Uti
possidetis
Uti
possidetis (Latin for "as you possess") is a principle in
international law that territory and other property remains with its possessor
at the end of a conflict, unless otherwise provided for by treaty; if such a
treaty doesn't include conditions regarding the possession of property and
territory taken during the war, then the principle of uti possidetis will
prevail.[1] Originating in Roman law, the phrase is derived from the Latin expression
uti possidetis, ita possideatis, meaning "may you continue to possess such
as you do possess" (lit., "as you possess, thus may you
possess"). This principle enables a belligerent party to claim territory
that it has acquired by war.
In
the early 17th century, the term was used by England's James I to state that
while he recognized the existence of Spanish authority in those regions of the
Western Hemisphere where Spain exercised effective control, he refused to
recognize Spanish claims to exclusive possession of all territory west of
longitude 46° 37' W under the Treaty of Tordesillas.
More
recently, the principle has been used in a modified form (see Uti possidetis
juris) to establish the frontiers of newly independent states following
decolonization, by ensuring that the frontiers followed the original boundaries
of the old colonial territories from which they emerged. This use originated in
South America in the 19th century with the withdrawal of the Spanish Empire.[2]
By declaring that uti possidetis applied, the new states sought to ensure that
there was no terra nullius in South America when the Spanish withdrew and to
reduce the likelihood of border wars between the newly independent states and
the establishment of new European colonies.
The
same principle was applied to Africa and Asia following the withdrawal of
European powers from those continents, and in locations such as the former
Yugoslavia and the Soviet Union where former centralized governments fell, and
constituent states gained independence. In 1964 the Organisation of African
Unity passed a resolution stating that the principle of stability of
borders—the key principle of uti possidetis—would be applied across Africa.
Most of Africa was already independent by this time, so the resolution was
principally a political directive to settle disputes by treaty based on
pre-existing borders rather than by resorting to force. To date, adherence to
this principle has allowed African countries to avoid border wars; the notable
exception, the Eritrean–Ethiopian War of 1998–2000, had its roots in a
secession from an independent African country rather than a conflict between
two decolonized neighbours.[citation needed] On the other hand, the colonial
boundaries often did not follow ethnic lines, and this has helped lead to
violent and bloody civil wars among differing ethnic groups in many
post-colonial (and post-Communist) countries, including Sudan, the Democratic
Republic of the Congo, Angola, Nigeria, Uganda, Georgia, Azerbaijan, Moldova
and the former Yugoslavia.[3]
The
principle was affirmed by the International Court of Justice in the 1986 Case
Burkina-Faso v Mali:
[Uti
possidetis] is a general principle, which is logically connected with the
phenomenon of obtaining 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 changing of frontiers following the
withdrawal of the administering power.
===================================================
uti
possidetis juris
uti
possidetis juris (UPJ) is a principle of customary international law that
serves to preserve the boundaries of colonies emerging as States. Originally applied to establish the
boundaries of decolonized territories in Latin America, UPJ has become a rule
of wider application, notably in Africa.
The policy behind the principle has been explained by the International
Court of Justice in the Frontier Dispute (Burkina Faso/Mali)
Case:
[UPJ
is a] general principle, which is logically connected with the phenomenon of
the obtaining of independence, wherever it occurs. It's 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…Its purpose, at the time of the
achievement of independence by the former Spanish colonies of America, was to
scotch any designs which non-American colonizing powers might have on regions
which had been assigned by the former metropolitan State to one division or
another, but which were still uninhabited or unexplored.
Case
Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Judgment,
22 December 1986,
********
=====================================
Max Planck Institute
for Comparative Public Law
and International Law
II.
Substantive International Law -
Second Part
1.
TERRITORY OF STATES
1.2.
Boundaries
1.2.4. Principle of "uti possidetis"
Frontier
Dispute, Judgment
(Burkina Faso/Republic of Mali)
I.C.J. Reports 1986, p. 554
[pp.
565-567] Since the two Parties have, as noted above, expressly requested the
Chamber to resolve their dispute on the basis, in particular, of the
"principle of the intangibility of frontiers inherited from
colonization", the Chamber cannot disregard the principle of uti
possidetis juris, the application of which gives rise to this respect for
intangibility of frontiers. Although there is no need, for the purposes of the
present case, to show that this is a firmly established principle of
international law where decolonization is concerned, the Chamber nonetheless
wishes to emphasize its general scope, in view of its exceptional importance
for the African continent and for the two Parties. In this connection it should
be noted that the principle of uti possidetis seems to have been first invoked
and applied in Spanish America, inasmuch as this was the continent which first
witnessed the phenomenon of decolonization involving the formation of a number
of sovereign States on territory formerly belonging to a single metropolitan
State. Nevertheless 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.
It was for this reason that, as soon as the
phenomenon of decolonization characteristic of the situation in Spanish America
in the 19th century subsequently appeared in Africa in the 20th century, the
principle of uti possidetis, in the sense described above, fell to be applied.
The fact that the new African States have respected the administrative
boundaries and frontiers established by the colonial powers must be seen not as
a mere practice contributing to the gradual emergence of a principle of
customary international law, limited in its impact to the African continent as
it had previously been to Spanish America, but as the application in Africa of
a rule of general scope.
The elements of uti possidetis were latent in
the many declarations made by African leaders in the dawn of independence.
These declarations confirmed the maintenance of the territorial status quo at
the time of independence, and stated the principle of respect both for the
frontiers deriving from international agreements, and for those resulting from
mere internal administrative divisions. The Charter of the Organization of
African Unity did not ignore the principle of uti possidetis, but made only
indirect reference to it in Article 3, according to which member States
solemnly affirm the principle of respect for the sovereignty and territorial
integrity of every State. However, at their first summit conference after the
creation of the Organization of African Unity, the African Heads of State, in
their Resolution mentioned above (AGH/ Res. 16 (I)), adopted in Cairo in July
1964, deliberately defined and stressed the principle of uti possidetis juris
contained only in an implicit sense in the Charter of their organization.
There are several different aspects to this
principle, in its well-known application in Spanish America. The first aspect,
emphasized by the Latin genitive juris, is found in the pre-eminence accorded
to legal title over effective possession as a basis of sovereignty. Its
purpose, at the time of the achievement of independence by the former Spanish
colonies of America, was to scotch any designs which non-American colonizing
powers might have on regions which had been assigned by the former metropolitan
State to one division or another, but which were still uninhabited or
unexplored. However, there is more to the principle of uti possidetis than this
particular aspect. The essence of the principle lies in its primary aim of
securing respect for the territorial boundaries at the moment when independence
is achieved. Such territorial boundaries might be no more than delimitations
between different administrative divisions or colonies all subject to the same
sovereign. In that case, the application of the principle of uti possidetis
resulted in administrative boundaries being transformed into international
frontiers in the full sense of the term. This is true both of the States which
took shape in the regions of South America which were dependent on the Spanish
Crown, and of the States Parties to the present case, which took shape within
the vast territories of French West Africa. Uti possidetis, as a principle
which upgraded former administrative delimitations, established during the
colonial period, to international frontiers, is therefore a principle of a
general kind which is logically connected with this form of decolonization
wherever it occurs.
The territorial boundaries which have to be
respected may also derive from international frontiers which previously divided
a colony of one State from a colony of another, or indeed a colonial territory
from the territory of an independent State, or one which was under
protectorate, but had retained its international personality. There is no doubt
that 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. Hence the
numerous solemn affirmations of the intangibility of the frontiers existing at
the time of the independence of African States, whether made by senior African
statesmen or by organs of the Organization of African Unity itself are
evidently declaratory rather than constitutive: they recognize 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.
However, it may be wondered how the
time-hallowed principle has been able to withstand the new approaches to
international law as expressed in Africa, where the successive attainment of
independence and the emergence of new States have been accompanied by a certain
questioning of traditional international law. 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. The essential requirement of stability in order to survive, to
develop and gradually to consolidate their independence in all fields, has
induced African States judiciously to consent to the respecting of colonial
frontiers, and to take account of it in the interpretation of the principle of
self-determination of peoples.
Thus the principle of uti possidetis has kept
its place among the most important legal principles, despite the apparent
contradiction which explained its coexistence alongside the new norms. Indeed
it was by deliberate choice that African States selected, among all the classic
principles, that of uti possidetis. This remains an undeniable fact. In the
light of the foregoing remarks, it is clear that the applicability of uti
possidetis in the present case cannot be challenged merely because in 1960, the
year when Mali and Burkina Faso achieved independence, the Organization of
African Unity which was to proclaim this principle did not yet exist, and the
above-mentioned resolution calling for respect for the preexisting frontiers
dates only from 1964.
[p.
568] By becoming independent, a new State acquires sovereignty with the
territorial base and boundaries left to it by the colonial power. This is part
of the ordinary operation of the machinery of State succession. International
law - and consequently the principle of uti possidetis - applies to the new
State (as a State) not with retroactive effect, but immediately and from that
moment onwards. It applies to the State as it is, i.e., to the "photograph"
of the territorial situation then existing. The principle of uti possidetis
freezes the territorial title; it stops the clock, but does not put back the
hands. Hence international law does not effect any renvoi to the law
established by the colonizing State, nor indeed to any legal rule unilaterally
established by any State whatever; French law - especially legislation enacted
by France for its colonies and territoires d'outre-mer - may play a role not in
itself (as if there were a sort of continuum juris, a legal relay between such
law and international law), but only as one factual element among others, or as
evidence indicative of what has been called the "colonial heritage",
i.e., the "photograph of the territory" at the critical date.
[pp.
586-587] Apart from the texts and maps listed above, the Parties have invoked
in support of their respective contentions the "colonial
effectivités", in other words, the conduct of the administrative
authorities as proof of the effective exercise of territorial jurisdiction in
the region during the colonial period. For Burkina Faso, the effectivités can
support an existing title, whether written or cartographical, but when their
probative value has to be assessed they must be systematically compared with the
title in question; in no circumstances can they be substituted for the title.
For its part, Mali admits that in principle the effectivités cannot be brought
into operation where they are contrary to the text of a treaty, but argues that
in a situation where there is no boundary described in conventional or
legislative form, it is necessary to ascertain the boundary by other methods,
and an investigation of the effectivités then becomes essential. The role
played in this case by such effectivités is complex, and the Chamber will have
to weigh carefully the legal force of these in each particular instance. It
must however state forthwith, in general terms, what legal relationship exists
between such acts and the titles on which the implementation of the principle
of uti possidetis is grounded. For this purpose, a distinction must be drawn
among several eventualities. Where the act corresponds exactly to law, where
effective administration is additional to the uti possidetis juris, the only
role of effectivité is to confirm the exercise of the right derived from a
legal title. Where the act does not correspond to the law, where the territory
which is the subject of the dispute is effectively administered by a State
other than the one possessing the legal title, preference should be given to
the holder of the title. In the event that the effectivité does not co-exist
with any legal title, it must invariably be taken into consideration. Finally,
there are cases where the legal title is not capable of showing exactly the
territorial expanse to which it relates. The effectivités can then play an
essential role in showing how the title is interpreted in practice.
[pp. 661-662 S.O. Abi-Saab] The purpose of
this frantic search for a "written legal title", turning anything and
everything into account, is to satisfy a particular conception of the uti
possidetis principle.
However, this principle, like any other, is
not to be conceived in the absolute; it has always to be interpreted in the
light of its function within the international legal order.
At first sight, it may indeed seem paradoxical
that peoples that have struggled for their independence should set so much
store by their "colonial heritage". At the beginning, however, at the
time when the Latin American countries were achieving independence, the
principle of uti possidetis was formulated to serve a dual purpose: first, a
defensive purpose towards the rest of the world, in the form of an outright
denial that there was any land without a sovereign (or terra nullius) in the
decolonized territories, even in unexplored areas or those beyond the control
of the colonizers; secondly, a preventive purpose: to avoid or at least to
minimize conflict occurring in the relationships among the successors, by
freezing the carved-up territory in the format it exhibited at the moment of
independence.
These two objectives therefore postulate the
existence of a boundary, an impermeable territorial division, at the moment of
independence. This hypothesis can only be factually verified in each case if a
boundary is taken to mean a "line" in the geometric sense of the word.
Otherwise it will be the inevitable fate of the principle of uti possidetis to
operate as a mere fiction that jars with reality.
This is because a minimum of two points will
always suffice for the definition of a line if one starts from the geometric
concept of a "line" as "generated by the motion of a point"
(Encyclopaedia Britannica, 11th ed.). In this sense there would always be a
line to satisfy the logical requirements for the functioning of the uti
possidetis principle. But if one starts from the common idea of a line as a
concrete trace every point on which is specifically identifiable, it is far
from likely that the postulate could be shown as realized in every instance.
By proceeding from the geometric concept of a
line, which is alone capable of reconciling the principle of uti possidetis
with the facts, we can state that there is always a line which defines the
outer limit of lawful possession. But the scope of a court's role in
identifying that line will vary inversely to the extent of its having taken
concrete shape. The fewer the points (or points of reference) involved in its
definition, the greater the court's "degrees of freedom" (in the
statistical sense). And it is here that considerations of equity infra legem
(mentioned in paragraph 28 of the Judgment) come into play, to guide the court
in the exercise of this freedom when interpreting and applying the law and the
legal titles involved.
