doc A/8028 (1970), reprinted in (1971) 9 ILM 1292; Article 1 of the International Covenant on Civil and Political Rights, 999 UNTS 171 (1976); Article 1 of the International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3. See also Legal Consequences for States of the Continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep 1971, p 16 at 31, 73–75; Western Sahara, Advisory Opinion, ICJ Rep 1975, p 12 at 30–37; East Timor (Portugal v Australia) Judgment, ICJ Rep 1995, p 90 at 102.
[9] Necatagil, n 4 above, p 233; Radan P, “Secessionist Self-Determination: The Cases of Slovenia and Croatia” (1994) 48 Australian Journal of International Affairs 183; Eastwood LS, “Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia” (1993) 3 Duke Journal of Comparative and International Law 299; Weller M, “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia” (1992) 86 American Journal of International Law 569; Falk R, “Locating the Right of Self-Determination of Peoples as a Principle of International Law: General Considerations” in McCorquodale R and Orosz N eds, Tibet: The Position in International Law: Report of the Conference of International Lawyers on Issues Relating to Self-Determination and Independence for Tibet (1993) p 81 at 84; Asamoah H, “Rights of Self-Determination of Peoples in Established States: Southern African and the Middle East” Proceedings of the American Society of International Law (1991) p 541–61; Musgrave TD, Self-Determination and National Minorities (1993) pp 209, 220, 351, 357.
[10] See generally Tomuschat C ed, Modern Law of Self-Determination (1995); Cassesse A, Self-Determination of Peoples (1995); Hannum H, “Rethinking Self-Determination” (1993) 34 Virginia Journal of International Law 1; Cass D, “Rethinking Self-Determination: A Critical Analysis of Recent Theories” (1992) 18 Syracuse Journal of International Law and Commerce 21. Concerning relatively modern controversies, see Brilmayer L, “Secession and Self-Determination: A Territorial Interpretation” (1991) 16 Yale Journal of International Law 177; Thornberry P, “Self-Determination, Minorities, Human Rights: A Review of International Instruments” (1987) 38 International and Comparative Law Quarterly 867. Concerning self-determination during decolonisation, see Emerson R, “Self-Determination” (1971) 65 American Journal of International Law 459; Sureda AR, The Evolution of the Right to Self-Determination: A Survey of United Nations Practice (1973); Umozurike U, Self-Determination in International Law (1972).
[11] Fox GH, “Self-Determination in the Post-Cold War Era: A New Internal Focus?” (1995) 16 Michigan Journal of International Law 733 at 733.
[12] Simpson G, “Is International Law Fair?” (1996) 17 Michigan Journal of International Law 619 at 629.
[13] For the purposes of this discussion uti possidetis is regarded as a “principle” rather than a “rule”. As to this distinction see Dworkin R, Law’s Empire (1986) (in the field of jurisprudence); Fitzmaurice G, “The General Principles of International Law Considered from the Standpoint of the Rule of Law” (1957–II) 92 Recueil des Cours de l’Académie de Droit International 5 (in respect of international law in general); Antonopoulos C, “The Principle of Uti Possidetis Iuris in Contemporary International Law” (1996) 49 Revue Hellénique de Droit International 29 (in respect of uti possidetis in particular).
[14] Frontier Dispute, Judgment, ICJ Rep 1986, p 554 at 566 (hereafter referred to as the Burkina Faso case); Boggs SW, International Boundaries (1940) pp 79–80; Cukwarah AO, The Settlement of Boundary Disputes in International Law (1967) pp 112–16; Yakemtchouk R, L’Afrique en Droit International (1971) pp 83–87.
[15] Edicts comprised the ius honorarium, existing alongside and ameliorating the more formalistic ius civile; Berger A, Encyclopedic Dictionary of Roman Law (1953). In this way, uti possidetis was analogous to equity rather than law. See Rossi CR, Equity and International Law: A Legal Realist Approach to International Decisionmaking (1993) pp 32–40.
[16] Moore JB, “Memorandum on Uti Possidetis” reproduced as “Uti Possidetis: Costa Rica — Panama Arbitration, 1911” in The Collected Papers of John Bassett Moore, vol III, pp 328ff.
[17] Per Moore, ibid, p 329: “Whichever party has possession of the house in question, without violence, clandestinely or permission in respect of the adversary, the violent disturbance of his possession I prohibit”. See also Schultz F, Classical Roman Law (1951) p 448; Jolowicz HF, Historical Introduction to the Study of Roman Law (1952) pp 273–74.
[18] See, eg, Goodman MJ, “Adverse Possession of Land — Morality and Motive” (1970) 33 Modern Law Review 281; Delohery v Permanent Trustee Co (NSW) [1904] HCA 10; (1904) 1 CLR 283.
[19] Buckland WW, A Textbook of Roman Law from Augustus to Justinian, 3rd edn (1963) p 734.
[20] See Greig DW, International Law (1976) pp 170–72; Greig DW, “The Beagle Channel Arbitration” [1976] AUYrBkIntLaw 13; (1981) 7 Aust YBIL 332.
[21] Cf Pellet A, “The Opinions of the Badinter Arbitration Committee, A Second Breath for the Self-Determination of Peoples” (1992) 3 European Journal of International Law 178; Franck, n 7 above, pp 146ff; Franck TM, “The Evolution of the Right to Self-Determination” Proceedings of the Second Amsterdam International Law Conference on the Rights of Peoples and Minorities in International Law (1992) p 25, fn 53; The equation of uti possidetis with territorial integrity has been rightly criticised; Higgins R, “The Evolution of the Right to Self-Determination: Commentary on Professor Franck’s Paper”, Proceedings of the Second Amsterdam International Law Conference on the Rights of Peoples and Minorities in International Law (1992) p 7. Compare Shaw M, Title to Territory in Africa (1985) pp 181–82.
[22] See Twining D, The New Eurasia (1993) pp 49ff (concerning ex-Soviet State borders).
Note: the role of uti possidetis in maritime delimitations will not be discussed in this paper. One view is that “[t]he delimitation of the area of spatial validity of the State may relate to the land area, the waters of rivers and lakes, the sea, the subsoil or the atmosphere” and so “there is no reason to establish different regimes” for these different contexts. See Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) (1990) 83 ILR 1 at 36; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment of 11 September 1992, ICJ Rep 1992, p 351 at 712 per judge Torres Bernandez (hereafter referred to as the El Salvador case); Antonopoulos, n 13 above, at 46–47. An alternative view is that the principle was never intended to be so applied and has been bypassed by developments in the law of the sea. See El Salvador case, ICJ Rep 1992, p 351 at 601–04; Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) (1990) 83 ILR 1 at 61–62 (diss op Mr Bedjaoui); Guinea — Guinea-Bissau Maritime Delimitation Case (1988) 77 ILR 635 at 657; Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Rep 1982 p 18 at 131-32, paragraph 100–02 (sep op Judge Aréchaga); Nordquist M, United Nations Convention on the Law of the Sea (1982): A Commentary (1985), vol 1.
[23] de Hoyos R, “Islas Malvinas or Falkland Islands: the Negotiation of a Conflict, 1945–1982” in Morris MA and Millan V eds, Controlling Latin American Conflicts (1983) p 185; See, eg, Shaw, n 21 above, p 260; Frontier Dispute, Provisional Measures, Order of 10 January 1986, ICJ Rep 1986, p 3; Naldi GJ, “The Case Concerning the Frontier Dispute (Burkina Faso/Mali): Uti Possidetis in an African Perspective” (1987) 36 International and Comparative Law Quarterly 893; Butterworth RL, Data for 310 Interstate Security Conflicts (1945–1974) reproduced in Kratochwil F, Rohrlich P and Mahajan H, Peace and Disputed Sovereignty: Reflections on Conflict Over Territory” (1985) Table 1.
[24] El Salvador case, n 22 above.
[25] Burkina Faso case, n 14 above.
[26] See also Territorial Dispute (Libya Arab Jamahiriya/Chad), Judgment, ICJ Rep 1994, p 6 at 83–92 (sep op Judge Ajibola); Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), n 22 above, at 49ff (diss op Mr Bedjaoui).
[27] Conference on Yugoslavia Arbitration Commission: “Opinions on Questions Arising from the Dissolution of Yugoslavia”; reprinted in (1992) 31 ILM 1488.
[28] See Malenovsky J, “Problèmes juridiques liés à la partition de la Tchécoslovaquie, y compris tracé de la frontier” (1993) 39 Annuaire Français de Droit International 305; Franck, n 7 above; Pellet, n 21 above.
[29] Radan P, “The Borders of a Future Independent Quebec: Does the Principle of Uti Possidetis Juris Apply?” (1997) Australian International Law Journal 200.
[30] This argument was part of the Applicant’s submission in Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, ICJ Rep 1996, p 13 at 14–16. Further information about the case available at the ICJ website <http://www.icj-cij.org/> .
[31] On the distinction, see Schachter O, International Law in Theory and Practice (1992) p 20ff.
[32] Jones SB, Boundary Making — A Handbook for Statesmen, Treaty-Editors and Boundary Commissioners (1945) p 47.
[33] Montevideo Convention on the Rights and Duties of States (1933) 165 LNTS 4; Jennings RY, Acquisition of Territory in International Law (1963) p 2; James A, Sovereign Statehood: The Basis of International Society (1986) p 13; Schapera I, Government and Politics of Tribal Societies (1956) pp 204, 211; Greig DW, International Law (1976) p 155. The territorial element of sovereignty is also recognised in Hindu political philosophy (Murty TS, Frontiers: A Changing Concept (1978) pp 59–60), but not according to the Islamic view of Dar El-Islam (ibid, pp 88–91).
[34] Island of Palmas Case (Netherlands/USA) (1928) 2 UNRIAA 829 at 839 (hereafter referred to as the Island of Palmas case).
[35] ‘Boundary’ refers to a line of separation between States. Often ‘frontier’ is adopted instead, but it is more appropriately ascribed to a zone of transition were the administrative power of one State recedes and another’s begins; see Murty, n 33 above, pp 14–21; Lattimore O, Inner Asian Frontiers of China (1951); Lattimore O, “The Frontier in History” in Manners RO and Kaplan D eds, Theory in Anthropology (1968) pp 374–86.
[36] Brownlie I, African Boundaries: A Legal and Diplomatic Encyclopaedia (1979) p 3; Boggs SW, International Boundaries (1940); Sharma SP, International Boundary Disputes and International Law (1976).
[37] Indo-Pakistan Western Boundary (Rann of Kutch) Case (India v Pakistan) (1976) 50 ILR 1 at 406 (diss op Judge Bebler) (hereafter referred to as the Rann of Kutch); Shaw, n 21 above, p 260.
[38] Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment of 15 June 1962, ICJ Rep 1962, p 6 at 34; (hereafter referred to as the Temple of Preah Vihear case). Compare Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne, Advisory Opinion, (1925) PCIJ Ser B, No 12, p 22; Dubai — Sharjah Border Arbitration (1993) 91 ILR 543 at 578. See also Rousseau C, Droit International Public (1977) p 235.
[40] Delimitation refers to a description of the boundary alignment (usually in a treaty or map), demarcation is the physical marking on the ground; see Brownlie, n 36 above, p 4; Jones, n 32 above, pp 57–58, 165.
[41] Eg the Aozou Strip covered 80,000 km2 in Territorial Dispute (Libya Arab Jamahiriya/Chad), Judgment, n 26 above; the dispute between Ecuador and Peru covers 325,000 km2 and includes parts of the Amazon and Marañon Rivers; Allcock JB, Arnold G, Day AJ, Lewis DS, Poultney L, Rance R and Sagar DJ, Border and Territorial Disputes (1992) pp 586–90. See Rann of Kutch case, n 37 above.
[42] See Alvarez A, “Latin America and International Law” (1909) 3 American Journal of International Law 269 at 290.
[43] El Salvador case, n 22 above, at 387; McMahon MM, Conquest and Modern International Law: The Legal Limitations on the Acquisition of Territory by Conquest (1940) p 53.
[44] Affaire des Frontières Colombo–Vénézuéliennes (1922) 1 UNRIAA 223 at 228, (hereafter referred to as Colombia-Venezuela Arbitral Award); translation per Scott JB, “The Swiss Decision in the Boundary Dispute between Colombia and Venezuela” (1922) 16 American Journal of International Law 428. See also
El Salvador case, n 22 above, at 645 (sep op Judge Torres Bernárdez).
[45] See Alvarez, n 42 above, at 271; Moore, n 16 above, p 333.
[46] Greig DW, “Sovereignty and the Falkland Islands Crisis” [1978] AUYrBkIntLaw 2; (1983) 8 Aust YBIL 20 at 50; Greig, “The Beagle Channel Arbitration”, n 21 above, at 371.
[47] Keller AS, Lissitzyn OJ and Mann FJ, Creation of Rights of Sovereignty Through Symbolic Acts 1400–1800 (1938) p 4; Shaw M, “The Western Sahara Case” (1975) 49 British Yearbook of International Law 119 at 127.
[48] Beagle Channel Arbitration (Argentina v Chile) (1979) 52 ILR 93 at 125, (hereafter referred to as the Beagle Channel Arbitration); El Salvador case, n 22 above, at 387, paragraph 42. See also La Pradelle PG, La Frontière (1928) pp 77–78; Nelson LDM, “The Arbitration of Boundary Disputes in Latin America” (1973) 20 Netherlands International Law Review 267 at 269.
[49] In this respect uti possidetis was a variation of the ‘Monroe Doctrine’, which held that the American continent was not subject to colonisation by European powers; Naldi GJ, “The Case Concerning the Frontier Dispute (Burkina Faso/Mali): Uti Possidetis in an African Perspective” (1987) 36 International and Comparative Law Quarterly 893 at 897; Tower C, “The Origin, Meaning, and International Force of the Monroe Doctrine” (1920) 14 American Journal of International Law 1; Hughes CE, “Observations on the Monroe Doctrine” (1923) 17 American Journal of International Law 611 at 615; Jessup PC, “The Monroe Doctrine in 1940” (1940) 34 American Journal of International Law 704; Greig, “Sovereignty and the Falkland Islands Crisis”, n 46 above, at 50; Alvarez, n 42 above, at 311–21; Schwarzenberger G, “Title to Territory: Response to a Challenge” (1957) 51 American Journal of International Law 308 at 320; Keller et al, n 47 above, p 6.
[50] See, eg, Nelson, n 42 above, at 268–71.
[51] More than half of the 30 or so boundaries demarcating the Latin-American States upon independence generated disputes, some lasting over a century; Wood B, The United States and Latin American Wars, 1932–1942 (1966) p 3; Kacowicz AM, Peaceful Territorial Change (1994) p 65; Langer R, Seizure of Territory, The Stimson Doctrine and Related Principles in Legal Theory and Diplomatic Practice (1947) pp 34–35; Greig DW, International Law (1976) p 171. See also Herring H, A History of Latin America (1955) pp 260–91, 434–37; Sorel and Mehdi, n 6 above, at 28–29. In practise, uti possidetis was “illusory and full of serious limitations”, Cukwarah, n 14 above, p 190. For example, Peru and Ecuador still dispute each other’s asserted title to the ancient audiencia of Quito, an area of approximately one million square kilometres.
[52] Sorel and Mehdi, n 6 above, at 14.
[53] Burkholder MA and Chandler DS, From Impotence to Authority: The Spanish Crown and the American Audiencias 1687–1808 (1977) pp 3–5.
[54] El Salvador case, n 22 above, at 387–88.
[55] Cukwarah, n 14 above, p 114; Alvarez, n 42 above, at 289–92.
[56] Sorel and Mehdi, n 6 above, at 26–27.
[57] Boundary Case between Bolivia and Peru (Bolivia v Peru) (1909) 11 UNRIAA 133 at 143; (also reported in Hackworth AH, Digest of International Law (1940) vol 1, pp 726–29).
[58] See, eg, Maier G, “The Boundary Dispute Between Ecuador and Peru” (1969) 63 American Journal of International Law 28.
[59] Fisher FC, “The Arbitration of the Guatemalan — Honduran Boundary Dispute” (1933) 27 American Journal of International Law 403 at 416; Munkman ALW, “Adjudication and Adjustment — International Judicial Decision and the Settlement of Territorial and Boundary Disputes” (1972) 46 British Yearbook of International Law 1 at 22; Schwarzenberger G, International Law (1957) pp 21, 304–05; Waldock H, “Disputed Sovereignty in the Falkland Islands Dependencies” (1948) 25 British Yearbook of International Law 311 at 326.
[60] Honduras Borders (Guatemala / Honduras) (1933) 2 UNRIAA 1307; (hereafter referred to as the Honduras Borders case). See further Fisher, n 59 above (includes map); Schwarzenberger G, International Law (1957) pp 320–21.
[61] Honduras Borders case, ibid, at 1323. See also Colombia-Venezuela Arbitral Award, n 44 above (as another example of parties having an interpretative disagreement).
[62] Honduras Borders case, ibid, at 1324.
[63] See Munkman, n 59 above, at 51.
[64] Where ‘prescription’ is “the long and uninterrupted exercise of sovereignty over a territory”; McMahon, n 43 above, p 4. Note that the parties in the Honduras case had agreed that acquiescence might modify the uti possidetis line: Article V of the Treaty, reproduced in (1933) 2 UNRIAA 1307 at 1322.
[65] Honduras Borders case, n 60 above, at 1324.
[66] Ibid.
[67] El Salvador case, n 22 above, at 635 (sep op Judge Torres Bernárdez).
[68] See also Argentine–Brazil Boundary Arbitration (1899) Stuyt No 157; Guiana-Brazil Boundary Arbitration Treaty (1897), Article IV(a); 89 BFSP 57; Stuyt No 207; Otero JMQ, Memoria histórica sobre límites entre la república de Colombia i el Imperio del Brazil (1869) cited in Nelson, n 48 above, at 270, n 2.
[69] Eg, Brazil-Uruguay (12 October 1851) done at Rio de Janeiro, 40 BFSP 1151; Brazil-Venezuela (25 November 1852) done at Caracas, 49 BFSP 1213; Brazil-Paraguay (6 April, 1856) done at Rio de Janeiro, 46 BFSP 1304; Brazil-Argentine Confederation (14 December 1857) done at Paraná, 49 BFSP 1316. See also Greig, “Sovereignty and the Falkland Islands Crisis”, n 46 above, at 40–41 (argument of Britain).
[70] Eg, Venezuelan Constitution of 1830, Article V, reprinted in 18 BFSP 1119; Ecuador’s Declaration of Boundary with Colombia, reprinted in 20 BFSP 1206-07; Constitution of Honduras of 1848, Article IV, reprinted in 36 BFSP 1086; Constitution of Costa Rica of 1848, reprinted in 37 BFSP 777 at 778. See also Alvarez, n 42 above; Antonopoulos, n 13 above, at 31. The fact that the principle was part of the constitutional law of the disputing States was a relevant factor in the Tribunal’s decision in the Colombia-Venezuela Arbitral Award, n 44 above.
[71] See, eg, El Salvador case, n 22 above, at 634 (sep op Judge Torres Bernárdez). “the mere fact of having concluded without difficulty as to the applicability of the uti possidetis juris to the land boundary dispute did not solve the different question of the ‘definition’ … to be applied”.
[72] Comprising Judges Oda, Sett-Camara, Jennings; (ad hoc) Virally and Torres Bernárdez. See Land, Island and Maritime Frontier Dispute (El Salvador/Honduras); Constitution of Chamber, Order of 8 May 1987, ICJ Rep 1987, p 10.
[73] Cf Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, n 22 above, at 77.
[74] El Salvador case, n 22 above, at 396. See also Burkina Faso case, n 14 above, at 633.
[75] El Salvador case, n 22 above, at 514. See also Burkina Faso case n 14 above, at 632–33. Evidence for an alignment may be discerned from, inter alia, international agreements, unilateral governmental declarations, descriptions in national constitutions, and administrative practice; Brownlie, n 36 above, p 5. Concerning the increasing respectability of maps as evidence; see, Jaworzina, Advisory Opinion, (1923) PCIJ Ser B, No 8, pp 32-33; Monastery of Saint-Naoum (Albanian Frontier) (1924) PCIJ Ser B, No 9, p 21; Island of Palmas n 34 above, at 833; The Minquiers and Ecrehos case, Judgment of November 17th, 1953, ICJ Rep 1953, p 47 at 71, 80–81, (hereafter referred to as Minquiers and Ecrehos); Sovereignty over Certain Frontier Land, Judgment, ICJ Rep 1959, p 209 at 220–21; Temple of Preah Vihear case n 38 above, at 16–17, 83–85, 125–7; Beagle Channel Arbitration, n 48 above, at 201–08; Burkina Faso case, n 14 above, at 582–83; Re Labrador Boundary (1927) 43 TLR 289 at 298–99 (Privy Council); Hyde CC, “Maps as Evidence in International Boundary Disputes” (1933) 27 American Journal of International Law 311; Weissberg G, “Maps as Evidence in International Boundary Disputes: A Reappraisal” (1963) 57 American Journal of International Law 781.
[76] Goldie LFE, “The Critical Date” (1963) 12 International and Comparative Law Quarterly 1251 at 1284; Fitzmaurice G, “The Law and Procedure of the International Court of Justice 1951–54: Points of Substantive Law, Part II” (1955– 1956) 32 British Yearbook of International Law 20 at 24–25; Johnson DHN, “Acquisitive Prescription in International Law” (1950) 27 British Yearbook of International Law 332 at 342, n 4. Occasionally the term “critical period” is adopted where there is a certain legal arrangement subsisting, and there is no known modification to the boundary during that period; see Taba Award (Arbitral Award in the Dispute Concerning Certain Boundary Pillars between the Arab Republic of Egypt and the State of Israel) (1989) 80 ILR 224 esp at 284, where the ‘critical period’ was for the duration of the Palestinian Mandate (29 September 1923 to 14 May 1948); (hereafter referred to as the Taba Award). On the more general issue of identifying the critical time applicable to disputes in international law, see Higgins R, “Time and the Law: International Perspectives on an Old Problem” (1997) 46 International and Comparative Law Quarterly 501.
[77] Fisheries case, Judgment of 18 December 1951, ICJ Rep 1951, p 116 at 130; (hereafter referred to as Fisheries case); Island of Palmas case, n 34, at 845.
[78] Eg, the entity known as Upper Volta/Burkina Faso was created in 1919, disappeared in 1932, reappeared in 1947, and was at various times attached to Ivory Coast, Niger and Mali; see Sorel and Mehdi, n 6 above, at 25. See also, ibid, at 36 (division of German Togoland into Togo and Ghana); ibid, at 39 (Article 122 of the new Estonian Constitution defines the border with Russia as per the treaty of peace of 2 February 1920 rather by reference to the date of its most recently won independence.); Klabbers J and Lefeber R, “Africa: Lost between Self-determination and Uti Possidetis” in Brölman C, Lefeber R and Zieck M eds, Peoples and Minorities (1993) pp 37 at 65.
[79] El Salvador case, n 22 above, at 401.
[80] Minquiers and Ecrehos, n 75, at 59, 60, 66–67, 71; Rosenne S, The Law and Practice of the International Court (1985) p 512.
[81] Taba Award, n 76 above, at 284; Bardonnet D, Mélanges Michel Virally (1991) pp 53–78.
[82] Taba Award, ibid.
[83] See GA Res 390A(V), adopted 2 December 1950 (UNGA), binding by virtue of Annex XI to the 1947 Peace Treaty with Italy, 49 UNTS 314.
[84] Mullerson R, “The continuity and succession of States by reference to the former USSR and Yugoslavia” (1993) 42 International and Comparative Law Quarterly 473 at 480.
[85] The weight attributed to these factors would depend on the nature of the territory; Legal Status of Eastern Greenland, Judgment, (1933) PCIJ Ser A/B, No 53; Murty, n 33 above, pp 50, 200–201; Yakemtchouk, n 14 above, p 68.
[86] See El Salvador case, n 22, at 400–01.
[87] Case concerning the Northern Cameroons (Cameroon v United Kingdom), Preliminary Objections, Judgment of 2 December 1963, ICJ Rep 1963, p 15.
[88] Beagle Channel Arbitration, n 48 above, at 160–63.
[89] Greig, “The Beagle Channel Arbitration”, n 20 above, at 374, 384.
[90] Ibid, at 372.
[91] Burkina Faso case, n 14 above, at 633; Rosenne, n 80 above, p 97; Columbian-Peruvian asylum case, Judgment of November 20th 1950, ICJ Rep 1950, p 266 at 402 (non ultra petita rule); (hereafter referred to as the Asylum case).
[92] See, eg, El Salvador case, n 22 above, at 621 (sep op Judge Valticos).
[93] See, eg, Definitive Treaty of Peace and Friendship (Bolivia–Peru) (November 8 1831), Article XVI, 19 BFSP 1383 at 1387–88; Treaty of Peace (Colombia–Peru) (22 September 1829), Article V, 16 BFSP 1242 at 1243.
[94] Kaikobad KH, “Some Observations on the Doctrine of Continuity and Finality of Boundaries” (1983) 54 British Yearbook of International Law 119. See also Argentine–Chile Frontier Case (1966) 16 UNRIAA 111 at 177, 180–81; Rann of Kutch case, n 37 above, at 520–21 (straight lines drawn along the ‘jagged coastline’).
[95] Eg, Taba Award, n 76 above, at 284–85, where the majority observed that the Tribunal could only weigh evidence submitted by both parties and then decide in favour of the better claim.
[96] Rann of Kutch case, n 37 above, at 474–94; Western Sahara, Advisory Opinion, n 8 above, 41–49, 57–68; at 92–102 (sep op Judge Ammoun). See also Brazil–British Guiana Boundary Arbitration (1904) 11 UNRIAA 18.
[98] (1911) 11 UNRIAA 528 at 545–46.
[99] Temple of Preah Vihear case, n 38 above, at 53 (sep op Fitzmaurice). Other factors might be census data, land-use and pre-existing property lines; Jones, n 32 above, pp 96–97; Kelly JB, Eastern Arabian Frontiers (1964) pp 209ff, 286ff.
[100] El Salvador case, n 22 above, at 641 (sep op Judge Torres Bernárdez).
[101] Eg, acts of jurisdiction concerning the Islands of Picton, Nueva and Lennox by Chile were used to confirm an interpretation of the boundary treaty in Beagle Channel Arbitration, n 88 above, at 200–01. See also El Salvador case, n 22 above, at 399, 565, and 566; Burkina Faso case, n 14 above, at 586–87.
[102] Rossi, n 15 above, p 81; Diversion of Water from the River Meuse, Judgment, (1937) PCIJ Ser A/B, No 70, p 77 (per Judge Hudson); Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, n 22 above, at 60 (“the legal concept of equity is a general principle directly applicable as law”).
[103] See, eg, Treaty of Arbitration for the Settlement of the Boundary Questions between the Republics of Bolivia and Peru, December 30, 1902, Article IV, Boundary Case Between Bolivia and Peru (Bolivia v Peru) (1909) 11 UNRIAA 133 at 139.
[104] See n 60 above, at 1336; Fisher, n 59 above, at 425–26. See Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne, Advisory Opinion, n 38 above, p 85 (Iraq’s geographic connections with the area prevailed over Turkey’s legal claims).
[105] See n 60 above, at 1337, 1341, 1342.
[106] Eg, Anglo-American Convention for the Adjustment of the Boundary between Canada and Alaska (24 June 1903), Article 1, reproduced in 15 UNRIAA 485; India-Pakistan Agreement for the Rann of Kutch Arbitration (30 June 1965), Article 3 paragraph (ii), reproduced in (1968) 7 ILM 637; Bolivia-Paraguay Treaty of Peace, Amity and Boundaries (21 July 1938), Article 2, reproduced in 3 UNRIAA 1819; Colombia-Peru Treaties (6 May 1904 and 12 September 1905), Article 1, Stuyt No 271 and 281; Honduras–Salvador Convention of Boundaries (19 January 1895), Article 2 paragraph 4, reproduced in Miyoshi M, Considerations of Equity in the Settlement of Territorial and Boundary Disputes (1993).
[107] Island of Palmas case, n 34 above, at 841; Rann of Kutch case, n 37 above, at 14.
[108] Affaire du Lac Lanoux (Espagne/France) (1957) 12 UNRIAA 281.
[109] Turkish-Armenian Boundary case (1920), reproduced in Hackworth GH, Digest of International Law (1940) vol I, pp 715–16.
[110] Indeed, it would be unsafe in many cases to refer to some of these criteria. Nationalism and ethnic self-consciousness frequently lead to reinventing and idealising historical fact so that territorial claims tend to be lacking in factual and historical legitimacy; see Kaiser, n 6 above, pp 108ff.
[111] Eg, Brazil-British Guiana Boundary Arbitration, n 96 above; Rann of Kutch case, n 37 above, at 569–70; El Salvador case, n 22 above, at 487–506 (on a “balance of probabilities” the boundary in the Colomonacagua sub-sector was held to follow the Las Cañas river). See also Reeves JD, “Vermont v New Hampshire” (1933) 27 American Journal of International Law 508.
[112] Eg Andes Boundary Case (Argentina/Chile) (1902) 9 UNRIAA 35; Miyoshi, n 106 above, p 171. Where neither the Austrian “dry” boundary nor Hungarian “fluvial” boundary was conclusively established, the land was divided according to which areas had greater value for one side relative to the other; Lake Meerage Arbitration (1902) 38 Revue de Droit International 196, discussed in Miyoshi, n 106 above, pp 110–11. See also Jones, n 32 above, p 49.
[113] Kaikobad, n 94 above, at 122; El Salvador case, n 22 above, at 401–09; Temple of Preah Vihear case, n 38 above; Fisheries case, n 77 above, p 116; Rann of Kutch case, n 37 above; Chamizal Arbitration (1911) 5 American Journal of International Law 728 at 806–07. See also municipal decisions: Indiana v Kentucky [1890] USSC 183; 136 US 479 (1889); Virginia v Tennessee, [1893] USSC 100; 148 US 503 (1893); State of South Australia v State of Victoria [1914] AC 283.
[114] Cf Greig DW, International Law (1976) p 172.
[115] In the agreement between Germany and Great Britain of 2 December 1901 concerning the boundary between the Gold Coast and Togo, “circonstances locales” were taken into account to allow flexibility in light of local demands of terrain and population; see La Pradelle, n 48 above, p 148; Sorel and Mehdi, n 6 above, at 24, n 185.
[116] Compare Burkina Faso case, n 14 above, at 660 (sep op Judge Abi-Saab); Case concerning the Arbitral Award made by the King of Spain on 23 December 1906, Judgment of 18 November 1960, ICJ Rep 1960, p 192. See also n 13 above.
[117] El Salvador case, n 22 above, at 401.
[118] Ibid, at 513–15. See also Sorel and Mehdi, n 6 above, at 28, fn 111.
[119] El Salvador case, n 22 above, at 566.
[120] Ibid. The tribunal seemed open to this possibility in Dubai – Sharjah Border Arbitration, n 38 above.
[121] Miyoshi, n 106 above, p 99–100.
[122] Ibid, p 193.
[123] El Salvador case, n 22 above, at 565 (paragraph 345). See also paragraphs 64, 80, and 205.
[124] La Pradelle, n 48 above, p 11.
[125] Pursuant to Article 26(2) of its Statute, the ICJ convened a Chamber composed of President Bedjaoui, Judges Lachs and Ruda, and Judges ad hoc Luchaire and Abi-Saab; 40 ICJ Yearbook 1985–6, p 13. The Chamber mechanism was deployed to effect an expeditious resolution, the dispute having already generated armed conflict; see Bello EG, “The Uti Possidetis Principle in Africa”, Proceedings of the Second Amsterdam International Law Conference on the Rights of Peoples and Minorities in International Law (1992) p 12. Note that a Chamber’s decision is of equal status to a decision of the Court, owing to Article 27 of the Court’s Statute.
[126] See n 14, at 565. The Chamber’s observations on the issue were thus obitur dictum in terms of the common law’s notion of the doctrine of precedent. Of course, there is no strict precedential value to any decision of the ICJ owing to Article 59 of its Statute, but the notion of precedential value may still be relevant; see Shahabuddeen M, Precedent in the World Court (1996).
[128] Article 3, paragraph III (signed at Addis-Ababa on 25 May, 1963); reproduced in (1963) 2 ILM 766 at 768.
[129] OAU Doc AHG/Res 16(I) of 1964; reproduced in McEwen AC, International Boundaries of East Africa (1971) p 22; Brownlie I, Basic Documents of African Affairs (1971) pp 360–61.
[131] Statement of the Ethiopian Prime Minister, Proceedings of the Summit Conference of the Independent African States, (1963) vol I, section 2; reproduced (translation) in McEwen, n 129 above, p 24. See also Statement of the President of the Malagasy Republic, ibid; also reproduced in Boutros-Ghali B, Les Conflits de Frontières en Afrique (1972) pp 12–13.
[132] Statement of the President of Mali (reproduced in Yakemtchouk, n 14 above, p 89, n 61) (translation: “one won’t find any true nation in Africa”).
[133] Declarations of international organisations are not binding per se; Sloan B, “General Assembly Resolutions Revisited (Forty Years Later)” (1988) British Yearbook of International Law 39; Onuf NG, “Professor Falk on the Quasi-legislative Competence of the General Assembly” (1970) 64 American Journal of International Law 349.
[134] Charter of the United Nations, Article 2, paragraph 4. See also Ratner S, “Drawing a Better Line” (1996) 90 American Journal of International Law 590 at 601, n 90.
[135] For example, President Daddach of Mauritania called for the reunification of all Hassaniya speakers who had been divided by “artificial colonial boundaries”; Hodges T, Western Sahara: The Roots of a Desert War (1983) pp 100–02; Thompson V and Adloff R, The Western Saharans (1980). The Moroccans in turn wanted to restore the boundaries of the ancient Almoravid Empire, and Chewa-dominant Malawi sought to restore the historic Maravi Empire; Vail L and White L, “Tribalism in the Political History of Malawi” in Vail L ed, Creation of Tribalism in Southern Africa (1989), 151; Phiri SH, “The Chewi and Ngoni” in Asiwaju AI ed, Partitioned Africans (1985), p 105; Shaw, n 47 above, at 120. However, note the suggestion that historic claims in Africa have since been abandoned, so that uti possidetis “is espoused by the entirety of the African States”; Antonopoulos, n 13 above, at 34. Re-assertions of historic title have also been witnessed in Asia; Rao KK, “The Sino-Indian Boundary Question and International Law” (1962) 11 International and Comparative Law Quarterly 375; Rubin AP, “The Sino-Indian Border Disputes” (1960) 9 International and Comparative Law Quarterly 96; Clark R, “The ‘Decolonization’ of East Timor and the United Nations norms on self-determination and aggression” in CIIR/IPJET, International Law and the Question of East Timor (1995) p 65 at 80–90; Wright Q, “The Goa Incident” (1962) 56 American Journal of International Law 617.
[136] Touval S, “The Sources of Status Quo and Irredentist Policies” in Widstrand CG ed, African Boundary Problems (1968) p 101.
[137] North Sea Continental Shelf, Judgment, ICJ Rep 1969, p 3 at 44.
[138] “Succession of States to multilateral treaties: studies prepared by the Secretariat”, UN Docs A/CN.4/200, A/CN.4/200/Add.1, A/CN.4/200/Add.2, reprinted in Yearbook of the International Law Commission 1968, vol II, p 1; First report on succession of States in respect of rights and duties resulting from sources other than treaties, by Mr Mohammed Bedjaoui, Special Rapporteur, UN Doc A/CN.4/204, reprinted in Yearbook of the International Law Commission 1968, vol II, p 94 at 112–13, paragraph 122.
[139] Suhrke A and Noble LG eds, Ethnic Conflict in International Relations (1977) p 13. Compare Touval, n 136 above, at 117–18.
[140] Yakemtchouk, n 14 above, pp 83, 88; Boutros-Ghali, n 131 above, pp 77–81. See also de Pinho Campinos J, “L’Actualité de L’Uti Possidetis” in Blumann C ed, La Frontière: Colloque de Poitiers (1980) p 95 at 101–03 (“Il n’y a pas de doute que l’uti possidetis est, pour le moins, un principe de nature politique”; ibid, at 103). See also Ratner, n 134 above, at 595 (suggesting that with this stance, “African and European elites had struck a bargain to the benefit of both”), and 598 (“no more than a policy decision adopted to avoid conflicts during decolonisation”); Sorel and Mehdi, n 6 above, at 31–32 (citing the Secretary-General of the OAU); Ekwe-Ekwe H, Conflict and Intervention in Africa, Nigeria, Angola, Zaire (1990) pp 53–54 (“inspired by national interests rather than legal imperatives”).
[141] McEwen, n 129 above, p 26. Thus the Declaration “lassait intact le problème des territoires insuffisamment délimités l’époque coloniale”; Yakemtchouk, n 14 above, p 85. Cf Sorel and Mehdi, n 6 above, at 15 (suggesting that the Cairo Declaration embodies uti possidetis). The formulation “achievement of national independence” in the Cairo Declaration could also theoretically support expansionist claims by such States as Liberia, Ethiopia and Morocco which were independent prior to colonialism; Touval S, “The Organization of African Unity and African Borders” (1967) 21 International Organization 102 at 124–25.
[142] Eg, Somalia and Morocco; see Yakemtchouk, n 14 above, p 66; Boutros-Ghali, n 131 above, pp 36–37. Disagreement concerning the Cairo Declaration fuelled the dispute between Somalia and Ethiopia concerning the Ogaden region, the former pointing to historic Somali habitation and the latter relying on the Declaration; see eg, Guilhaudis J-F, “Remarques à propos des récent conflits territoriaux entre Etats africains (Bande d'Aouzou, Ogaden, Saillant de Kyaka)” (1979) 25 Annuaire Français de Droit International 223; Annex to Letter from Permanent Republic of Ethiopia to the UN, 3 September 1980, UN Doc A/35/427; Rajagopal B and Carroll AJ, The Case for the Independent Statehood of Somalia (1992); Constitution of the Somali Democratic Republic of 1981 (Article 16), in Blaustein AP and Flanz GH eds, Constitutions of the World (1993) vol 17. Links to boundary disputes and boundary related matters via <http://www.smithbartos.com/intlaw/boundaries> . Recent boundary disputes can be searched on the University of Durham’s International Boundaries Research Unit (IBRU) website <http://www-ibru.dur.ac.uk/database/data.html> .
[143] Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), n 22 above, at 57 (diss op Mr Bedjaoui); Brownlie, n 36 above, p 11. See also Territorial Dispute (Libya Arab Jamahiriya/Chad), Judgment, n 26 above, at 90 (“Libya … accepted the principles which [the Cairo Declaration] embodied”) (sep op Judge Ajibola).
[144] An example is the dispute between Cameroon and Nigeria over the sovereignty of the Bakassi Peninsula and part of Cameroonian territory near Lake Chad, which Cameroon alleges has been the subject of Nigerian aggression since 1993. Provisional measures were sought at the International Court of Justice on 29 March 1994 and 6 June 1996, see Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, n 30 above. See note summarising the judgment in (1996) Australian International Law Journal 158.
[145] Burkina Faso case, n 14 above, at 566.
[146] Concerning ‘regional’ custom; Asylum case, n 91 above.
[147] Legum C, Pan-Africanism (1962) pp 229–32; Sorel and Mehdi, n 6 above, at 20–21. Cukwarah AO, “The Organisation of African Unity and African Territorial and Boundary Problems: 1963–1973” (1973) 13 Indian Journal of International Law 176 at 179–80.
[148] St John RB, “The Boundary Dispute between Peru and Ecuador” (1977) 71 American Journal of International Law 321 at 323.
[149] Comprising five ICJ Judges: Fitzmaurice (President), Gros, Petrén, Onyeama and Dillard.
[150] Beagle Channel Arbitration, n 88 above, at 125. See also Judge Gros at 230 (“intra-American … rule of uti possidetis”); El Salvador case, n 22 above, at 636 (sep op Judge Torres Bernárdez) (“applicable between Spanish-American Republics”); Touscoz J, Le Principe d’Effectivité dans l’Ordre International (1964) p 223, n 56. Former ICJ Judge Jessup regarded uti possidetis as a prime example of regional law; Jessup PC, ''Diversity and Uniformity in the Law of Nations” (1964) 58 American Journal of International Law 341 at 347.
[151] Even in the Burkina Faso case the parties requested that the decision be based on the “intangibility of frontiers inherited from colonialization”, Preamble to the Special Agreement of 16 September 1983 (Burkina Faso/Mali); reproduced in ICJ Rep 1986, p 554 at 557.
[152] Fisher, n 59 above (“the indefinite and illusory concept of uti possidetis”); Waldock, n 59 above, at 325 (“discredited even as a criterion for settling boundary disputes between Latin-American States”); Boggs SW, International Boundaries (1940) p 289; Prescott JRV, The Geography of Frontiers and Boundaries (1965) pp 116. See also Schwarzenberger, n 49 above; Antonopoulos, n 13 above, at 401.
[153] La Pradelle, n 48 above, pp 86–87.
[154] Naldi, n 49 above, at 899. Concerning intertemporal law, see Island of Palmas case, n 34 above, at 845; Shaw, n 47 above, at 152; Elias TO, “The Doctrine of Intertemporal Law” (1980) 74 American Journal of International Law 285; Jennings, n 33 above, pp 28–31.
[155] Territorial Dispute (Libya Arab Jamahiriya/Chad), Judgment, n 26 above, at 89.
[156] Sovereignty over Certain Frontier Land, Judgment, n 75 above, at 240, 255 (respectively).
[157] See Sahurie EJ, The International Law of Antarctica (1992) p 224, n 113.
[158] Rann of Kutch case, n 37 above; Temple of Preah Vihear case,n 38 (respectively).
[159] McEwen, n 129 above, p 27.
[160] Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, n 22 above, at 65–66; Lissitzyn OJ, “Treaties and Changed Circumstances (Rebus Sic Stantibus)” (1967) 61 American Journal of International Law 895; Sorel and Mehdi, n 6 above, at 12.
[161] Eg Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, (1923) PCIJ Ser B, No 4; Free Zones of Upper Savoy and the District of Gex, Judgment, (1932) PCIJ Ser. A/B, No 46, pp 153–58. Also Fisheries Jurisdiction (United Kingdom v Iceland), Judgment, ICJ Rep 1973, p 3 at 18. See further Shaw, n 21 above, pp 231–33.
[162] UN Doc A/CONF.39/27 (22 May 1969).
[163] Reports of the Commission to the General Assembly, UN Doc A/6309/Rev.1, reprinted in Yearbook of the International Law Commission 1966, vol I part II, pp 169, 259.
[164] Poulose TT, Succession in International Law (1974) p 8.
[165] McNair MH, The Law of Treaties (1961) p 655; Fitzmaurice GG, “The Juridical Clauses of the Peace Treaties” (1948–II) Recueil des Cours de l’Académie de Droit International 292; Lester AP, “State Succession to Treaties in the Commonwealth: A Rejoinder” (1963) 12 International and Comparative Law Quarterly; 478 (1965) 14 International and Comparative Law Quarterly 262; O’Connell P, State Succession in Municipal Law and International Law (1967); Jennings R and Watts A, Oppenheim’s International Law, 9th edn (1992) pp 224–27, §65.
[166] Vienna Convention on Succession of States in Respect of Treaties, UN Doc A/CONF80/31 (22 August 1978); reprinted in (1978) 17 ILM 1488.
[167] Ibid (“A succession of States shall not as such affect: (a) a boundary established by a treaty”). See also Yearbook of the International Law Commission 1968, vol II, pp 92–93; Poulose, n 164 above, p 90; Report of the 53rd Conference of the ILA (1968) 589, pp 598, 603; ILA, The Effect of Independence on Treaties: A Handbook (1965) pp 361–67; De Lupis ID, International Law and the Independent State (1987) p 179; Jennings, n 33 above, p 13; Klabbers and Lefeber, n 78 above, at 62.
[168] See Sorel and Mehdi, n 6 above, at 11–13.
[169] Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, n 26 above, p 6 at 37: (“A boundary established by a treaty thus achieves a permanence which the treaty itself does not necessarily enjoy”).
[170] Hannikainen L, Peremptory Norms (jus cogens) in International Law: Historical Development, Criteria, Present Status (1988).
[171] Ibid, p 299.
[172] Yearbook of the International Law Commission 1966, vol II, pp 248–49.
[173] See n 14, above at 565, paragraph 22.
[174] Ibid, at 566, paragraph 24.
[175] See Brownlie, n 36 above, pp 26–43, pp 110–20 (Egypt-Sudan) pp 121–26 (Chad-Libya) pp 127–32 (Libya-Niger) pp 133–40 (Libya-Sudan) pp 141–46 (Libya-Tunisia) pp 149–58 (Morocco-Western Sahara) pp 164–89 (Benin-Nigeria) pp 190–201 (Benin-Togo) pp 213–29 (Gambia-Senegal) pp 230–49 (Ghana-Ivory Coast) pp 250–79 (Ghana-Togo) pp 280–95 (Ghana-Upper Volta) pp 296–99 (Guinea-Guinea-Bissau) pp 304–09 (Guinea-Liberia) pp 321–49 (Guinea-Sierra Leone) pp 350–57 (Guinea-Bissau-Senegal) pp 358–70 (Ivory Coast-Liberia) pp 379–405 (Liberia-Sierra Leone) pp 445–69 (Niger-Nigeria) pp 484–88 (Angola (Cabinda)-Congo (Brazzaville)) pp 489–514 (Angola-Zaïre) pp 545–48 (Cameroun-Equatorial Guinea) pp 553–87 (Cameroun-Nigeria) pp 597–601 (Central African Empire-Sudan) pp 602–06 (Central African Empire-Zaïre) pp 613–16 (Chad-Nigeria) pp 617–39 (Chad-Sudan) pp 659–69 (Congo (Brazzaville)-Zaïre) pp 670–73 (Equatorial Guinea-Gabon) pp 682–85 (Sudan-Zaïre) pp 705–36 (Zaïre-Zambia) pp 744–52 (Burundi-Tanzania) pp 753–66 (Djbouti-Ethiopia) pp 767–74 (Djibouti-Somalia) pp 826–51 (Ethiopia-Somalia) pp 888–916 (Kenya-Somalia) pp 989–1001 (Rwanda-Uganda) pp 1025–40 (Angola-Namibia) pp 1041–72 (Angola-Zambia) pp 1116–1212 (Malawi-Mozambique) pp 1219–37 (Mozambique-Zimbabwe) pp 1238–52 (Mozambique-South Africa) pp 1253–61 (Mozambique-Swaziland) pp 1262–72 (Mozambique-Zambia).
[176] Eg, ibid, pp 983–88 (Rwanda-Tanzania).
[177] Eg, ibid, pp 690–704 (Uganda-Zaïre) pp 968–82 (Mozambique-Tanzania). Historic developments of Sudanese sovereignty have created particular difficulty; pp 682–84 (Sudan-Zaïre), ibid pp 852–87 (Ethiopia-Sudan) pp 917–21 (Kenya-Sudan) (“No international agreement relates to the frontier”; ibid p 919). Incompleteness is not necessarily a problem; eg a median line has been adopted by default in Lake Tanganyika; ibid pp 686–89 (Tanzania-Zaïre).
[178] Eg, ibid, pp 436–44 (Mauritania-Western Sahara).
[179] Evans MD, “International Court of Justice: Recent Cases” (1995) 44 International and Comparative Law Quarterly 683; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, n 26 above. See further Ricciardi M, “Title to the Aouzou Strip: A Legal and Historical Analysis” (1992) 17 Yale Journal of International Law 301.
[180] De Lupis, n 167 above, p 187.
[181] Ibid, p 188.
[182] Eg, Chime S, “The Organization of African Unity and African Boundaries” in Widstrand ed, n 136 above, p 65; Bello, n 125 above; Naldi, n 49 above, at 893; Kacowicz, n 4 above; de Pinho, n 140 above, at 98–100.
[183] McEwen, n 129 above, p 31.
[184] Brownlie, n 36 above, p 11; Shaw, n 21 above, at 120, n 1; Warbrick C, “The Boundary Between England and Scotland in the Solway Firth” (1980) 51 British Yearbook of International Law 163 at 174; Jennings and Watts, n 165 above, pp 669–70, §235 (“adapted to the African continent”).
[185] Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), n 22 above, at 22. Note that time the ICJ has declined to hear a re-opening of the case; Maritime Delimitation between Guinea-Bissau and Senegal, Order of 8 November 1995, ICJ Rep 1995, p 423.
[186] Note that this approach had been foreshadowed a year earlier in Guinea — Guinea-Bissau Maritime Delimitation Case, n 22 above, at 657 (per Lachs, Mbaye and Bedjaoui) (Award of 14 February 1985).
[187] Naldi, n 49 above, at 899. See also Shaw, n 21 above, pp 186–87; El Salvador case, n 22 above, p 633, paragraph 13 (sep op Judge Torres Bernárdez) (distinguishing between “contemporary developments” following African decolonisation and “the Spanish-American uti possidetis principle”).
[188] Beagle Channel Arbitration, n 88 above, at 133. Compare Yakemtchouk, n 14 above, p 84 (suggesting that acknowledgment of uti possidetis does not impede boundary modification by treaty); Antonopoulos, n 13 above, at 52 (making a functional distinction between ‘international’ colonial boundaries and ‘internal’ colonial boundaries).
[189] See Shaw, n 21 above, pp 252–53.
[190] 26 March 1979 18 ILM 362.
[191] Agreement of 1906 between the Egyptian authority and the neighbouring administrative divisions of the Ottoman Empire, 1 October 1906, in (1906) 116 BFSP 842.
[192] Taba Award, n 76 above, at 321 (per Lapidoth) quoting from Ress G, “The Delimitation and Demarcation of Frontiers in International Treaties and Maps” in National and International Boundaries, Thesaurus Acroasium, vol XIV (1985) pp 395 at 435.
[193] Taba Award, n 76 above, at 321 (per Lapidoth), quoting from Ress, ibid, p 437.
[194] Ibid at 321.
[195] Ibid, at 323–24.
[196] Canton of Valais v Canton of Tessin (1987) 75 ILR 114 (full German text: Entscheidungen des Schweizerischen Bundesgerichts aus dem Jahre 1980, Amtliche Sammlung, 106 Band, Iib. Teil, p 154).
[197] Taba Award, n 76 above, at 325.
[198] Ibid, at 326.
[199] McEwen, n 129 above, pp 12, 28. Cf FV, St John RB, “The Boundary Dispute Between Peru and Ecuador” (1977) 71 American Journal of International Law 321 at 327 (“absolutely no agreement between the two States as to where the status quo lay”).
[200] Territorial Dispute (Libya Arab Jamahiriya/Chad), Judgment, n 26 above, at 89 (sep op Judge Ajibola) (“does it matter seriously whether the principle is uti possidetis juris or uti possidetis de facto with regard to its application in Africa?”).
[201] Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), n 22 above, at 57 (diss op Mr Bedjaoui).
[202] Kacowicz AM, Peaceful Territorial Change (1994) p 9.
[203] Antonopoulos, n 13 above, at 60.
[204] On inchoate title, Jennings and Watts, n 165 above, pp 689–90, §252.
[205] Keller et al, n 47 above, pp 43–45, 148, 151.
[206] See Territorial Dispute (Libya Arab Jamahiriya/Chad), Judgment, n 26 above, at 93–94 (diss op Judge ad hoc Sette-Camara); Shaw, n 21 above, pp 38–45; Lindley MF, The Acquisition and Government of Backward Territory in International Law (1926); Shaw, n 47 above, at 129. The significance of such ‘treaties’ with natives related to rendering a territorial claim opposable against other colonial powers, rather than as a means of ‘transferring’ title from the tribal sovereign to the colonial sovereign.
[208] Kratochwil et al, n 23 above, p 130.
[209] Kim C and Lawson CM, “Law of the Subtle Mind: the Traditional Japanese Conception of Law” (1979) 28 International and Comparative Law Quarterly 491.
[210] See n 14 above, at 633; the pools were divided into halves, for in the absence of special circumstances equity amounts to equality North Sea Continental Shelf, Judgment, n 137 above, at 49. Equity infra legem will guide the court in interpreting and applying the law where there are few points of reference, and correspondingly a greater number of “degrees of freedom” (in the statistical sense), for geometrically defining the boundary line; Burkina Faso case, n 14 above, at 662 (sep op Judge ad hoc Abi-Saab). Judge Abi-Saab would have preferred a line more imbued with equity infra legem given that the region was “a nomadic one, subject to drought, so that access to water is vital” (ibid, at 663).
[211] Mazrui A, “The African State as a Political Refugee: Institutional Collapse and Human Displacement” (1995) International Journal of Refugee Law 21; Neuberger B, “Irredentism and Politics in Africa” in Charzan, ed, n 4 above, p 97; Sorel and Mehdi, n 6 above, at 30.
[212] Hannikainen, n 170 above, p 371; Wa Mutua, n 2 above, at 1142–50; Yakemtchouk, n 14 above, pp 70–73.
[213] Okoth-Ogendo HWO, “Property Theory and Land-Use Analysis — An Essay in the Political Economy of Ideas” in Woodman GR and Obilade AO eds, African Law and Legal Theory (1995) pp 291–305; Anene JC, The International Boundaries of Nigeria (1970) pp 5–6; Yakemtchouk, n 14 above, pp 67–69; Briggs LC, Tribes of the Sahara (1960) p 13ff, 135–36; p 178ff; Boutros-Ghali, n 131 above, p 8.
[214] Udokang O, Succession of New States to International Treaties (1972) p 381; Boutros-Ghali, n 131 above, pp 9–10.
[215] Anene JC, The International Boundaries of Nigeria (1970) p 3.
[216] See Brownlie, n 36 above, p 6. See also Yakemtchouk, n 14 above, p 72.
[217] Wa Mutua, n 2 above; Coker C, “The New World (Dis)Order” in Clesse et al, n 5 above, p 28 at 32. Cf Kratochwil et al, n 23 above, p 14; Murty, n 33 above, p 149 (“geometric boundaries in Africa have been a satisfactory divide”); McEwen, n 129 above, p 48.
[218] However, since certain geographic regions had long been a “conglomeration of ethnic communities”, the awkward mixture of nationalities in modern African States is not solely a legacy of colonial map-making; see eg Welch C, Dream of Unity: Pan-Africanism and Political Integration in West Africa (1966) p 200; Anene JC, The International Boundaries of Nigeria (1970) p 290.
[219] Twining D, The New Eurasia (1993) p 23.
[220] Reeves JS, “International Boundaries” (1944) 38 American Journal of International Law 533 at 538.
[221] Wa Mutua, n 2 above, at 1175.
[223] See Shaw, n 47 above, at 120; Eastwood, n 9 above; Weller, n 9 above; Brilmayer, n 10 above; Kiwanuka RN, “The Meaning of ‘People’ in the African Charter on Human and Peoples’ Rights” (1988) 82 American Journal of International Law 80.
[224] Eg, Universal Declaration of Human Rights, Article 21, GA Res 217 (III), UN Doc A/810 at 71, 75 (1948), providing for the right of all people to participatory government, which remains merely rhetorical for many State populations.
[225] Ayittey GBN, Africa Betrayed (1992).
[226] Declaration on the Granting of Independence to Colonial Countries and Peoples, n 8 above; Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, n 8 above; Burkina Faso case, n 14 above at 652–54 (sep op Judge ad hoc Luchaire).
[227] See, eg, Iglar RF, “The Constitutional Crisis in Yugoslavia and the International Law of Self-Determination: Slovenia’s and Croatia’s Right to Secede” (1992) 15 Boston College International and Comparative Law Review 213 at 221–29; Musgrave, n 9 above, p 218; Fox, n 11 above.
[228] See n 8 above.
[229] The relevant passage reads:
Nothing in the foregoing paragraphs shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or colour.
[230] Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), n 22 above, at 57 (sep op Mr Bedjaoui). Compare Koskenniemi, n 4 above, at 243.
[231] Even assuming that secession of national groups from an existing State could now be considered to be a valid manifestation of self-determination, uti possidetis would be relevant only “in those few instances when … that secession has an effect on a colonial boundary”; McCorquodale R, “Self-Determination: A Human Rights Approach” (1994) 43 International and Comparative Law Quarterly 857 at 882.
[232] Hitler A, Mein Kampf (translated James Murphy) (1939) p 532.
[233] The Chairman being Mr Badinter, President of the French Constitutional Council. The remainder of the Commission was composed of the Presidents of the German, Italian, and Spanish Constitutional Courts, and of the Belgian Court of Arbitration.
[234] Conference on Yugoslavia Arbitration Commission; “Opinions on Questions Arising from the Dissolution of Yugoslavia”, n 27 above. See also Weller, n 9 above.
[235] Opinion 3 (1992) 31 ILM 1499.
[236] Opinion 1, paragraph 3 (1992) 31 ILM 1494 at 1497.
[237] Opinion 1, paragraph 1(d) (1992) 31 ILM 1494 at 1495.
[238] Kreca M, The Badinter Arbitration Commission: A Critical Commentary (1993) pp 12–14.
[239] See Bernier I, International Legal Aspects of Federalism (1973) p 26.
[240] Dicey AV, Introduction to the Study of the Law of the Constitution (1948) 9th edn, p 144. Duchacek I, Comparative Federalism: The Territorial Dimension of Politics (1987) pp18ff; Bowrie RR and Friedrich CJ, Studies in Federalism (1954).
[241] Kreca, n 238 above, pp 14–18.
[242] Eg, Cooper v Aaron[1958] USSC 160; , 358 US 1 at 18 (1958).
[243] Figures from Blum YZ, “UN Membership of the 'New' Yugoslavia: Continuity or Break?” (1992) 86 American Journal of International Law 830 at 833.
[244] Vienna Convention on Succession of States in Respect of Treaties, n 166 above, Article 2(1)(b); Convention on the Succession of States in Respect of State Property, Archives and Debts, Article 2(1)(a); UN Doc A/CN.4/49, p 8, paragraph 1; Crawford J, The Creation of States in International Law (1979) p 303.
[245] Pakistan continued as a State despite losing 57% of its population in the Bangladesh secession; Musgrave, n 9 above, p 354. Concerning the secession see generally Nanda VP, “Self-Determination in International Law: The Tragic Tale of Two Cities — Islamabad (West Pakistan) and Dacca (East Pakistan)” (1972) 66 American Journal of International Law 321.
[246] Opinion 8 (1992) 31 ILM 1521 at 1523.
[247] Crawford, n 244 above, p 405. Indeed, SFRY had itself adopted new constitutions on previous occasions; in 1946, 1963 and 1974; Musgrave, n 9 above, p 203.
[248] Cf dissolution of the USSR by the agreement of all its constituent parts: Alma Ata Declaration (Article V); reprinted in (1992) 31 ILM 148 at 149; or the division of Czechoslovakia by federal municipal enactment; Constitutional Law Dissolving the Federal Republic of Czechoslovakia (25 November 1992); Ústavní Zákon o zániku Ceské a Slovenské Federativní Republiky 542/1992, 110 Sbírka Zákonů, 3253–54.
[251] Specifically, Charter of the United Nations, Article 2, paragraph 4, n 8 above; Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, n 8 above; Conference on Security and Co-operation in Europe: Final Act, Principle IV, reprinted in (1975) 14 ILM 1292.
[252] As required by Article II of the Vienna Convention on Succession of States in Respect of Treaties, n 166 above.
[253] No mention was made of the fact that the Constitution also safeguarded the right of self-determination of all nations in Yugoslavia; Ramet SP, Nationalism and Federalism in Yugoslavia 1963–1983 (1984).
[254] Kreca, n 238 above, p 39.
[255] Opinion 8, paragraph 4 (1992) 31 ILM 1521 at 1523.
[256] Article 61(1) Vienna Convention on the Law of Treaties, n 166 above; Kymlicka W, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995) p 117; Ratner, n 134 above, at 606–07.
[257] See Elazar DJ, “The Role of Federalism in Political Integration” in Elazar DJ ed, Federalism and Political Integration (1979) p 13 at 28–29.
[258] Owen D, Balkan Odessey (1993) p 34.
[259] Opinion 3 (1992) 31 ILM 1499 at 1500.
[260] Burkina Faso, n 14 above, at 565 (paragraph 20 from 565 is quoted in text accompanying n 103 above). See also Hannum, n 10 above, at 55; Kreca, n 238 above, pp 35–38.
[262] Ibid.
[263] Ibid.
[264] See also Ratner, n 134 above, at 614 (“the validity of the principle for noncolonial breakups is suspect”) Cf Antonopoulos, n 13 above, at 34 (suggesting that uti possidetis in regards to Europe is implicit in Principle III of the 1975 CSCE Helsinki Final Act (1975) 14 ILM 1292 at 1294); Fox, n 11 above, at 749 (the Commission made a “radical restatement” of the principle).
[265] As the Chamber of the ICJ observed in the Burkina Faso case, uti possidetis “stops the clock, but it does not put back the hands”, n 14, at 568. In this sense, making reference to dissolution in the application of uti possidetis is to do precisely the opposite: “to put back” the clock to a time prior to the usual critical date, ie the moment of the new State’s independence.
[266] Macartney CA, Hungary and Her Successors: The Treaty of Trianon and its Consequences (1937) pp 360, 364, 406, 413 (“insistence of the use of Serb in all public life”) p 414 (“All clubs, associations, etc, were ‘Serbized’”); Kaiser, n 6 above, pp 193–94 (discussing such ‘internal colonialism’ in the region of Eastern Europe).
[267] Charter of the United Nations, Article 2, paragraph 7.
[268] This characterisation had some unfortunate consequences for attempts to prosecute war crimes. For example, the majority of the International Criminal Tribunal for the Former Yugoslavia found that as a consequence of the context being an ‘internal’ armed conflict there was an absence of one of the essential elements of the offence with which alleged war criminal Tadic was charged. See Prosecutor v Dusko Tadic a/k/a/ 'Dule' (Opinion and Judgment of 7 May 1997), Case No IT-94-1-T (extracts reprinted in (1997) 36 ILM 980). Summary in McCormack T, “From Solferino to Sarajevo: A Continuing Role for International Humanitarian Law?” [1997] MelbULawRw 21; (1997) 21 Melbourne University Law Review 601 at 638, n 63.
[269] Weller, n 9 above, at 588. See also SC Res 757 (1992) 31 ILM 1525, 1526; Blum, n 243 above, at 833; Musgrave, n 9 above, pp 351, 359. Serbia and Montenegro would also need to formally apply for UN membership; SC Res 777 (19 September 1992) reproduced in (1992) 31 ILM 1427, pp 1473–74. Cf Craven M, “The EC Arbitration Commission on Yugoslavia” (1995) 66 British Yearbook of International Law 333 at 385ff (uti possidetis used “as a tool for establishing the presumptive statehood of the entities to emerge from the dismemberment of the SFRY and to deny the Autonomous Serbian Republics the benefit of that presumption”).
[270] The Aaland Islands Question: Report submitted to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations (1921) Doc B7/21/68/106. See Barros J, The Åland Islands Question (1968) p 289.
[271] North Sea Continental Shelf, Judgment, n 137 above, at 32.
[272] A recent illustration of this principle is the EC’s statement in “Recognition of former Soviet Republics” that “Recognition shall not be taken to imply acceptance … concerning territory which is the subject of dispute” [1991] Bulletin of the European Communities Commission, No 12, 121, paragraph 1.4.13. See also Cukwarah, n 14 above, pp 4–5, 25; municipal decisions Duff Development Co Ltd v Government of Kelantan [1924] AC 797; Foster v Globe Venture Syndicate [1900] 1 Ch 881.
[273] Sorel and Mehdi, n 6 above, at 36.
[274] Eg, Monastery of St Naoum (Albanian Frontier), n 75 above; Jaworzina, n 75 above, Crawford, n 244 above, p 40.
[275] Without necessarily being entitled to such recognition, though see Lauterpacht H, “Recognition of States in International Law” (1944) 53 Yale Law Journal 385.
[276] Dayton Peace Accord (Bosnia and Herzegovina-Croatia-Serbia); General Framework Agreement for Peace in Bosnia and Herzegovina 1995, UN Doc A/50/750, reprinted in (1996) 35 ILM 75 ( hereafter referred to as the Dayton Agreement).
[277] Radan, n 9 above, at 211.
[279] Burkina Faso, n 14 above, at 652 (sep op Judge ad hoc Luchaire, paragraph 1).
[280] Sharp A, The Versailles Agreement: Peacemaking in Paris, 1919 (1991) p 119ff. See also Stevenson D, French War Aims Against Germany, 1914–1919 (1992); Lloyd George D, War Memoirs (1938) vol 2, p 1514 (“an urgent necessity for the stability of Western Europe”); See also FRUS, Paris Peace Conference (1919) vol II, pp 481–83, vol III, pp 583–84, 591–93.
[281] See generally Barros J, The Åland Islands Question (1968).
[282] Macartney CA and Palmer AW, Independent East Europe: A History (1962) pp 111–15; Temperley HWV, A History of the Peace Conference of Paris (1969) vol 6, pp 266–78; Dockrill ML and Goold JD, Peace Without Promise (1981) pp 117–18; Lundgren-Nielsen K, The Polish Problem at the Paris Peace Conference: A Study of the Policies of the Great Powers and the Poles, 1918–1919 (1979) pp 385–99.
[283] Temperley HWV, A History of the Peace Conference of Paris (1969) vol 4, pp 449–55.
[284] Sharp, n 280 above, pp 144–45.
[285] Deak F, Hungary at the Paris Peace Conference: The Diplomatic History of the Treaty of Trianon (1942) pp 4–14; Temperley, n 283 above, pp 89–125.
[287] Ibid, p 43.
[288] Deak, n 285 above, pp 61–63; Temperley, n 283 above, pp 487–89; Dockrill and Goold, n 282 above, pp 103–05.
[289] Italy’s occupation and eventual acquisition of Fiume after Croatia was separated from Hungary and amalgamated into the new Serb-Croat-Slovene entity is a similarly blunt example of the rejection of uti possidetis (according to which Fiume should have reverted to the status quo ante of 1868 and become part of Croatia); Macartney, n 266 above, p 442.
[290] Temperley, n 283 above, pp 488–92; Dockrill and Goold, n 282 above, pp 103-05.
[291] Macartney, n 266 above, p 3.
[292] Beneš E, Bohemia's Case for Independence (1917); Opcenský J, The Collapse of the Austro-Hungarian Monarchy and the Rise of the Czechoslovak State (1928); Pearson R, National Minorities in Eastern Europe 1848–1945 (1983) p 151; Perman D, The Shaping of the Czechoslovak State (1962) pp 1–9. See also Kaiser, n 6 above, pp 12–13, 135 (role of nationalist elites and intelligentsia in stirring nationalist movements).
[293] Macartney, n 266 above, p 246.
[294] Macartney, n 266 above, pp 75, 83(n 1), 126.
[295] Sharp, n 280 above, p 149.
[296] Perman, n 292 above, pp 228–42; Sharp, n 280 above, p 151.
[297] Stadler KS, The Birth of the Austrian Republic 1918–1921 (1968).
[298] Sorel and Mehdi, n 6 above, at 36.
[300] Charney JI, “The Persistent Objector Rule and the Development of Customary International Law” (1985) 56 British Yearbook of International Law 1; Stein TL, “The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law” (1985) 26 Harvard International Law Journal 457. Some commentators have speculated that there may be an even broader scope for the permissibility of secession; see, eg, Antonopoulos, n 13 above, at 74–75; Kirgiis FL Jr, “Editorial Comment: The Degrees of Self-determination in the United Nations Era” (1994) 88 American Journal of International Law 304.
[301] Goy R, “L'independence de l'Erythrée” (1993) 39 Annuaire Français de Droit International 337 at 350.
[302] Hannum, n 10 above, at 55. See also Musgrave, n 9 above, pp 209, 220, 351, 357; McCorquodale, n 231 above, at 877.
[303] Letter from the Secretary-General to the President of the General Assembly, UN GAOR 47th Session, Annex I, at 2, UNDoc A/C3/47/5 (1992).
[304] Chase P, “Conflict in the Crimea: An Examination of Ethnic Conflict under the Contemporary Model of Sovereignty” (1995) 34 Columbia Journal of Transnational Law 219 at 222–39; Kaiser, n 6 above, pp 358–73; Yakentchouk R, “Les conflits des territoire dans les états de l'ex-USSR” (1993) 39 Annuaire Fraçais de Droit International 393 at 395.
[305] Article 3, Charter of the Commonwealth of Independent States (1995) 34 ILM 1279 at 1283.
[306] Light M, “Russia and Transcaucasia” in Wright JFR, Goldenberg S and Schofield R eds, Transcaucasian Boundaries (1996) p 34 at 37–39.
[307] Kaiser, n 6 above, pp 107–08, 111, 114.
[308] Yamskov I, “Nagorno Karabakh: Causes of the Conflict and Ways to Solve it” in Tishkov V ed, National Processes in the USSR: Problems and Trends (1991) p 129. The enclave has an Armenian majority of about 76%: Kaiser, n 6 above, p 361.
[309] Eg Kolosov VA, Ethno-Territorial Conflicts and Boundaries in the Former Soviet Union (1992); Kaiser, n 6 above, pp 362ff (various disputes amongst Georgians and Abkhazians, Moldovians and Turkic Gagauz/Slavic Russians/Ukranians). Sorel and Mehdi, n 6 above, at 39, n 161 cite reports of further disputes, eg, Poland and Lithuania, Poland and Ukraine, Romania and Bulgaria.
[310] On Soviet federalism historically; Gleason G, Federalism and Nationalism (1990); Swoboda N, A History of the Nationality Problems in the USSR (1990). The sovereignty of the republics was conceded by the Communist Party to be “largely formal”, Draft Nationalities Policy of the Party Under Present Conditions, adopted by the CPSU Central Committee Plenum, Pravda, 24 September 1989, pp 1–2.
[311] Constitution of the USSR, Articles 73 and 113.
[312] Article 74.
[313] Article 75.
[314] Article 70.
[315] Article 72.
[316] Article 81.
[317] Article 76.
[318] Arteria Info Ltd, in cooperation with Press Department of the Ministry of Foreign Affairs of the Czech Republic, Landmarks in the History of the Czech State (1994) p 5.
[319] Ibid, p 7.
[320] Ibid, p 17.
[321] Ibid, p 28.
[322] Sharp A, The Versailles Agreement: Peacemaking in Paris, 1919 (1991) p 148.
[323] Macartney, n 266 above, pp 73–76.
[324] Treaty for the General Delimitation of Frontiers of Federal States between Czech Republic and Slovak Republic of 29 October 1992, No 229/193. See Malenovsky, n 28 above, at 328.
[325] Malenovsky, n 28 above, at 328.
[326] Yakemtchouk R, Les Répubiques baltes en Droit international. Echec d'une annexion opérée en violation du Droit des Gens (1991) p 286.
[327] Ratner, n 134 above, at 590. Cf Sorel and Mehdi, n 6 above, at 39; Malenovsky, n 28 above.
[328] ‘If P then Q’ does not imply ‘If Q then P’. For example, uti possidetis is not necessarily the reason for the united Germany’s acceptance of its territorial limits in the Treaty on the Final Settlement with Respect to Germany 1990, reproduced in (1990) 29 ILM 1186 at 1187–89. Cf Antonopoulos, n 13 above, at 37.
[329] Dewey J, “Logical Method and Law” (1924) 10 Cornell Law Quarterly (1924) 17 at 20 (reproduced in Aarnio A and MacCormick DN eds, Legal Reasoning, vol II (1992) p 41 at 44).
[330] Germany and Italy recognised Slovenia and Croatia on 23 December 1991, with other States and international organisations extending recognition over subsequent months, culminating with admission of Slovenia, Croatia and Bosnia-Herzegoniva to the United Nations on 22 May 1992.
[331] This takes account of the absence of such collective intervention in Eastern Bloc States within the USSR’s sphere of influence (including Yugoslavia) during the Cold War era, such as the conspicuous non-responses of European States to the USSR’s intrusions into Hungary (1956) and Czechoslovakia (1968).
[332] The formulation “otherwise subject to” has been added: (1) to cover the possibility that the classification of the Yugoslavian break-up as a ‘dissolution’ may have been erroneous; and (2) to permit reference to State practice outside the Yugoslavian context which may provide evidence for the norm.
[333] See, eg, Anaya, n 4 above, at 842; Klabbers and Lefeber, n 78 above, at 44. Franck TM, “The Emerging Right to Democratic Governance” (1992) 86 American Journal of International Law 46; McGee RW, “The Theory of Secession and Emerging Democracies: A Constitutional Solution” (1992) 28 Stanford Journal of International Law 451; McCorquodale, n 231 above, at 864–65; Ratner, n 134 above, at 624 (referring to “constitutive changes in international law” which emphasise “participatory government”).
[334] See, eg, Conference on Security and Co-operation in Europe, Final Act, 1 August 1975, Principle VIII (1975) 14 ILM 1292 at 1295; (hereafter referred to as the Helskinki Final Act); Charter of Paris for New Europe (1991) 30 ILM at 19; GA Res 48/131, preambular para 2, UN GAOR, 48th Session, Supp No 49 at 250, UN Doc A/48/49 (1993) (UN assistance in elections for “building of institutions relating to human rights and the strengthening of a pluralistic civil society”). For data on UN supervised democratic elections see generally Beigbeder Y, International Monitoring of Plebiscites, Referenda and National Elections: Self-Determination and Transition to Democracy (1994).
[335] Eg, Weller, n 9 above, at 606; Hannum, n 10 above, at 39; Hanneman AJ, “Independence and Group Rights in the Baltics: A Double Minority Problem” (1995) 35 Virginia Journal of International Law 485 at 500–01, 524–28; Buchanan A, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (1991) pp 18–22, 151–62.
[336] Ratner, n 134 above, at 613.
[337] Ratner, n 134 above, at 616. Sanders D, “If Quebec secedes from Canada can the Cree Secede from Quebec?” (1995) 29 University of British Columbia Law Review 143.
[338] Eg, Louisiana v Mississippi[1906] USSC 55; , 201 US 1 (1906).
[339] Kunz JL, “International Law by Analogy” (1951) 45 American Journal of International Law 329 at 334.
[340] See, eg, Huber M, “The Intercantonal Law of Switzerland (Swiss Interstate Law)” (1909) 3 American Journal of International Law 62.
[341] See generally Ratner, n 134 above, at 602–08.
[342] See Aegean Sea Continental Shelf, Judgment, ICJ Rep 1978, p 3 at 35; Boggs SW, International Boundaries (1940) p 10.
[343] Paddison R, The Fragmented State: The Political Geography of Power (1983) p 29.
[344] See Affaire du Lac Lanoux (Espagne/France), n 108 above, at 307–08.
[345] See “Lotus”, Judgment No 9, (1927) PCIJ Ser A, No 10 pp 18–19; Murty, n 33 above, pp 236–37.
[346] Sorel and Mehdi, n 6 above, at 21–33.
[347] Kreca, n 238 above, pp 33–34. Cf Musgrave, n 9 above, p 202. Significant ethnic minorities were left in each of the total of six republics organised after the Second World War by President Tito to correspond to political units which had existed prior to the establishment of Yugoslavia in 1918 at Saint-Germain-en-Laye. See Burg SL, Conflict and Cohesion in Socialist Yugoslavia: Political Decision Making Since 1966 (1983) p 24.
[348] Bennett C, Yugoslavia’s Bloody Collapse: Causes, Course and Consequences (1995) p 16. See also Ratner, n 134 above, at 604 (“the administrative line … stands apart from the international border by the ease with which it may be crossed”).
[349] Ratner, n 134 above, at 609.
[350] Cohen WB, “The French Governors” in Gann LH and Duignan P eds, African Proconsuls: European Governors in Africa (1978) p 19 at 23–27.
[351] Luchaire F, Droit d'Outre-Mer (1959) pp 100–05; Roberts-Wray K, Commonwealth and Colonial Law (1966) pp 19–62.
[352] Dubai – Sharjah Border Arbitration n 38 above, at 579. See also Bowett DW, “The Dubai/Sharjah Boundary Arbitration of 1991” (1994) 65 British Yearbook of International Law 103.
[353] For this typology see Boggs SW, International Boundaries (1940) pp 28–31; Murty, n 33 above, pp 217–21.
[354] Eg, Constitution of the United States of America, Article IV, paragraph 3; Canadian Constitution Article 43; Australian Constitution ss 123–24; German Constitution Article 29.
[355] Sorel and Mehdi, n 6 above, at 39 (observing that uti possidetis is more justified where a federation of unitary States dissolves as contrasted with the dissolution of an aggregation of a federal State’s administrative divisions).
[356] La Pradelle, n 48 above, pp 86–87, Sorel and Mehdi, n 6 above, at 33; Ratner, n 134 above, at 617 (suggesting, by reference to the original Roman Law meaning of the principle, that it be used “to preserve the status quo only until States can resolve their competing claims”).
[357] Ratner, n 134 above, at 620 introduces these two factors, but does not identify the common thread — both factors evidence a consensual line, which in turn suggests greater stability. Ratner also suggests that geographic and economic viability should be relevant to the status of boundaries between human populations, but does so by adopting the rather unpersuasive analogy of cases delimiting maritime resources of the continental shelf, ibid, at nn 244, 245.
[358] Murty, n 33 above, p 219.
[359] Reeves, n 220 above, at 537; Yakemtchouk, n 14 above, p 67.
[361] Kratochwil et al, n 23 above.
[362] Van Caenegem RC, An Historical Introduction to Western Constitutional Law (1995) pp 13–35; Murty, n 33 above, pp 78, 106; Koskenniemi, n 4 above, at 251–53; Sorel and Mehdi, n 6 above, at 35.
[363] Rapaport J Muteba E and Therattil JJ, Small States and Territories: Status and Problems (1971) p 11.
[364] Eg, Nauru (pop 10,149) and Tuvalu (pop 9,991); United States CIA, World Factbook 1995.
[365] Crawford, n 244 above, p 247.
[366] Eg, dissolution of the Soviet bloc and formation of a ‘new’ Europe; Andrén N, “Federalism in the Setting of Globalism, Regionalism, and Nationalism” in Clesse et al, n 5 above, p 362; Klabbers and Lefeber, n 78 above, at 38 (“from time to time, stability is only achieved through change”).
[367] Waltz KN, “The Emerging Structure of International Politics” in Clesse et al, n 5 above, p 148; eg Israel has continued as a State despite persistent hostility (of varying degrees) with its neighbouring Arab States.
[368] Ratner, n 134 above, at 592. Note that Ratner concedes in n 12 that “international economic integration can mitigate” this problem (similarly, Kaiser, n 6 above, pp 339–40). However, he later restates the position in a different guise by suggesting that geographic and economic viability could be an alternative mechanism to uti possidetis modernis as a means of establishing the boundaries of new States; Ratner, n 134 above, at 621.
[369] Minorities: eg, International Covenant on Civil and Political Rights (1966) 999 UNTS 171, Article 27; Convention on the Rights of the Child (1989) 28 ILM 1989 at 1457, Article 30; Council of Europe, Framework Convention for the Protection of National Minorities (1995) 34 ILM 351. Indigenous Peoples: eg, Draft United Nations Declaration on the Rights of Indigenous Peoples in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its forty-sixth session, UN Doc E/CN.4/1995/2-E/CN.4/Sub.2/1994/56 at 105; (1995) 34 ILM 546.
[370] See eg, Guidelines on Recognition of New States in Eastern Europe and the Soviet Union, adopted by the European Community on 16 December 1991 (1993) 92 ILR at 173–74.
[371] Eg, SC Res 232 (1966) (economic sanctions against Southern Rhodesia). See generally Doxley M, Economic Sanctions and International Enforcement (1980).
[372] Eg, Russians in the Soviet Union, Serbs in Yugoslavia, Czechs in Czechoslovakia.
[373] Eg, Grisbadarna case (1909) Vol II UNRIAA 147; Legal Status of Eastern Greenland, Judgment, n 85 above. See also Anaya, n 4 above, at 840.
[374] Wa Mutua, n 2 above, at 1116, 1136–37, 1147.
[375] Wa Mutua, ibid, at 1114. Cf Shaw, n 47 above, at 119–20 (“the precarious stability of third world States, the vast majority of which are not nation-States”).
[376] Cohen L, Broken Bonds: The Disintegration of Yugoslavia (1993) pp 267–68; Musgrave, n 9 above, pp 203, 351; McCormack T, “From Solferino to Sarajevo” [1997] MelbULawRw 22; (1997) 21 Melbourne University Law Review 621 at 639.
[377] Donia RJ and Fine JVA, Bosnia and Hercegovina: A Tradition Betrayed (1994) pp 194–99.
[378] Ibid, p 211 (“Croatia’s President Tudjman and Serbia’s President Milosevic actively cultivated the discontent of their fellow nationals” in neighbouring republics); ibid, p 210 (“the State-controlled media gave a one-sided advantage to Milosevic in Serbia”). Thus in December 1990 Slovenia and Croatia “were not seceding from Yugoslavia, but from Milosevic’s vision of Yugoslavia”; Bennett C, Yugoslavia’s Bloody Collapse: Causes, Course and Consequences (1995) p 13. See also personal profile of Milosevic in Bennett, ibid, pp 83–85, 93–101. See further Iglar, n 227 above, at 217 (concerning the Communist Party’s victory in Serbia and Montenegro, and losses elsewhere, in the 1990 elections); Pajic Z, “Bosnia and Herzegovina: From Multiethnic Coexistence to ‘Apartheid’ ... and Back” in Akhavan P and Howse R eds, Yugoslavia the Former and Future: Reflections by Scholars from the Region (1995) p 152 at 154–61; Silber L and Little A, The Death of Yugoslavia (1995) p xxiii.
The phenomenon of mythologising the ‘homeland’ in support of nationalist goals, as seen in Serbian government policy, was also used (with less dire consequences) in respect of the push for independence from the USSR by Georgia, Ukraine, Azerbajdzhan, Moldovia and Belarus on the basis of their brief experiences of autonomy in the early part of the twentieth century; see Kaiser, n 6 above, p 94.
[379] Eg, the massacre by federal ‘police’ of 120 pro-democracy Albanian ‘rioters’ in Kosovo in March 1989; see Bennett, n 378 above, pp 10–11. Civil unrest and violence by authorities on the people of Kosovo was still underway in 1998 (on 6 May 1998 the Albanian Daily News at <http:www.albaniannews.com/> reported that 150 have been killed in fighting between ethnic separatists and Serbian forces since February 1998.
[380] Pfaff W, “Invitation to War” (1993) 72(3) Foreign Affairs 97 104; Donia and Fine, n 377 above, pp 239–40, 262–66 (Bosnian President Izetbegovic “had clung until the last moment to the hope of a political settlement”; ibid, p 239).
[381] Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, 49 UN SCOR, UN Doc S/1994/674/Add.2 (1994) Annex III.A. See also Bassiouni C and Manikas P, The Law of the International Criminal Tribunal for the Former Yugoslavia (1996) pp 44–47.
[382] New York Times (16 September 1996) pp A1, A9; (18 September 1996) pp A1, A8.
[383] General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes (Dayton Peace Accord) (1996) 35 ILM 75, Annex 4: The Constitution of Bosnia and Herzegovina, Article IV (3)(d) and (e), Article V (2)(d) and Article V(5)(a). See also Yee S, “The New Constitution of Bosnia and Herzegovina” (1996) European Journal of International Law 176.
[384] Bugajski J, “Policy Forum: Bosnia — After the Troops Leave” (1996) 19(3) Washington Quarterly 61.
[385] Ibid. See also Gaeta P, “The Dayton Agreements and International Law” (1996) 7 European Journal of International Law 147 at 158–60. Donia and Fine, n 377 above, p 121; Iglar, n 227 above, at 216; Musgrave, n 9 above, p 203 (indicating the original disparity between Serb and non-Serb perceptions of Yugoslav ‘unity’, ie centralist v confederational).
[386] Ratner, n 134 above, at 601.
[387] Slovenia may be the only State, or one of only a limited few States, which falls in the latter class.
[388] Thus the basis for a customary norm is “less than rock-solid”; Ratner, n 134 above, at 598.
[389] See, eg, in the Honduras Borders case, n 60 above; Gámez-Bonilla Treaty, Oct 7, 1894, Honduras–Nicaragua, Article II, paragraph 6; Case concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v Nicaragua), Judgment of 18 November 1960, n 116 above, at 199–200.
[390] See ibid, at 215.
[391] See Case concerning the Northern Cameroons, Judgment of 2 December 1963, n 87 above, at 21–25.
[392] See Sureda, n 10 above, pp 15–63.
[393] Ibid, n 10 above, pp 199–202.
[394] Brownlie, n 36 above, p 739. This may be an example of an historic dividing line prevailing over uti possidetis, in this case the local customary boundary between the two traditional Kingdoms of Ruanda and Urundi, leading to the separate statehood of neighbouring peoples.
[395] The significance of manifest consent is also mentioned by Antonopoulos, n 13 above, at 45 (stressing the need to be “cautious in applying the principle in the event of manifest disagreement between the relevant participants, ongoing conflict, and long-standing ethnic animosity”).
[396] Ratner, n 134 above, at 596.
[397] Treaty Concerning Common Boundary Between Czech and Slovak Republics 1996, on file at the Czech Republic Ministry of Foreign Affairs, Prague; Malenovsky, n 324 above, at 328ff.
[398] For example, in one instance there was an exchange of 452 hectares of territory, coupled with 50 million Kr relocation compensation from the Czech government to 55 Czechs in the village of U Sabotu who had been left in Slovakian territory as a result of the division; Lidové Noviny (12 June 1997) p 1.
[399] However, an example is provided by the dispute over the Falklands/Malvinas; Argentina argued for title based on, inter alia, uti possidetis, whereas Great Britain rejected the application of uti possidetis and instead claimed title of its own based on prescription (British occupation since 1833) and advocated the right to self-determination of the inhabitants; Greig, “Sovereignty and the Falkland Islands Crisis”, n 46 above, at 68; Kacowicz AM, Peaceful Territorial Change (1994) pp 154–77; Cohen-Jonathan G, “Les îles Falkland (Malouines)” (1972) 18 Annuaire Français de Droit International 235. See also Allcock et al, n 41 above, pp 551-61.
[400] “If the boundary which had historically emerged is not acceptable to the two sides now ... a boundary will have to be worked out ... afresh; and the negotiated boundary may not correspond to the historical boundary”; Murty, n 33 above, p 183.
[401] Munkman, n 59 above, at 47.
[402] See, eg, Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, n 26 above, at 88–89 (sep op Judge Ajibola).
[403] El Salvador case, n 22 above, at 631 (sep op Judge Torres Bernárdez).
[404] Udokang, n 214 above, pp 397–98. After all, uti possidetis “is not to be conceived in the absolute; it has always to be interpreted in the light of its function” Burkina Faso case, n 14, at 661 (per Judge ad hoc Abi-Saab) — this function essentially being to assist in boundary dispute resolution
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